General Terms and Conditions of Sale of
Infowhyse GmbH
Pfingstweide 24
61169 Friedberg, Germany
1. General provisions / Contract conclusion
1.1 All deliveries and services are exclusively subject to these general terms and conditions of sale (hereinafter referred to as “General Terms and Conditions”). In addition, the manufacturers’ licensing conditions for any products built in or installed by us, which are enclosed with the contractual products and referred to as supplementary conditions, apply wherever applicable. The subject matter of the contract is the equipment that features on the shipping note. The following terms and conditions shall be deemed accepted at the latest upon delivery of the equipment.
1.2 Any provisions that differ from these General Terms and Conditions, any amendments or additional agreements must be made in writing or be subject to an explicit written confirmation.
1.3 Any information and offers made by us with regard to the services and product descriptions provided by us are subject to change unless a binding confirmation is explicitly given. In view of the continuous technical development and improvement of our services and products, we reserve the right to carry out changes concerning construction and design that may differ from the information given in our brochures and electronic product descriptions as long as the value of the services offered is not impaired hereby. In this respect Infowhyse GmbH is also entitled to introduce changes that, under normal circumstances, the customer can be expected to accept as long as they ensure the best possible execution of the purchase order.
1.4 Purchase and/or rental contracts shall only be binding upon the issuance of a written order confirmation. Order confirmations that have been transmitted electronically shall be legally binding even without a signature.
1.5 Any assignments of rights and obligations under a purchase and/or rental contract require the written consent of Infowhyse GmbH.
1.6 Place of jurisdiction for both parties shall be Bad Nauheim, Germany.
1.7 If individual provisions of the supply contract or these General Terms and Conditions become invalid, the remaining provisions shall continue to be valid.
1.8 All and any legal acts or other legal relations with Infowhyse GmbH are at all times subject to the laws of the Federal Republic of Germany; the application of the United Nations Convention on Agreements for the International Sale of Goods (CSIG) shall be excluded.
2. Prices and terms of payment
2.1 The prices that are offered on the day of the order confirmation shall apply to the goods and services.
2.2 Prices are subject to changes that may be necessary due to changes to customs, import and export fees, currency exchange control regulations etc.
2.3 Our prices exclude the packaging and shipping costs as well as the statutory value added tax unless a further agreement has been made in writing.
2.4 The purchase price is payable strictly net immediately upon the invoice being issued. The rental price is payable strictly net after seven (7) days. Partial services may be invoiced separately. Infowhyse GmbH shall be entitled to ship new or repaired goods against advance payment or cash on delivery. If the due date of our invoices is exceeded by more than five (5) days, we charge default interest from that due date at a rate of 5% (five percent) above the bank rate charged by Deutsche Bundesbank (German Federal Bank). The hirer/purchaser shall only be entitled to offset his claims against ours or exercise a right of retention if the counter-claim is undisputed or has been established as legally valid. If the customer is in default, we shall be entitled to refuse the provision of any and all services to the customer including those that result from other contractual relationships. We shall not be liable for any damage that may arise from such non-performance.
3. Licences
3.1 Any software that is used to operate the equipment must only be used according to the licensor’s terms and conditions, which are provided separately. The hirer/purchaser shall hold the rental company (hereinafter referred to as the “Rental Company”)/seller harmless from any damages claimed by the licensors for any use of the software that does not correspond with their terms and conditions.
3.2 The software is protected by intellectual property rights. The customer shall only be granted the right to use the supplied software in order to operate the central processing unit. The customer shall be entitled to use the software for the intended purpose and scope, which includes the installation, loading and normal use of the program. In addition, the customer shall not be entitled to copy or process the supplied software.
Any program documentation and other material made available are protected by intellectual property rights. It is not permitted to copy them without the explicit consent of Infowhyse GmbH.
The customer shall not be permitted to pass the software on to third parties without the written consent of Infowhyse GmbH.
4. Use of customer data
Infowhyse GmbH acts as the Subcontractor in regard to clients’ personal data and the Client acts as the Processing Manager. The terms Subcontractor and Processing Manager are defined in the GDPR. Infowhyse must take the appropriate technical and organisational measures to prevent non-authorised or illegal processing of personal data and must comply with the other applicable legislative provisions regarding data protection.
