General Terms and Conditions
A) General Conditions of Delivery and Performance
This English translation is provided for information purposes only. In the event of any discrepancy, the German version shall prevail.
1. Scope, Definitions
1.1. The following General Terms and Conditions apply exclusively, in the version valid at the time of order, to all contracts concluded between us, axovend GmbH (hereinafter the Supplier), and the contractual partner (hereinafter the Customer) for the supply of goods and the provision of services — together referred to as “Deliveries”. Deviating general terms and conditions of the Customer are not recognized unless the Supplier expressly agrees to their validity in writing. The use of the uniformly masculine designation serves the purpose of simplification and does not constitute gender-specific discrimination. 1.2. The Customer is a consumer within the meaning of Section 13 of the German Civil Code (BGB) insofar as the purpose of the ordered Deliveries and services cannot predominantly be attributed to the Customer's commercial or self-employed professional activity. Conversely, an entrepreneur within the meaning of Section 14 BGB is any natural or legal person or partnership with legal capacity which, when concluding the contract, acts in the exercise of its commercial or self-employed professional activity.
2. Conclusion of Contract – Correspondence
2.1. The Supplier offers access products and payment terminals as well as all related services. 2.2. The contract is concluded as follows: The Customer may request the Supplier by e-mail, web form, telephone or in writing to submit a non-binding offer. The Supplier then submits an offer to the Customer which contains at least the total price for the service. The Customer accepts this offer in a binding manner by confirming it to the Supplier by e-mail or in writing. 2.3. Changes or additions to the original order are possible if the Supplier accepts them by e-mail or in writing. Such services are billed separately. The agreed completion date may be postponed due to change requests. If the completion date changes, the Supplier informs the Customer accordingly. 2.4. We are not obliged to verify the authority to represent of the persons acting on the Customer's side. These persons are therefore deemed to be authorized to represent the Customer vis-à-vis us, unless the lack of such authority is obvious. 2.5. The Supplier reserves the right to reject orders or changes to orders. In this case, no offer will be issued by the Supplier. The Supplier shall inform the Customer of the rejection in writing or by e-mail. 2.6. The contract is concluded in German or English. The text of the contract is stored in compliance with data protection regulations and can be printed out at any time.
3. Customer Cooperation in Contract Formation
3.1. The Customer shall provide us with all information and data required for us to prepare our offers and order confirmations completely, correctly and conclusively. The Customer warrants the accuracy and completeness of its information and data. This applies in particular to technical data such as weights and dimensions, and to all pictorial and graphic representations. 3.2. Insofar as it is agreed that we shall obtain certain information and data ourselves, the Customer shall provide us with the necessary opportunity to do so. 3.3. If the information and data received are incorrect or incomplete, we are entitled to adjust the contract in accordance with Section 2.5 of our terms. The same applies if, despite a corresponding request, we have not been given sufficient opportunity to obtain information and data. 3.4. We are only obliged to check the information and data received for plausibility with regard to accuracy and completeness. We are not entitled to adjust the contract if, in carrying out the plausibility check, we should have recognized the inaccuracy or incompleteness of the information and data. No further duty of examination exists. 3.5. The Customer shall examine our order confirmations without delay, at the latest within 5 working days (excluding Saturdays), and object in writing or in text form if and to the extent that the order confirmation does not correctly reflect the agreements made. Otherwise, the contract is deemed concluded with the content of the order confirmation, unless we have fraudulently deviated from the agreements made in the order confirmation.
