General Terms and Conditions
1. Scope of application, our identity
(1) In commercial dealings with companies within the meaning of Section 14 BGB (German Civil Code) or with legal entities under public law or with special funds under public law (hereinafter: “Customer”) the following General Contractual Terms B2B of Schenker Technologies GmbH (hereinafter: “Schenker Tech”) shall apply, unless the contracting parties agree otherwise in writing or in text form. The validity of general terms and conditions of the Customer, which contradict our General Contractual Terms B2B, is excluded.
(2) Even if it is not specified again when similar agreements are concluded, the General Contractual Terms B2B of Schenker Tech in the version retrievable on submission of the Customer’s statement under https://www.schenker-tech.de/en/terms-and-conditions are exclusively applicable unless the contracting parties agree otherwise in writing or in text form.
Our identity is:
Schenker Technologies GmbH
Managing Directors: Robert Schenker and Markus Kulzer
VAT ID no.: DE270518880
Leipzig District Court, Commercial Register 25795
2. Conclusion of agreement
(1) Offers from Schenker Tech are always subject to alteration and non-binding, unless the offer is identified as binding. A legal obligation shall only come about through mutual signing of the agreement or through an order confirmation by Schenker Tech in writing or in text form, and furthermore by Schenker Tech starting contractual provision of services in accordance with the order. Schenker Tech can request written confirmations of electronic, oral or telephonic contractual declarations from the Customer.
(2) The Customer is bound to declarations for the conclusion of agreements (contractual offers) for four weeks.
(3) For orders by email, fax or phone, the agreement shall likewise only come into effect through an order confirmation from Schenker Tech, in accordance with the aforementioned provisions.
(4) Agreements shall be concluded in German or in English.
3. Contractual object, scope of service
(1) Only the delivery of computer hardware, additionally agreed services within the scope of such a purchase agreement or separately offered services are the object of these Contractual Terms. You can find out the essential features of the goods and services offered by us as well as the period of validity of any limited offers from the respective item description or the offers.
(2) The Customer has verified prior to conclusion of this agreement that the specifications of the contractual objects meet its desires and requirements. The essential technical and functional features are known to it.
(3) The scope, type and quality of the deliveries and services are determined by the mutually undersigned agreement with service specification or the order confirmation from Schenker Tech, or else the offer from Schenker Tech. Other information or requirements shall only become a component of the agreement if the contracting parties agree to this in writing or in text form or if Schenker Tech has confirmed it. Subsequent changes to the scope of service require the agreement of or confirmation by Schenker Tech.
(4) Unless otherwise agreed, the contractual objects are intended for use within Germany. When delivering the contractual objects abroad, the Customer must strive to comply with the relevant statutory provisions on its own responsibility.
(5) Product descriptions, images etc. are performance specifications, but not guarantees or warranties. A guarantee or warranty in the sense of a liability or assumption of a special obligation to meet claims shall only be considered given if the terms “guarantee” or “warranty” are expressly used.
(1) We shall deliver within Germany, in countries of the European Union (EU) as well as in Switzerland, unless the contracting parties agree otherwise in writing or in text form.
(2) Deliveries shall take place on workdays, Monday to Friday, via a forwarding agent/cargo service commissioned by us with the delivery.
(3) The Customer assumes the risk of accidental loss or accidental deterioration in the condition of the contractual objects sold upon handover to the forwarding agent/cargo service.
(4) The Customer shall bear the costs of transport, freight and transport insurance up to the agreed place of delivery unless the contracting parties agree otherwise in writing or in text form.
5. Delivery time, place of delivery
(1) Information about times of delivery and service are non-binding unless they are identified by Schenker Tech in writing or in text form as binding. Schenker Tech can effect partial deliveries if the delivered parts are reasonably useful for the Customer.
(2) Delivery and service deadlines shall be extended by the period in which the Customer is in default of payment from the agreement and by the period in which Schenker Tech is impeded in delivery or service through circumstances for which it is not responsible and by an appropriate start-up period after the end of the impediment. These circumstances also include force majeure and industrial action. Deadlines shall also be considered extended by the period in which the Customer has violated a duty to cooperate contrary to the agreement, e.g. has not given information, granted access, made adequate supply or provided employees.
