General Terms and Conditions of Sale of dataTec AG in Business Transactions with Entrepreneurs (GTCs)
1. General – Scope
a. These General Terms and Conditions of Sale will apply to all contracts for deliveries and services, in particular to offers, purchase contracts, deliveries, and services, as well as to contractual obligations through the commencement of contract negotiations, contract initiation, and similar business contacts between dataTec and entrepreneurs, legal entities under public law, or special funds under public law (hereinafter referred to as “Customer”). They will apply to all present and future business relationships in the version that we made known to the Customer when the respective contractual obligation came into being.
b. The product range, also in our online store, is aimed exclusively at entrepreneurs (within the meaning of Section 14 (1) of the German Civil Code, i.e., natural or legal persons or partnerships with legal capacity acting in the exercise of their commercial or independent professional activity when concluding the transaction) as well as legal persons under public law and special funds under public law. The Customer confirms this when registering and when placing an order in the online store.
c. Our General Terms and Conditions of Sale will apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Customer will not become part of the contract, even if we are aware of them and without separate objection by us in individual cases, unless their validity is expressly agreed to in writing.
d. If dataTec amends these Terms and Conditions, these Terms and Conditions will become part of the contract in the case of continuing obligations in the new version communicated in writing with identification of the amended provisions if the Customer continues the continuing obligation and does not object within one month. dataTec will point out in the notification of the new version that silence on the notification will be deemed as consent to the amended General Terms and Conditions of Sale.
2. Conclusion of contract
a. The offers of dataTec are non-binding. Information in brochures, online offers, and other advertising media is not binding.
We reserve the right to make technical changes and changes in shape, color, and/or weight within reasonable limits.
b. Conclusion of contract in the online store: our offers are non-binding.
aa. By placing an order in the online store, the Customer makes a binding offer to purchase the relevant product. dataTec may accept the offer until the end of the third working day of the working day following the day of the offer.
bb. dataTec will send the Customer a confirmation of receipt of the offer immediately after receipt of the offer; this does not constitute acceptance of the offer. The offer will only be deemed accepted by dataTec as soon as we declare acceptance to the Customer (by e-mail) or dispatch the goods. The contract with the Customer is only concluded upon our acceptance.
c. Quality of the goods and services, definition of the term “guarantee”
aa. All information, drawings, illustrations, descriptions, and information on weight, dimensions, or capacity as well as other descriptive details and information on compliance with legal requirements are intended to provide an overview of the item, regardless of whether they are announced in a catalog, on shipping bills, invoices, packaging, or otherwise. Such descriptions are not part of the contract. If the description of an item deviates from the manufacturer’s description, the manufacturer’s specifications will apply in case of doubt. dataTec will take all reasonable measures to ensure the correctness and accuracy of the description, without, however, making it the subject of the contract, assuring, or guaranteeing it. Liability for the correctness, completeness, and accuracy of the description will not be assumed by dataTec.
bb. If product offers contain the reference “x years guarantee”, this always refers to the manufacturer’s product-related guarantee, the content of which is determined solely by the manufacturer (guarantor). Details can be found on the respective manufacturer’s website or requested from dataTec AG. A guarantee in the legal sense is therefore not promised by dataTec AG (see section 8.f below for the guarantee).
cc. Technical information by dataTec, advisory activities, product demonstrations, and test measurements will only be part of the scope of services owed by dataTec if this has been expressly contractually agreed in text or written form.
d. By placing an order for goods, the Customer makes a binding declaration that they wish to purchase the goods ordered. dataTec is entitled to accept the offer contained in the order within 5 working days of receipt.
e. The conclusion of the contract is subject to correct and timely delivery by upstream suppliers. This reservation will not apply if dataTec is responsible for the incorrect or untimely delivery, in particular in case of missing or untimely conclusion of a corresponding contract with upstream suppliers.
3. Prices
a. The prices in euros are ex works, excluding packaging and shipping and plus the respective statutory VAT.
b. The prices printed in advertising mailings or other temporary advertising material are the prices valid on the day of printing or for the period stated in the advertising. Prices are subject to change until acceptance of the offer by dataTec.
c. For offers made on the website of dataTec AG or in text form, the respective valid list prices of the manufacturer will apply; these may change at short notice. Any discounts (quantity discounts or similar) will be shown in the offer.
