General Terms and Conditions
General Terms and Conditions of PARTNER-TECH Europe GmbH
applicable to business people in accordance with section 14 BGB
1. Object and taking effect of the agreement
1.1 These General Terms and Conditions of PARTNER-TECH Europe GmbH (hereinafter “PTE”) regulate the purchase of hardware, software and services. The term “Machine” encompasses PC-based cash register systems and their peripherals. Also, their additional facilities, types or model changes, model expansions, machine elements, installation accessories or combinations thereof (hereinafter together “Model Expansions”). The term Machine includes both PTE machines and non-PTE machines (including other devices) that are supplied by PTE.
1.2 Quotations from PTE are always non-binding. The customer is bound to their order (contractual offer) for four weeks. An agreement shall come about through the acceptance of an order by PTE. The acceptance can be made by implication such as through consigning the ordered merchandise or its handover to a transport person or by way of provision for collection by the customer.
1.3 Illustrations, drawings, technical data and disclosures on the dimensions and weight or the Machines and services ordered by the customer do not represent any agreements on properties. The same applies to any documents handed out by PTE to the customer relating to the scope of supply, the appearance and the material properties of the merchandise.
1.4 PTE is entitled to render part-performances unless the part-performance is unreasonable for the customer. Part-performance is unreasonable for the customer if the part-performance is not of interest for the contractually foreseen use of the merchandise.
2. Protective clause
Insofar as no contractual agreement to the contrary is explicitly made, the GTCs of PTE apply exclusively. Any other regulations, in particular general terms and conditions or purchasing conditions of the customer will not become constituents of any agreement even if PTE has not explicitly contradicted these.
3.Deadlines and time periods
3.1 PTE will make every effort to ensure punctual delivery, but delivery dates and deadlines set are non-binding unless these have been explicitly agreed in writing.
3.2 The condition for compliance with any agreed delivery dates is the fulfilment of contrac-tual and cooperation obligations, in particular the full payment of the amount contractually owed by the customer to PTE.
3.3 Delivery obligations are subject to the reservation of correct and punctual self-delivery.
3.4 If it emerges that the merchandise is not available, PTE will be entitled to a right of withdrawal. PTE is obliged to inform the customer without delay of the non-availability of the merchandise and to refund any consideration already received.
3.5 Force majeure or any other impediment that is outside the area of influence of the con-tracting party that cites this (in particular war, strike, lock-out, stoppages of work, government prohibitions, energy and transport difficulties and operational disruptions etc.) shall extend time periods and postpone deadlines. The condition for the citation of the preceding regulation is that the party affected by the special impairment informs the other party of the impediment without delay.
4. Prices and terms of payment
4.1 In addition to the price to be paid for a component or a service additional fees may be invoiced (e.g. express surcharge). PTE will inform the customer of such additional fees in the individual case in advance. Transport costs will be itemised separately in the invoice or separately invoiced if these are not already included in the price.
4.2 The prices given in the order document are net prices excluding value-added tax – insofar as there is no agreement to the contrary. Value added tax will be invoiced at the value-added tax rate applicable at the time of performance. If within the contractual period the value-added tax rate changes, the periods with respective value-added tax rates will be deemed to be separately agreed.
4.3 Invoices are due for payment on receipt without deductions. If payment has not been received within 30 days of becoming due, PTE may demand interest in arrears of the legal amount.
4.4 Offsetting receivables and retaining payments is generally excluded.
5. Production status
Alongside new parts PTE Machines can also contain certified reworked parts. In individual cases a Machine may also no longer be brand new and have already been installed. The customer warranty as described in figure 9 remains unaffected.
6. Transfer of ownership and risks
6.1 The Machine remains the property of PTE until full payment. Model Expansions acquired for a Machine remain the property of PTE, until all amounts due for payment have been paid and insofar as the Model Expansion requires an exchange of parts, these pass to the ownership of PTE. If the customer falls into arrears with the payment of the purchase price PTE may, regardless of its other rights, take the Machines back after expiry of an appropriate period of grace to secure its rights, if PTE has advised the customer of this in advance. The customer is not entitled to sell, pledge, or transfer as security Machines that are the property of PTE.
