These General Terms and Conditions (GTC) apply to all deliveries of goods and services agreed between Anker Kassensysteme GmbH (hereinafter “Anker” and “we”) and the Customer, insofar as no contradictory terms are specified in any previously concluded agreement and/or its annexes (hereinafter “Agreement”) and the Customer is an entrepreneur (§ 14 German Civil Code (BGB)).
1. Alternative terms and agreements put forward by the Customer are herewith denied insofar as they have not been expressly agreed in writing. The same applies to the rescission of this written form requirement. Any such agreement shall only apply in individual cases and not to any goods or services supplied in the past or future.
2. Order process and conclusion of contract: Orders for goods and services are placed by sending ANKER an ANKER order form signed by the Customer or a signed customer order form. An order is considered to have been accepted by ANKER and the sales contract concluded when ANKER confirms this by sending a separate order confirmation, signing the order form or when ANKER begins supplying the products and/or services ordered.
3. Confidential information: ANKER and the Customer (“the Parties”) shall actively adopt all the measures required to protect the confidential information and expertise provided by the disclosing Party; the minimum measures required are those implemented by the receiving Party to protect its own confidential information. Confidential information is understood to comprise all information that is classified and marked by either Party as “confidential” and that must be classified as confidential as per the circumstances of the disclosure. Besides cost estimates, drawings and calculations placed at the Customer’s disposal during negotiations and when executing the contract, the information provided by ANKER containing the work results and relevant documentation is also deemed confidential. The Parties shall refrain from disclosing part or all of the other Party’s confidential information to third parties, with the exception of staff or consultants who need access to it. Information that was generally published without the imposition of a confidentiality undertaking and information disclosed in response to official or judicial instructions or in compliance with statutory regulations is not deemed confidential. Moreover, ANKER and the Customer shall uphold the data protection laws with regard to the other Party’s personal data insofar as the implementation of the underlying process is affected. When rendering its services, ANKER shall process personal data solely on the Customer's instructions. If the Customer provides personal data in order to remedy a defect, the Customer shall be responsible for ensuring that the data complies with the regulations in the Federal Data Protection Act (BDSG). The terms in this clause shall remain in force after this Agreement expires.
4. Delivery, transfer of risk and insurance: All deliveries shall be made EXW ANKER delivery outlet as specified in the INCOTERMS 2010. Insurance cover shall only be obtained at the Customer's request and expense.
5. Delivery dates are only binding if agreed in writing. Compliance with these presupposes that the Customer has met all duties of cooperation and payment obligations.
6. ANKER reserves the right to deliver the order in parts provided all parts are delivered by the specified delivery date and the Customer can be reasonably expected to accept this mode of delivery.
7. If delivery is delayed due to unforeseen events such as force majeure, war, natural disasters or other unavoidable causes which are outside our sphere of influence and for which we are not responsible, we shall be exempted from our obligation to deliver the order punctually for as long as the disruption persists. We will notify the Customer of any such event immediately. If the end of the disruption cannot be foreseen, or if it lasts for longer than two months, both Parties shall be entitled to withdraw from the Agreement.
8. If the Customer requires any amendment to the product or service to be supplied, we shall comply with his request insofar as this is possible; the Customer shall bear the costs incurred by the change in addition to the payment specified in the Agreement.
9. Payment terms: All invoices shall be paid without deductions in accordance with the terms specified in the Agreement. If no payment term has been agreed, they shall be paid immediately. If the Customer defaults on payment, he shall pay default interest as per the statutory regulations. We reserve the right to claim compensation for any additional damages.
10. Our prices do not include the VAT valid on the date of invoice or the delivery costs ex ANKER delivery outlet; these are disclosed separately in the invoice and will be added to the price of the goods and/or services ordered.
11. Price list: The supply of products and services not agreed in the contract shall be charged separately as per the price list valid at the time we received the order.
12. The Customer may only offset receivables that are undisputed or legally binding against the invoice amount. Our consent to any such set-off must be obtained in advance.
13. The Customer may only exercise any right of retention in association with undisputed or legally binding receivables that arose from the same contractual relationship.
