General Terms and Conditions of Business, Sale and Delivery
1. Scope of application
1.1 These General Terms and Conditions of Business, Sale and Delivery (hereinafter referred to as “GTCs”) shall apply to all current and future contracts as well as other business relations between ENQT GmbH (hereinafter referred to as “ENQT”) and the Customer, even if the terms and conditions are not expressly agreed upon again. General terms and conditions or other conditions of the customer do not apply even if they have not been explicitly contradicted in individual cases. The acceptance of the goods and services by the customer is considered as an acknowledgement of the GTCs of ENQT under waiver of the customer’s GTCs. These GTCs also apply if ENQT accepts the delivery of the contractual partner without reservation in knowledge of conflicting conditions or conditions deviating from these GTCs. ENQT and the customer are referred to collectively as “Parties”, if applicable.
1.2 ENQT has the right to unilaterally change the provisions of the GTCs. The current version of the GTCs of ENQT shall apply to each order.
1.3 These GTCs are only valid for companies or legal entities under public law or a special fund under public law in the sense of § 310 paragraph 1 BGB (German Civil Code).
2. Offer and conclusion of contract
2.1 Offers of ENQT are subject to confirmation, unless ENQT has expressly designated them as binding. ENQT is bound to offers only for ten (10) working days. Brochures, lists, circulars and the like are not considered as offers. ENQT reserves the right to make technical changes (e.g. models, systems and their equipment features) and changes in product characteristics, provided that the subject matter of the contract does not undergo any changes that are unreasonable for the Customer.
2.2 Assurances regarding product characteristics as well as drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.3 An order is considered placed and binding for the parties if and when ENQT confirms the order placed by the Customer in writing or executes an order, whichever situation occurs first. The Customer is bound by the orders placed for eight (8) weeks.
2.4 The conclusion of the contract with the Customer is subject to correct and timely self-delivery by suppliers of ENQT. The effectiveness of the reservation of self-delivery depends on the fact that a congruent legal transaction has been concluded with the supplier and ENQT is not responsible for the non-delivery. The Customer will be informed immediately about the non-availability of the services. The consideration will be refunded immediately by ENQT, as far as it has already been paid.
3. Handed over documents
ENQT reserves unrestricted property rights, copyrights and other industrial property rights to all documents handed over to the Customer in connection with the placing of the order, such as calculations, drawings, etc., as well as samples (hereinafter: documents). The Documents may only be made accessible to third parties with ENQT’s prior consent and must be returned immediately upon ENQT’s request if the order is not placed with ENQT.
4. Prices and terms of payment
4.1 The prices are in Euro (EUR). Unless otherwise agreed in writing, prices are ex works excluding packaging, plus value added tax at the applicable rate and any other statutory delivery charges. Costs of packaging shall be invoiced separately.
4.2 Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place three (3) months or later after conclusion of the contract.
4.3 Unless 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 are accepted only after special prior written agreement and only on account of payment and are considered as payment only after encashment. Bank. Discount and collection charges shall be borne by the customer.
4.4 Partial deliveries shall be invoiced immediately and shall each be due for payment separately, irrespective of the completion of the overall delivery.
4.5 Accessories and spare parts, repairs and software services shall only be delivered or performed against net cash or cash on delivery, unless a maintenance contract has been concluded.
5. Offsetting and settlement
5.1 The Customer is only entitled to set-off rights if his counterclaims are legally established, undisputed or recognized by ENQT. Furthermore, he is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5.2 All claims and rights of the Customer are assignable only with the express written consent of ENQT.
6. Delivery, delivery periods and delay
6.1 Partial deliveries are permissible.
6.2 ENQT reserves the right to choose the shipping route. Transport and outer packaging will not be taken back.
6.3 If a period for the execution of the order by ENQT is stated or agreed upon with the Customer, this period starts with receipt of the order confirmation by ENQT, but not before timely and proper fulfillment of the Customer’s obligations, such as all documents, approvals, releases or other information to be procured by the Customer for the execution of the order, in particular not before clarification of all technical questions.