In so far as the client is the Processing Manager and Infowhyse is the subcontractor; under these terms and conditions the Client authorises Infowhyse to process personal data obtained by the Client to meet its obligations under the terms and conditions of service. The collection of personal data is only carried out under the Client’s supervision.
The client grants Infowhyse general authorisation to use third parties to provide the Service. When the sub-processor is located in a third-party country and there are no feasible and appropriate safeguards, the processing manager instructs the subcontractor to sign, on behalf of the processing manager, the standard contractual clauses of the European Commission with the sub-processor in accordance with these instructions.
5. Export licence
Any licence for the exportation of the supplied goods and software that may need to be obtained from the Federal Office of Economics and Export Control in Eschborn, Germany must be obtained by the customer on his own behalf and at his own costs. The refusal of an export licence does not entitle the customer to withdraw from the contract.
6. Terms and conditions of rental
6.1 Term of rental
The term of rental is calculated in days or weeks. The minimum term of rental is one day. Any commenced days are deemed to be full days of rental. The term of rental shall start upon the arrival of the equipment at the site of operation or upon handover to the hirer (hereinafter referred to as the “Hirer”) respectively. It shall end upon the return of the equipment to the Rental Company.
6.2 Shipment of equipment and transfer of risk
The shipment of the equipment is exclusively at the Hirer’s risk. The cheapest method of transportation is chosen unless the Hirer explicitly stipulates a specific mode of transportation. A transport insurance can be taken out at the Hirer’s request and at his expense. The transfer of risk shall take place upon collection or delivery (shipping note) of the equipment and ends upon its return or collection.
6.3 Insurance for the equipment
To protect the equipment against damage and loss, the Hirer should take out insurance.
6.4 Use of hired equipment by the Hirer
The Rental Company remains the owner of the hired equipment. The Hirer shall use it carefully and abide by the Rental Company’s recommendations for maintenance, care and use. He shall inform the Rental Company if he intends to sublease the equipment. The use of the equipment shall be permitted only on the agreed sites. The Hirer shall allow the Rental Company at any time to inspect the equipment.
6.5 Warranty
The Rental Company shall be liable for the equipment being fully functional on the day of the transfer of risk. Further claims are excluded. If, upon transfer of risk, the hired equipment has a defect that prevents its contractual use or impairs it to an extent that equals prevention, the Rental Company may remedy the defect as it sees fit, replace the defective equipment or withdraw from the contract. For the period during which the equipment fails to be fully operational, the rental price shall be reduced accordingly.
The Rental Company shall only be liable for damage that is caused by the Hirer using the hired equipment if the damage is based on a defect that existed on the day of transfer of risk. Liability shall include the cost of corrective maintenance up to the amount of the rental price that is claimed by the Rental Company and against which any claim for damages that may arise is to be offset. Any further claims of the Hirer, in particular for damages, are excluded.
6.6 Liability of the Hirer
The Hirer shall be liable towards the Rental Company for any damage resulting from the use of the hired equipment for any other than the intended purpose. Any damage such as incidental damage or incidental loss shall be borne by the Hirer. In the case of total damage or loss of the equipment, the Hirer shall pay the replacement value of the hired equipment. The Hirer shall bear all damage irrespective of whether he is responsible for it or not.
6.7 Withdrawal of the Hirer
If the Hirer withdraws from the contract after the order confirmation has been issued, 30% (thirty percent) of the order value will be charged in the form of withdrawal expenses. In such a case, the cause of withdrawal is of no importance. If he withdraws from the contract less than four (4) weeks prior to the start of the rental period, 50% (fifty percent) of the rental price will be due. If he withdraws less than 2 (two) weeks before, 75% (seventy-five percent) will be due and less than one week, 100% (hundred percent) will be due. Any costs incurred for services provided by third parties will have to be reimbursed in addition to this.
6.8 Rights of third parties
The Hirer has to maintain all equipment free from encumbrances, claims and liens of third parties. He is obliged to inform the Rental Company without delay and hand over all necessary documents as soon as any equipment is seized or a claim is made against it by third parties during the rental period. The Hirer shall bear all costs and make the payments that are necessary to cancel such interventions of third parties.