14. The Customer acknowledges that the goods may be subject to US and/or German export law and regulations. The Customer shall undertake to comply with these laws and regulations at his own expense. The Customer shall obtain any official permits required for such transactions in advance. Insofar as the Parties do not agree an alternative in writing, the goods are intended solely for use in the destination country specified in the delivery address.
15. Liability for material defects: If any goods supplied by us, including standard software, turn out to be defective, the Customer shall be entitled to demand subsequent performance. We will use our own discretion to decide whether to remedy the defect or replace the defective product with an intact one; instructing the customer on reasonable ways to avoid the consequences of the defect is also considered to be a remedy. If replacements are sent, the Customer shall undertake to return the goods originally delivered.
16. If we refuse subsequent performance, if the subsequent performance fails or if the Customer cannot be reasonably expected to accept subsequent performance, the Customer shall be entitled – insofar as the breach of contract is more than minor – to reduce the price or withdraw from the Agreement. If appropriate, he may also demand compensations for damages and/or expenses incurred. If the Customer withdraws from the Agreement, he shall return the items delivered to us.
The Customer shall bear the costs of returning the goods for supplementary performance.
Customer claims for compensation of the costs necessary for subsequent performance, particularly transport costs, are herewith excluded insofar as these costs are increased because the Customer or a third party subsequently relocated the goods to a place other than the place of delivery; this does not apply if this relocation was agreed with us at the time the Agreement was concluded.
17. If a third party asserts a claim against the Customer stating that the use or possession of the object we supplied to the Customer violates the third party’s rights, ANKER shall defend the Customer and indemnify him from this claim provided: (a) ANKER is immediately notified of the claim; (b) the Customer provides ANKER with the information and support required for his defence; and (c) insofar as this is legally admissible, the Customer allows ANKER to settle the dispute with the third party at its own expense in and/or out of court without the Customer's involvement. Agreements between the Customer and the third party shall only be binding on ANKER if ANKER agrees to this in writing.
18. If a violation is established by law and the use or possession of the item supplied by ANKER is forbidden as a result, ANKER may choose at its own discretion (a) to replace the item with another product whose function and performance is largely similar to the item originally delivered, (b) to provide the Customer with an amended product, the use or possession of which no longer constitutes a violation of third-party rights, (c) to procure the Customer the right to continue using or possessing the item, or (d) to have the item returned.
19. In the event of any termination of use or return of the product by the Customer as described above, we shall reimburse the residual value of the payment made by the Customer for the violating item. The residual value is calculated on the basis of the amount agreed and paid less a deduction for wear and tear. This deduction is calculated on the basis of a useful product life of three (3) years from the time of delivery.
20. ANKER has no warranty obligations and is not obliged to pay compensation if a defect is caused by any of the following actions or circumstances: (a) the Customer specified the form, content or functionality of the item supplied by us, the development and use of which constitutes a violation of rights, (b) the Customer or any of his agents (with the exception of ANKER and its agents) amended or modified the item (without ANKER’s consent), (c) the item concerned was used by the Customer or a third party acting on the Customer’s behalf in combination with other software, hardware, data or specifications not recommended by ANKER; (d)the Customer was notified of remedies or modifications that would presumably have avoided the violation of third party rights but did not install these, (e) the Customer did not use the item supplied by ANKER correctly.
21. Customer rights in the event of defects: Written notification of any defects must be sent to us immediately, i.e. within a week of receiving the goods. Defects that were not found within this period despite careful inspection must be reported to us immediately after discovery.
In the event of justified complaints, we have the right to repair or replace the goods at our discretion within an appropriate deadline of at least 14 days. If this subsequent performance is unsuccessful, the Customer – insofar as the breach of contract is more than minor – may reduce the price or withdraw from the Agreement. If the Customer withdraws from the Agreement, he shall return the items delivered to us.
Customer claims for compensation of the costs necessary for subsequent performance, particularly transport, road, labour and material costs, are herewith excluded insofar as these costs are increased because the Customer or a third party subsequently relocated the goods to a place other than the place of delivery; this does not apply if this relocation was agreed with us at the time the Agreement was concluded.