6.4 As far as ENQT is affected by force majeure, i.e. special circumstances such as lack of energy, traffic disruptions, mobilization, war, riots, natural disasters, strikes, lockouts, unforeseen technical difficulties, delays due to customs or export control testing and approval requirements, ENQT shall be entitled to cancel the order. export control testing and approval procedures or other procurement, manufacturing or delivery disruptions which lie outside their area of responsibility and which demonstrably have a significant influence on their fulfillment of the obligation to perform, are prevented from fulfilling the contract in a timely manner, the delivery period for the execution of the order shall be extended by the respective period between the occurrence and elimination of the obstacle. Claims of the purchaser arising from this delay are excluded.
This also applies if such circumstances occur at suppliers or subcontractors of ENQT. In case of an obstacle to performance ENQT is obliged to inform the customer immediately about the occurrence as well as the removal of the obstacle. The agreement of the reservation of self-delivery according to 2.4 is not affected by the two preceding paragraphs.
6.5 Upon ENQT’s request, the Customer is obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or whether he will insist on delivery.
6.6 If ENQT is in default with the delivery due to a culpable breach of an essential contractual obligation by ENQT, its representatives or vicarious agents, ENQT is liable according to the statutory provisions with the proviso that the liability for damages is limited to the foreseeable, typically occurring damage. In other cases of a delay in delivery for which ENQT is responsible, its liability for damages is limited to a lump-sum compensation of 0.5% of the delivery value of the goods in delay per completed week, but not more than 5%. Any further liability is excluded. This shall not affect the other statutory claims and rights of the Purchaser due to delay.
6.7 If the Customer is in default of acceptance or culpably violates other duties to cooperate, ENQT is entitled, after expiration of a grace period to be set by ENQT and a corresponding warning, to refuse performance of the contract and to demand compensation for the damage incurred by ENQT in this respect, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
6.8 If the delivery is postponed at the request of the Customer in agreement with ENQT by more than one (1) month beyond the agreed delivery date or after notification of readiness for delivery, the Customer’s default of acceptance shall commence upon receipt of the written notification of readiness for shipment to the Customer. Furthermore, upon ENQT’s request, the Customer is obligated to pay a storage fee in the amount customary in the market for each month that has begun. Both parties are at liberty to provide evidence of actually higher or lower storage costs.
6.9 The Customer may not refuse to accept deliveries due to insignificant defects.
6.10 If ENQT bears the transport risk, the Customer is obliged to inspect the consignment immediately upon arrival for transport damage and to immediately send ENQT a damage report from the carrier and a written notification of any damage or loss, which must be signed by the Customer. The damaged delivery items must be kept ready for inspection by ENQT or by the respective manufacturer in the condition they are in at the time the damage is discovered. If an acceptance is required, the Customer must notify ENQT of its own accord of a date for joint acceptance no later than four (4) weeks after delivery or permissible partial delivery of an independent part of the performance. The date shall be within four (4) weeks. On this date, the Purchaser must perform the acts of cooperation incumbent upon it. If the date of acceptance is not notified, the delivery shall nevertheless be deemed to have been accepted and approved by the Purchaser.
7. Transfer of risk
Unless otherwise agreed in writing, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon handover or, if shipment has been requested, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
8. Retention of title
8.1 ENQT retains title to the goods (reserved goods) until all claims arising from an ongoing business relationship have been settled in full. This also applies to all future deliveries, even if ENQT does not always explicitly refer to this. ENQT is entitled to take back the object of purchase if the customer behaves contrary to the contract.
8.2 ENQT undertakes to release the securities to which it is entitled upon the Customer’s request insofar as the realizable value of the securities exceeds the claims to be secured by more than 20%. Unless the Purchaser proves a lower realizable value of the Retained Goods, the realizable value shall be the purchase prices of the Purchaser or, in case of processing of the Retained Goods, the manufacturing costs of the collateral or the co-ownership share. The selection of the securities to be released is incumbent upon ENQT.
8.3 During the existence of the reservation of title, the Customer is prohibited from pledging or transferring ownership by way of security. The Customer hereby assigns to ENQT in full, by way of security, the claims arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods (including all balance claims from the current account); ENQT hereby accepts the assignment. ENQT revocably authorizes the Customer to collect the claims assigned to it in its own name and for its account. This direct debit authorization can be revoked if the Customer does not properly fulfill his payment obligations.
