General Terms and Conditions
All contracts and / or orders between / made by 3e oem sports AG are based on the following general terms and conditions:
Any supplier or customer agrees to these General Terms and Conditions without further notice by submitting a order or confirmation or by delivery of any kind of goods and services. Any other kind of regulations and / or General Terms and Conditions, 3e oem sports AG only accepts if they have been done in written manner and signed by the executive board of the 3e oem sports AG.
II. Offers, order confirmation
III. Prices and payments
IV. Delivery, default of acceptance by the customer
V. Retention of title
VI. Delay, impossibility, withdrawal
VII. Special provisions for maintenance and repair work
I. General, scope of application
The following terms and conditions shall apply to all offers, deliveries and services arising from purchase contracts, contracts for work and services and other contracts. The effect of any general terms and conditions of the customer is expressly excluded.
A consumer is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. If written form is required in these terms and conditions, it shall suffice if the contractual partner is a consumer to use text form.
An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
II. Offers, order confirmation
Unless otherwise expressly agreed, our offers are non-binding. Declarations of the customer regarding our offers are therefore contractual offers. These shall be accepted either by express declaration or by performance of the services contractually offered.
Subsequent changes at the instigation of the customer will be charged to the customer.
If the customer has validly concluded a contract with us and, in addition to the purchase offer, a leasing or financing offer is also made to the customer, the rejection of such leasing or financing offer by the leasing company or the bank shall not affect the contract once concluded. In this case of rejection of a leasing or financing offer, we are entitled to demand advance payment from the customer in respect of the contractually agreed remuneration.
If the customer acquires equipment for which connection to the German telecommunications network is prohibited due to lack of approval by the regulatory authority for telecommunications, we shall draw the customer's attention to this circumstance. The customer shall indemnify us against any liability arising from any operation which is nevertheless prohibited.
III. Prices and payments
The prices agreed upon at the time of conclusion of the contract shall apply.
Prices are unpacked and do not include installation, training or other ancillary services. If we ship the goods at the customer's request, delivery and transport costs shall be charged separately.
Prices quoted to entrepreneurs shall be exclusive of the respective statutory value added tax. Payments may only be made to us or to persons authorized by us in writing. Invoices shall be payable in accordance with the date indicated or, if the date is not indicated, within 7 days from the date of invoice net cash free paying agent.
If a deterioration of the customer's assets occurs which gives rise to doubts about his ability or willingness to pay, in particular in the case of bill and check protests, default of payment, arrears from other deliveries or sluggish payment, we shall be entitled, subject to the rights to which we are otherwise entitled, to demand advance payment or provision of security and to withhold our services until advance payment or provision of security has been made and, in the case of insufficient advance payment or provision of security, to withdraw from the contract in whole or in part. In any case, all our claims arising from the contractual relationship shall become due immediately. This does not apply if the customer is not responsible for the delay in payment.
IV. Delivery, default of acceptance by the customer
Deadlines shall only be binding if they have been expressly confirmed by us in writing as binding. The deadline shall be deemed to have been met if, by the time it expires, the goods have left our distribution warehouse or we have notified the customer of our readiness to perform. Unforeseen circumstances and events (even if they occur at our suppliers) such as force majeure, government measures, non-issuance of official permits, labor disputes of any kind, sabotage, shortage of raw materials, delayed delivery of materials through no fault of our own, war, riot, etc. shall postpone the delivery date accordingly, even if they have occurred during an already existing delay.
If we exceed a delivery date that has been promised as binding and if the customer cannot reasonably be expected to wait any longer, he may assert further rights after the occurrence of the delay and a warning and setting of a reasonable grace period. In this case, a claim for damages by the customer is excluded, unless the delay is due to intentional or grossly negligent conduct on our part or on the part of one of our legal representatives or vicarious agents. If the customer is in default of acceptance, we shall be entitled to refuse performance of the contract after expiry of a grace period to be set by us and to claim damages. Instead, we may also dispose of the goods elsewhere and deliver to the customer within a new reasonable period.
