TERMS AND CONDITIONS

General Terms and Conditions of eLink Distribution AG

Article 1 General Applicability

1.   Our general terms and conditions apply exclusively. We neither recognize nor honor conditions of the buyer that oppose or differ from our General Terms and Conditions unless we have confirmed their validity in written form. Our General Terms and Conditions are also valid when we, without reservation, knowingly execute conditions of the Buyer which oppose or differ from our General Terms and Conditions.

2.   All agreements made between us and the Buyer for the purpose of the execution of this contract are abdicated, in written form, within the contract.

3.   Our General Terms and Conditions are valid for all purchases from eLink Distribution AG which are effected from the company. Business customers in this sense are companies, as long as the product ordered by them serve him/her within his/her trade, business or profession. Private customers are urged to place their orders via the order pages available via the private customer login.

Article 2 Effective date of the General Terms and Conditions

1.   These Terms and Conditions come into effect between eLink Distribution AG(Seller) and the Buyer, as long as the Buyer has received a copy of these General Terms and Conditions before closing the contract or was able to gain knowledge of their contents in an otherwise reasonable manner.

2.   In executing online orders, the buyer accepts the General Terms and Conditions through the conformation of the “accept” button and in so doing becomes obligated to observe them.

Article 3 Realization of contracts / Terms of contract

1.   The Seller’s offers are subject to alteration. The buyer’s order is a binding offer. The buyer accepts the contract upon delivery of an order confirmation or the delivery of hardware. Oral supplementary agreements carry no validity. The sales associates in particular are not authorized to make supplementary agreements or give oral reassurance which goes beyond the content of the written contract.

2.   In the case that a purchase contract be connected with a telecommunications provider upon closing the contract, the contract closing then stands under the suspending condition that the buyer be accepted by the telecommunications provider.

3.   Drawings, technical data, as well as descriptions of weight, size and features contained in catalogues, advertisements or price lists are purely informational in character. The Seller provides no guarantee regarding the correctness of this information. Regarding the range and type of delivery, only what is given in the order confirmation is mandatory.

Article 4 Delivery/ delivery time/ transfer of risk

1.   The Seller shall ship the goods according to the settled arrangements. In the case that a delivery deadline is arranged, the Seller will keep to this within the best of his/her ability. The Seller has the right, to a reasonable extent, to make partial deliveries and to invoice them.

2.   For delays in shipping due to acts of God or due to unforeseeable circumstances unavoidable by the Seller such as mobilization, war, industrial malfunction, strike, lockout or government operations, the above-mentioned time limit is to be lengthened to a reasonable extent.

3.   Should the Seller experience a delay in shipment of the goods, the Buyer is to set an extension of two weeks for the Seller.

4.   The risk is transferred to the Buyer as soon as the Seller or his/her supplier has given the product to the Forwarding Agent, Freight Carrier, or to any person otherwise authorized to execute shipment. Should the delivery be delayed for reasons avoidable by the Buyer, the risk, along with advice of dispatch is transferred to the Buyer.

5.   The fulfillment of our delivery obligations is subject to the prompt and orderly fulfillment of the obligations of the Buyer. eLink Distribution AG reserves the right to object to unfulfilled contracts.

6.   Should the Buyer be in default of acceptance or negligently violate other cooperation obligations, the Seller shall be entitled to claim compensation for the damage arising thereby, including additional expenditures, should there be any.

7.   Should the object of purchase be unavailable due to failure of delivery, to no fault of the Seller, the Seller may withdraw from the contract. In this case the Seller is to inform the Buyer without delay and, as the case may be, must suggest the delivery of a comparable product. Should no comparable product be available or should the Buyer not desire a comparable product, any consideration from the Buyer is to be reimbursed.

8.   Should there be a default of acceptance on the side of the Buyer or if the Buyer culpably violates his/her obligations to cooperate, the Buyer is then obligated to reimburse any resulting damages, particularly storage costs as well as any other additional expenditure.

9.   Returned packaging is not accepted, with the exception of pallets. The Buyer is required to cover costs for the removal of packaging material.

Article 5 Payment conditions / costs

1.   Should no other agreements be met, payments are to be made in advance. In the case that the shipment be, due to a particular agreement, delivered after the issuing of an invoice, the purchase price is to be paid in full within 7 days of the billing date.

2.   The Buyer may be informed of shipping costs through invoice. This is issued before the closing of the order.

3.   The Buyer has right to the offsetting of the purchase price only in the case that his/her counterclaims have been adjudicated upon and therefore legally binding, or in the case that they be undisputed or recognized by the Seller. The Buyer may claim right to reimbursement only in the case that the counterclaim be based upon the same contractual relation.

4.   Should the Buyer choose cash on delivery as method of payment, under certain circumstances arise additional costs through the hire of a carrier, which the carrier shall collect directly from the customer.

