§ 1 APPLICATION OF THE TERMS AND CONDITIONS
(1.1) The deliveries, services and offers of ComputerButler shall be made exclusively on the basis of these terms and conditions. These shall therefore also apply to all future business relations, even if they are not expressly agreed again. The terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services. Counter-confirmations of the buyer with reference to his business conditions or conditions of purchase are hereby contradicted.
(1.2) All agreements made between Computer Butler and the buyer for the purpose of executing this contract are to be recorded in writing in this contract.
§ 2 OFFER AND CONCLUSION OF CONTRACT
(2.1) The offers of ComputerButler are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of ComputerButler to be legally effective.
(2.2) Cancellation of an order requires written confirmation by our company.
(2.3) An order is binding on the customer and obliges him to fulfil the purchase contract. If the Customer refuses to accept the goods and Computer Butler waives acceptance, Computer Butler shall be entitled to compensation in the amount of 30 % of the sales price. The customer reserves the right to prove a lower damage. Computer Butler may likewise prove a higher damage in the individual case.
(2.4) Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
(2.5) The sales employees of ComputerButler are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.
§ 3 PRICES
(3.1) Unless otherwise stated, Computer Butler shall be bound by the prices contained in its offers for 14 days from their date. The prices stated in ComputerButler's order confirmation plus the respective statutory value added tax shall be decisive. Additional deliveries and services shall be charged separately.
(3.2) Unless otherwise agreed, prices are FOB warehouse (location) including normal packaging.
(3.3) If the price changes after placing the order, but before acceptance by Computer Butler, the customer will be informed immediately.
§ 4 DELIVERY AND PERFORMANCE PERIOD
(4.1) Delivery dates or deadlines, which may be agreed as binding or non-binding, must be in writing.
(4.2) Delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for Computer Butler. This includes in particular strikes, lockouts, official orders etc., even if they occur at Computer Butler's suppliers or their sub-suppliers, Computer Butler shall not be responsible even in the case of bindingly agreed deadlines and dates. They shall entitle Computer Butler to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
(4.3) If the impediment lasts longer than three months, the Buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if Computer Butler is released from its obligation, the buyer cannot derive any claims for damages from this. Computer Butler can only invoke the aforementioned circumstances if it notifies the buyer immediately.
(4.4) Insofar as ComputerButler is responsible for non-compliance with bindingly agreed deadlines and dates or is in default, Buyer shall be entitled to compensation for default in the amount of 1/2 % for each full week of default, but in total not more than 3 % of the invoice value of the deliveries and services affected by the default. Further claims are excluded, unless the delay is due to at least gross negligence on the part of ComputerButler.
(4.5) Computer Butler is entitled to partial deliveries and partial services at any time.
(4.6) Compliance with the delivery and performance obligations of ComputerButler shall require the timely and proper fulfillment of the obligations of the buyer.
(4.7) If the buyer is in default of acceptance, Computer Butler is entitled to demand compensation for the damage incurred; with the occurrence of the default of acceptance, the risk of accidental deterioration and accidental loss passes to the buyer.
§ 5 TRANSFER OF RISK
The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left ComputerButler's warehouse for the purpose of dispatch. If dispatch becomes impossible through no fault of ComputerButler, the risk shall pass to the buyer upon notification of readiness for dispatch.
§ 6 WARRANTY
(6.1) Computer Butler warrants that the products are free from manufacturing and material defects; the warranty period is six months and begins on the date of delivery.
(6.2) If operating or maintenance instructions of ComputerButler are not followed, changes are made to the products, parts are exchanged or consumables are used that do not correspond to the original specifications, any warranty shall be void if the buyer does not refute a corresponding substantiated claim that only one of these circumstances has caused the defect!
(6.3) The Buyer must notify ComputerButler's customer service management of defects in writing without delay, but at the latest within one week of receipt of the delivery item. Defects that cannot be discovered within this period even with careful inspection must be reported to ComputerButler in writing immediately after discovery.
(6.4) In the event that Buyer notifies Computer Butler that the Products do not conform to the warranty, Computer Butler shall, at its option and expense, require that:
a) the defective part or device is sent to Computer Butler for repair and subsequent return;
b) the buyer keeps the defective part or device ready and a service technician of ComputerButler is sent to the buyer to carry out the repair.
If the buyer requests that warranty work be carried out at a location specified by him, Computer Butler may comply with this request, whereby parts covered by the warranty shall not be charged, while working time and travel expenses shall be paid at Computer Butler's standard rates.
(6.5) A right to rectify defects three times is agreed. If the rectification of defects fails after a reasonable period of time, the Buyer may, at its option, demand a reduction of the remuneration or rescission of the contract.
(6.6) Liability for normal wear and tear is excluded.
(6.7) Warranty claims against the computer butler are entitled only to the direct buyer and are not transferable.
(6.8) The above paragraphs conclusively contain the warranty for the products and exclude other warranty claims of any kind. This shall not apply to claims for damages arising from warranties of quality which are intended to protect the Buyer against the risk of consequential damage caused by defects.
§ 7 SPARE PARTS
Computer Butler will supply spare parts for a machine for a period of three years from the date of delivery of the machine at the applicable spare parts prices.
