General terms and conditions of business, sale and delivery of ENQT GmbH

1. Scope

1.1 These general terms and conditions of business, sale and delivery (hereinafter referred to as “GTC”) shall apply to current and future contracts as well as various business relationships between ENQT GmbH (hereinafter referred to as “GTC”) and the purchaser, even when the terms and conditions have not been expressly agreed upon again. General terms and conditions or other conditions of the purchaser shall not be valid, even if they were not rejected explicitly in any individual case. The acceptance of goods and services by the purchaser shall be interpreted as recognition of the GTCs of ENQT, with the customer’s GTCs being waived. These GTCs shall also apply, if ENQT accepts the delivery of the contractual partner without reservation, despite the knowledge of contradictory conditions or conditions deviating from the present ones. Where applicable, ENQT and the purchaser are referred to as “parties”.

1.2 ENQT reserves the right to unilaterally change the provisions of the GTCs . The current version of the ENQT GTCs shall apply to each contract.

1.3 These GTCs shall only apply to companies, respectively juridical persons under public law or a special fund under public law within the context of Section 310 Paragraph 1 of the German Civic Code (BGB).

2. Offer; conclusion of contract

2.1 ENQT offers are subject to change, with the exception of the situation in which ENQT has expressly designated them as binding. ENQT is bound to binding offers for only ten (10) working days. Prospects, lists, newsletters, and the like are not considered offers. ENQT reserves the right to make technical changes (e.g. models, systems and their technical characteristics) and changes regarding product constitution, provided that the subject matter of the contract does not suffer any changes that might be deemed as unreasonable by the purchaser.

2.2 Guarantees regarding product constitution, as well as drawings, illustrations, measures, weights or various performance indicators are only binding, if this has been expressly agreed in writing.

2.3 An order is considered as placed and binding for the parties, if and when ENQT confirms the order placed by the purchaser in writing or executes an order, depending on which situation occurs first. The purchaser shall be bound by the placed orders for eight (8) weeks.

2.4 The conclusion of the contract with the purchaser is subject to the correct and timely delivery by the suppliers of ENQT. The effectiveness of the reservation of receipt of deliveries depends on the conclusion of a congruent legal transaction with the supplier and on the fact that ENQT is not responsible for the failure to deliver. The purchaser shall be informed without delay about the unavailability of the service. The consideration will be reimbursed without delay by ENQT, provided it has been already paid.

3. Provided documents

ENQT retains unrestricted property rights, copyrights and other industrial property rights on all the documents provided to the customer with the order placement, such as calculation, drawings, etc. as well as samples (hereinafter: documents). The documents may be made accessible to third parties only with the prior consent of ENQT, and if ENQT does not receive the contract, they must be returned immediately at the request of ENQT.

4. Prices; payment conditions

4.1 The prices are listed in Euro (EUR). Unless it was otherwise agreed in writing, the prices are valid ex works excluding packaging, plus VAT in the respectively applicable amount as well as any other statutory delivery charges. Packaging costs will be invoiced separately.

4.2 Unless a fixed price agreement has been concluded, we reserve the right to make reasonable price changes, as a result of changes in labor, material and distribution costs for deliveries, made three (3) months or more after the contract conclusion.

4.3 Unless it was otherwise agreed in writing, invoices from ENQT are to be paid within fourteen (14) calendar days from the invoice date without deduction. Checks and bills of exchange shall be accepted only with the prior written agreement and only on account of payment, being only considered as payment after they have been cashed. Bank, discount, and collection charges shall be borne by the purchaser.

4.4 Partial deliveries shall be invoiced immediately and are each due for separate payment, regardless of the completion status of the total delivery.

4.5 Accessories and spare parts, repairs as well as software services are delivered or executed only against net cash or cash on delivery, with the exception of the situation in which a maintenance contract has been concluded.