8.4 The Purchaser shall be obliged to handle the goods with care. If maintenance and inspection work is required, the Purchaser shall carry this out regularly at its own expense.
8.5 The Customer is obligated to notify ENQT immediately of any access by third parties to the goods, for example in the event of a seizure, as well as any damage to or destruction of the goods. In case of access by third parties (e.g. seizure), the Customer is also obliged to point out ENQT’s ownership. The customer has to inform ENQT immediately about a change of ownership of the goods as well as about a change of his own company seat.
8.6 ENQT is entitled to withdraw from the contract and to demand the return of the goods in case of breach of contract by the Customer, especially in case of default of payment or in case of breach of an obligation according to 8.3, 8.4 or 8.5 – if not unreasonable for ENQT: after expiration of an additional period of time to be set by ENQT reasonably. A repossession or seizure of the reserved goods initiated by ENQT constitutes a withdrawal from the contract. ENQT is entitled to realize the taken back goods subject to retention of title and to set off the realization proceeds after deduction of reasonable realization costs against the existing claim against the Customer.
8.7 The processing or transformation of the goods by the Customer is always carried out for ENQT. If the goods are processed with other objects not belonging to ENQT, ENQT acquires co-ownership of the new object in proportion of the value of the goods to the other processed objects at the time of processing. In all other respects, the same applies to the item created by processing as to the goods delivered under reservation of title.
8.8 If the goods are inseparably mixed with other objects not belonging to ENQT, ENQT shall acquire co-ownership of the new object in proportion to the value of the goods to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer transfers co-ownership to ENQT on a pro rata basis. The Customer shall keep the sole ownership or co-ownership thus created in safe custody for us free of charge.
9. Warranty and notice of defects
9.1 The Purchaser’s warranty rights shall be subject to the condition that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
9.2 Claims for material defects become statute-barred twelve (12) months after delivery of the goods delivered by ENQT to the Customer. This does not apply in case of fraudulent concealment of a defect. However, the warranty period expires prematurely as soon as the customer has made unauthorized repairs or changes to the goods or has not followed the operating instructions. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.
9.3 If, despite all due care, the delivered goods or services show a material defect which already existed at the time of the transfer of risk, ENQT will, subject to timely notice of defects, either repair the goods or deliver replacement goods at its discretion. ENQT must always be given the opportunity for supplementary performance within a reasonable period of time (at least fourteen (14) calendar days). In principle, the Customer shall grant ENQT at least three (3) attempts to remedy the defect, unless otherwise provided by the nature of the purchased item or the defect or other circumstances. ENQT will rectify the rejected parts or services at its own business premises or at the place of installation, at its discretion.
9.4 The Customer shall notify ENQT of material defects in writing without delay and describing the defect as precisely as possible.
9.5 In case of indisputably justified notices of defects, payments of the Customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. If the notice of defects is unjustified, in particular in case of faulty use or existence of other malfunctions for which ENQT is not responsible, ENQT is entitled to demand compensation from the Customer for the expenses it has incurred.
9.6 If the supplementary performance, repair or replacement fails more than three (3) times, the Customer may in principle demand a reduction of the remuneration (abatement) or cancellation of the contract (rescission) at his discretion. In the event of a minor breach of contract, in particular in the event of minor defects, the Purchaser shall not be entitled to rescind the contract. Regarding the assertion of a right of withdrawal as well as a claim for damages ENQT refers to 10 (Liability).
9.7 Claims for defects do not exist in case of only insignificant deviation from the agreed quality, in case of only insignificant impairment of the usability, in case of natural wear and tear as well as in case of damages that occur after the transfer of risk due to faulty or negligent handling, excessive stress, unsuitable operating materials, chemical and electrochemical, electrical or atmospheric influences or due to special external influences that are not assumed according to the contract. If the Purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
9.8 Public statements, recommendations or advertising by the manufacturer, in particular in brochures, websites, leaflets, etc., shall not constitute a contractual description of the quality of the products.
9.9 The Purchaser is hereby informed that the quality specifications set out in the performance description do not constitute guarantees in the legal sense. Quality specifications and guarantees that go beyond the product description are only deemed to have been declared to the Customer if they have been recorded in writing by ENQT.