6.2 If the objects supplied are processed or connected by the customer to form a new movable item, the processing/connection is done for PTE, without PTE accruing any obligations from this. The new item will become the property of PTE. On processing/connection together with merchandise that does not belong to the customer, PTE acquires co-ownership to the new item in proportion to the value of the other merchandise at the time of processing/connection.
6.3 PTE bears the risk of accidental loss or the accidental deterioration for every Machine until the handover of the Machine as per the delivery conditions agreed with the customer. If no special delivery conditions are agreed, the transfer of risks will be deemed to occur on handover to the first carrier.
In the event of the loss or deterioration of the Machine the customer must (1) Inform PTE of the loss in writing within ten (10) business days from delivery and (2) Follow the guidelines and procedures stipulated by PTE or third parties for loss reporting and regulation. Any contractual or legal obligations and responsibilities of the customer beyond these that serve to secure claims towards third parties (e.g. towards carriers) remain unaffected.
7. Installation, additional facilities, model conversion and model expansions
7.1 It is the responsibility of the customer to provide the installation and environmental conditions specified for the Machine in the respectively published documentation.
7.2 Insofar as a Machine has to be installed by PTE, the Machine will be deemed to be in-stalled once all the installation steps described in the installation instructions have been successfully completed and the Machine is operationally ready. Machines labelled “Installation by the customer” and – insofar as nothing to the contrary is contractually set – non-PTE machines, must be commissioned by the customer as per the instructions included by PTE or the manufacturer.
7.3 The customer permits PTE to make technical changes to Machines that are necessary for example, for safety reasons.
7.4 The customer is informed that on purchasing Model Expansions or making technical changes that these are only supplied for installation on a certain Machine and/or in exchange for certain parts and on transferring possession and ownership of these parts to PTE. In this case the customer must return the demounted parts to PTE without delay. If within 30 days of delivery of a Model Expansion the demounted parts have not been returned, PTE is entitled to invoice the fair value of the non-returned parts or recalculate the purchase price specified in the order confirmation.
The customer assures that they (towards the owner and/or any other rights owner) are entitled to have Model Expansions installed or technical changes made to the Machines planned, including if they are not the owner. If the customer is not the owner of the demounted parts they confirm they will transfer possession and ownership to PTE with the consent of the owner. Further the customer assures that the demounted parts are original, unchanged and in a functional condition. Insofar as a part replaces a demounted part, it will receive at least the same warranty status as the demounted part.
7.5 The condition of Model Expansions is that they are installed in a Machine (serial number) intended for this and these have the required engineering change level.
8. Warranty
8.1 The warranty period for Machines is twelve (12) months unless anything to the contrary is agreed between the parties or PTE declares a generally differing regulation for individual products. The legal warranty period as per section 438 (1) no. 2 BGB remains unaffected.
8.2 The warranty begins on the delivery of the Machine and covers its functionality for the intended use and according to its specifications i.e. the production descriptions issued by PTE for the respective Machine. Insofar as PTE Machines are to be installed by PTE, the delivery date is the business day after the installation of the Machine, in the event of a delay to the installation by the customer the day of delivery of the Machine for later installation by PTE. Insofar as PTE Machines are to be installed by the customer and for non-PTE machines the installation date is the second business day after expiry of the usual consignment time.
8.3 If PTE does not succeed in rectifying a fault, even after the setting and expiry of an appropriate period of grace, the customer may – insofar as the value or suitability of the performance is restricted – demand a reduction of the price or the annulment of the agreement at its choice. In the event of immaterial faults or deviations, however, a withdrawal from the agreement is excluded. Otherwise figure 10 (Liability) applies. Claims to compensation are excluded for immaterial faults.