(3) If the contracting parties subsequently agree other or additional services which have an effect on the agreed deadlines, these deadlines shall be extended by an appropriate period.
(4) Reminders and deadlines from the Customer must be made in writing to be effective. A grace period must be appropriate. A period of less than two weeks is only appropriate in cases of special urgency.
(5) The place of performances of services is the place at which the service is to be provided. Otherwise the place of performance for all deliveries and services from and in connection with the agreement is Schenker Tech’s registered office.
6. Prices, terms of payment
(1) The prices in euros plus statutory VAT and plus transport and packaging costs valid at the time of ordering are decisive. For deliveries outside the EU, the Customer shall bear any duties as well as any import sales tax and shall release Schenker Tech from any claims in this regard. Moreover, Schenker Tech shall invoice the costs for preparation of shipping documents by customs authorities.
(2) A discount cannot be combined with other reductions, discount actions or limited offers, unless otherwise agreed in writing or in text form.
(3) The agreed purchase price or the agreed remuneration are due without deduction after receipt of the invoice by the Customer and are to be transferred cashless to the account stated in the invoice, unless the contracting parties agree otherwise in writing or in text form. A cash discount is not permitted.
(4) Rights of offsetting and retention of the Customer are excluded unless these counter-rights are undisputed or legally established. A right of retention or right to object to non-fulfilment of the agreement is only due to the Customer within this contractual relationship.
(5) If the Customer is in default of payment with a claim, all remaining claims against the Customer can become due.
(6) Schenker Tech has the right to assign its claims against the customer to a third party. Except within the scope of Section 354a HGB (German Commercial Code), the Customer can only assign claims from this agreement to third parties with the prior consent of Schenker Tech.
7. Retention of title
(1) Schenker Tech shall retain ownership of the contractual objects delivered until complete payment of all claims from the contractual relationship.
(2) The Customer is obligated to treat the goods delivered with care whilst ownership has not yet pass to it. In particular, the Customer is obliged to insure these goods sufficiently at its own cost against theft, fire and water damage. Insofar as ownership has not yet been transferred, the Customer must immediately inform Schenker Tech in writing or in text form if the goods delivered are seized or subjected to other interference by third parties. If the third party is not in a position to reimburse Schenker Tech for the legal and extra-judicial costs of a lawsuit incurred in accordance with Section 771 ZPO (Code of Civil Procedure), the Customer is liable for the resulting shortfall.
(3) The Customer is entitled to resell the reserved goods in the ordinary course of business. On concluding an agreement with us, the Customer assigns the claims from the resale of the reserved goods to Schenker Tech in the amount of the final invoice amount agreed with us (including VAT). Schenker Tech accepts this assignment on conclusion of the agreement. This assignment shall apply irrespective of whether the goods have been resold without or after processing. The Customer is obliged to grant information about the resale to Schenker Tech on request. The Customer remains authorised to collect the claim even after assignment. Schenker Tech’s right to collect the claim itself remains unaffected by this. However, Schenker Tech shall not collect the claim as long as the Customer meets its payment obligations from any revenues received, is not in default of payment, and in particular, no application for opening insolvency proceedings has been made, or there is a cessation of payments.
8. Obligations of the Customer to inspect and notify
(1) The Customer is obliged to carry out a professional inspection of items delivered by Schenker Tech immediately on delivery or on being granted access in accordance with the commercial regulations and to notify in writing or in text form of any defects or discrepancies detected, giving an exact description of the defect to Schenker Tech.
(2) If notification is not given within seven calendar days at the latest from delivery by Schenker Tech, the contractual objects delivered shall be considered approved unless there is a defect or discrepancy that was not apparent at the inspection. If a concealed defect is discovered later, this must likewise be reported within seven calendar days, otherwise the delivered goods shall also be considered approved in this respect.
(3) Should contractual objects be delivered with obvious damage to the packaging or contents, the Customer is obliged to make a complaint about the damages to the forwarding agent/cargo service immediately, and if necessary to refuse approval as well as to contact Schenker Tech as quickly as possible so that we can safeguard our rights with respect to the forwarding agent/cargo service.