4. Agreement on Remuneration
4.1. Remuneration may be made according to the payment terms specified in the Supplier's offer. 4.2. The agreed remuneration only covers the scope of services and deliveries listed in the contract document or the order confirmation. Additional and special services/deliveries are to be remunerated separately by the Customer. Insofar as no agreement on separate remuneration is reached, the Customer owes our list price valid at the time of delivery/performance and, in the absence of such, the customary remuneration for the industry, or alternatively the remuneration for comparable services in a comparable industry. 4.3. Ancillary costs, such as packaging, transport, insurance, customs clearance or assembly, are only included in the agreed remuneration if they are explicitly listed in the contract document or the order confirmation. Otherwise, they are to be remunerated separately. 4.4. The remuneration is exclusive of all taxes and public charges levied on the delivery owed and payable by us. Additional taxes and public charges to be borne by the Customer itself do not affect the remuneration agreement. 4.5. Our offer prices are in Euro. If another currency is agreed for the remuneration, the remuneration shall be adjusted in the same proportion as the exchange rate published by the European Central Bank at the time of payment (date of receipt of money by us) changes to our disadvantage compared to the time of conclusion of the contract. An insignificant change in the exchange rate shall be disregarded. 4.6. We are entitled to adjust the remuneration if we can demonstrate that energy, logistics and/or third-party costs have increased at the time the aforementioned costs are incurred compared to the time of conclusion of the contract, and that the remuneration for the overall product would change substantially as a result. The adjustment is made in the amount of the change. This applies in particular if a longer period of time has elapsed between the conclusion of the contract and the incurrence of the costs.
5. Place, Manner and Scope of Delivery, Transfer of Risk
5.1. All deliveries are made ex works (EXW pursuant to Incoterms® 2020). The risk of loss or damage (deterioration) of the goods not caused by us passes to the Customer as soon as the goods are handed over to the carrier. 5.2. The choice of mode of dispatch and packaging as well as the selection of the carrier shall be at our sole reasonable discretion, taking into account the Incoterms chosen by the Customer under 5.1. 5.3. We are entitled to make partial deliveries unless the Customer demonstrates that the partial delivery is unusable for the contractual intended purpose or unreasonable for other reasons.
6. Delivery Time
6.1. Specified deadlines and dates for deliveries are always only anticipated. They are only binding if they have been expressly designated or confirmed as such. 6.2. Insofar as dispatch of the goods has been agreed, the specification of the deadlines and dates for a delivery refers to the time of handover to the carrier. 6.3. A fixed delivery date exists only if it is expressly designated as such. 6.4. We are not liable for delivery delays — likewise for the impossibility of performance — if they are due to force majeure or arise from other reasons for which we are not responsible. Such reasons are, for example, unforeseeable difficulties in the procurement of raw materials or energy, unforeseeable difficulties in transport and/or the availability of storage or transport capacity, shortage of labor due to illness or strike, or other operational disruptions of any kind for which we are not responsible. 6.5. In the case of delivery delays within the meaning of Section 6.4, the agreed dates and deadlines shall be extended by the duration of the impediment plus a reasonable period for execution after the cessation of the cause of the impediment. In the case of such delivery delays, the Customer is entitled to withdraw from the contract if it can demonstrate that the later delivery is no longer of interest to it or is unreasonable for other reasons. We may withdraw from the contract if it is no longer reasonable for us to adhere to it, at least under the existing contractual conditions. No further claims exist on either side. 6.6. If we are in default of delivery, the Customer may only assert rights arising therefrom if it has set a reasonable grace period, unless it can demonstrate that the setting of such a grace period is unreasonable for it. Otherwise, the Customer may only assert its rights with regard to the outstanding part of the delivery.
7. Execution of Delivery
7.1. We will carry out the deliveries in accordance with the contractual agreements made as well as the relevant legal regulations. 7.2.1. The Customer shall support and cooperate with us in the execution of the deliveries to the best of its ability, in accordance with the agreements made and the requirements arising from the nature of the goods to be delivered. In particular, the Customer will provide us with all information and necessary documents required for proper delivery. For this purpose, the Customer shall name a sufficiently informed contact person to us and ensure their availability. 7.2.2. Insofar as we are required to install the goods, we shall be granted unhindered access to the installation site at the scheduled date, and electricity, water, lighting, facilities for sustainable waste disposal, the necessary social and sanitary rooms as well as an internet connection shall be provided. The installation site must be free of foreign objects, swept clean and, if necessary, heatable. The access road navigable for trucks and sufficiently consolidated, as well as the accesses to the installation site, must be at ground level. The installation site must, if necessary, be closed and lockable to protect against theft and vandalism. 7.2.3. Construction and other preliminary work to be carried out on the Customer's side, such as the construction of foundations, lines, connections and the like, must be completed. Any necessary permits, in particular under building, safety or emission protection law, must be obtained by the Customer at its own expense. Furthermore, the Customer is responsible for obtaining the necessary permits for Sunday and holiday work as well as the necessary permits for the special use of roads. 7.3. If the Customer fails to comply with its duty to cooperate or does not comply with it sufficiently, it shall reimburse us for all additional expenses incurred as a result. Expenses paid in advance shall be reimbursed upon proof, insofar as they are not disproportionate. The time expenditure shall be remunerated according to the prices generally applicable at our company and, in the absence of such, according to the prices customary in the industry. 7.4. We reserve further rights.
