General Terms and Conditions of
Neobution GmbH (hereinafter: Neobution)
A GENERAL TERMS AND CONDITIONS OF ORDER
§ 1: Order and Delivery
The following terms and conditions of Neobution apply exclusively to all orders. Contradictory or supplementary general terms and conditions of the contractor are only valid if they are in agreement with the following terms and conditions or if Neobution agrees in writing.
Orders are placed in writing by fax or e-mail. If the order confirmation deviates from the order, Neobution is only bound to the order if the deviation is agreed to in writing. The acceptance of a delivery or service alone does not imply consent.
A binding delivery date is stated on the order as a fixed date or separate delivery date. Neobution must be notified immediately in the event of a recognizable delay. Consequential damages (e.g. contractual penalties) resulting from a delay in delivery will be charged to the contractor and are to be borne by the contractor.
§ 2: Dispatch and transfer of risk
The costs of shipment and customary packaging shall be borne by the Contractor. Each delivery shall be accompanied by the delivery bill.
For deliveries of products, the risk shall pass to Neobution upon acceptance of the goods (handover).
Neobution. For this purpose, a written confirmation (signature) of an authorized person of Neobution or a forwarding agent authorized by Neobution is required.
In case of deliveries to third parties (e.g. customers of Neobution), it must be clearly stated on the delivery bills that the deliveries are made in the name and for the account of Neobution.
§ 3: Invoice and Payment
Invoices are to be sent to Neobution, Heinz-Neuhaus-Str. 6, 44229 Dortmund, Germany. The invoice must state the order number, article, quantity and prices. The sales tax included shall be shown separately as an amount and as a percentage.
Payments shall be made on the terms agreed with the Contractor.
Payments do not imply recognition of the deliveries or services as being in accordance with the contract.
§ 4: Warranty and notice of defects
If defects occur within the warranty period, the Contractor shall, at its own expense, either remedy the defects or make a new delivery free of defects. This shall also apply to deliveries for which the inspection was limited to random samples as is customary in the trade. The Contractor shall bear the costs and risk of returning defective items. Further-reaching legal claims (such as compensation for uselessly spent treatment and processing costs) shall remain unaffected.
If the contractor fails to remedy the defect or make a new delivery within a reasonable period of time set by Neobution, Neobution may withdraw from the contract in whole or in part, demand a reduction in the purchase price, or carry out the remedy or new delivery itself or have it carried out at the contractor’s expense. This shall also apply if the Contractor declares itself unable to meet its warranty claims within a reasonable period of time.
§ 5: Quality of Goods
The Contractor shall provide its deliveries and services free of third party rights (in particular patent rights and industrial property rights, copyrights) and shall indemnify Neobution against corresponding third party claims.
The contractor undertakes to deliver CE-certified goods. The contractor guarantees that the quality of the goods does not violate legal regulations according to German or European law or morality.
Neobution is entitled to return items that have been publicly warned by an authority against their purchase or use. The returned goods will be charged to the supplier at the last invoice price.
If an article ordered by Neobution is rated “sufficient” or worse by “Stiftung Warentest”, “Öko-Test” or others, Neobution is entitled to take the article back from circulation and return it to the supplier for a refund of the purchase price, unless the rating is based on criteria that go beyond the guaranteed or legal requirements. All costs incurred by Neobution in connection with the withdrawal and return will be borne by the supplier.
B. GENERAL CONDITIONS OF SUPPLY
§ 1: Scope of Application
All deliveries and services are exclusively subject to the general terms and conditions of Neobution. By accepting Neobution’s offer, the customer acknowledges these terms and conditions, even if they are in conflict with the customer’s terms and conditions in whole or in part. Any deviating terms and conditions or additions made by the purchaser require express written confirmation for each individual legal transaction. All offers made by Neobution are based on the following terms of delivery.
Neobution reserves the right to unilaterally change the terms of delivery, even for existing orders, if the change does not cause any economic damage to the customer. The customer will be informed about the change. Thereafter, the customer has the right to object within six weeks after the information has been sent. In case of objection, Neobution has the right to terminate the contract.
§ 2: Offer and conclusion of a sales contract
Offers are subject to change. Samples and other information provided by Neobution regarding the quality of the goods are non-binding general information, unless they are expressly guaranteed.
Orders require written confirmation by Neobution in order to be valid.
§ 3: Prices, Shipping and Delivery
The prices are net, plus the legal value added tax ex Neobution’s shipping warehouse in Germany, unpacked and without transport insurance. The customer shall bear the transport costs incurred. Deviating agreements must be made in writing. In the case of shipment abroad, additional customs duties may be incurred, which are also to be borne by the customer.
The decision about the form of shipment is made by Neobution. The recipient (customer) bears the transport risk. This also applies to freight paid deliveries by Neobution. The goods will only be insured for transport upon written request of the customer. The costs for this are to be borne by the customer.
Neobution is entitled to make partial deliveries.
§ 5: Delay in Delivery
Stated delivery dates are non-binding unless otherwise expressly agreed and confirmed in writing between the parties.
The delivery period begins as soon as agreement has been reached on all terms of the order. Claims can only be made if a grace period of at least two weeks has been set by registered mail and this period is also not met by Neobution. Delay in delivery is only caused by a reminder, the filing of a lawsuit or the delivery of a reminder notice.
After the customer has unsuccessfully set Neobution a reasonable grace period for delivery, the customer is entitled to withdraw from the contract. The withdrawal from the contract must be made in writing. Any advance payments will be returned to the customer without deduction.
Operational disruptions of any kind exempt from compliance with agreed delivery deadlines.
§ 6: Payment and assignment of claims
Deliveries are made by cash on delivery or cash in advance without discount. Agreements to the contrary must be made in writing.
