General terms and conditions

1. General
These General Terms and Conditions apply to the delivery of hardware, standard software and individual software as well as to services of eSell Bayern GmbH and are accepted at the latest upon acceptance of our offer. They shall apply in particular in the event of deviating terms and conditions of purchase of the customer, even if we do not expressly object to them. All agreements deviating from the provisions of these GTC require our written confirmation to become effective.

2. Offer and prices
For persons who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), i.e. who conclude legal transactions with us within the scope of their commercial or freelance activity, the following shall apply: All our offers are subject to change with regard to prices, delivery periods or delivery and performance dates and availability. The prices and other conditions valid on the day of delivery shall apply, unless otherwise agreed.

3. Due date and payment
In case of delivery of hardware and standard software the remuneration is due with the delivery. For the delivery of individual software, payment is made in thirds, i.e.: 33% of the agreed remuneration is due upon order confirmation. Another 33% are due at the beginning of the programming process. The remaining amount is due upon delivery of the software. In the case of services, the remuneration is due immediately after the service has been rendered. Offsets or the assertion of rights of retention by the customer are only possible with undisputed or legally established claims. Discounts are not provided for in our calculation. Therefore, a payment made before the due date does not entitle the customer to deductions from the invoice amount.

4. Interest and damage caused by default
In the case of delivery of individual software, our remuneration shall bear interest at a rate of 5% p.a. from the time of acceptance. From the time of default, our remuneration for all services for entrepreneurs within the meaning of Section 2 of our GTC shall bear interest at a rate of 8% p.a. above the respective prime rate of the European Central Bank. In the event of default, we shall also charge a flat reminder fee of EUR 2.50 plus postage and delivery costs for further reminder letters. We reserve the right to claim further damage caused by default in any case.

5. Retention of title
The delivered goods remain the property of eSell Bayern GmbH until full payment of the remuneration. The resale of the goods subject to retention of title is only permitted to dealers recognized by us within the scope of proper business operations. In case of resale, the Customer already now assigns his claim against the purchaser in the amount of the invoice value of the reserved goods to eSell Bayern GmbH accepting this. However, the Customer shall remain entitled to collect this claim until revoked by us. The pledging or transfer by way of security of the delivered reserved goods is not permitted. Interventions by third parties in the goods subject to retention of title, in particular in the form of seizures or other compulsory execution measures, must be reported to us immediately. In the event of default in payment or other breaches of material contractual obligations, we shall be entitled to demand the surrender of the goods subject to retention of title and, after prior warning, to realize the goods at the customer’s expense.

6. Defects
We shall remedy defects in the hardware and standard software provided, including the manuals and other documents, within a period of 12 months from delivery. In the case of the delivery of hardware and standard software, this shall be at our discretion.
In the case of the creation of individual software, the following shall apply: If the defect cannot be remedied by us within a reasonable period of time set by the customer or if the supplementary performance is to be regarded as having failed because the material defect has still not been remedied after the second attempt at supplementary performance, the customer may either rescind the contract (withdrawal) or demand a reasonable reduction of the remuneration (reduction).

7. Liability
Liability for loss of data is always limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk. In all other respects, the statutory provisions shall apply with regard to our liability for contracts with consumers within the meaning of Section 6 of these GTC and the following provisions shall apply for contracts with entrepreneurs within the meaning of Section 2 of these GTC:
In the event of a guarantee of quality or durability, we shall be liable in the event of a guarantee case without limitation with regard to the amount of the damage, the type of damage and the degree of fault. In the event of intent and gross negligence, we shall also be liable without limitation with regard to the amount and nature of the damage. For the fault of vicarious agents who are not our legal representatives or executives, we shall be liable in all other respects up to five times the amount of the rental fee. In the event of slight negligence, we shall only be liable if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation) and up to five times the amount of the rental fee. Liability under the Product Liability Act (§ 14 ProdHG) remains unaffected.

8. Duty to examine and give notice of defects
If the customer is an entrepreneur within the meaning of Section 2 of these GTC, the following shall apply: The customer must inspect the delivered goods (including the documentation in the case of software) within 8 working days from the date of delivery for the functionality of basic program functions as well as the completeness of the data carriers and manuals and report any defects occurring in this process within a further 8 working days by registered letter. The notice of defects must contain a description of the defects to the best of the customer’s ability. Defects which can be detected during the proper inspection must be reported to us within 8 days after detection. If the customer fails to comply with this obligation to inspect and give notice of defects, the delivered goods shall be deemed to have been approved with regard to the defect in question.

9. Copyright for software
The user may only duplicate the delivered program to the extent that the respective duplication is necessary for the use of the program. This includes the installation of the program on the hard disk of the hardware used as well as the loading of the program in the main memory. In addition, the user is permitted to make a single copy for backup purposes. The backup copy must be marked as such of the provided program in a recognizable manner. The user may not make any further copies, including outputting the program code to a printer and copying the manual. The resale of the software by dealers recognized by us is only permitted under the condition that compliance with these copyright conditions is ensured by corresponding contractual regulations with the user.