8. Acceptance and Inspection of the Goods
8.1. The Customer is obliged to examine the delivered goods immediately upon receipt for visible transport damage. Damages identified must be noted on the freight documents. The Customer is obliged to notify us and the carrier of any damages identified without delay and to take all measures so that any damages can be asserted against the carrier. Damaged goods must be documented and retained until the damage settlement is completed. If the Customer does not comply with the aforementioned duties to cooperate, it shall bear all resulting disadvantages in the damage settlement itself. 8.2. The Customer is obliged to accept the delivered goods and to examine them immediately upon receipt and, if a defect is apparent, to notify us of it without delay in writing or in text form. If a defect only becomes apparent later despite examination due to lack of recognizability, the notification period is 2 working days (excluding Saturdays) after detection of the defect. The notification must be received by us in time. In the notification, the defect must be described as precisely as possible or documented with photos, stating the order number, so that we can form an idea of the defect. 8.3. The periods specified in Section 8.2 shall be extended if and to the extent that the Customer can demonstrate that, according to the circumstances of the individual case and the ordinary course of business, a longer duty of examination and complaint was required. 8.4. If the Customer fails to notify the defect in time, the defect is deemed approved and the Customer's claims due to the defect are excluded. This does not apply if we have fraudulently concealed the defect. 8.5. If an express acceptance of the goods by the Customer has been agreed, the Customer shall accept the goods unless defects prevent acceptance. The goods shall be deemed accepted if the Customer begins using the goods after delivery and, if applicable, installation, or if the Customer does not declare acceptance within 10 working days (excluding Saturdays) following our request, without having complained of any defects. For the period between installation and acceptance of the goods, the Customer protects the goods from damage and is also liable for them. 8.6. If the delivery of the goods is delayed for reasons attributable to the Customer or which lie within its sphere of risk, we are entitled to store the goods at the Customer's expense or have them stored.
9. Liability for Material Defects and Returns
9.1. We must deliver the goods free of material defects, which means with the agreed quality and, if no such quality has been agreed, with the customary quality of goods of the same type to be expected by the Customer and with the fitness presupposed by the contract or fitness for ordinary use. 9.2. The quality of the goods and their contractually presupposed fitness result from the contract document or the order confirmation. The information contained therein is, however, only binding if it is expressly designated as binding or if its binding nature clearly results from the contractual purpose. Otherwise, our information, such as technical data (dimensions, weights and the like), the description of the goods as well as their pictorial or graphic representation, are only approximately decisive. 9.3. Customary deviations, the use of recognized tolerances, as well as all changes to the goods made after conclusion of the contract (e.g., technical changes or the use of other components), insofar as no reduction in quality and no impairment of the contractually presupposed fitness occurs, do not constitute a defect. 9.4. A material defect must already exist at the time of collection or dispatch of the goods, such as construction or material defects. Deterioration of the goods whose cause arose afterwards, such as damage during transport, ordinary wear and tear, improper use, modification of the goods by third parties or other interventions, are not material defects. Short quantities and incorrect deliveries are deemed to be material defects. 9.5. In the case of a material defect that occurs within the warranty period and is notified in good time in accordance with Section 8 of our terms, we shall eliminate the defect in the delivered goods or deliver defect-free goods in place of the defective ones. The choice between rectification and replacement delivery is at our sole discretion. 9.6. In the case of a notice of defect, we may require the Customer to send the goods complained of to us carriage paid for inspection. Instead of sending them in, we may require the Customer to take photos or videos of the defective goods and send these to us. In the case of a justified notice of defect, we shall reimburse the Customer for the costs of shipping. 9.7. The Customer may withdraw from the contract if the rectification or replacement delivery fails more than three times, is impossible or unreasonable, or is unjustifiably refused by us or unreasonably delayed despite the setting of a sufficient deadline. The right of withdrawal is limited to the defective part of the delivery, unless the Customer can demonstrate that it has no interest in the defect-free part of the delivery. Instead of partial withdrawal from the contract, the Customer may reasonably reduce the purchase price attributable to the defective part of the delivery. 9.8. If the defect is due to our fault, the Customer may claim damages in accordance with Section 10. 9.9. No further claims for defects beyond those described above are available to the Customer. 9.10. The warranty period (limitation of claims for defects) is 12 months. It begins for deliveries of goods upon handover of the goods, and for other services upon completion of the performance; if an acceptance is provided for, it begins with the acceptance. 9.11. With our prior consent, the Customer is entitled to return goods even if we, e.g. due to a lack of material defects, would not be obliged to take them back (returns). However, the Customer shall bear the processing and shipping costs for such returns, which must be securely packaged. The transfer of risk only takes place upon receipt of the returns by us. We only issue credit notes for returns according to the condition of the goods.