5. Offsetting; assignment

5.1 The purchaser shall only be entitled to set-off claims, if the purchaser’s counter claims are undisputed, declared legally binding, or are recognized by ENQT. Moreover, the purchaser shall be entitled to exercise any right of retention only insofar as his counter-claim is based on the same contract.

5.2 All claims and rights of the purchaser are assignable only with the explicit written confirmation of ENQT.

6. Delivery; delivery periods; delay

6.1 Partial deliveries are allowed.

6.2 ENQT reserves the right to choose the shipping route. Transport and secondary packaging will not be taken back.

6.3 If there is a deadline for order execution given by ENQT, respectively agreed upon with the purchaser, this will begin with the access to the order confirmation by ENQT, however not before the timely and proper completion of the purchaser’s obligations, such as all documents to be procured by the customer for the order processing, permits, approvals or other information, especially not before the clarification of all technical questions.

6.4 Should ENQT be prevented from fulfilling its obligation in good time, due to force majeure, under exceptional circumstances such as lack of energy, traffic disruptions, general mobilization, war, riots, natural disasters, strikes, lockouts, unforeseen technical difficulties, delays caused by testing and approval procedures under customs or export control or various procurement, manufacturing or delivery disruptions, which fall outside its area of responsibility, the delivery period for the order execution will be extended by the respective period between the occurrence and elimination of the hindrances. Claims of the purchaser, which arise from these delays, are excluded.

This is also valid if such circumstances affect suppliers or subcontractors of ENQT. ENQT is obligated, in the event of a hindrance to performance affecting the purchaser, to offer an immediate notification of both the hindrance occurrence and its subsequent removal. The agreement of the reservation of self-delivery according to 2.4 will not be affected by the two previous paragraphs.

6.5 At the request of ENQT, the purchaser is obliged to declare, within a reasonable period of time, whether he will withdraw from the contract due to delivery delays or insist on delivery.

6.6 Should ENQT be in default with the delivery due to a culpable violation of an essential contractual obligation by ENQT, its representatives or subcontractors, ENQT will be liable according to the legal provisions, to the proviso that the damage liability is limited to foreseeable, typically-occurring damages. In other cases regarding a default in delivery by ENQT, your damage liability is limited to a flat compensation of 0,5% of the delivery value of the goods in delay per completed week, however without exceeding 5%. Any further liability shall be excluded. This shall not affect the other statutory claims and rights of the purchase due to default.

6.7 If the purchaser finds himself in default of acceptance or he culpably violates any other duties of contractual cooperation, ENQT is entitled, after the expiration of a grace period set by ENQT and a corresponding warning, to refuse fulfillment of the contract and to demand compensation for the damage incurred as a result, including any additional expenses. Any further claims shall remain unreserved. If the aforesaid conditions are present, the risk of an accidental loss or an accidental deterioration of the item purchased transfers to the purchaser at the point in which the purchaser is in default of acceptance or in debtor’s delay.

6.8 If the delivery is postponed, at the request of the purchaser, in mutual understanding with ENQT, for more than one (1) month beyond the agreed delivery date, respectively after notification of readiness of delivery, begins the default of acceptance for the purchaser, upon receipt of the written notification of readiness for shipment to the purchaser. Furthermore, the purchaser is obliged, at the request of the ENQT, to pay a storage fee in the usual market amount for each month started. Both parties shall have the freedom to provide evidence of actually higher or lower storage costs.

6.9 The purchaser may not refuse to accept deliveries due to minor defects.

6.10 If ENQT bears the transport risk, the purchaser is obliged, to immediately inspect the shipment for transport damage upon arrival and to send a notice of damage for the forwarder and a written notice right away, signed by him as purchaser, to ENQT, informing of existent damages or losses. The damaged delivery items must be kept ready for inspection by ENQT or the respective manufacturer, in the same condition they were in when the damage was determined. Provided an acceptance is necessary, the purchaser has four (4) weeks at the latest, after the delivery, respectively the admissible partial delivery of an independent part to notify the service of a date for joint acceptance at his own initiative. The appointment should take place within four (4) weeks. On this date, the purchaser must perform the duties for which he is responsible. Should notice of the acceptance date not be given, the delivery shall however be deemed to have been accepted and approved by the purchaser.