9.10 Claims for damages and claims of the customer other than those regulated in 9.1 to 9.9 due to a material defect are excluded. This does not apply in case of fraudulent concealment of the defect, in case of non-compliance with a guarantee of quality, in case of injury to life, body, health or freedom and in case of intentional or grossly negligent breach of duty by the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
10.1 ENQT’s liability is limited to intent or gross negligence. This does not apply to liability according to the regulations of the Product Liability Act and furthermore to damages caused by culpable violation of an essential contractual obligation (cardinal obligation) or to life, body or health, for which ENQT is liable without limitation according to the statutory provisions. In case of a slightly negligent breach of a cardinal obligation, however, the liability is limited to the typical and foreseeable damage, for a single case of damage, however, to a maximum of the contract value, in case of ongoing remuneration to the amount of the remuneration per contract year.
10.2 Liability for indirect damage and consequential damage, in particular for loss of profit or loss of production, shall be excluded, irrespective of the legal grounds.
10.3 Liability for the loss of data shall be excluded to the extent and insofar as the Customer could have avoided the loss of data by taking reasonable precautions, in particular by making backup copies.
10.4 The above limitations of liability apply in the same way to ENQT’s employees and agents and also to those who are not directors and officers.
11. Non-acceptance compensation
In case of non-fulfillment of the contract due to reasons for which the Customer is responsible, ENQT is entitled to claim damages in the amount of 75% of the expected invoice amount. The amount of damages is to be set higher or lower if ENQT proves a higher damage or the Customer proves a lower damage.
12. Rights of use and additional conditions for software deliveries
12.1 Copyrights, patent rights as well as rights of use and exploitation of the sold goods remain with ENQT irrespective of the sale of the goods, unless the contract stipulates otherwise. The Customer is entitled to use the goods only to the extent that this is contractually agreed or results from the purpose of the contract. The resale/transfer of the goods in the specific form provided is permitted. The reproduction of individual delivery parts or systems of ENQT or the goods is only allowed with written permission of ENQT.
12.2 The Customer has the non-exclusive right to use software and firmware with the agreed performance features in unmodified form on the agreed devices. The Customer may only make a backup copy without express agreement if this is necessary for securing future use.
12.3 Insofar as ENQT is the manufacturer of the Software, delivery shall be made under the terms and conditions of the respective software license agreement, unless provisions have been made in the underlying contracts. As far as software of a third party manufacturer is sold, the respective license conditions of the third party manufacturer apply, which are partly attached to the respective data carriers on which the software is stored and partly in written form.
12.4 Unless otherwise agreed in writing, the installation of standard, individual and operating software as well as of data carriers for the individual programs and likewise any training and familiarization measures shall be borne by the Purchaser.
13. Impossibility and adjustment of the contract
If unforeseeable events in the sense of 6.5 considerably change the economic importance or the content of the delivery or have a considerable effect on the operation of ENQT, the contract will be adapted appropriately in good faith. If this is not economically justifiable, ENQT has the right to withdraw from the contract. If ENQT wants to make use of this right of withdrawal, ENQT will inform the Customer immediately after realization of the consequences of the event, even if an extension of the delivery time was initially agreed with the Customer.
14. Written form
Supplementary or deviating agreements must be in writing in order to be effective. The written form requirement itself can also only be waived in writing.
15. Place of Jurisdiction, Place of Performance and Choice of Law
15.1 If the Customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Hamburg. ENQT is, however, also entitled to file suit at the Customer’s place of business.
15.2 Unless otherwise stated in the order confirmation, ENQT’s place of business is the place of performance.
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 network tester
All network testers collect and transmit diagnostic data of all measurements. These are among others:
- Log files of the measurement devices with information about errors and measurements performed
- Location-related radio measurement data (depending on device and configuration)
- Positions (depending on device and configuration)
These data are used as follows:
- for debugging the device hardware and software in case of problems
- for blocking individual network testers / SIM cards in case of loss / theft
- in anonymous form for the creation of coverage maps
The collected data is not personalized and stored. An assignment is only made to the respective customer, but not to individual users.
17. Severability clause
Should any provision of this agreement or the concluded contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Instead, the parties undertake to agree on a provision in place of the invalid or unenforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same procedure shall be followed to fill any gaps in the contract.