If we ship the subject matter of the contract at the customer's request, this shall be at the customer's expense and risk. For all deliveries, the risk of loss of the goods shall pass to the customer upon handover to the forwarding agent, the carrier or the persons otherwise designated to carry out the shipment, irrespective of whether the shipment is made from the place of performance and who bears the freight costs. This does not apply if the customer is a consumer. If the shipment is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notice of readiness for shipment.
In the event of non-delivery by a pre-supplier for which we are not responsible, in particular because we have already validly ordered the goods from such pre-supplier, we shall be entitled to withdraw from the contract. In this case, we shall inform the customer without delay of the non-availability of the goods and immediately refund any consideration already paid by the customer.
If the customer fails to collect new goods or repaired equipment within a reasonable period of time set by us, he shall owe €25 per month as a lump-sum compensation for the resulting storage costs. The customer has the right to prove that lower storage costs are incurred. After a renewed written request to collect the goods, we shall be entitled to sell the goods or equipment on the open market and to offset the proceeds against the claims to which we are entitled. Any data existing on the devices will be deleted beforehand. This legal consequence and the deletion shall be pointed out in the corresponding written request.
V. Retention of title
Any goods delivered by us shall remain our property until the purchase price has been paid in full.
If the customer is an entrepreneur, the following shall apply in addition: We shall retain title to the delivered goods in simple, extended and expanded form from the business relationship with the customer until all claims (including all balance claims from current account) to which we are entitled against the customer now or in the future for any legal reason, or until the complete fulfillment of all claims from the respective contract. Any disposal of the goods subject to retention of title by the customer shall only be permitted in the customer's regular business transactions. Under no circumstances, however, may the goods be transferred to third parties as security in the course of regular business transactions. In case of sale of the goods in the regular course of business, the paid purchase price shall take the place of the goods. The customer already now assigns to us any claims arising from a possible sale. The customer is authorized to collect these claims as long as he meets his payment obligations towards us. If this is not (no longer) the case, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents to us and informs the debtors (third parties) of the assignment. With regard to the extended reservation of title (advance assignment of the respective purchase price claim), an assignment to third parties, in particular to a credit institution, is contrary to the contract and inadmissible. We shall be entitled at any time to examine the customer's sales documents and to inform the customer's customers of the assignment. If the customer's claim has been included in a current account, the customer hereby already assigns to us its claim from the current account against its customer. The assignment shall be in the amount that we had charged the customer for the resold goods subject to retention of title. In the event of seizure of the goods at the customer's premises, we are to be informed immediately by sending a copy of the execution record and an affidavit that the seized goods are the goods delivered by us and subject to retention of title. If the value of the securities pursuant to the preceding paragraphs of this clause exceeds the amount of the outstanding claim secured thereby after deduction of the security costs for the foreseeable future by more than 20%, the customer shall be entitled to demand the release of securities from us to the extent that the excess exists. During the period of retention of title, goods owned by us shall be insured by the customer against fire, water, theft and burglary. The rights arising from this insurance shall be assigned to us. We hereby accept this assignment.
VI. Delay, impossibility, withdrawal
If we are in default with the provision of an item and if we are accused of gross negligence or intent with regard to the default, we shall compensate the customer for all resulting damages which typically occur in the contractual relationship concerned and which were foreseeable at the time the contract was concluded. In the event of simple negligence, claims by the customer shall be excluded.
We do not assume any procurement risk. Therefore, if we are not supplied with the contractually agreed goods by our supplier, although we have demonstrably concluded a corresponding supply contract, the customer shall not be entitled to any claims for damages.
VII. Special provisions for maintenance and repair work
If we carry out maintenance or repair work, this shall be carried out exclusively in accordance with these general terms and conditions.