4. Terms of payment
a. Invoices are sent as e-invoices to the e-mail address generally or individually specified by the Customer/invoice recipient or to their order e-mail address, unless the parties agree otherwise.
b. Unless otherwise stated in the order confirmation or these Terms and Conditions, invoices are due immediately and without deduction. In the case of bank transfers, the timeliness of payments is determined by the crediting of the payment to our account.
dataTec is entitled to offset payments against the oldest due invoice even if the Customer’s repayment provision is contrary to this.
If delivery on account has been agreed upon, our invoices will be due for payment without deduction within 30 days of dispatch of the goods and receipt of the invoice unless otherwise agreed in individual contracts.
c. For contracts that are concluded directly in the online store of dataTec AG, the further payment and delivery conditions regulated on the dataTec AG website on the “Order Information” page in the online store at https://www.datatec.eu/bestellinformationen will take precedence over these GTCs.
d. If a payment date has not been agreed upon, the occurrence of default will be governed by the statutory provisions. During the period of default, the Customer will pay interest on the debt in the amount of nine percentage points above the respective base interest rate. dataTec will be entitled to charge EUR 10.00 for each reminder.
e. If the Customer is in default of acceptance, the purchase price will become due on the date of the declaration of readiness for dispatch.
f. The Customer will only be entitled to offset if their counterclaims have been legally established or recognized by dataTec.
Any assignment of claims against us is excluded. This does not apply within the scope of application of Section 354a of the German Commercial Code.
g. The Customer may only exercise a right of retention if their counterclaim is based on the same contractual relationship.
h. In the event of direct debit returns or bounced checks, all claims arising from the current business relationship will become due for payment immediately.
5. Delivery and performance time, partial deliveries, reservation of self-delivery, delay, plea of uncertainty, payment in installments
a. Delivery dates or deadlines are only binding if they have been designated as binding by us. They must be in text or written form.
b. We will only be in default by means of a reminder from the Customer, even if a time is determined or determinable according to the calendar.
In the event of a delay in delivery by dataTec, the Customer will be entitled to set a reasonable grace period in writing, usually of at least three weeks with a threat of refusal, and after its fruitless expiration to withdraw from the order with regard to the delayed delivery.
c. As we generally purchase our products from manufacturers/suppliers, we may withdraw from the contract if we ourselves are not supplied on time or correctly despite matching orders.
If the non-observance of a delivery period is due to force majeure, war, labor disputes, unforeseeable obstacles, or other circumstances for which dataTec is not responsible, in particular also if such circumstances occur with upstream suppliers, the delivery or performance period will be extended appropriately; this will also apply in particular in the event of defective or missing self-supply, traffic or operational disruptions, obstructed imports, energy and raw material shortages, official measures such as orders and warnings, for example in the event of epidemics or pandemics, as well as the breach of cooperation duties or obligations of the Customer. Notwithstanding the right to withdraw from the contract in accordance with Clause 5.c., we will also be entitled to withdraw from the contract if the performance impediment continues for an unknown period of time and the purpose of the contract is jeopardized. If the hindrance lasts longer than 2 months, the Customer will be entitled to withdraw from the contract with regard to the part not yet fulfilled, unless they are entitled to withdraw from the contract as a whole.
The delivery or service period will also be extended accordingly if the parties negotiate a change to the delivery or service or if we submit a supplementary offer after assumptions in our offer which have become part of the contract turn out to be incorrect.
d. dataTec is entitled to make partial deliveries.
e. If it becomes apparent to dataTec after conclusion of the contract that its claim to counter-performance is jeopardized by the Customer’s inability to pay, the Customer will provide security for their counter-performance in the absence of any other advance performance obligation. If our contractual obligation consists of a work performance, service, or delivery of goods to be procured for the Customer which cannot be sold elsewhere at any time (currently), we may require the Customer to make an advance payment in the amount of our procurement costs or, at our discretion, in the amount of 50% of their consideration and to provide security for the remaining amount. Otherwise, Section 321 of the German Civil Code applies.
f. If the Customer is in default with at least two consecutive installments in whole or in part in the case of the installment payment agreed upon, the entire remaining claim will become due. Furthermore, deferral agreements will become ineffective if the Customer defaults on a payment or if the conditions of Section 321 of the German Civil Code arise with regard to a claim.