10. Place of jurisdiction and choice of law
The place of jurisdiction for both parties is Saarbrücken, provided that the customer is a merchant, a legal entity under public law or a special fund under public law. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

1. General
These General Terms and Conditions apply to the delivery of hardware, standard software and individual software as well as to services of eSell Nord GmbH and are accepted at the latest upon acceptance of our offer. They shall apply in particular in case of deviating terms and conditions of purchase of the customer, even if we do not expressly object to them. All agreements deviating from the regulations of these GTC require our written confirmation to become effective.

2. Offer and prices
For persons who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), i.e. who conclude legal transactions with us within the scope of their commercial or freelance activity, the following shall apply: All our offers are subject to change with regard to prices, delivery periods or delivery and performance dates and availability. The prices and other conditions valid on the day of delivery shall apply, unless otherwise agreed.

3. Due date and payment
In case of delivery of hardware and standard software, the remuneration shall be due upon delivery. For the delivery of individual software, payment is made in thirds, i.e.: 33% of the agreed remuneration is due upon order confirmation. Further 33% are due with beginning of the programming process. The remaining amount is due upon delivery of the software. In the case of services, the remuneration is due immediately after the service has been rendered. Offsets or the assertion of rights of retention by the customer are only possible with undisputed or legally established claims. Discounts are not provided for in our calculation. Therefore, a payment made before the due date does not entitle the customer to deductions from the invoice amount.

4. Interest and damage caused by default
In the case of delivery of individual software, our remuneration shall bear interest at a rate of 5% p.a. from the time of acceptance. From the time of default, our remuneration for all services for entrepreneurs within the meaning of Section 2 of our GTC shall bear interest at a rate of 8% p.a. above the respective prime rate of the European Central Bank. In the event of default, we shall also charge a flat reminder fee of EUR 2.50 plus postage and delivery costs for further reminder letters. We reserve the right to claim further damage caused by default in any case.

5. Retention of title
The delivered goods remain the property of eSell Nord GmbH until full payment of the remuneration. The resale of the goods subject to retention of title is only permitted to dealers recognized by us within the scope of proper business operations. In case of resale the Customer already now assigns his claim against the purchaser in the amount of the invoice value of the reserved goods to eSell Nord GmbH accepting this. However, the Customer shall remain entitled to collect this claim until revocation by us. The pledging or transfer by way of security of the delivered reserved goods is not permitted. Interventions of third parties in the goods subject to retention of title, in particular in the form of seizures or other compulsory execution measures, must be reported to us immediately. In the event of default in payment or other breaches of material contractual obligations, we shall be entitled to demand the surrender of the reserved goods and, after prior warning, to realize the goods at the customer’s expense.

6. Defects
We shall remedy defects in the hardware and standard software provided, including the manuals and other documents, within a period of 12 months from delivery. In the case of the delivery of hardware and standard software, this shall be done at our discretion.
In the case of the creation of individual software, the following shall apply: If the defect cannot be remedied by us within a reasonable period of time set by the customer, or if the subsequent performance is to be regarded as having failed because the material defect has still not been remedied after the second attempt at subsequent performance, the customer shall have the option of rescinding the contract (withdrawal) or demanding a reasonable reduction in the remuneration (reduction).

7. Liability
Liability for loss of data is always limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk. In all other respects, the statutory provisions shall apply with regard to our liability for contracts with consumers within the meaning of Section 6 of these GTC and the following provisions shall apply for contracts with entrepreneurs within the meaning of Section 2 of these GTC:
We shall be liable without limitation in respect of the amount of the damage, the type of damage and the degree of fault in the event of the assumption of a guarantee of quality or durability in the event of a guarantee. In the event of intent and gross negligence, we shall also be liable without limitation with regard to the amount and nature of the damage. For the fault of vicarious agents who are not our legal representatives or executives, we shall be liable up to five times the amount of the rental fee. In the event of slight negligence, we shall only be liable if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation) and up to five times the amount of the rental fee. Liability under the Product Liability Act (§ 14 ProdHG) remains unaffected.

8. Duty to examine and give notice of defects
If the customer is an entrepreneur within the meaning of Section 2 of these GTC, the following shall apply: The customer must inspect the delivered goods (including the documentation in the case of software) within 8 working days from the date of delivery for the functionality of basic program functions as well as the completeness of the data carriers and manuals and report any defects occurring in this process within a further 8 working days by registered letter. The notice of defects must contain a description of the defects to the best of the customer’s ability. Defects which can be detected during the proper inspection must be reported to us within 8 days after detection. If the customer fails to comply with this obligation to inspect and give notice of defects, the delivered goods shall be deemed to have been approved with regard to the defect in question.

9. Copyright for software
The user may only duplicate the delivered program to the extent that the respective duplication is necessary for the use of the program. This includes the installation of the program on the hard disk of the hardware used as well as the loading of the program in the working memory. In addition, the user is permitted to make a single copy for backup purposes. The backup copy must be marked as such of the provided program in a recognizable way to the outside. The user may not make any further copies, including outputting the program code to a printer and copying the manual. The resale of the software by dealers recognized by us is only permitted under the condition that compliance with these copyright conditions is ensured by corresponding contractual regulations with the user.

10. Place of jurisdiction and choice of law
The place of jurisdiction for both parties is Saarbrücken, provided that the customer is a merchant, a legal entity under public law or a special fund under public law. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships to the exclusion of the UN Convention on Contracts for the International Sale of Goods.