We shall only be liable for damage caused by defects in the item delivery if we or our agents acted wilfully or with gross neglect or violated a major contractual obligation. A major contractual obligation is an obligation, the fulfilment of which facilitates the implementation of the contract and which the Customer can expected to be fulfilled.
We are not obliged to pay compensation for unforeseeable excess damages. This liability limitation expressly does not apply if the violation of a contractual obligation makes us liable for loss of life, bodily injury or damage to health.
If we assume a guarantee for specific properties to be evinced by the item supplied, the liability limitation terms specified in the paragraph above shall not apply. Claims asserted as per the Product Liability Act shall remain unaffected.
We are not liable for the goods being suitable for the Customer’s intended purpose, insofar as this purpose is not an integral part of this Agreement. When providing technical consulting services for applications, we shall be held liable for wilful intent and gross neglect.
22. Liability limitation, compensation: Insofar as these terms do not stipulate otherwise, we shall be held liable for violations of contractual and non-contractual obligations as per the relevant statutory regulations. We are responsible for proving that our liability for any incident triggering a claim is limited.
We shall be liable for instances of wilful intent and gross neglect, irrespective of the legal grounds. In the event of simple neglect, we shall only be liable a) for loss of life, bodily injury or damage to health, and b) for damages resulting from the violation of a cardinal obligation (an obligation that must be met for the contract to be properly executed and on the fulfilment of which the Customer may reasonably depend). In such instances, our liability shall be limited to the payment of compensation for typical, predictable damage.
The liability limitations specified in paragraph 2 above shall not apply if we fraudulently concealed a defect or assumed a guarantee for the properties of the goods. Neither shall liability limitations apply to claims asserted by the Customer as per the Product Liability Act.
In the event of a violation of obligations not based on a defect, the Customer may only rescind that part of his order or withdraw from that part of the Agreement, the violation of which we are responsible for. Otherwise, the legal conditions and consequences shall apply.
The Customer shall be entitled to compensation in the event of delays in delivery if the delay is our responsibility and if delivery is delayed by more than 110 days; this compensation shall be limited to 5 % of the net purchase price unless the delay in delivery was caused wilfully or by gross neglect on our part.
23. Limitation period: The general limitation period for claims relating to defects in quality and title is one year from delivery.
This does not affect special legal regulations for claims in rem (§ 438 par. 1 no. 1 German Civil Code (BGB)) in the event of fraudulent behaviour on our part and for claims relating to supplier recourse on final delivery to the consumer as per § 479 BGB.
The limitation periods specified in the law governing contracts of sale also apply to contractual and non-contractual claims asserted by the Customer on the basis of a product defect unless the application of the regular statutory limitation periods as per §§ 195, 199 BGB would shorten the limitation period.
The limitation periods specified in the Product Liability Act remain unaffected. Otherwise, the statutory limitation periods shall find sole application for Customer compensation claims as per no. 23.
24. Retention of title: The goods supplied shall remain our property until they have been paid for in full. The Customer is not entitled to pledge the goods, assign them as security or dispose of them in any other way that may affect the ownership thereof. The Customer shall notify us immediately of any third-party access to the goods subject to retention of title (reserved goods), particularly in the event of enforcement measures or other confiscations, and also of any damage to the reserved goods.
25. Subcontractors: We are entitled to request subcontractors to render the services specified in the Agreement; this does not affect our liability for fulfilment.
26. Assignment: With the exception of monetary claims, the Client is not entitled to assign his rights from this agreement.
27. Amendments and additions to all contractual terms must be made in writing; e-mails and faxes are also deemed to meet this requirement.
28. Applicable law: This agreement is subject to German law and excludes the United Nations Convention on the International Sale of Goods.
29. Place of jurisdiction: The places of jurisdiction for all disputes arising from or in connection with this agreement are the competent courts in Bielefeld. However, we are also entitled to use other jurisdictional courts.
Bielefeld, 11 February 2016