6. Shipment, transfer of risk, transport insurance
a. Shipment will be at the risk and expense of the Customer. The same applies to any return shipments if the Customer is not entitled to return the goods.
b. The risk of accidental loss and accidental deterioration of the goods will pass to the Customer upon delivery of the goods to the forwarding agent, carrier, or other person or institution designated to carry out the shipment, regardless of the regulation of the transportation costs, unless it is a debt to be discharged at the creditor’s domicile. This also applies if partial deliveries are made.
dataTec will automatically insure the transportation of the delivery at the expense of the Customer, unless the Customer expressly states prior to the dispatch of the goods that they themself will take out transport insurance for the delivery.
c. The Customer must check the goods immediately upon receipt of the shipment for external damage (packaging, signs of opening on the package, etc.) and document this in a suitable manner (photographically). Any damage or irregularities to the packaging or the product must be recorded in writing on the delivery slip or waybill upon receipt.
All damages and losses, including hidden transport damages/losses that only become apparent later, must be reported to dataTec in writing or in text form immediately after discovery, at the latest within 7 days after delivery (Section 438 (2) of the German Commercial Code) so that recourse claims can be asserted against the carrier. A culpable breach of this obligation to notify can justify the exclusion of liability of the transport insurance, as proper delivery is then presumed.
Claims due to exceeding the delivery period expire if the recipient does not notify dataTec or the carrier of the exceeding of the delivery period within twenty-one days after delivery.
d. If the shipment is delayed due to circumstances for which the Customer is responsible, the risk will pass to the Customer from the day of readiness for shipment; however, dataTec will be obliged to effect the insurance requested by the Customer at the Customer’s request and expense. dataTec reserves the right to store the goods in justified circumstances. The costs of storage are to be borne by the Customer.
7. Retention of title
a. dataTec retains title to the delivered goods until full payment of the purchase price and all payment claims from the current business relationship have been made. Notwithstanding Section 449 (2) of the German Civil Code, dataTec is entitled to demand the return of the objects without withdrawing from the purchase contract if the Customer is in default with the payment of the purchase price in whole or in part.
b. The Customer is obliged to treat the goods with care until full payment has been made and to insure them adequately at replacement value against fire, water damage, theft, and vandalism at their own expense. If maintenance or inspection work is required, the Customer must carry this out regularly and in a timely manner at their own expense.
c. The Customer is obliged to inform dataTec immediately of any access of third parties to the goods, for example in the case of seizure by the court enforcement officer(s), as well as any damage or destruction of the goods. The Customer must notify us immediately of any change of ownership of the goods outside the ordinary course of business. If dataTec files a suit under Section 771 of the German Code of Civil Procedure in case of an attachment and the third party is not able to reimburse the judicial and extrajudicial costs of a suit under Section 771 of the German Code of Civil Procedure, the Customer will be liable for the loss incurred by dataTec.
d. The Customer is entitled to process the goods in the ordinary course of business or to combine or mix them with other objects. The processing, combining, or mixing will be carried out for dataTec; the Customer will store the resulting object (new goods) for dataTec with the care of a prudent businessman. In case of processing, combining, or mixing with objects not belonging to dataTec, dataTec is entitled to co-ownership of the new goods in the amount of the share resulting from the ratio of the value of the objects delivered by dataTec to the value of the new goods.