Our maintenance and repair activities are services. The prices shall be based on the service price list valid at the time. Travel costs, material costs and the like shall be charged additionally in accordance with our respective price lists. Travel times of our employees shall be considered working hours and shall be remunerated in accordance with the service price lists.
If the customer requests a cost estimate, we shall examine the item and then submit a cost estimate. The costs of this examination shall be borne by the customer. The costs of the inspection shall be charged on a time and material basis and shall only be invoiced within the scope of any repair or maintenance order if this has been expressly agreed in advance.
VIII. VIII. Warranty
We provide warranty as follows:
If the customer is a consumer: For newly manufactured items 24 months, for used items 12 months. If the customer is an entrepreneur: For newly manufactured items 12 months, for used items the warranty is excluded.
If the customer is an entrepreneur, he is obligated to inspect the delivered goods for visible defects immediately after delivery and to notify us in writing of existing defects without delay (at the latest by the third working day following delivery). Defects which are notified late, i.e. contrary to the above obligation, shall be excluded from the warranty. Defects which are not immediately recognizable and which only become apparent in the course of time shall be notified by the Contractor in text form (in writing or by email) within the same period after discovery, otherwise the Contractor shall again lose all rights on account of this defect. Notices of defects shall only be recognized as such by us if they have been communicated in text form, even if they are made to field staff, carriers or third parties.
The return of goods to us by entrepreneurs required in the event of a defect may only be made with our prior consent. Returns made without our prior consent will not be accepted by us. In this case, the customer shall bear the costs of the return shipment resulting from our refusal to accept the goods.
In the event that a rectification or replacement delivery is made on the basis of a justified complaint, the provisions on delivery time shall apply accordingly.
The warranty period shall commence with the transfer of risk to the customer. Within this warranty period, we shall remedy free of charge any defects notified by the customer in text form. We shall remedy the defect at our discretion by eliminating the defect, bypassing the defect or delivering another item (subsequent performance). If the customer is a consumer, he has the right to choose. The customer shall be obligated to compensate us for those benefits of use which he has derived from the defective item until delivery of a replacement item as compensation for use in accordance with the statutory regulations. If subsequent performance fails, the customer may set us a further period for subsequent performance of at least 3 weeks, within which we must meet our obligations. This shall not apply if setting a period of grace is dispensable due to special circumstances (e.g. §§ 323 para. 2, 326 para. 5, 636 BGB). After the unsuccessful expiry of this period, the customer may, at his discretion, demand a reduction in price, withdraw from the contract and, if the preconditions are met, claim damages.
Further claims of the customer against us shall be excluded, in particular claims for compensation for damage which has not occurred to the subject matter of the contract itself. This shall not apply in cases of liability based on intent or gross negligence, cf. the provisions under Section 12.
With the exception of intent or negligence (cf. clause 12), our liability shall be excluded for material defects caused by unsuitable or improper use or faulty assembly by the customer or third parties, normal wear and tear, faulty or negligent handling, as well as for the consequences of improper modifications made by the customer or third parties without our consent. The same shall apply to defects which only insignificantly reduce the value or the suitability of the goods. If the defect reported by the customer cannot be determined after inspection, the customer shall bear the costs of the inspection if he is an entrepreneur, unless he would not have been able to avoid the defect even if he had dutifully inspected the defect, e.g. by consulting a documentation (manual) in advance.
In the event of the existence of defects, we shall, at our discretion, repair the contractual item complained of at our place of business or at the customer's place of business. If there is a defect which can only be repaired on the customer's premises, we shall bear the resulting costs only up to the place where the item was to be used in accordance with the contract. If nothing has been agreed and nothing results from the circumstances, we shall at most owe the repair at the customer's place of business. Additional costs resulting from the fact that the customer has taken the item to a place other than the originally intended installation site or his registered office shall be borne by the customer, unless the transfer to this place corresponds to the intended use of the goods. This shall not apply if the customer is a consumer.