9. Rights relating to defects
(1) In the event of defects to new goods, Schenker Tech can first provide supplementary performance, unless the contracting parties agree otherwise. The supplementary performance shall take place at Schenker Tech’s discretion either through repair of the defect or through delivery of defect-free contractual objects. At least three repair attempts are to be accepted on account of one defect.
(2) Schenker Tech can carry out the defect repair or have the defect repair carried out on site or at its business premises at its own discretion. Schenker Tech can also perform services through remote maintenance.
(3) The Customer shall support Schenker Tech in error analysis and repair of defects in particular by specifically describing problems occurring, informing Schenker Tech comprehensively and granting it the time and opportunity necessary to repair the defect.
(4) If Schenker Tech ultimately refuses supplementary performance, ultimately fails or is unreasonably delayed for reasons attributable to Schenker Tech, the Customer can either withdraw from the agreement or reduce the remuneration proportionately and, in addition can request compensation or reimbursement of expenses in accordance with § 10. The claims of the Customer from rights in relating to defects shall expire in accordance with § 11.
(5) In the event of withdrawal from the agreement, the Customer must allow the value replacement for use of the contractual objects to be credited to the refund of the purchase price. In doing so, the creditable value replacement is calculated proportionately, taking into account the usual overall working life of the contractual objects for the time of actual use on the basis of the originally agreed purchase price. For computer hardware delivered, the calculation is based on a usual overall working life of three calendar years from delivery. Both contracting parties reserve the right to prove to the other party a higher or lower value replacement for use.
(6) Claims for compensation of Schenker Tech due to changes or deteriorations in the contractual object which are not attributable to normal, intended use, remain unaffected by the creditable value replacement in accordance with para. 5 in the event of withdrawal.
(7) An insignificant defect does not entitle the Customer to withdraw from the agreement.
(8) The sale of second-hand goods or showroom goods always takes place to the exclusion of any rights on account of defects (warranty exemption).
10. Limitation of liability
(1) For claims due to damages which were not caused by us, our legal representatives or vicarious agents, we are liable without limit:
– in case of damage to life, limb or health,
– in the event of wilful or grossly negligent violation of duty,
– in the event of pledges of guarantee if agreed or
– if the area of application of the Product Liability Act is established.
(2) In the event of violation of essential contractual obligations, the fulfilment of which enables proper implementation of the agreement in the first place and on the compliance of which the contracting party may regularly depend (cardinal duties), through slight negligence by us, our legal representatives or vicarious agents, liability is limited to the amount in accordance with the damages foreseeable upon conclusion of the agreement, which can typically be calculated. Otherwise claims for compensation are excluded.
11. Statute of limitation
(1) The limitation period amounts
– to one year from handover of the contractual objects for claims of the Customer to a refund of the purchase price from withdrawal or reduction,
– to one year for any other claims of the Customer from rights on account of defects,
– to two years for claims of the Customer for compensation or reimbursement of futile expenses not based on defects.
The period begins at the point at which the Customer received knowledge of the circumstances on which the claim is founded, or must have had knowledge of such without gross negligence.
(2) The limitation period shall expire upon expiration of the maximum limitation periods provided for under Section 199 BGB.
(3) The statutory limitation periods shall apply to claims for damages or compensation for expenditure arising from intention, gross negligence, fraudulent intent, and other cases listed under § 10, para. 1.
12. Final provisions
(1) German law shall apply to the exclusion of the UN Sales Law.
(2) Should individual provisions of these Contractual Terms or of the agreement concluded with the Customer be completely or partially invalid, this shall not affect the validity of the rest of the agreement. In place of the invalid provision, a suitable provision shall apply that corresponds closely to the contractual purpose and is valid.
(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes from this agreement or in connection with this contractual relationship shall be Schenker Tech’s registered office.
(4) If the Customer has no general place of jurisdiction in Germany or in another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract shall also be Schenker Tech’s registered office.
Schenker Tech takes the issue of data protection very seriously. We collect, process and use data accepted from the Customer in accordance with the data protection provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). You can obtain detailed information on the issue of data protection from Schenker Tech here: https://www.schenker-tech.de/en/privacy-policy
Schenker Technologies GmbH
As of: August 2018