8.4 Before fault rectification the customer will backup programs, data and means of payment or remove these before a Machine exchange. Before the customer initiates fault rectification of a Machine, they must carry out a problem analysis and fault isolation in accordance with the user handbook.
8.5 If warranty work is not provided at the installation site of the Machine, this will be specifically indicated on the order document. The customer must deliver such Machines to PTE in the original consignment container or in packaging of the same quality.
8.6 The warranty does not cover the rectification of faults caused by improper use (including the use of Machine capacity whose use was not agreed with PTE, operator errors, accidents, changes and additions not approved by PTE or not properly carried out, inadequate environ-mental conditions, use under conditions other than those specified, insufficient maintenance by the customer, third party products that are not supplied by PTE or by other external influ-ences. The replacement of consumable accessories (e.g. writing and printing elements, colour subcarriers etc. and in particular also batteries) is not a constituent of the warranty.
8.7 The warranty for Machines will lapse in the event of a change to or removal of the Machine or part labelling (e.g. type signs).
8.8 Regardless of the warranty rights of the customer detailed under this figure, it is pointed out that as per the current status of technology it is not possible to rule our faults in information technology products under all application conditions. Therefore, PTE guarantees neither interruption-free nor fault-free use of a product.
8.9 Warranties of other manufacturers or suppliers of a product or to parts of a product as-sembled by PTE can be passed on by PTE to the customer without any obligation of PTE in order to enable the customer to assert the warranty directly towards the supplier of PTE. In such a case, PTE will be freed from its own warranty and guarantee periods. The rights of the customer towards PTE will not be extended by such a forwarding under any circumstances. There is no obligation for PTE to such forwarding.
8.10 Exchanging Machines or Machine parts
a. Insofar as within the scope of the warranty the exchange of a Machine or a Machine part is necessary, the ownership of the exchanged Machine or the exchanged part (hereinafter the “Exchanges”) will pass to PTE and the ownership of the replacement to the customer.
b. The customer confirms that all Machines or parts to be exchanged are in the original and unchanged condition.
c. The replacement provided by PTE may be brand new or a certified reworking but, in any case, will be fully functional and have at least the same functionality of the Exchange and will receive the same guarantee status.
d. Before an exchange of a Machine or a Machine part the customer must remove all additional facilities, parts, options, changes and additions that were not supplied by PTE.
e. Further the customer confirms that exchanged Machines and parts that are returned to PTE are not encumbered with third party rights that could oppose their exchange.
f. The warranty for some PTE Machines includes the delivery of exchangeable spare parts for installation by the customer. Such exchangeable units can be (1) A part of Machine (so-called exchangeable function units or also called “Customer Replacement Units (CRU)”, such as keyboards, memory or hard disk drives) or (2) A complete Machine. The customer may – in return for additional payment – commission PTE to install the CRUs to be exchanged or the Machine. PTE supplies information and the instructions relating to the Exchange together with the Machine; in addition, these are also available at any time on a request of the customer to PTE. This can include information and instructions on how to deal with faulty exchanged parts or Machines e.g. whether these have to be returned to PTE. If a return is necessary, further instructions for the return and a consignment container will be delivered with the spare parts. The customer will be invoiced for the Machine parts or Machines if these are not sent to PTE within 15 days of receipt of the spare parts by the customer.
9. Third party property rights
9.1 The term Machine also includes machine code for scope of this figure (Third party property rights).
9.2 PTE will defend the customer at its costs against all third party claims that are initiated from a violation of a commercial property right or copyright due to contractually used Machines and refund the customer costs and compensation that are imposed by a court or are included in a settlement that was previously approved by PTE if the customer (1) Informed PTE in writing of the enforcement of such claims without delay and (2) All defence measures and settlement negotiations are reserved for PTE. The customer will support PTE in this.