If we have given a guarantee for a certain type of quality of the sold item for a specified period of time, the above provisions on the obligations to inspect and give notice of defects as well as the number of attempts at subsequent performance shall not apply and the customer shall give notice of defects without undue delay.
If claims arising from the infringement of German industrial property rights are asserted against the customer by items delivered or licensed in accordance with these terms and conditions, we shall reimburse the customer for all costs and damages imposed by final and binding judgment if we are notified of such claims immediately and in writing, receive all necessary information from the customer, the customer complies with its general obligations to cooperate, we are able to make the final decision as to whether to defend or settle the claim and we are at fault with regard to the infringement of the industrial property rights. If it is legally established that further use of the subject matter of the contract infringes German industrial property rights of third parties or if, in our opinion, there is a risk of an action for infringement of industrial property rights, we may, unless liability lapses, at our own expense and at our own discretion either procure for the customer the right to continue to use the subject matter of the contract, or replace it or modify it in such a way that there is no longer any infringement, or reimburse the customer for the value of the subject matter of the contract, taking it back and deducting compensation for use for the benefits derived up to that point. Compensation for use shall be calculated on the basis of an assumed depreciation period of 3 years, so that 1/36 of the price shall be paid for each month of use.
In the event that the customer purchases a system of interconnected devices (network), the customer warrants that it will only use suitable, network-compatible software in accordance with the manufacturer's license terms. Otherwise, the customer shall bear the burden of proof that a defect that has occurred is not due to the use of these devices that are not suitable for the network. For this purpose, we shall be entitled to log and store the installation data at the time of delivery for the duration of the warranty period.
The customer is advised that printers of certain makes or also some software packages cannot display all special characters commonly used in German-speaking countries. The customer has to check this carefully on his own before the purchase. He cannot later derive any claims from the absence of these characters due to incorrect advice or missing properties of the devices or software, unless the presence of the special characters was expressly the subject of the advice or the purchase contract.
As a matter of principle, we do not give any guarantees. If we have given a guarantee by way of exception, the guarantee shall not, unless otherwise agreed in writing, give rise to any claims for rescission, reduction of the purchase price or damages, but only to claims for rectification of defects. The customer may also not assert a claim for free replacement with new goods or for replacement equipment for the duration of the repair. The warranty period begins with the handover of the goods to the customer and is not interrupted or inhibited by rectification. Any statutory claims existing in addition (warranty) shall not be limited by this provision.
IX. Settlement of third-party warranties
Guarantees are promises of performance given by the manufacturer to the customer. They therefore do not create any obligation for us. The customer is therefore obliged to establish the conditions for the assertion of claims under the warranty at his own expense. In particular, the customer shall bear the costs of transport to and collection from the manufacturer, assembly and disassembly and, if necessary, the costs of a replacement device. We are happy to assist the customer in asserting and processing warranty claims against the manufacturer, but reserve the right to charge a fee for the resulting expense according to the applicable price list.
If acceptance is necessary due to the nature of the order, the following shall apply:
Acceptance by the customer of the services specified in the order shall take place at our business premises unless otherwise agreed. We shall notify the customer at our discretion by telephone, email or in writing that the ordered service is ready for acceptance at our premises. The customer shall be in default of acceptance if he does not collect the object of the order from our premises within one week after receipt of the notification or receipt of our invoice and accepts it in the process.
Immediately after notification by us of readiness for acceptance, the customer shall carry out the acceptance test and verify compliance with the technical specifications.
If the service provided by us complies with the technical specifications and any change or additional requests expressly agreed between the contracting parties, the customer shall declare acceptance in writing without delay.
If the customer does not declare acceptance six weeks after completion of the installation by us and has therefore not notified us of any significant defects in the meantime, the performance shall be deemed to have been accepted.
Acceptance shall also be deemed to have been effected if the customer puts the service into use for more than three weeks without declaring that the use has been significantly reduced.
