General terms of trade of DELO Computer GmbH (LTD)

1. Extent of validity

The following terms of delivery apply to all present and future deliveries and services provided that they are not amended or excluded in writing explicitly. Conditions of the buyer and additional agreements which might be contrary are only binding if DELO Computer GmbH has confirmed them in writing.

The details on weight, measures, performance, illustrations, prices and delivery times made in catalogues, leaflets, circulars, advertisements and price lists, are only reference values and can be subject to changes. They become binding after being explicitly assured in contracts or in business correspondence of DELO Computer GmbH. Otherwise the data being applicable on the day of delivery shall be valid.

 

2. Offers, conclusion of contract, delivery

Offers made by DELO Computer GmbH, are subject to change and non-binding declarations of acceptance.  All orders have to be confirmed by DELO Computer GmbH to become res judicata. The confirmation has to be in writing or by fax or email. Sales persons of DELO Computer GmbH are not authorized to make verbal additional agreements or to give verbal assurances that go beyond the contents of the written contract.

Our prices are ex works/warehouse plus VAT (valid rate on the day of delivery) If not otherwise agreed. Prices do not include freight, postage, insurances and other shipping costs. In case the customer does not accept the ordered goods until the date agreed upon in the order confirmation, prices of the date of delivery shall be valid. The customer is also obliged to accept partial delivery without asking for previous confirmation. The customer is only entitled to withdraw from the contract due to non-compliance with the delivery date if he has set an extension of the original term of four weeks and has sent a registered mail to DELO Computer GmbH with reference to this, unless the DELO Computer GmbH has explicitly confirmed a fixed delivery date in writing. Any compensation claims, resulting from direct damages and all other warranty claims shall be explicitly foreclosed.

Labour disputes, traffic problems and Force Majeure exempt DELO Computer GmbH from the obligation to deliver while they are lasting. DELO Computer GmbH can withdraw from the contract due to the non-performance of the contract. The customer shall not have any right to claim compensation.

 

3. Prices

Relevant for the calculation of single deliveries is the current price list of DELO Computer GmbH which was sent to the customer, but provided that DELO Computer GmbH will be entitled pass on any occurring increase in prices (changes of the exchange rate, increase of raw material prices and increase of freight costs, etc.) to the customer. All prices are ex works Recklinghausen-ex German border, respectively CIF German port of entry plus VAT.

 

4. Warranty and liability

Complaints due to defect of quality, mistaken delivery, volume discrepancy and the missing of granted features have to be claimed immediately in written form.  The customer is obliged to check the delivery concerning defects, mistaken delivery, volume discrepancy and similar defects immediately after its arrival. Mistaken deliveries, volume discrepancies and transport damages have to be claimed within five days. An exchange on warranty is only possible if the goods are sent back to DELO Computer GmbH in the original packaging including all accessories (cables, software, etc.). The goods have to be sent free and will be returned free of charge by DELO Computer GmbH. The exchange of goods will only take place after all defect parts have been sent to DELO Computer GmbH. A detailed description of the defect has to be enclosed. Without this description, and without presenting a copy of the invoice or of the delivery note, an exchange is not possible. The right of change/conversion or price reduction does only apply if the indicated defect could not be repaired after the third attempt. There will be no further warranty extensions due to the exchange of parts, components or complete units. Wearing parts like print heads, ink ribbons, print wheels, toner material and other wearing parts as well as misuse, wrong storage and handling of devices and also misuse by a third party and the opening of devices will lead to an exclusion of warranty claims. Exchanged parts will become property of DELO Computer GmbH. Deliveries can only be executed on invoice or on cash on demand. After receipt of defect parts DELO Computer GmbH will send a credit note. Defects of parts of the delivered goods do not entitle to complain about the entire delivery, unless the other parts without defect are not useable for the customer. DELO Computer GmbH warrants for defects resulting from a missing characteristic features as follows:

For final consumers and final users

DELO Computer GmbH has to remedy or deliver subsequently all those parts or services which have been proved to be not useable or considerably affected before the transfer of risks, due to circumstances in particular missing construction type, bad material or defective modality and which were claimed within twenty-four months- without considering the service life-from the day of transfer of risks onwards. Due to its right to chose, the DELO Computer GmbH is entitled to demand that the customer has to take the goods for repairing to the premises of the deliverer at own risk and on his own costs.