§ 8 RESERVATION OF TITLE
(8.1) Until all claims (including all balance claims from current account), to which Computer Butler is entitled against the buyer for any legal reason now or in the future, have been fulfilled, Computer Butler shall be granted the following securities, which it shall release on request at its discretion, insofar as their value exceeds the claims by more than 20 % on a sustained basis.
(8.2) The goods shall remain the property of ComputerButler until full cash payment has been made. Processing or transformation shall always be carried out for ComputerButler as manufacturer, but without any obligation on its part. If ComputerButler's (co-)ownership expires as a result of combination, it is hereby agreed that Buyer's (co-)ownership of the uniform item shall pass to ComputerButler on a pro rata basis (invoice value). The buyer shall keep the (co-)ownership of Computer Butler free of charge. Goods to which Computer Butler is entitled to (co-)ownership shall hereinafter be referred to as reserved goods.
(8.3) The Buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The buyer hereby assigns to Computer Butler by way of security all claims arising from the resale or any other legal reason (insurance, tort) in respect of the goods subject to retention of title (including all current account balance claims). Computer Butler revocably authorizes him to collect the claims assigned to Computer Butler for his account in his own name. This collection authorization can only be revoked if the buyer does not properly meet his payment obligations.
(8.4) In the event of access by third parties to the reserved goods, in particular seizures, the Buyer shall point out ComputerButler's ownership and notify ComputerButler immediately so that ComputerButler can enforce its ownership rights. Insofar as the third party is not in a position to reimburse Computer Butler for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for these.
(8.5) In the event of breach of contract by the Buyer, in particular default in payment, Computer Butler shall be entitled to take back the reserved goods or, if necessary, to demand assignment of the Buyer's claims for return against third parties. The taking back or seizure of the reserved goods by Computer Butler does not constitute a withdrawal from the contract.
§ 9 PAYMENT
(9.1) Our invoices are payable immediately upon receipt of the goods against cash on delivery or cheque without deductions.
Computer Butler shall be entitled, despite any provisions of the buyer to the contrary, to set off payments first against the buyer's older debts and shall inform the buyer of the type of set-off made. If costs and interest have already been incurred, Computer Butler shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.
(9.2) A payment shall only be deemed to have been made when Computer Butler can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque is cashed.
(9.3) If the Buyer is in default, Computer Butler shall be entitled to demand interest from the relevant point in time in the amount of 4 % above the respective discount rate of the Deutsche Bundesbank as flat-rate compensation. They are to be set lower if the buyer proves a lower burden; the proof of a higher damage by Computer Butler is permissible.
(9.4) If Computer Butler becomes aware of circumstances that call into question the creditworthiness of the buyer, in particular if the buyer does not honour a cheque or stops payments, or if Computer Butler becomes aware of other circumstances that call into question the creditworthiness of the buyer, Computer Butler shall be entitled to call due the entire remaining debt, even if it has accepted cheques. In this case, Computer Butler is also entitled to demand advance payments or the provision of security.
(9.5) The Buyer shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the purchaser is also entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship! Other payment agreements require the written confirmation of Computer Butler to be valid.
§ 10 DESIGN CHANGES
Computer Butler reserves the right to make design changes at any time; however, Computer Butler is not obligated to make such changes to products already delivered.
§ 11 PATENTS
(11.1) ComputerButler shall indemnify the Buyer and its customers against claims arising from infringements of copyrights, trademarks or patents, unless the design of a delivery item originates from the Buyer. ComputerButler's obligation to indemnify shall be limited in amount to the foreseeable damage.
An additional prerequisite for the exemption is that Computer Butler is left to conduct legal disputes and that the alleged infringement is exclusively attributable to the construction of Computer Butler's delivery items without connection or use with other products.
(11.2) The Computer Butler has the optional right to release himself from the obligations assumed in paragraph (11.1) by either
(a) obtain the necessary licences in respect of the patents allegedly infringed; or
b) provides the Buyer with a modified delivery item or parts thereof which, in the event of replacement with the infringing delivery item or part thereof, eliminate the allegation of infringement with regard to the delivery item.
§ 12 SECRECY
Unless expressly agreed otherwise in writing, the information submitted to Computer Butler in connection with orders shall not be considered confidential.
§ 13 LIMITATION OF LIABILITY
Claims for damages from positive breach of contract, from culpa in contrahendo and from tort are excluded against Computer Butler as well as against its vicarious agents, as far as there is no intentional or grossly negligent action.
In particular, no liability is accepted for loss of profit and other financial losses.
This also applies to claims for damages due to non-fulfilment, but only to the extent that compensation for indirect or consequential damage is demanded, unless the liability is based on an assurance intended to protect the purchaser against the risk of such damage. Any liability shall be limited to the damage foreseeable at the time of conclusion of the contract. In any case, a liability of ComputerButler under the Product Liability Act and other claims from producer liability remain unaffected.
§ 14 APPLICABLE LAW, PLACE OF JURISDICTION, PARTIAL INVALIDITY
(14.1) The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between Computer Butler and the buyer.
(14.2) Insofar as the purchaser is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Fürth shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(14.3) Should a provision in these terms and conditions or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.