In the event that no such acquisition of ownership should occur for us, the Customer will already now transfer the future ownership to dataTec or the co-ownership in the ratio described above. If the delivery object is combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, dataTec will, insofar as the main item belongs to dataTec, transfer the co-ownership of the uniform item to the Customer in the proportion stated in sentence 3.
e. The Customer is entitled to resell the goods or the new goods in the ordinary course of business. They already now assign to dataTec all claims in the amount of the invoice amount including VAT of the goods delivered and resold by dataTec which accrue to them through the resale against their purchasers or third parties. dataTec accepts the assignment. After the assignment, the Customer will remain authorized to collect the claim until revocation, provided that they have created the prerequisites for the forwarding of the collected amounts to dataTec and as long as the prerequisites of the provision on the endangerment of claims (Section 321 of the German Civil Code) do not occur. dataTec reserves the right to collect the claim itself as soon as the Customer does not properly meet their payment obligations and is in default of payment and in particular no application for the opening of insolvency proceedings has been filed or payments have been suspended. At the request of dataTec, the Customer is obliged to disclose the assignment and to hand over to dataTec the documents and information required for the assertion of the claim.
f. dataTec undertakes to release the securities to which it is entitled at the request of the Customer insofar as the value of the securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released will be incumbent on dataTec.
8. Claims of the Customer in the event of defects (material defects and defects of title), inspection obligations, return
a. Rights of the Customer due to material defects presuppose that the Customer has properly complied with their obligations to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code.
b. dataTec is entitled to remedy the defect at its own discretion by repair or delivery of a defect-free item (subsequent performance). If the subsequent performance fails, the Customer may reduce the purchase price or, if a construction service is not the subject of the liability for defects, withdraw from the contract at their discretion.
The obligation of dataTec to bear the expenses necessary for the purpose of subsequent performance or to take back the replaced item, in particular transport, travel, labor, and material costs, will be excluded insofar as the expenses increase because the purchased item has been taken to a place other than the registered office or the commercial establishment of the recipient after delivery, unless the transfer corresponds to the intended use of the item. The Customer’s right under Section 439 (3) sentence 1 of the German Civil Code to demand the necessary expenses for the removal of the defective item and the installation or fitting of the repaired or delivered defect-free item is limited to 150% of the purchase price of the item in defect-free condition or 200% of the reduced value due to the defect. The Customer’s right to compensation for damages and reimbursement of expenses in the event of recourse (Section 478 (2) of the German Civil Code) will remain unaffected by the provisions of this clause.
In all other respects, claims by the Customer for damages or reimbursement of futile expenses, even in the case of defects, exist only in accordance with Section 8 and are otherwise excluded.
c. If the Customer has purchased used goods, their rights due to defects are excluded. This does not apply to claims arising from an assurance given by dataTec (assumption of a guarantee or a procurement risk, Section 276 (1) of the German Civil Code) or guarantee (Section 443 of the German Civil Code) or if dataTec has fraudulently concealed the defect (Section 444 of the German Civil Code). This also does not apply to claims for damages, but liability is excluded for claims for damages due to negligent defective delivery, except for damages resulting from injury to life, body, or health, damages caused at least by gross negligence, damages that fall within the scope of protection of an assurance declared by dataTec (assumption of a guarantee or a procurement risk, Section 276 (1) of the German Civil Code), or a guarantee (Section 443 of the German Civil Code), as well as claims under the German Product Liability Act.
d. If the ordered goods are duly delivered by dataTec, a withdrawal and the return shipment of the goods will only be possible with the express written consent of dataTec. In this case, dataTec will charge an expense allowance of at least 30% of the invoice amount for the termination of the contract and the return of the goods for inspection and restocking of the goods. In addition, a mandatory prerequisite for the consent to take back the goods is that the goods are returned to dataTec at the expense and risk of the Customer, complete, undamaged, in their original packaging, and insured with our return bill.
If dataTec has agreed to a right of return, this will expire 2 weeks after agreement and receipt of the goods at the latest and can only be effectively exercised by a return shipment of the goods in a timely manner. The date of arrival of the goods at dataTec is the decisive factor.
e. The Customer bears the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect, and for the timeliness of the notice of defect.
f. Contractual quality agreements
aa. In principle, only the product description is deemed agreed upon as the quality of the goods. Public statements, promotions, or advertising by the manufacturer do not constitute a contractual description of the quality of the goods in the contractual relationship with dataTec, unless otherwise agreed upon.