7. Passing of risk

Unless agreed otherwise in writing, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser upon handover or, if shipment is requested, upon delivery of the goods by the forwarder, the carrier, or any other person or institution designated to handle the shipment.

8. Reservation of ownership

8.1 ENQT retains ownership of the goods (reserved goods) until the full payment of all claims from a current business relationship has been made. This is also valid for future deliveries, including when ENQT does not expressly refer to this. ENQT is entitled to take back the purchased item, if the purchaser behaves contrary to the contract.

8.2 ENQT is obliged, to release the securities to which he is entitled to, at the request of the purchaser, at the extent that the realizable value of the securities exceeds the claims to be secured with more than 20%. The value that can be realized is the purchase price of the purchaser or in the case of the processing of the goods subject to reservation of title the production costs of the secured goods or the share of part ownership insofar as the purchaser cannot establish a lower value for the goods subject to reservation of title that can be realized. The selection of the securities to release are incumbent upon ENQT.

8.3 During the course of the existence of right of ownership with the supplier, the purchaser is prohibited from hypothecation or chattel mortgaging. The claims (including all of the account balance claims from the current account) arising out of the onward sale or another legal ground (insurance, unlawful act) with regard to the goods subject to retention of title are hereby assigned now by the purchaser to ENQT to the full extent, for the sake of precaution; ENQT hereby accepts the assignment. ENQT shall authorize the purchaser revocably to recover in his own behalf the debts assigned to EQNT for his invoice. This collection authorization may be revoked if the purchaser fails to meet his liabilities in an orderly manner.

8.4 The purchaser shall be obliged to treat the goods with care. Where maintenance and inspection works are necessary, the purchaser must carry these out regularly and at his own cost.

8.5 The ordering party shall be obliged to grant us access of third parties to the goods, for instance in the event of attachment, and to immediately notify us of any damage or the destruction of the goods. In the event of a levy of execution by third parties (e.g. seizure), the purchaser is further obliged to point out the ownership of ENQT. A change in ownership of the goods as well as the change of the purchaser’s registered office must be immediately announced by the purchaser to ENQT.

8.6 ENQT is entitled, should the purchaser behave contrary to the contract, in particular in the event of a default in payment or a violation of an obligation according to 8.3, 8.4 or 8.5 – if not unreasonable for ENQT: after the expiration of a grace period to be set by ENQT in a reasonable manner – to withdraw from the contract and reclaim the possession of the goods. A redemption initiated by ENQT or the seizure of reserved goods constitutes a contract cancellation. ENQT is entitled to utilize the recalled goods, subject to retention of title, and offset the redemption proceeds, after deduction of liquidation costs, towards the existent claim against the purchaser.

8.7 The processing or alteration of the goods by the purchaser shall always be done on behalf of ENQT. Should the goods be processed with other items that do not belong to ENQT, ENQT acquires co-ownership of the new items in proportion to the value of the goods supplied compared with that of the other items processed, at the time of processing. Generally speaking, the same shall apply to the item resulting by processing, as to the goods delivered under reservation of title.

8.8 If the goods are inseparably mixed with other items, which do not belong to ENQT, ENQT shall acquire co-ownership of the new items, in proportion to the value of the goods supplied compared with that of the other mixed items, at the time of mixing. If such mixing is done in such a way that the goods of the purchaser are to be considered the principal goods, it is already now agreed that the purchaser transfers to ENQT the proportional co-ownership. The purchaser shall hold for us the sole or part ownership at no expense.