9.3 If such claims have been asserted or if their assertion can be expected, PTE may at its costs acquire a right of use or amend the Machine or exchange it for a Machine of the same value. If this is not possible at reasonable expense, the customer agrees they will return this Machine to PTE on a written request by PTE to do so. In this case, PTE will refund the customer the carrying amount of the affected Machine (if the accounting principles applied were complied with) and the losses of the customer in accordance with figure 10 (Liability). These obligations of PTE towards the customer regarding claims from the violation of third party property rights are conclusive.
9.4 Claims against PTE are excluded if these relate to
a. components provided by the customer installed in Machines or PTE drafts, specifications or instructions of the customer or by a third party on their behalf that had to be complied with;
b. machines changed by the customer;
c. machines combined together with other Machines from PTE not supplied as a system or with other products, data, facilities or business methods, brought into operation or used that were not supplied by PTE of Machines to third parties that do not belong to their company, distributed or operated or used to their benefit. A company in accordance with this figure is every legal unit (e.g. GmbH, partnership) including their subsidiaries in which there is a holding of more than 50%. Only those parts of a company come under the term “company” that are in Germany insofar as nothing to the contrary is explicitly agreed at another point in these terms and conditions.
d. the violation of a commercial property right or copyright is only done by non-PTE machines.
10. Liability
10.1 PTE is liable for losses incurred through violation of a guarantee assumed on conclusion of an agreement, for losses from personal injury, impairment to health or death that PTE deliberately caused or caused by gross negligence up to a maximum total of the insurance taken out by PTE.
10.2 In the event of losses caused by minor negligence or other reasons not specified PTE will be liable, regardless of the legal reason (including claims from breach of contract or unlawful acts) per loss incident up to a maximum amount of the price of the performance of delivery that causes the loss. On delivery, the price of the individual product that causes the loss applies.
10.3 In the event of conduct of minor negligence PTE is not liable for indirect losses or consequential loss, even if PTE was informed of the possibility of such loss. This also includes the refund of fruitless expenses if these concern indirect or consequential losses.
10.4 Any liability due to delay is excluded.
11. Other rights and duties of the parties
The customer and PTE agree that
a. none of the parties has the right to use company logos or other marks of the other or of one of its companies in advertising or in publications without the prior, written consent of the other party;
b. the exchange of confidential information requires a separate written agreement;
c. each party grants the other party only the licences and rights that are explicitly specified and agreed;
d. an amicable solution will initially be found to any differences of opinion or objections. In particular, each party, before it takes legal steps due to non-performance of a contractual obligations, will enable the other party to perform in an appropriate manner;
e. claims arising from this agreement – insofar as these are not otherwise regulated in figure 8 (Warranty) of the General Terms and Conditions – are subject to a three-year period of limitations. Legally mandatory claims for which a longer period applies are excluded from this.
f. with the exception of payment obligations none of the parties are responsible for the non-performance of obligations for reasons that are outside their area of influence;
g. the assignment of rights from an agreement with the exception of payment claims of PTE, which require the prior written consent of the other party, insofar as this does not concern a transfer within the company (see definition a figure 9.4c) of the assigning party or a legal successor. Consent can only be refused for cause. The disposal of a part of the company of PTE that affects all PTE customers equally will not be considered to be an assignment in the preceding sense. Furthermore, a third party cannot derive any rights from this agreement;
h. the customer is not entitled to bring any performances or parts thereof under this agreement to the market themselves or provide these in any other manner;
i. the customer is obliged to acquire Machines only for contractual use within its company (see definition as per figure 9.4c) and not with the intention of sales, leasing or forwarding to third parties unless (1) the Machines are financed through “sale & lease-back” or (2) The Machines are acquired without discounts or any other deduction;
j. the customer is responsible for the results desired and thus achieved through use of the Machine;
k. the customer grants PTE sufficient, free and secure access to its premises and systems (including remote access) and provides information, support from employees and other resources insofar as this is necessary for performance;
l. both parties are responsible for compliance with applicable import and export laws and provisions (including US provisions that provide for an export prohibition or a restriction with regard to certain types of use users).