6.9 Deliveries
The start of the rental period shall be agreed subject to the proviso that the equipment can be delivered on time. If for reasons caused by the Rental Company the start of the rental period is delayed and if the Hirer can prove that a postponement of the start of the rental period is not to his advantage, the Hirer may withdraw from the contract. The right to claim damages shall be excluded. Any unforeseeable events that are outside the Rental Company’s control irrespective of whether they affect the Rental Company or one of its suppliers, including but without being limited to strikes, lock-outs, damage due to accidents, breakdowns etc. shall entitle the Rental Company to withdraw from the rental contract or postpone the start of the rental period for the duration of the respective event without the Hirer having any right to claim damages.
6.10 Return of the hired equipment
Upon the expiry of the rental period, the Hirer shall return the hired equipment without delay and at his risk and expenses to the Rental Company.
6.11 Delayed return of the hired equipment
In the case of a delayed return of the hired equipment, the Hirer shall compensate the Rental Company for any damage but he shall, at the very least, be charged the additional rental fees on a pro-rata basis. If the hired equipment is not returned in good condition, the Hirer shall pay to the Rental Company the full rental price for the time needed to repair the equipment.
7. Terms of sale
7.1 General provisions
If the customer does not accept the delivered goods, we shall be entitled to insist either on the acceptance of the goods or on the payment of 10% (ten percent) of the purchase price as a lump sum for the damage and costs incurred. We reserve the right to claim a higher level of damages if we provide sufficient proof. The lump-sum compensation shall be reduced to the extent that the customer proves that expenses or damage did not occur.
The customer shall have retention rights only in so far as his counter-claim is based on the same contractual relationship. Any offsetting by the customer shall be excluded unless the customer’s counter-claims have been established as legally valid or recognised by us.
7.2 Delivery time
Binding delivery times shall be agreed upon in writing. The agreed delivery time shall start on the day when the order confirmation is issued. It is deemed to be respected if the respective goods have been shipped prior to its expiry or if the customer has been informed that the goods are ready for collection, should collection have been agreed between the parties.
Wherever necessary, the delivery time may be extended by the amount of time that it takes the purchaser to hand over to us the information and documents that are required for the execution of the order.
All agreed delivery times shall be subject to the correct and timely delivery of goods by our suppliers.
The delivery time shall be extended accordingly if measures due to stoppages, in particular strikes and look-outs as well as circumstances that we cannot be held responsible for, including but not limited to legal or governmental regulations (e.g. import and export restrictions) need to be taken or if deliveries are delayed due to Force Majeure. We shall not be responsible for the above mentioned circumstances even if they occur during an ongoing delay. We shall inform the customer of the start and finish of such obstacles as soon as possible. Any delays in delivery for which we are not responsible shall entitle us to terminate such part of the contract that has not yet been performed and charge for such services that have been provided at that point. In addition, the delivery time for the outstanding goods shall, in such a case, be extended by two (2) months starting from the day when the obstacle to a timely delivery is removed.
Any liability of Infowhyse GmbH for a delay in delivery or any resulting cancellation of contract is excluded.
If we are behind schedule with any delivery, damages can only be claimed if the delay is caused by wilful intent or gross negligence.
7.3 Delivery, transport, transfer of risk
We are entitled to make partial deliveries unless explicitly agreed otherwise. As far as payment obligations, transfer of risk and warranties are concerned, any partial delivery is deemed to be a separate service. The customer shall not be entitled to refuse separate partial deliveries.
We shall be entitled to decide on the mode and route of transport as well as on the forwarder to be commissioned as we think fit unless the purchaser provides explicit written instructions.
The risk shall be passed on to the purchaser as soon as the consignment leaves our premises. This shall apply irrespective of who bears the transport costs. Upon written request, we take out an insurance policy for the goods at the customer’s cost. If the goods are collected by the customer, the risk shall pass on to the customer as soon as the goods are handed over to the customer.
If goods and other parts are sent or personally handed over to Infowhyse GmbH, the respective sender shall bear the transport risk until the goods arrive on the premises of Infowhyse GmbH as well as all transport costs. The transport risk for personally delivered goods shall remain with the customer until the goods are handed over.