5.   The Buyer shall be deemed to be in default, should the full due payment not be effected within 30 days after the issuing of an invoice, as long as the Seller made due note of this within the invoice. In the case of default, the Seller is then entitled to claim interest at the rate of 8 percent over the base interest rate, although the Seller shall be authorized to indicate damages of higher value and lay claim to compensation hereto.

Article 6 Security of reservation of ownership

1.   The Seller reserves ownership of the property up to the fulfillment of all contractual requirements as well as other requirements in immediate connection to the shipped product belatedly set forth upon the Buyer, by the Seller, regardless of legal reason. Before the transfer of property, the Buyer will only own the delivered goods under right of retention, which can only be revoked by prior written confirmation from the Seller.

2.   Where the conduct of the Customer is not in conformity with the contract, especially in the event of a delay in payment, we are, after due notice, entitled to repossess the purchased article with the customer being obligated to surrender it. Our reclaim of the purchased goods does not constitute withdrawal from the contract unless otherwise explicitly indicated in writing. The garnishment of the merchandise purchased by us always leads to withdrawal from contract. After taking back the article of sale we shall be entitled to sell it, and apply the proceeds from its sale to the debt of the Buyer, with the reduction of any costs associated with the sale.

3.   The Customer is obligated to treat the purchased article with care; he/she is required in particular to insure, at his/her own expense, from fire, water and theft at its full value. In the case that maintenance and inspection work is necessary, this is to be done in a timely manner at the expense of the Buyer.

4.   Upon seizure or any other action taken by third parties, the Buyer is to immediately notify us, so that we may institute a claim according to Article 771 ZPO (German Civil Practice Act). Should the third party not be able to reimburse us with the court and out-of-court costs of a lawsuit according to Article 770 ZPO, the Buyer is then responsible to reimburse the incurred loss.

5.   The Buyer is entitled to sell the object of sale in the normal course of business; however, in doing so, it assigns to the Seller all accounts receivable arising from the resale to its customers or third parties in the amount of the final invoice amount (including VAT) owed to us, irrespective of whether the object of sale be resold without or after processing. The Seller accepts the assignment.  The Buyer remains authorized to collect receivables subject to cession from his clients. The authority of the Seller to recover the claim of his own accord remains unaffected by this provision. However, the Seller hereby agrees not to collect the claim as long as the payment obligations of the Buyer have been met under the collected proceeds, does not default of payment and particularly, no petition for bankruptcy has been filed in respects to his assets, and payment has not been suspended. Should this be the case however, the Seller may request that the Buyer inform him/her of the assigned claims and their debtors, provides all information necessary to the collection, surrenders the relevant documents and informs the debtors (third parties) of the assignment.

6.   The processing or altering of the purchased article by the Buyer is always to be foreseen by the Seller. Should the delivered merchandise be inseparably mixed with or joined to other objects not belonging to the Seller, the Seller acquires co-ownership of the new or mixed object in the ratio of the value of the merchandise delivered (total invoice sum including VAT) to that of the other object or objects at the time of the mixing or joining of the merchandise. Apart from this, the same shall apply for the item resulting from processing as for the item delivered under reserve.

7.   If the object of sale is processed with other articles not belonging to the Seller and inseparably mixed with them, the Seller acquires co-ownership of the new object in accordance with the value of the object bought (final invoiced amount including value-added tax) to the other mixed objects at the time of mixing.  In the case that mixing is carried out in such a manner that the object of the Buyer can be regarded as the main object, it shall be deemed agreed that the customer shall transfer co-ownership pro-rata. The Buyer shall keep the resulting solely owned or co-owned object in safe custody for the seller.

8.   The Seller is obliged to release to the Buyer, upon his request, the securities the Seller is entitled to, insofar as the implementable value of the securities exceeds the receivables to be secured by more than 10%. The choice of the securities to be released is incumbent on the seller.

Article 7 Guarantee

1.   The seller guarantees that the shipped product do not have faults that reduce or nullify the customary or contractually stipulated use or value. A minor reduction in the usability or value, for example standard or limited, technically unavoidable differentiations in quality, color, dimensions, configuration, weight or design, is not to be taken into account.

2.   The warranty period for all transactions between companies is twelve (12) months and begins with the issuing of the product to the buyer. Information regarding possible defects are to be given by the buyer without undue delay.

3.   In the case of defects in the merchandise which lie within the responsibility of the Seller, the Seller shall, at his own discretion, repair the defect or deliver goods free of defects. If an attempt at repair is not successful within a reasonable period of time, or should a subsequent attempt at improvement or repair fail to materialize, the Buyer then has the right to withdraw from the contract or demand a reduction of the purchase price.

4.   Additional claims from the Buyer, in particular claims of damage compensation including lost profit and other economic loss on the part of the buyer and consequential loss, are excluded, as long as no regulation provided within Article 4 states otherwise.

Article 8 Liability

1)  Fundamentally the seller is liable to compensate for damages, regardless of the legal reason, only for damages insofar as they are based on intention or gross negligence on the part of the seller’s agents or managing staff or on that fact that other employees and/or assistants to the seller have neglected obligations crucial to the contract.