For specialized dealers and resellers

DELO Computer GmbH obliges itself to deliver all defect components in exchange after transfer of risks without being paid for this service and within twenty-four months. Repair works, respectively services shall be borne by the customer. If the customer would not like to render the services, he can make use of DELO Computer GmbH services. In this case DELO Computer GmbH will only bear the costs for the necessary material and components. If remedying of defects and services become necessary, the customer shall be charged at the usual market rate. The services are carried out in the workshop of DELO Computer GmbH. All shipments addressed to DELO Computer GmbH have to be provided franco domicile and are sent back unpaid by DELO Computer GmbH. This will not cause an extension of warranty. Costs for the check of all defect devices or components sent back to DELO Computer GmbH which prove to be free from defects after the check shall be borne by the customer at least at an amount of EUR13.

The customer has to grant the necessary time and occasion so that DELO Computer GmbH will be able to remedy faults in an appropriate way. If the customer refuses to do so, DELO Computer GmbH shall be exempted from the warranty for defects. If DELO Computer GmbH lets pass an additional respite set for it, without remedying  the defect or if it is impossible to remedy a defect  or if it refused by DELO Computer GmbH , then the customer can assert the right to reduction. If it does not come to any agreement about the reduction between DELO Computer GmbH and the customer, then the customer also can demand change.

The right of the customer to assert claims from defects is in lapse in any case from the time of the transfer of risks onwards, after 24 months.

The liability does not refer to damages, which occur after the transfer of risks because of a faulty or careless treatment, excessive use, unsuitable operating supplies, unsatisfactory construction work and electrical influences.

The liability for the consequences arising from improper changes or repair works, carried out by the customer or a third party shall be cancelled. DELO Computer GmbH explicitly does not take any guarantee for damages which result from the connection of attachments, expansion boards or from outer influences.

Claims of the customer against the DELO Computer GmbH and its fulfilment assistants are excluded, particularly a claim to a replacement of damages which has not arisen at the delivery item itself.

 

5. Software

As far as programmes are part of the extent of supply, a simple, unrestricted usufruct is given to the buyer for these, i.e. he may neither copy programmes nor leave them to others for the use. A multiple usufruct requires a special written agreement. At violation of these usufructs the buyer is liable for the damage resulting from it in full.

 

6. Services

All services of DELO Computer GmbH, for example the set-up of devices, maintenance, general overhaul and the repair are carried out exclusively according to the following conditions: The extent of the service obligation of DELO Computer GmbH is determined by the confirmed order as well as by the service regulations of DELO Computer GmbH.

The customer has to take all measures which are required for an unhindered beginning and speedy execution of the performance by DELO Computer GmbH.

The performance of DELO Computer GmbH is regarded as accepted if the device in question is given back functioning properly after execution of the performance of the service.

The liability for damages from services with the exception of damages caused deliberately or roughly negligently is excluded as far as the third-party insurance of DELO Computer GmbH does not enter.

The prices for the service performance of DELO Computer GmbH  is determined by the respective valid service price list of DELO Computer GmbH. Cost estimates can be exceeded by 15% without a previous notification of the customer.

 

7. Payments

The invoice amounts are immediately due with the receipt without discount. Periods for payment must in writing be agreed on under the prevailing special regulations plus agio. Invoices can be issued also for partial deliveries. Bills of exchange or other orders to pay are only accepted according to a special agreement and due to the payment. Discount / domestic bill and expenses are immediately due. DELO Computer GmbH is not liable for the punctual presentation, protests, notifications and allocation of the papers at non-payment, provided that DELO Computer GmbH or its employees(in performing a contractual obligation)do not act with intent or gross negligent. DELO Computer GmbH is entitled to the assignment of the demands from the business relations. At first all payments are credited on the expense, then on interest and after that on the respectively oldest open demand of the customer without consideration for other disposals of the depositor. At delay in payment, DELO Computer GmbH is justifiable subject to the assertion of extended rights to charge the European Central Bank default interest in the amount of 5% above the respective base interest rate.