10. Claims for Damages and Other Liability
10.1. Claims for damages, regardless of the legal grounds, are available to the Customer in accordance with the following provisions. 10.2. We, including our governing bodies, employees and vicarious agents, are only liable in the case of simple negligence for the breach of cardinal obligations. Cardinal obligations are only essential contractual obligations, namely the obligation to deliver properly, in particular on time and free of defects, including any installation, as well as other obligations, in particular advisory and instructional obligations intended to enable the Customer to use the goods in accordance with the contract. However, liability is limited to damages that we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or that we should have foreseen had we exercised due care. Indirect damages and consequential damages are furthermore only reimbursable insofar as such damages can typically be expected when the delivered item is used as intended. 10.3. All limitations of liability, including the shortening of statutory limitation and warranty periods, do not apply if we are mandatorily liable by law, such as in cases of intent or gross negligence, the assumption of a guarantee, warranted characteristics, the violation of life, body and health, as well as personal injury and property damage under product liability law. 10.4. Insofar as we provide information free of charge or act in an advisory capacity and such activity is not part of the contractually agreed scope of services, we are only liable in cases of intent and gross negligence.
11. Payment and Retention of Title
11.1. Our invoices are payable without any deduction within 10 calendar days after receipt or other defined payment terms. The date of payment is determined by the receipt of payment by us. 11.2. If the Customer is in default of payment, it shall pay interest on the outstanding amount from the start of default at the statutory interest rate; the assertion of higher interest and further damages in case of default remains unaffected. 11.3. Set-off against the Customer's counterclaims and the retention of payments due to such claims is only permissible insofar as these counterclaims are not disputed by us or have been legally established. 11.4. The delivered goods remain our property until full payment of all invoices from the business relationship with the Customer.
12. Property and Intellectual Property Rights
12.1. All documents and other items, such as plans, drawings, illustrations, brochures, catalogs, models, remain our property and are to be returned upon first request, unless these documents and items are intended to remain permanently as the Customer's property according to the contractual purpose or the nature of the matter. 12.2. We expressly reserve the intellectual property in all intangible legal goods. The Customer is exclusively entitled to use these goods for the contractual purpose. Without our express consent, they may neither be used otherwise nor made accessible to third parties. 12.3. In connection with the delivery, we do not transfer any industrial property rights, unless this has been expressly agreed with us in writing or in text form. 12.4. We must deliver the goods free from industrial property rights or copyrights of third parties. Each contractual partner will notify the other party without delay in writing or in text form if claims are asserted against it for infringement of such rights. The right to defend against asserted claims is, in the internal relationship, exclusively ours. The contractual partner must therefore conduct the defense against claims asserted against it in coordination with us. We are not liable, however, for infringements of property rights caused by the Customer. If the infringement of property rights was caused jointly, the parties shall be liable in the internal relationship in accordance with their respective shares of responsibility. 12.5. If the Customer provides us with means for the purpose of preparing an offer or performing services, such as samples, plans, product parts and the like, the Customer shall be responsible for ensuring that no third-party property rights are infringed thereby. If we are sued by a third party for possible infringement of property rights, the Customer shall indemnify us in full from such claims upon first request.