12. Data processing for own purposes and for the purposes of factoring
The customer agrees that PARTNER-TECH Europe GmbH, Beim Umspannwerk 10, 22844 Norderstedt (hereinafter “PTE”) collects, processes and uses its contact details for the purposes of pro-cessing the contractual relationship and to maintain business relations with the customer. Contact details are the business-related contact information which is made accessible to PTE Germany by the customer; in particular names, job titles, business addresses, business tele-phone and fax numbers and email addresses of employees of the customer or of third parties. Further the customer agrees that the contact details will be made accessible to the PTE com-panies and its subcontractors and processed and used within the scope of the purposes speci-fied in this paragraph. Factoring or the use of customer data for refinancing in any other manner is also explicitly part of contract processing. PTE companies are, apart from PTE itself, companies in which PTE has a holding and associate group companies of PTE.
13. Data processing for external purposes (on behalf of the customer)
Insofar as PTE or a third party temporarily (e.g. when carrying out warranty work) commissioned by PTE accesses storage media of the customer (such as hard disks, storage units, chips etc.), the customer will ensure that access to personal data of the customer is prevented in these cases, but is at least kept a low as possible.
14. Disposal of Machines
In accordance with the German law concerning bringing into circulation, return and the environmentally friendly disposal of electrical and electronic devices (ElektroG), the following is agreed for Machines:
14.1 PTE creates a reasonable possibility for the return of PTE electrical and electronic devices (old devices) that were brought into circulation as new devices and will dispose of these old devices at the costs of PTE.
14.2 In accordance with the ElektroG the customer is responsible for the legally-compliant disposal of old devices that do not come under the preceding regulation. In this case PTE is prepared to take these old devices back on the basis of a separate contractual agreement and in return for a corresponding disposal fee.
14.3 If due to a legal or contractual obligation PTE collects and disposes of old devices of the customer the customer agrees to the following:
a. The customer is responsible for removing any means of payment and other assets that may be in old devices that are returned to PTE or its agents and to delete all data (including personal data) in or on returned data storage media (such as hard disks, storage units, chips etc.) before the return of the old devices and to prepare the old devices for transport for collection by PTE or its agents.
b. PTE or one of its agents are not responsible for securing or protecting means of payment and other assets and programs or data that were not provided by PTE with the original devices that are included on an old device that the customer returns to PTE.
c. The regulations from figure 11 (Data processing for external purposes) apply to the deletion of data by PTE or its agents.
15. Factoring, assignment for financing purposes
PTE is entitled, in particular for the purposes of financing, to assign payment receivables from the contractual relationship. PTE is entitled but not obliged to disclose the assignment. Including in the event of an assignment, PTE continues to remain in each relation the contractual partner of the customer, merely the ownership of the payment receivable from the customer will be transferred by PTE to a financing company (bank, factoring agent etc.).
16. General
16.1 Deliveries and performances of PTE are exclusively subject to the General Terms and Conditions of PTE. The applicability of terms and conditions and purchasing conditions of the customer is explicitly contradicted.
16.2 All rights of the customer can – insofar as not otherwise agreed – only be asserted in Germany.
16.3 The law of the Federal Republic of Germany applies under the exclusion of the CISG and under the exclusion of the collision standards of the EGBGB.
16.4 The court of jurisdiction for all disputes from or in connection with the contractual relationship in the location of PTE.
16.5 Insofar as contractual conditions are not limited in time by their nature, they continue to apply after the end of the contractual relationship; this also applies to any legal successors and representatives.
16.6 Insofar as nothing to the contrary is agreed in the agreement, any amendments to or supplements of an agreement require the agreement of both parties and must be made in writing. This also applies to any amendment of the written form requirement.
16.7 Should any provision or parts of an agreement be or become ineffective or impracticable this shall not affect the effectiveness or conduct of the remaining provisions. A replacement regulation shall be taken in place of the ineffective or impracticable provision that comes as close as possible to the purpose desired with the ineffective or impracticable provision in a practicable or approved manner.