bb. Technical data sheets issued by us form an integral part of the contractual quality agreement. Properties, uses, or public statements that we have established or that another link in the contractual chain has established are only part of the requirements owed if they have been expressly agreed upon in writing in the contract.
cc. Information on the quality or durability of goods or services does not contain any guarantee (assurance) under Section 276 (1) of the German Civil Code and no guarantee under Section 443 of the German Civil Code if we have not expressly made such a guarantee in writing. If a third party manufacturer of a product provides a guarantee, this will be passed on to the Customer; the scope of the manufacturer’s guarantee, if any, is set out in the guarantee conditions of the third party manufacturer. The same applies to warranty extensions or Care Packs from the manufacturer.
g. g. The following will apply to the limitation period for claims due to defects:
in the case of intentional or grossly negligent breaches of duty, in the case of damages resulting from injury to life, body, or health, in the case of claims under the German Product Liability Act and in the case of assurance (guarantee, Section 276 (1) of the German Civil Code) or guarantees (Section 443 of the German Civil Code) or if dataTec has fraudulently concealed the defect (Section 444 of the German Civil Code), the statutory provisions on the statute of limitations apply. All other material defect claims of the Customer will become time-barred after one (1) year. The same applies to
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claims for defects of title with the following exception: Notwithstanding sentence 1, claims due to a defect that consists of a right in rem of a third party, on the basis of which the return of the purchased item can be demanded, will lapse after five (5) years.
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Recourse claims if the end Customer is not a consumer. In these cases, the suspension of expiration under Section 445b (2) and (3) of the German Civil Code is also excluded.
h. Recourse claims (Section 445a of the German Civil Code)
The Customer is only entitled to recourse claims if dataTec is responsible for the defect; if the Customer is held liable by one of their purchasers for subsequent performance, the Customer will only have recourse claims against dataTec if the purchaser, in turn, has given dataTec the opportunity to provide subsequent performance. The Customer is only entitled to recourse claims if dataTec would not have been entitled to refuse subsequent performance. Only subsequent performance expenses that have led to successful subsequent performance are subject to recourse. If the Customer has taken back the purchased item or the purchaser has reduced the purchase price, the Customer is only entitled to recourse claims against dataTec if they could not have avoided the return or reduction by subsequent performance. The amount of the Customer’s recourse claim is limited to the net purchase price of the goods concerned.
9. Limitations of liability
a. Unless otherwise stated in these GTCs, including the following provisions, dataTec will be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligation.
b. dataTec will be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence dataTec is liable, subject to statutory limitations of liability (e.g., care in own affairs; insignificant breach of duty), only
aa. for damages resulting from injury to life, body, or health
bb. for damages resulting from the breach of an essential contractual obligation (obligation where the fulfillment is essential for the proper execution of the contract and on which the contractual partner regularly relies and may rely on compliance with); in this case, however, the liability of dataTec is limited to the compensation of the foreseeable, typically occurring damage.
c. The limitations of liability resulting from clause 9b. also apply to breaches of duty by or in favor of persons for whose fault dataTec is responsible according to the statutory provisions. They do not apply if dataTec has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods and for claims of the Customer under the German Product Liability Act.
d. Due to a breach of duty that does not consist of a defect, the Customer can only withdraw or terminate if dataTec is responsible for the breach of duty. A free right of termination of the Customer (in particular under Sections 650 and 648 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences apply.
10. Indemnification against product liability claims
The Customer is obliged to indemnify dataTec against claims of third parties asserted against dataTec due to damage caused by a product purchased from dataTec that was installed in another end product if the price of the product delivered by dataTec is not in reasonable proportion to the sales price of the end product. Reasonableness is exceeded if the sales price of the end product exceeds 2,000 times the purchase price of the product supplied by dataTec.
