General Terms of Business of itComes GmbH
Effective: 1 January 2014
§ 1 Scope
The following General Terms of Business of itComes GmbH - hereinafter referred to as itComes - apply for all deliveries and services, as well as for pre-contractual obligations of itComes in business relations. They do not apply to transactions with consumers.
§ 2 Subject
The scope of delivery and services of itComes is set out in the description of work and the order, as well as in the written order confirmation.
§ 3 Purchase price / remuneration
(1) The purchase price for deliveries and the remuneration for services by itComes are set out in individual contractual agreements.
(2) Other work and services not specified in the order confirmation will be invoiced separately. Value-added tax will additionally be charged at the applicable rate.
§ 4 Terms of payment, setting off, withholding
(1) Payments shall be remitted within 14 days of the invoice date and without deductions.
(2) In opposite to Pos (1) different terms of credit can be declared. (3) The customer may only set off own claims against the sums payable to itComes if the claims are undisputed or have been established by a court of law without right of appeal, and may only withhold payment for claims based on the same contractual relationship.
§ 5 Deadline for delivery and services
(1) The deadline for delivery and services is specified in the order confirmation. Part-deliveries within the delivery period shall be permitted.
(2) itComes reserves the right to set a reasonable period of grace if the deadline for delivery and service is exceeded. Claims above and beyond performance shall be excluded as long as the period of grace has not expired
. (3) The customer shall not be entitled to claim any rights against itComes on account of delays in delivery and service for which itComes is not responsible. In particular, this shall include delays in delivery by own suppliers, strikes, lockouts, cases of Force Majeure and other unforeseeable hindrances.
§ 6 Transfer of risk
(1) The risk shall pass to the customer or its authorized representative when the purchased item is handed over to the forwarder, the latter's representative or other persons designated by itComes, at the latest however when the purchase item is directly handed over to the customer or its authorized representative.
(2) Insofar as shipment is delayed or rendered impossible for reasons for which itComes is not responsible, the risk shall pass to the customer when the latter is notified that the goods are ready for shipment.
§ 7 Technical changes
(1) In consultation with the customer, itComes shall be entitled to undertake technical modifications diverging from the order description and confirmation, insofar as these are necessary or expedient.
(2) Changes requested by the customer after the order has been confirmed shall only be binding for itComes if they are confirmed by itComes in writing.
(3) In the event of changes requiring additional effort in relation to the order confirmation, itComes shall be entitled to invoice such additional effort separately.
§ 8 Reservation of title
(1) itComes shall retain ownership of the purchased item until the purchase price has been paid in full.
(2) The customer shall be entitled to resell the reserved goods in the ordinary course of business, with advance assignment of its claims to itComes, but shall not be entitled to pledge the claims or transfer them by way of security in any form whatsoever. In the event of third-party action against the reserved goods, the customer shall draw attention to itComes' ownership and inform itComes immediately.
(3) If the customer defaults on payment, and in the event of a deterioration in the customer's financial circumstances, itComes shall be entitled to enter the customer's business premises and assert its reservation of title by seizing the reserved goods.
(4) Insofar as the customer is a registered trader, assertion of the reservation of title or seizure of the purchased item by itComes shall not constitute a rescission of the contract.
§ 9 Warranty
(1) itComes warrants that its work and services comply with the bill of quantities as stated in the order confirmation and are not flawed in a manner preventing or diminishing the contractually intended use.
(2) The warranty period equals one (1) year and shall commence on delivery, unless otherwise agreed.
(3) The warranty shall be extinguished if the contractual product is modified or improperly used or serviced by the customer or third parties.
(4) If defects arise, the customer shall inform itComes without delay and report the defects. itComes cannot accept any liability for consequential damage and losses occurring because faults were not reported immediately.
§ 10 Liability
itComes shall only be liable for damage and losses caused by itComes or its vicarious agents either by wilful intent or gross negligence. This exclusion of minor negligence shall not apply in the case of damage or losses due to default or the violation of material contractual duties (cardinal duties); in cases of minor negligence, however, liability shall be limited to the loss foreseeable by itComes at the time of concluding the contract. Indirect losses, especially loss of income and unrealized savings, shall in all cases be excluded, unless caused by wilful intent. In the event of a loss of data, only the expenses incurred for restoring the data shall be indemnified and only to the extent that they would have been incurred had a backup been performed immediately prior to the harmful event.
§ 11 Written form
Contractual agreements, supplements and amendments shall only be valid if set out in writing. Verbal ancillary agreements shall only be valid if confirmed by itComes in writing.
§ 12 Saving clause
If one of more of the above conditions prove invalid, this shall not affect the remaining conditions.
§ 13 Place of performance, jurisdiction, assignment
(1) Place of performance for contracts with registered traders shall be at the headquarters of itComes.
(2) The law of the Federal Republic of Germany shall apply. Venue for jurisdiction shall be Brühl.
(3) The customer shall not be entitled to assign its rights and claims under the contract.