7.4 Replacement of goods and/or taking goods back
As a general rule, a service fee of 10% (ten percent) of the value of the goods is charged for any replacement of goods that is not due to warranty claims. It is incumbent upon us and the customer to prove that the resulting costs are higher or lower. If the original packaging has been opened or damaged, the software cannot be replaced or taken back. By opening the original packaging, the customer acknowledges our copyright and warranty terms or, wherever applicable, the warranty terms of our subcontractors. All packaging used by Infowhyse GmbH and its subcontractors is considered original packaging.
7.5 Retention of title
We retain title to the purchased goods until all receivables resulting from the business transaction including subsidiary claims (e.g. foreign exchange costs, financing costs, interest etc.) have been paid in full. If the customer breaches the contract, we shall be entitled to reclaim the purchased goods. Taking back or seizing the goods that are subject to the retention of title shall not be considered a withdrawal from the contract. If the value of the retained collateral exceeds the receivables by 20% (twenty percent), Infowhyse GmbH will release some collateral at the customer’s request. The customer shall show and provide evidence that the collateral exceeds the receivables by 20% (twenty percent).
The customer shall inform us forthwith in writing of any seizures or other interventions of third parties, prevent such steps as far as possible and point to the ownership of Infowhyse GmbH.
The customer shall be entitled to resell the goods and software in the normal course of business. This is not the case if the customer is behind schedule with payments to Infowhyse GmbH.
Herewith the customer assigns to us all claims vis-à-vis his buyer or third parties resulting from the resale or all other legal grounds (insurances/tort) amounting to the final invoiced amount.
Infowhyse GmbH authorises the customer on a revocable basis to collect on his behalf the receivables that have been assigned to Infowhyse GmbH.
7.6 Warranty/Disclaimer
We warrant that the deliverables or software are free from defects according to the current state of the art. The warranty period shall be 12 (twelve) months for all products supplied by us.
We do not accept any warranty for defects and damages that result from inappropriate or improper use, the failure to comply with instructions for use or incorrect or negligent handling. Under no circumstances shall we be liable for consequences that result from the processing of data that has been created with programs supplied by us.
Any warranty shall come to an end if the customer arranges to have interventions and/or repairs conducted on equipment or software without the explicit agreement of Infowhyse GmbH or by persons who have not been authorised by us.
Obvious defects must be communicated to us forthwith in writing, at the latest however two (2) weeks after the receipt of the goods and software; otherwise all defects-related claims shall be excluded.
If a defect concerning goods or software that we are responsible for is detected, we shall have the right to remedy the defect or replace the goods as we think fit. The customer shall be obliged to back up the data at his own cost before handing over the goods or software for repair or review. The customer shall be obliged to send the goods and software or deliver them personally to Infowhyse GmbH together with a detailed description of the defects and, wherever necessary, indicate the model and serial number and enclose a copy of the delivery note. Without such assistance by the customer, the remediation of the defect, the cancellation of the contract or the reduction of the purchase price may be delayed. If the review shows that the goods or software are free from defects, the customer shall be obliged to reimburse us for the expenses that will be invoiced separately. Infowhyse GmbH has the right to charge for the additional time and effort involved. It is incumbent upon the customer to prove that the work required less time and effort.
In all cases, claims for damages, even if remediation or subsequent delivery has failed, can only be made against us if we acted with wilful intent or gross negligence or if there was a lack of warranted qualities. To the extent that our liability is excluded, this also applies to the personal liability of our employees and officers.
Unless otherwise agreed, any further claims by the customer – irrespective of the legal grounds – shall be excluded.
7.7 Withdrawal and compensation for non-executed purchase orders
We are entitled to withdraw from the contract if we become aware of any cessation of payment, the instigation of insolvency proceedings or legal composition proceedings, the refusal of insolvency proceedings because of insufficient assets, the protesting of bills of exchange or cheques or other specific evidence pointing to the deterioration of the customer’s financial situation. In such a case all unpaid invoices will become immediately due and we have the right to make any further services conditional on an advance payment, an absolute bank guarantee or another surety.
If, on grounds for which the customer is responsible, we withdraw from the contract or if the agreed service is not provided, the customer shall pay us a lump sum of 10% (ten percent) of the agreed price in compensation for expenses and loss of profit. We reserve the right to claim a higher compensation if we provide the respective evidence. The lump-sum compensation will be reduced to the extent that the customer proves that expenses or damage have not occurred.
As of 16th January 2021