The customer is obligated to pay interest on Neobution’s receivables at a rate of 5% above the base interest rate after expiration of the payment deadline without a special reminder. For contracts not involving a consumer, the interest rate is 8% above the prime rate. This does not exclude the assertion of further damage caused by default.
We are entitled to assign the claims arising from our business relationship.
§ 7: Retention of Title
Neobution retains title to the goods until all claims of the seller against the customer arising from the business relationship, including future claims, have been settled. This also applies if the purchase price for the goods designated by the seller has already been paid. Should the customer be in default of payment, Neobution may withdraw from the contract and reclaim the goods. However, a prior withdrawal from the contract is not a prerequisite for the assertion of the retention of title.
The customer is obligated to handle the goods with care until full payment has been received and to keep all packaging and accessory material. The customer is only entitled to sell the goods subject to retention of title if he/she hereby assigns to Neobution all claims or surrogates arising from the resale against customers and third parties. This also applies if goods subject to retention of title are processed or resold in combination with items belonging to the purchaser. Claims arising therefrom are hereby assigned to Neobution in the amount of the value of the reserved goods with all ancillary rights and priority over the rest.
If goods subject to retention of title are processed or installed together with items that are the sole property of the purchaser or with items for which there is no extended retention of title, Neobution is entitled to sole ownership of the new item. If goods subject to retention of title are processed with items not belonging to the vendor, Neobution is entitled to co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items.
Neobution is only entitled to collect claims itself if the purchaser does not meet his payment and other obligations. In this case, the customer is obligated to disclose his debtors and provide all information necessary for collection, to hand over the necessary documents and to inform his debtor of the assignment.
Neobution commits itself, as far as the aforementioned securities exceed the value of the claims to be secured by more than 20%, to release these securities at the request of the customer, at Neobution’s discretion.
With the purchase of software, the customer issues data carriers with a copy of the corresponding software. The customer is thereby granted the simple and personal right to install and use this software on a single computer. Software programs and accompanying material (e.g. manual) are protected by copyright. The ownership of the customer is thereby restricted. Duplication is only permitted in the sense of a backup copy.
§ 8: Warranty and notice of defects
The warranty period for the delivered products is 24 months from the date of delivery. This does not apply to consumables (e.g. printer cartridges, batteries).
Complaints for obvious defects can only be made within 7 days after receipt of the goods and must be made in writing. Repairs or replacements outside the warranty period will only be handled by Neobution with costs and charged to the customer. No new warranty period will come into effect as a result of the warranty claim (not even in the case of replacement with a new unit). Furthermore, especially damages due to wrong storage, use or handling as well as damages due to violence are excluded from the warranty. Also excluded are damages due to loss of data as a result of defective data carriers and mass storage devices.
Neobution assigns its warranty claims, which exist against the pre-suppliers, to its customers. Warranty claims against Neobution can only be asserted after Neobution’s pre-suppliers have been sued in court. Neobution is only liable for warranty in case of unsuccessful judicial recourse against the upstream suppliers.
All returns must be registered in writing with Neobution in advance. The customer will receive a RMA number upon notification of the defect. In case of a defect, the defective product must be accompanied by a brief description of the defect, including the model and serial number, and the corresponding copy of the invoice. The RMA number must also be included. The return must be delivered free of charge. In case of a justified defect, the goods will be repaired or replaced to the amount of the material value of the goods. If a repair or replacement delivery is not possible, the customer will receive a credit note for the current value of the returned goods. An advance exchange is not possible.
By agreement of a warranty deduction on the purchase price any warranty claim of the customer expires. This warranty deduction will be shown separately on the invoice.
§ 9: Liability and Compensation
Neobution is not liable for the damage or loss of data on customer-owned or third-party data carriers, mass storage devices, as well as on electronic data transmission paths or network connections. Neobution recommends customers to make a backup copy on floppy disk or CD for all important data and files to enable recovery in case of technical problems.
Neobution is not liable for damages that are not caused to the delivered goods themselves. In particular, no liability is assumed for loss of profit or other financial losses. Claims for damages for deficiencies, consequential and incidental damages can only be made in the case of warranted characteristics. Such a warranty requires in each case a special written agreement related to the individual order.
Claims for damages by the customer are excluded, unless they are based on intent or gross negligence on the part of Neobution.
Neobution is not liable for any fault of its vicarious agents.
§ 10: Third Party Rights
The customer is solely liable for damages caused by any copyright, trademark or other infringement of third party rights. Neobution expressly points out that third parties may assert substantial claims for damages against the customer in the event of such violations.
In this respect, the customer exempts Neobution from any third party claims.
§ 11: Data Protection
Neobution stores personal data about its customers in the context of automatic data processing.
Personal data will only be used, processed and stored within the scope of operational activities.
§ 1: Prohibition of set-off
Offsetting by the contractual partner of Neobution is excluded. However, this does not apply to offsetting against an undisputed or legally established claim.
§ 2: Place of Jurisdiction and Applicable Law
The substantive German law shall apply to the exclusion of the conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
The place of fulfillment for all deliveries – also freight prepaid – as well as for liabilities of the customer is the registered office of Neobution or the respective forwarding warehouse of Neobution.
For all disputes arising from or in connection with this contract, the agreed place of jurisdiction is Dortmund. However, Neobution reserves the right to file suit in other courts.
§ 3: Ineffective provisions
If any provision is or becomes invalid in whole or in part, this shall not affect the validity of the remaining part of the provisions nor the validity of the remaining provisions.
In place of the invalid provision, a valid provision shall be agreed which, as far as legally possible, best corresponds to the economic purpose pursued by the invalid provision, taking into account the interests of the contracting parties. This shall also apply if the contract contains unforeseeable loopholes.
With the announcement of these terms and conditions, all previous provisions lose their validity.