Conditions générales

• 1 Scope

(1) The sales conditions below apply for all offers, deliveries and services of Happyware Server Europe GmbH.

(2) Herewith we disagree to the general terms of our clients. They apply only, in the case their scope is confirmed written by our managing directors, registered managers with procuration or plenipotentiary.

(3) These conditions are valid also for all future contracts with the client, even when they were not explicitly implicated again.

• 2 Conclusion of contract, bidding documents

(1) Our offers of goods address exclusively to persons and business partnerships that act at the point of conclusion of contract in the exercise of their commercial or professional freelance work (entrepreneur in sense of § 14 BGB) as well as to persons of public law and special property under public law. The customer asserts obligatory by the act of order to act not as consumer.

(2) Our offers are generally – inclusive the offers on our websites and also regarding the prices – without obligation (invitatio ad offerendum). The customer’s order is an obligatory offer to us for the conclusion of a buying contract.
Differing to the two sentences before an online order follows these rules: The clients will at first receive an automatically generated e-mail that confirms the receipt of the order and that reflects the details (acknowledgement of receipt). This acknowledgement of receipt is not an acceptance of a contract. A buying contract is only closed, if we confirm the order in writing (confirmation of order) or deliver the goods.

(3) The scope of our services is defined to the specification and respectively to the specification sheet. In case of service delivery (“Dienstleistungen”) or work delivery (“Werkleistungen”) we are entitled to demand at any time a specification sheet for fixing the order’s content.

(4) We reserve to all figures, drawings and other documents any rights of ownership and copyrights.

(5) Except when otherwise stipulated we deliver to member states of the European Union only.

(6) The minimum order value is € 100.00 net. For orders below the minimum order value we reserve an extra charge for small quantities of € 12 net.

(7) On our websites www.used-server.de and www.gebraucht-server.com we offer second hand products for purchase as long as not noticed differently. As far as not otherwise noticed these products are second hand articles. Orders and deliveries of second hand products are generally only possible within the EU. For deliveries beyond the EU we try to help you. You may notice that you have to consider extensive tolls that are charged exclusively to you as customer.
Quality and scope of delivery of the second hand products you will find prior to purchase in the known product descriptions; for further requests you can contact us at any time. As far as not mentioned differently we will deliver all second hand products without manual, drivers, software and accessories and without any guarantee (please see below § 12).

• 3 Customer statements, accessibility

(1) The customer assures that all statements given with the order respectively with the registry in the online shop (e.g. name, address, e-mail address, bank details etc.) are true. Amendments have to be immediately notified to us.

(2) The customer has to ensure his accessibility by post, fax and for online orders by e-mail.

• 4 Prices, costs of dispatch and packaging

(1) Our indications of prices within our offer of goods are daily updated and without obligation. We point out that these prices change due to quickly changing terms of purchase.

(2) These prices are “net at place of dispatch”, i.e. especially without the legal value added tax and costs of dispatch. When not indicated differently, the prices are per piece.

(3) We offer different ways of dispatch to the customer’s choice. In case of orders outside the online shop there is the additional possibility of pickup by the customer. The customer will be informed about the expected costs of dispatch. Details for the variations of dispatch and dispatch costs when ordering online are written down in our dispatch information on our internet pages.

(4) For a delivery with a delivery destination beyond the Federal Republic of Germany, the customer pays for all additional costs, e.g. bank charges, costs for necessary documents, potential custom duties etc.

• 5 Payment, delay of payment

(1) The payment is generally at customer’s option as prepayment or as cash payment with COD, i.e. cash on delivery, (for orders up to € 5,000).

(2) For regular customers – creditworthiness is mandatory – are other payment methods possible (e.g. voucher cheque with COD, direct debit, bank collection or in exception per invoice). Even after conclusion of contract we safe the right to deliver against prepayment or COD, if it is recognisable after conclusion of contract, that our claim is endangered due to customer’s lack of performance. Such a reason is given especially, if the customer is default with one of our debts or other reasonable doubts to the customer’s creditworthiness exist.

(3) Invoices are payable immediately after invoice receipt, net without discount.

(4) The customer is in default automatically, if invoices are not paid within 10 days after invoice receipt, an issued cheque isn’t paid or a direct debit isn’t paid or reversed.