11. Test equipment service
a. dataTec endeavors within the scope of its possibilities to provide information in advance if products are discontinued in the future and/or will no longer be available in the future, and to make corresponding replacement recommendations. The provision of such information is not always possible; the Customer has no legal claim to the provision of such information, even if they have explicitly requested such information.
b. All information, drawings, illustrations, descriptions, and information on weight, dimensions, or capacity, as well as other descriptive details and information on compliance with legal requirements, are intended to provide an overview of the item, regardless of whether they are published on dataTec’s website, on shipping bills, invoices, packaging, or otherwise. Such descriptions are not part of the contract. If the description of an item deviates from the manufacturer’s description, the manufacturer’s specifications will apply in case of doubt. dataTec will take all reasonable measures to ensure the correctness and accuracy of the description, without, however, making it the subject of the contract, assuring, or guaranteeing it. No liability is assumed by dataTec for the correctness, completeness, or accuracy of the description.
c. The test equipment service is free of charge for the Customer for 5 working days; the test period can be extended after consultation for the applicable fee. There is no entitlement to a valid calibration for the measuring devices provided for testing and/or bridging. dataTec is not liable for the measurements and the resulting damage.
d. dataTec assumes no liability for the accuracy and/or timeliness of information within the scope of the test equipment service. The information that a product will no longer be available does not imply that the product is no longer available via other delivery channels. If dataTec names a substitute product, it is the responsibility of the Customer to check whether the recommended product is suitable for their purposes. dataTec assumes no liability for the usability of the replacement product.
e. The above limitations of liability in clause 11 do not apply in the event of willful or grossly negligent misinformation by dataTec. Furthermore, the limitations of liability do not apply in the event of bodily injury, damage to health, and/or loss of life for which dataTec is responsible.
12. Final provisions
a. The place of performance for contracts with merchants for both parties is the registered office of dataTec AG (in Reutlingen, Germany).
b. The substantive law of the Federal Republic of Germany applies to the entire legal relationship between the parties, including these General Terms and Conditions of Sale. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
c. If the Customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive Court of Jurisdiction for all disputes arising from contracts to which these Terms and Conditions apply is Reutlingen, Germany. The same applies if the Customer does not have a general Court of Jurisdiction in Germany or if their place of residence or habitual abode is not known at the time the action is filed. dataTec is, however, free to sue the Customer at their general Court of Jurisdiction.
d. Should individual provisions of the contract with the Customer, including these General Terms and Conditions of Sale, be or become invalid in whole or in part, this will not affect the validity of the remaining provisions. The wholly or partially invalid provision is to be replaced by a provision wherein the economic success comes as close as possible to that of the invalid provision.
13. Export, re-export
a. The re-export of the goods from the Federal Republic of Germany is subject to German and/or US regulations and is not permitted without official authorization. We are obliged by law and also in relation to suppliers to observe the export restrictions of national and international law, in particular EU and US law, and to impose these restrictions on the Customer. The Customer is obliged to also observe these regulations. We are therefore obliged to accept orders only when the question of the final destination or intended use of the goods has been clarified, and thus ask you to notify us accordingly. See the respective manufacturer’s page. Information on an export – also via third parties – must be notified to us by the Customer before acceptance of the order. We would also like to point out that the warranty at the prices quoted can only be claimed within the Federal Republic of Germany.
b. FLIR license and export conditions: FLIR systems are dual-use products (i.e., goods that can be used in both civilian and military applications). These goods, technologies, or software may not be used for the design, development, production, or use of nuclear, chemical, or biological weapons or missiles. The corresponding export license must be applied for and approved by the relevant authority prior to temporary or permanent export to all countries outside the EU (Regulation (EC) No. 428/2009).
Please refer to the manufacturer’s export regulations. The goods are generally only provided for the intended use in accordance with the manufacturer’s instructions for use. On request, we will provide the Customer with these instructions for use before the order is placed.
14. Data protection notice
a. We process personal data in accordance with the statutory data protection requirements. Our data protection regulations for order processing in accordance with Art. 28 EU GDPR also apply to order processing. Personal data of the Customer is stored by dataTec exclusively for customer service and informational purposes.
b. If a Customer does not wish to have any further information stored, this will be taken into account by dataTec upon appropriate notification.
15. Telephone conversations
In order to offer you the best possible service and to train new employees, we occasionally listen to or record telephone conversations. If you do not wish for your conversation to be recorded, please inform the customer service employee at the beginning of the conversation. Thank you very much.