If defects occur during the inspection by the customer, these shall be noted in the acceptance report. We shall remedy these defects within a reasonable period of time and then present the item again for acceptance. The acceptance shall then be governed by the above conditions.
If the subject matter of the contract is the transfer of third-party software, only those rights shall be transferred which the manufacturer grants to the end user, if applicable by means of a license agreement for end users (End User License Agreement – EULA). The customer shall be obliged to obtain knowledge thereof and to comply with the limitations of the rights.
Documentation shall be delivered in the manner in which it is made available by the manufacturer. Documentation may also be available only in a foreign language or in electronic form or as online help (Wiki). We are not obligated to translate documentation on programs from third-party manufacturers into the German language or to print it out. We do not assume any responsibility that the documentations describe the software completely.
XII. Liability for breach of duty
Without prejudice to the provisions on warranty and other special provisions made in these terms and conditions, the following shall apply in cases where we have breached a duty: We shall be liable for our employees, vicarious agents and persons employed in the performance of our obligations for damages without limitation as to amount even for slight negligence in the event of injury to life, body or health of persons.
Beyond this, we shall only be liable to the following extent:
If we violate an essential contractual obligation, i.e. an obligation without the observance of which the purpose of the contract could not be fulfilled, we shall also be liable in cases of intent, gross negligence and slight negligence. In these cases, we shall compensate for the damage foreseeable at the time of conclusion of the contract and typical for the contract. If we do not act intentionally or with gross negligence, but only with slight negligence, our liability in this respect shall be limited to €500,000.00 per case of damage, annually doubled.
If the breach of duty by us does not lie in the violation of a material contractual duty, we shall only be liable for cases of gross negligence and intent.
Our liability for fraudulent intent and under the Product Liability Act shall remain unaffected.
The customer shall be liable for contributory negligence, e.g. insufficient provision of cooperation services (e.g. also insufficient error messages, organizational errors or insufficient data backup). We shall only be liable for the recovery of data insofar as we are accused of gross negligence or intent and the customer has taken the usual and reasonable precautions for data backup and has ensured that the data and programs that are available in machine-readable form can be reconstructed with reasonable effort. In particular, the customer shall be obliged to perform a data backup prior to each of the aforementioned activities and to verify the successful completion of this data backup. The customer is advised that data backup software may indicate successful data backups even though one has not succeeded. Final certainty as to whether a data backup has been successful can only be obtained by restoring the backed-up data to another medium. The customer is advised to do this regularly. If the customer has not done this, he is obliged to inform our staff before starting any work. If our employees are to carry out the data backup and check its success, the costs for this shall be borne by the customer. The costs are calculated according to our price list valid at the time and are charged according to the time spent.
XIII. Prohibition of assignment, set-off, retention
The customer's rights arising from transactions with us are not transferable without our written consent. The customer shall only be entitled to set-off against our claims if his claim is undisputed or has been finally determined by a court of law. This shall not apply if the customer is a consumer. The customer may only exercise a right of retention if it arises from the same legal relationship.
Should one or more of the above conditions be or become invalid or contain a loophole, the remaining conditions shall remain unaffected. In such a case, the contracting parties shall be obligated to replace an invalid condition with a valid one that comes closest to the economic purpose of the invalid one. This shall also apply to the filling of any unintended gaps requiring filling.
Agreements deviating from or additional to the above terms and conditions shall only be effective in the form of a written supplementary agreement to the contract concluded by the parties in which reference is made to the amended terms and conditions. Any waiver of this written form requirement must also be in writing.
The place of performance for all obligations arising from this contract shall be our registered office. This shall not apply to purchases of consumer goods. The sole place of jurisdiction for all disputes arising from the contractual relationship as well as regarding its validity, also in the context of a bill of exchange and/or check process, shall be, if the customer is a registered merchant, a legal entity under public law or a special fund under public law or has its registered office abroad, at our discretion the registered office of us or the registered office of the customer. This provision shall not apply to consumers.
This contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.