(5) If the customer is in default, it has to be paid interest on the debit at the average interest rate German banks claim for open overdraft. The assertion of a higher damage is reserved. The customer is entitled, to proof that no or only a substantially smaller damage was caused by the default. The minimum interest rate during the default is 8 percentage points above the respective basic interest rate.

(6) The customer has the right for set-off only, when his counterclaim is established as final and absolute, undisputed or accepted by us.

• 6 Delivery, partial delivery

(1) We do our best for a quick delivery. In addition we offer our clients different possibilities of express delivery as well as the possibility of pickup by the customer. Details are found on our website in the order information. If the customer has to provide in advance, the beginning of dispatch is dependent from the in-payment.

(2) Information about expected delivery dates are without obligation. Delivery dates are obligatory only, if they are marked as obligatory in writing or by e-mail.

(3) Sale and delivery of the goods shall depend on correct and punctual supply to us.

(4) Delay in delivery or delay in performance due to force majeure ore alike circumstances that are without our influence, e.g. act of God, terror, embargo, strike, lock out, official commands, also occurring in the sphere of our suppliers or sub-suppliers we are not responsible. They entitle us to postpone the delivery respectively the performance for the duration of the handicap plus and additional start-up time. We will inform the customer before the generation of such circumstances. If significantly disadvantages arise to a contract party those is entitled to withdraw in total or partial from the contract due to the part that wasn’t fulfilled.

(5) Partial deliveries and partial invoices are approvable in reasonable scale. Partial invoices have to be balanced within our payment conditions.

• 7 Shipping instructions, passing of the risk

(1) The shipping is effected by effective parcel services or forwarding companies of our choice.

(2) The conclusion of transport insurance is subject of separate agreement and will be charged to the customer separately.

(3) The shipment travels on account and danger of the consignee. The danger passes on to the customer at latest, if the shipment was consigned to the person executing the shipment or left our stock for shipment. If the shipment was executed to a certain date on customer’s request or the customer comes into default of acceptance, the risks passes on with the information of shipment readiness.

(4) The customer abdicates from returning packaging and is liable for its appropriate disposal according to statutory provisions.

• 8 Export control, ban on exports, embargo terms

(1) Goods delivered by us are appointed for the use and the disposition exclusively in the country of delivery that was agreed upon with the customer. Especially technical products, hardware and computer software can be subject to embargo terms and their export from the country of delivery can be illegal or subject to authorisation. The customer is responsible for compliance of all regulations up to the end user on own costs. Especially information about the relevant export and import regulations is incumbent on the customer (e.g. at the Bundesamt für Wirtschaft und Ausfuhrkontrolle in Eschborn / Taunus and at the US Department of Commerce, Office of Export Administration, Washington D.C.), as well as to keep these regulations as well as eventual export bans that were enunciated by us and to ask for necessary approval. We explicitly point out that we are not obliged to inform about possible bans on export. As far as we point the customer to export regulations, we are not liable for the correctness. Such hints don’t release the customer from his own duty for enquiry.

• 9 Customer’s obligation to co-operate

(1) The responsibility for the choice of the ordered goods and for the technical equipment that enable the use of our goods and services is on our customers, as long as the order isn’t subject to a separate consulting service with written order recommendation that is owed to a separate contract and basically has to be paid separately.

(2) In the case we accept works on-site of the customer, the customer is liable for adequate rooms on own costs that have to be equipped with the necessary technical environment including matching electrical power supply.

(3) The customer is obliged to co-operate in any necessary way, e.g. to supply necessary information, documents and data including access data and test data immediately on request and to ensure the availability of necessary contact persons.

(4) The regular data backup is incumbent on the customer. Especially he is obliged to backup his data for save from loss before we are executing installation or maintenance works.

(5) Delay in delivery or delays in performance that are due to the fact that the customer doesn’t co-operate as necessary are on customer’s account.

• 10 Approval

(1) For work delivery (“Werkleistungen“) the customer is obliged to declare approval within five days after delivery.

(2) The approval is effective ten working days after handover of the work, if the customer doesn’t explain the reason for such a refusal in writing.

• 11 Product information, license terms of producers

(1) The measure, weight and technical information written in our good presentation as well as texts and figures are for approximate orientation only. Differences and changes in construction, especially in form, colour and/or weight are reserved within a reasonable scope as long as they are quantity or quality tolerances of commercial practice.