9. Warranty; Notice of defects

9.1 Warranty rights of the purchaser are subject to the condition the purchaser has fulfilled his obligations to inspect the goods and to give notice of defects according to Section 377 of the German Commercial Code (Germ. HGB).

9.2 Claims for material defects on the part of the ENQT shall lapse after a period of twelve (12) months, after the goods have been delivered by ENQT to the purchaser. This shall not apply in the event of a fraudulent concealment of a defect. However, the warranty shall expire prematurely, as soon as the purchaser has undertaken unauthorized repairs or modifications to the goods, or has not followed the operating instructions. The statutory provisions on the suspension, interruption and recommencement of the running of time shall remain unaffected.

9.3 If, despite exercising all due care, ENQT delivers goods that were already defective before the transfer of risk, ENQT shall have the option of either replacing said goods or taking remedial action, provided the defect has been reported in a timely manner. ENQT must always be given the opportunity of subsequent fulfillment within a reasonable deadline (at least fourteen (14) calendar days). Basically, the purchaser shall approve at least three (3) further attempts at improvement, unless otherwise provided by the nature of the purchased goods or the defect or other circumstances. ENQT will rectify the rejected parts or services at its discretion within the company premises or at the installation site.

9.4 The purchaser must notify ENQT, immediately and in writing, of material defects, describing the defect as precisely as possible.

9.5 With indisputable justified complaints, the payments of the purchaser may be withheld to the extent that these are in a reasonable proportion with the damage that has occurred. If the complaint regarding defects is unjustified, in particular in the event of faulty use or the existence of other malfunctions for which ENQT bears no responsibility, ENQT is entitled, to demand the purchaser that he reimburses incurred expenses.

9.6 In the event that the supplementary performance, rectification or replacement delivery fail for more than three (3) times, the purchaser can demand at his own discretion the reduction of the purchase price (decrease) or to rescind the contract (withdrawal). In the situation of a minor breach of contract, in particular when it comes to minor defects, the purchaser shall not be entitled to rescind the contract. With regard to the enforcement of a withdrawal right as well of a claim for damages, ENQT refers to 10 (Liability).

9.7 There will be no claims for defects in the case of only slight variation from the agreed quality, in the case of only slight impairment of serviceability, in the case of natural wear and tear or damage occurring following the passing of risk as a result of faulty or negligent treatment, excessive strain, unsuitable operating equipment, of influences, e.g. of a chemical and electrochemical, electrical or atmospheric kind, or as a result of particular external influences, which are not presupposed by the contract. If repair works or changes are improperly undertaken by the purchaser or a third party, claims for defects cannot be asserted for these or the associated consequences.

9.8 Public statements, claims or advertisements of the manufactured, especially in prospects, websites, brochures, etc. do not constitute any statement regarding the quality of the products.

9.9 The purchaser is hereby advised that the quality specifications presented in the performance description do not represent a guarantee in the legal sense. The quality specifications and guarantees that extend beyond the product description are only deemed to have been declared by the purchaser if they have been recorded in writing by ENQT.

9.10 Claims for damages and other claims regulated under 9.1 to 9.9, made by the purchaser due to a material defect shall be excluded. This doesn’t apply to malicious concealment of the defect, noncompliance to a guarantee of quality, injury to life, body, health or freedom and in case of intentional or grossly negligent breach of duty by supplier. A change in the burden of proof to the disadvantage of the purchaser is not associated with the current provisions.

10. Liability

10.1 The liability of ENQT shall be limited to intent or gross negligence. This shall not apply for a liability in accordance with the provisions of the Product Liability Act, as well as furthermore for damages, which have arisen due to the culpable breach of an essential contractual obligation (cardinal obligation) or due to culpable injury to life, body or health, for which ENQT has unlimited liability, in accordance with statutory regulations. In the event of a slightly negligent breach of a cardinal obligation, however, liability shall be limited to typical and foreseeable damages, for an individual case of damage nonetheless maximally limited to a contract value, in the case of ongoing remuneration to the value of a contractual year.