2)  Liability due to absence of assured properties as well as liability stated in the product liability law and other imperative legal liability standards are in no way affected by the aforementioned clause.

3)  Liability of the seller based on reasonable default, initial inability and primary impossibility is limited to those damages which could reasonably be foreseen. Liability may also be limited in such manner also if and when an obligation which is a substantial to the contract be breached by negligence.

Article 9 Collaborative duties

1.   The Buyer is to ensure at the appointment of delivery that the sale articles be able to be duly delivered. Furthermore he/she is to enable the Seller, during regular business hours, access to the corresponding spaces and facilities, provide the necessary system environment, in particular electrical power supply, and the corresponding lines and, as the case may be, to hold ready access to the facility.

2.   Beyond that, the Buyer responsible for the security of his own data before the integration of the shipment in the shipment facility. The Seller is to issue notification of the integration at minimum 24 hours in advance in written form.

3.   No further collaborative duties exist on the side of the Buyer. Should the Seller require further collaborative duties of the Buyer, these are to be made known prior to placement of the order. The Buyer is to take all necessary measures to the extent that it is economically reasonable.

Article 10

Article 11 Rights of use of standard software

1.   As long as standard third-party software is included as part of an order, the terms of use of the third-party manufacturer apply. The contract of use comes immediately into effect with the third-party manufacturer. The terms of use shall be made known to the Buyer before the contract is closed. As long as no conditions come into effect from the prescribed terms of use of the third-party manufacturer as well as for standard software of the Seller, the following conditions apply.

2.   After full payment of the purchase price, the Buyer receives a simple, temporarily unlimited right of use for single or multiple-workplace operation with the shipped hardware. The Software is not to be used with other hardware, to the extent that through such use a more than minor added value results, regarding functionality and scope of performance. Rental or sale of standard software is not permitted. The Buyer has the right to use the software using another computer. Further storage on computers, particularly laptops, is not permitted. The copyright remains in possession of the giver of the license. Destroying the certificate of origin is not allowed.

3.   The Buyer is to use the software exclusively for business purposes stipulated within the contractual agreement. Reproductions of the software are only permitted insofar as it is necessary for the contractual use of the software. The Buyer may create security copies according to regulations of the technology in necessary quantity. Security copies on moveable data carriers are to be marked as such and to be marked with the copyright notice of the original storage medium.

4.   The Seller has the right to edit, develop and otherwise change the software in the sense described in article 60c Nr. 2 UrhG (German Copyright Law), only to the extent that it is permitted by law, on grounds that they are essential. The Buyer has the right to decompliation of the software only within the confines of article 69e of UrhG, and only in the case that the Seller fails to issue information regarding interoperability with other hardware or software, in written form and within a reasonable timeframe.

5.   Reproduction of the application documents is not permitted.

6.   The distribution of this software to a third-party requires the written permission of the Seller. The Seller issues the approval, if and when the Buyer ensures the Seller in written form that all original copies of the sale articles entailed by the contract be forwarded to the third party and that all self-made copies be destroyed. The written permission of the third party to the Seller with the conditions of use and transfer agreed upon here is necessary.

7.   The Customer is required to guarantee, through appropriate technical and organizational measures, the appropriate and legal use of the standard software.

The sale of the most current version of the standard software is the only contractual item.

Following versions are not contractual items.

Article 12 Issuing of credit

For individual offers, the Seller may grant the Buyer credit. The obligation to pay enters effect upon acceptance of the contract through the service provider and is terminated upon receipt of the final payment. The payments succeed in intervals determined by the Seller and are to be fulfilled, at the latest, at the end of the contract period of the corresponding service contract. Should the Buyer not fulfill his/her obligations from the service contract or should he/she not fulfill them completely, or should he/she in particular not be successful in issuing due payment to the service provider, the Seller then has the right to claim credit payments. Credit payments already made to the Buyer are issued back.

Article 13 Data protection

The personal data collected from the seller over the course of execution of the contract are to be used by the seller only for the purpose of performance of contract, customer service, and market and opinion research as well as for the purposes of advertising. This is done with the customer’s agreement.

Article 14 Severability clause

Should a provision of this contract be or become invalid, all other provisions remain valid. The contractual parties agree to replace the invalid provision with a valid provision which best corresponds to the objective of the contractual parties. The same is true in the case of a gap in the contract.

Article 15 Place of fulfillment / court of jurisdiction / governing law

1.   The place of fulfillment is the seller’s headquarters in Hamburg, Germany.

2.   The court of jurisdiction for all disputes related to this contract relationship is Hamburg, Germany.

3.   The parties agree for all legal relationships amongst themselves from this contract the application of inland parties the law of Germany under exclusion of UN purchasing law.

4.   All agreements containing a change supplement or appropriation of this contract are for their efficacy required to be in written form. This applies also to changes and, as the case may be, revocation of this written form requirement.

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