If the customer defaults on a payment out of a business, and/or DELO Computer GmbH shall become aware of circumstances, which suggests a reduction of the creditworthiness of the customer, DELO Computer GmbH is authorized to claim all demands to let immediately duly turn out of business and to be on the safe side the handing out of the product delivered by DELO Computer GmbH. DELO Computer GmbH also is then authorized to require cash in advance or guarantee of the invoice amount or to withdraw from contracts not fulfilled yet before the delivery of new goods.

No retention is entitled to the customer. The setting off can be explained only with undisputed or final counter-claims. Existing liability benefit entitlements do not impair the due date of the demands of DELO Computer GmbH.

 

8. Reservation of ownership

DELO Computer GmbH shall retain full title of the delivered goods until the buyer has discharged all claims arising from the present and future business relations. The buyer shall have the right to dispose of the goods delivered by DELO Computer GmbH, as long as the customer meets his liabilities from the business relation in due time.

In case the customer processes the goods delivered, DELO Computer GmbH shall be seen as producer and acquires title to the fully or partly processed goods. If the goods in which DELO Computer GmbH has retained title shall be inseparably assembled or mixed with goods that are third party property, then DELO Computer GmbH shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the goods delivered by DELO Computer GmbH under retention of title and the invoice value of the other goods. In this case the customer or the third party shall remain custodian of the goods. If the customer has saved data on the data carriers delivered by DELO Computer GmbH and still being in the property of DELO Computer GmbH, then the property of DELO Computer GmbH of this shall remain untouched.

The customer hereby assigns to DELO Computer GmbH all claims arising from the resale of the goods delivered or, as occasion arises, a letting out of goods of which DELO Computer GmbH is entitled to rights of ownership under retention of title. The customer has to advise all required information about the stock of the goods in the property of DELO Computer GmbH, about the location of the goods rented out and about assigned claims to DELO Computer GmbH in accordance with aforesaid provisions. He also has to inform his buyers about the assignment. Where the claims of DELO Computer GmbH shall undoubtedly be secured through the assignment and retention and the value of the goods taken back exceeds the claims of DELO Computer GmbH by more than 25%, then DELO Computer GmbH will release uncertainties after its choice in this respect on demand of the customer.

In the event of any third party action against our goods delivered under retention of title as well as damage or loss of goods, the customer shall immediately inform DELO Computer GmbH about it in written form. In case of enforcement proceedings, the bailiff's record or the garnishment order shall be submitted to DELO Computer GmbH. The customer shall bear the costs for arising investments made by DELO Computer GmbH.

 

9. Dispatch and transfer of risks

Unless not otherwise determined by the customer, DELO Computer GmbH determines the most favourable mode of transport (train or forwarding agency, post or UPS) on its own discretion.

Deliveries are ex warehouse Recklinghausen unpaid. DELO Computer GmbH is also authorized to charge an additional flat rate for this provided that a flat rate is expelled in the order confirmation or the invoice.

At lorry dispatch the customer takes every risk, particularly the transport risk, until the goods reach the premises of DELO Computer GmbH. The risk is transferred to the buyer as soon as DELO Computer GmbH passes the goods which have to be delivered to the customer  to the forwarding agent or the carrier, or to a person replacing the carrier, or to any other person, being entitled to execute the transport.

An insurance of the product against damages in transit is only carried out on explicit request and at expense of the customer.

 

10. Export

We indicate that the export of the goods delivered is only permitted if the relevant authorities have agreed on the export before. The Federal Office of Trade, Eschborn/Taunus will provide binding information concerning export. The buyer has to submit the notice of assent before the transportation of the goods.

 

11. Protection of data

DELO Computer GmbH will save and process the data of the customers as far as it is necessary for the business and in accordance with the German Data Protection Act(26 BDSG).

 

12. Applicable law, Invalidity, Place of Performance and Place of Jurisdiction

Order and delivery are exclusively subject to the right of the Federal Republic of Germany.  Other national rights, as well the uniform international purchase right(EKA, EKA 6 of 17.07.1973) shall not apply.

The invalidity of any provision of these general terms and conditions of sale shall not affect the validity of other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.

Place of performance is Recklinghausen, place of jurisdiction for all disputes resulting from this contract relationship, is Recklinghausen for the two parts also for lawsuits concerning   legal proceedings dealing with bills of exchange and cheques.