(2) Information about product features is no guarantee, but only product descriptions. It is about a guarantee only, if it is an explicit and written agreement.

(3) For diverse products (e.g. software) license terms of the producers that are beyond these business terms are valid. We point out that violations of these licence terms may cause claim for damages.

• 12 Rights in case of defects

(1) We assume liability for quality defects for delivered goods as to proportion of the following regulations. For complete systems that have been delivered by us, we assume limited warranty to proportion of § 13 of these GTC.

(2) We point out, that the producers of the delivered products further more grant producer’s guarantees sometimes. In this case the guarantee terms of the producers are valid. Due to such a producer’s guarantee no claims against us can accrue, but only directly against the producer.

(3) The sale of used goods is without any warranty. The agreed quality are only the information given by the seller. Other advertising as utterances by the producer and public blurbs don’t apply as quality. Signs of usage on respectively at second hand products are no defects.

(4) Damages to the transport packaging and apparent transport damages have to be claimed immediately to the transport person and have to be confirmed that person, if possible.

(5) Defects that are recognisable within a proper investigation have to be claimed to us within five working days after receiving the good(s). For hidden defects the notice period starts with the discovery of the defect. § 377 HGB applies.

(6) The warranty effects to our choice at first by deleting the defect or delivery of a good free of defects (supplementary performance). If the form of supplementary performance chosen by us connected to substantial disadvantages for the customer, the customer is entitled to demand another form of supplementary performance. Our right to refuse this form of supplementary performance stays untouched. In case of deleting the defect we can demand to equitable discretion either that the bought goods is sent to us for repair on our costs or that the repair is done by a technician at the customer’s site.

(7) Concerning the customer’s right to decrease the price of purchase or to withdraw from the contract the legal regulations are valid with the following proportion: If we have done a trial of supplementary performance within the legal period that was set by the customer which hasn’t deleted the defect the client is entitled to claim other legal rights due to defects only when the supplementary performance failed or is unacceptable for the customer.

(8) In case of an insignificant breach of duty, especially an insignificant defect, the right of withdrawal is excluded.

(9) Any rights due to defects is not applicable if a defect is caused in the fact that operating or maintenance instructions were not obeyed, changes or interferences of not-authorised third parties were executed to the products, parts have been exchanged or expandable items have been used that didn’t meet the original specifications. The burden of proof for a lacking causality of the above mentioned circumstances for the defect is on the customer.

(10) Return of goods shall be attached with a filled in RMA return form. The return form is attached to each delivery, but can also be requested after contract by phone, fax or e-mail. Returned goods which are sent freight forward will not be accepted. If the customer is entitled for returning the goods due to a defect we will rebate the necessary costs of return after the proof for the amount of costs. Increased costs caused due to return of the goods that lack accordance with the regulations, e.g. return to another location or choice of a special shipment (e.g. express shipment) have to be beard by the customer.

(11) With return for repair a description of defect as exact as possible has to be attached. In case the customer doesn’t attach any or only an insufficient description of defect we are entitled to charge the customer for the additional costs, but at least a testing and handling fee of € 30.00 plus value added tax.

(12) In case of returning data volume all data on these data volumes have to be deleted before return. We don’t assume liability for the loss of data.

(13) Claims for damages causing from defects are based – additional to the legal premises – on the premises as written in § 14 only.

(14) The customer’s rights of recovery in sense of § 478 BGB are untouched inasmuch an equivalent compensation isn’t granted to the customer.

(15) If the examination of the goods results in the fact, that there was no defect, we are entitled to charge the customer for the additional costs, but at least a testing and handling fee of € 30.00 plus value added tax as well as further costs (e.g. costs of return).

(16) The limitation period for claims based on defects is limited to one year from delivery.

• 13 Limited guarantee for delivered complete systems

(1) For complete systems we are offering guarantee options, that are described detailed in the attachment. These guarantee options are part of our GTC in their respective version in conclusion of contract.

(2) In general the client is obligated to do maintenance and repairs with verifiable qualified staff, especially in case of advanced replacement and or exchange. With unqualified execution the warranty for the complete system / device is terminated. In consultation with Happyware qualified Happyware staff or qualified third parties that are authoriesd by Happyware can do these repairs or maintenance. The technician support is charged as long as this service is not already bought by the customer with purchase of the warranty / service package.