10.2 The liability for indirect loss and consequential damages, in particular for lost profits or interruption of business – regardless of the legal grounds – shall be excluded.

10.3 A liability for the loss of data is excluded, to the extent and insofar as the customer could have avoided the data loss through adequate precautions, in particular the creation of backup copies.

10.4 The present liability limitations are also valid for the employees and agents of ENQT, and also for those who are not managing directors or part of the executive staff.

11. Non-acceptance compensations

If the contract is not fulfilled, due to reasons for which the purchaser is responsible, ENQT can request claim damages in the value of 25 % of the expected invoice amount. The damage amount is to be set higher or lower, if ENQT can prove a higher damage, or the purchaser can prove a lower one.

12. Rights of use; additional conditions for software deliveries

12.1 Copyrights, patent rights, rights of use and exploitation rights of the sold goods remain with ENQT, regardless of the sale of the goods, provided the contract does not specify otherwise. The purchaser shall only be entitled to the use of the goods, as it was agreed through the contract or resulted from the purpose of the contract. The resale/transfer of the goods in the form they were originally provided is allowed. The reproduction of ENQT individual delivery parts or systems or the goods is allowed only with the written consent of ENQT.

12.2 The purchaser has the exclusive right to use the software and firmware, with the agreed performance characteristics, in unmodified form, on the agreed devices. The purchaser may create a backup copy without explicit agreement, when this is necessary to secure the future use.

12.3 Insofar as ENQT is the manufacturer of the software, the delivery will take place under the terms and conditions of the respective software license agreement, provided that no other provisions have been made in underlying contracts. If the software of another manufacturer is sold, the respective license conditions of the respective manufacturer shall apply, which are partly attached to the respective data carriers, on which the software is stored, and partly available in written form.

12.4 If no other agreement has been made in writing, the installation of standard, individual and operational software, as well as of data carriers for the individual programs, as well as any training and integration measures, shall be borne by the purchaser.

13. Impossibility – Amendment of contract

If unforeseeable events within the context of 6.5 shall significantly modify the economic importance or the content of the delivery or have a considerable impact on the operations of ENQT, the contract will be appropriately and in good faith amended. Should this not be economically justifiable, ENQT has the right to withdraw from the contract. If ENQT desires to make use of this right to withdraw, ENQT will inform the purchaser immediately after identifying the consequences of the event and even when an extension of the delivery deadline has been initially agreed upon with the purchaser.

14. Written form

Any additional or diverging agreements on the quality must always be in writing to be effective. The written form requirement can also be only waived in writing.

15. Court of jurisdiction; Place of fulfillment; Governing law

15.1 If the purchaser is a merchant, the sole place of jurisdiction of all disputes that arise directly or indirectly from the contractual relationship shall be Karlsruhe. However, ENQT is also entitled to sue the purchaser at his place of business.

15.2 Unless otherwise mentioned in the order confirmation, ENQT’s place of business is the place of fulfillment.

15.3 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

16. Data collection regarding network testers

All network testers collect and transmit diagnosis data for all measurements. These can include:

  • Log files of the measuring devices with information about errors and undertaken measurements
  • Site-specific measurement data transmitted via radio (depending on the device and configuration)
  • Positions (dependent on the device and configuration)

This data will be used as follows:

  • for the debugging of the device hardware and software in case of problems
  • for the storage of individual network testers / SIM cards in case of loss / theft
  • in anonymized form for the creation of coverage maps

The respective data will not be collected and stored to be used at a personal level. An assignment is made only to the respective customers, but not to individual users.

17. Safeguarding clause

Should a provision of this agreement or the concluded contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. As an alternative, the parties undertake to agree on a provision instead of the invalid or unenforceable provision, which comes as close as possible to the economic purpose of the respective provision. The same procedure shall be followed to fill in any contractual gaps.