13. Confidentiality and Data Protection
13.1. The Customer agrees to the storage of personal data within the scope of the business relationship with the Supplier, in compliance with data protection laws, in particular the German Federal Data Protection Act (BDSG) and the GDPR. Data will not be passed on to third parties insofar as this is not necessary for the performance of the contract or unless consent has been obtained. 13.2. Insofar as the Customer transmits the data of third parties (e.g. employees), the Customer warrants that it has obtained consent from the third party and indemnifies the Supplier from all claims in this regard. 13.3. The rights of the data subject in detail arise in particular from the following provisions of the GDPR: • Article 7 para. 3 – Right to withdraw a data protection consent • Article 15 – Right of access of the data subject, right to confirmation and provision of a copy of the personal data • Article 16 – Right to rectification • Article 17 – Right to erasure (“right to be forgotten”) • Article 18 – Right to restriction of processing • Article 20 – Right to data portability • Article 21 – Right to object • Article 22 – Right not to be subject to a decision based solely on automated processing — including profiling • Article 77 – Right to lodge a complaint with a supervisory authority 13.4. To exercise these rights, the data subject is requested to contact the Supplier by e-mail or, in the case of a complaint, the competent supervisory authority. 13.5. The Supplier warrants that it has taken appropriate technical and organizational measures to ensure the security of personal data and to reduce the risk for the data subjects. 13.6. For all other matters, reference is made to the privacy policy on the Supplier's website at: www.axovend.com 13.7. The Supplier is entitled to make copies of the texts processed and to retain them, unless the Customer objects. The Customer grants the Supplier the necessary rights of use for this purpose. 13.8. The Customer may at any time request the deletion of the texts and revoke the rights of use granted. 13.9. The Supplier is not obliged to make security copies of the texts. 13.10. The Customer permits the Supplier to publish its project on social media in the form of images, a brief description of the implemented solution and the implementation period. If the Customer does not consent to this, the publication must be objected to in writing.
14. Sanctions Clause
14.1. The Customer is prohibited from exporting, having exported, or allowing the export of deliveries from axovend involving goods or technologies falling within the scope of Article 12g of COUNCIL REGULATION (EU) No. 833/2014 and Article 8g of COUNCIL REGULATION (EU) No. 765/2006, directly or indirectly, to the Russian Federation or to Belarus, or for use in the Russian Federation or in Belarus. 14.2. The Customer is obliged to take and maintain all necessary measures to the best of its ability to ensure and monitor that the aforementioned prohibition is not violated, including by third parties in the further trade chain or possible resellers. 14.3. The Customer shall inform axovend without delay if it becomes aware of possible, imminent or committed violations of Sections 14.1 and 14.2, and shall obtain to the best of its ability all information about the nature, extent and perpetrators of the violations. 14.4. In the event of a violation of Sections 14.1 to 14.3, axovend is entitled to terminate the existing agreements on deliveries and services with the Customer extraordinarily and without notice, and to take all other permissible and reasonable remedies.
15. Final Provisions
15.1. We reserve the right to adapt our delivery conditions to current requirements at any time. The adapted conditions also apply to existing contracts, provided that we have informed the Customer that we have adapted our conditions and the Customer has not objected in writing or in text form; this does not apply, despite the absence of an objection, if the conditions involve unusual and unreasonable provisions which the Customer could not, from the perspective of an objective observer, have expected. 15.2. Claims against us may only be assigned with our prior consent in writing or text form. 15.3. For the written form, Sections 126 and 126a BGB apply; for the text form, Section 126b BGB applies. 15.4. If the Customer is a merchant, the exclusive place of jurisdiction is Memmingen. We are, however, also entitled to sue the Customer at its registered office. 15.5. The law of the Federal Republic of Germany applies exclusively to all contracts between us and the Customer, with the exception of provisions which require the application of foreign law. The UN Convention on Contracts for the International Sale of Goods does not apply. 15.6. Should a provision of our delivery conditions be or become invalid, the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision that comes closest to the regulatory purpose of the invalid provision. An impermissible measure is to be replaced by a permissible measure that comes closest to the impermissible measure.