• 14 Customer’s withdrawal, amends liability of Happyware

(1) For the right of withdrawal from contract the statutory regulations are valid with the proportion that a right for withdrawal due to breach of duty which is not a defect is only considerably if we are liable for the breach of duty.

(2) For damages of any kind we are only liable – if the premises for other claims exist – for intent and gross negligence. For slight negligence we are liable for such breach of duty which fulfilment is required for the duly execution of the contract and to which the contract partner can rely upon regularly (cardinal obligation). Incidentally a liability for damages of all kind is excluded, no matter to which basis for claim, including the liability for fault in conclusion of contract („culpa in contrahendo“).

(3) As far as we are liable for negligent behaviour according to sentence 1, our liability is limited to the damage, we can typically await from the circumstances that we knew in conclusion of contract.

(4) Above exclusions and limitations of liability are also valid for our employees, auxiliary persons and other third parties that we use to fulfil contracts.

(5) Except in case of intent and gross negligence our liability for lost profit and other pure financial loss is excluded.

(6) Damage claims are not against us if an ordinary servant violates non-fundamental contractual obligations.

(7) The liability for loss of data is limited to the typical expenditure for recovery that had been arisen in case of production of regular and danger adequate data backups.

(8) Above exclusions and limitations of liability are not valid, as far as we gave a guarantee, for damages that have to be compensated according to Product Liability Act as well as damages on life, body or health.

• 15 Reservation of property rights

(1) The delivered goods stay our property until all claims are deleted, that raise to us against the customer or that will rise from the existing business relationship.

(2) Processing or alteration are made for us as producer, but without obligation for us. In the case of processing, connection or mixing of the retained goods with goods that are not our property, we gain co-ownership of the new item namely in ratio of the value delivered by us (value of invoice incl. VAT) to the other items that were processed at the moment of processing. In the case of a connection or mixing of the retained goods with main goods in property of the customer, so now already it is agreed that the property of the customer to the integrative item is in ratio of the value delivered by us to the main item in the moment of connection or mixing is devolved to us. The customer keeps our co-ownership free of charge for us.

(3) The customer is entitled to process or sale the retained goods within a proper business establishment, as long as he is not in delay. Pledging or chattel mortgage is prohibited. The customer already now assigns by way of security the claims arousing from resale or from any other cause in law regarding the retaining goods. In case we have just a co-ownership to the sold goods, the customer assigns the claim at value of the invoice of delivered goods including value added tax. We authorise the customer to collect the claims assigned to us on his account and his own name. If the customer doesn’t fulfil his contractual obligations, especially in case of delay, we are entitled to withdraw the collection authorisation. On our request the customer has to disclose this assignment to his customers and has to give us any necessary information and documents.

(4) The customer has to inform us immediately about third party access to the retained goods. The customer is liable for costs due to abrogation of the access, especially by claim of third party proceedings, as long as they cannot be gained from the prosecuting creditor.

(5) In case of behaviour contrary to contract – especially default of payment – we are entitled to demand the return of the retained goods without grace period notification and without withdrawal in advance or if applicable to demand the assignment of claim for return of the customer against any third party. The redemption as well as the distress of the retained goods by us is not withdrawal from contract. The customer has to pay the costs. We are entitled, to dispose the retained goods that were taken back after menace and to set off the revenue against our bills outstanding less appropriate disbursements for exploitation.

• 16 Data privacy

(1) The customer agrees to the storage of individual-related and company-related data, as far as this is necessary for the implementation of contract. Details are due to the data protection notice available in our online shop. On request the customer will be informed at any time about the stored data to his person.

• 17 Place of fulfilment, place of jurisdiction, applicable law

(1) Place of fulfilment for all performances from this delivery contract is our head office in Rosengarten.

(2) Exclusive place for jurisdiction for all disputes that result directly or indirectly from the contractual relationship is Hamburg.

(3) For these GTCs and all the privities of contract between seller and customer the law of the Federal Republic of Germany is valid to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(4) Should an appointment of these GTCs or an appointment in line with other agreements be or become invalid, the effectivity of the remaining appointments or agreements will stay untouched.