Terms of use
General Standard Terms and Conditions, MyGuide Holding GmbH, Poststraße 6, CH-6300 Zug, Switzerland, valid from Oktober 2006§ 1 General provisions
1. These bilateral written declarations shall be binding for the scope of supply and performance. All supply and performance shall be based on these terms and conditions and on any special contractual agreements that may have been concluded. This shall also apply to future contracts, whether or not these general standard terms and conditions are expressly referred to. We shall not be bound by the trading or purchase terms of the customer, whether we make reference to the fact again on any subsequent occasion or not. 2. A customer, for the purposes of these general standard terms and conditions, is defined as anyone who, on concluding the contract, carries on his commercial or independent professional activities, or anyone who constitutes a legal entity in public law or via separate assets in public law. 3. These bilateral written declarations shall be binding for the scope of supply and performance. 4. The customer shall have the non-exclusive right to use standard software with the agreed performance characteristics in an unaltered form on the devices agreed. The customer shall, without its being necessary to make any express agreement, have the right to make a back-up copy. 5. The following terms of delivery and payment shall apply exclusively to all contracts, supplies and other services, including consultancy services, with which the customer declares his agreement on issuing the order. This shall also apply to future business transactions, and also in cases where, though no express reference is made to our terms of delivery and payment, the latter have been sent to the customer on the occasion of an order confirmed by him. Conflicting agreements shall be valid only if confirmed in writing or acknowledged by us before execution of the order. We shall not be bound by the trading or purchase terms of the customer, whether we make reference to the fact again on any subsequent occasion or not. In other words, we shall be bound by such conditions only in individual cases in which we have declared our agreement with them expressly and in writing. 6. Part deliveries shall be admissible if it is reasonable to expect the customer to accept them.§ 2 Quotations and conclusion of the contract
1. Quotations or prices quoted shall in all cases remain non-binding and without obligation up to the moment when the contract is concluded; they merely represent an invitation to submit an offer. On making an offer for the goods or the work, the customer makes a binding declaration which concludes the contract. The down payment contractually agreed shall constitute valid proof of the offer. The reciprocal legal transactions shall not materialise until after the receipt of a written order confirmation drawn up by us or, at the latest, when the goods are delivered. We reserve the right to accept the customer's offer within a period of one month - in special cases, e.g. special manufacture, two months. Our rejection of the offer shall not give the customer the right to make claims for damages against us. 2. Any verbal collateral agreements or assurances which are given by sales staff or sales agents and which go beyond the scope of the written purchase contract shall require written confirmation from us. 3. Descriptions, drawings or illustrations of goods offered by us, price lists, printed matter, catalogues or discs of ours are made, prepared and put together according to the best of our knowledge. The information they contain shall be non-binding, unless we give an assurance, expressly and in writing, in any particular case that the characteristics concerned are binding. If any deliveries are made according to drawings or other information supplied by the customer and patent or trademark rights of third parties violated as a result, leading to a claim or claims being made against us, the customer shall indemnify us against all claims on the part of the owner of said patent or trademark rights. The customer shall, if we so demand, make to us an appropriate advance payment for any legal costs which may ensue. 4. The contract shall be concluded subject to our obtaining supplies correctly and punctually. This shall only apply in cases where we are not responsible for non-delivery, and in particular after the conclusion of a congruent covering transaction with us. The customer shall receive notice as to the non-availability of the performance without delay. The counter-performance shall be reimbursed immediately. 5. Invoices exempt from value added tax to customers within the European Community can only be issued if we are in possession of a certificate of payment of tax from the customer with his EC VAT identification number. Duties or taxes not paid by the customer shall give us the right to make an additional charge. 6. Deliveries outside the European Community shall be exempt from value added tax. The customer shall be obliged to obtain a certificate confirming the export from the customs office at the checkpoint concerned and to send us said certificate within a period of 14 days. 7. If the customer orders the goods electronically, we shall confirm receipt of the order immediately. Such confirmation of receipt, however, does not constitute binding acceptance of the order. Having said that, confirmation of receipt may be linked with confirmation of the order. General Standard Terms and Conditions, MyGuide (HK) Ltd., Ebertallee 19, 22607 Hamburg, Germany, valid from Oktober 2006 If the customer orders the goods and/or the service electronically, the text of the contract shall be stored by us and sent to the customer by e-mail together with a copy of these general standard terms and conditions if he so desires. 8. Our prices are based on the calculation factors applicable at the time when the order was issued. The announcement of price alterations renders all prices previously quoted invalid. The minimum order amount for each order issued shall be 250 Euros, though this shall not apply to sample consignments. In the case of orders with a value of less than 250 Euros, we shall have the right to decline the order or to make an extra charge for small-volume purchases in the amount of 20 Euros. The customer shall have the right to prove that no extra charge for small-volume purchases has been incurred, or that the charge actually incurred was considerably lower than the amount charged. 9. In the case of prices quoted, the calculation of which includes EC tariff rates, we shall have the right to carry out the invoicing in deviation from the purchase contract in accordance with the altered tariff regulations if the valid EC tariff rate is increased during the period between the submission of the quotation and the day of delivery. This shall only apply if we were not aware of the new tariff rate at the time when the quotation was submitted.§ 3 Deliveries
1. Delivery dates and delivery periods shall only be binding if expressly confirmed as such by us in writing. The delivery period shall not begin until all the details of performance and design have been clarified. If any alterations to the contract are agreed subsequently, a new delivery date must be agreed. 2. The customer shall only have the right to claim for loss or damage caused by payment default if we are accused of malice aforethought or gross negligence. All claims going beyond that, in particular claims for damages of whatever kind, shall be excluded. 3. We reserve the right to alter the construction, the form and/or the colour during the lead period, provided that the purchase object does not undergo any functional change, and provided that it is reasonable to expect the customer to accept or agree to said alterations. Alterations for the purposes of technical progress may be made at any time and notice of such shall not require to be given. 4. The delivery period shall be extended as appropriate - also within a period of default - if circumstances of force majeure arise (e.g. mobilisation of troops, war, tumult), the same applying to all unforeseen hindrances which occur or arise after conclusion of the contract and for which we are not responsible, provided that said hindrances are shown to have a major influence on the delivery of the object sold. This shall also apply if such circumstances affect our suppliers or their sub-contractors. We shall inform the customer as soon as possible as to the beginning and end of such hindrances. Delivery periods shall be extended by the period in which the customer is in default with his contractual obligations - within a current business relationship also in respect of other contracts. We shall have the right to withdraw from the contract if we ourselves do not receive deliveries from our suppliers, in spite of having concluded appropriate agreements. For all goods still to be delivered to us, the delivery date specifications made by us are non-binding. If a specified delivery date is delayed by an unreasonable amount of time, the customer shall have the right to withdraw from the contract after having set an appropriate extension period. 5. The variations of up to 10% in quantities delivered which are customary in this branch of business shall be admissible. 6. The observance of time limits for deliveries assumes the punctual receipt of all documents which are to be supplied by the customer, all necessary permits, licences and releases, in particular those of drawings, and the customer's due observance of the agreed payment conditions and other responsibilities. If these conditions are not fulfilled in time, the time limits shall be extended by an appropriate period; this shall not apply in cases where we are responsible for the delay. 7. If a delivery made by us is an import transaction, our obligation to deliver shall also be subject to the punctual receipt of monitoring documents and import permits for the materials necessary to the manufacture of the goods. 8. If we fall into default, the customer shall - provided that he is able to provide reasonable evidence of the fact that said default is detrimental to him - be entitled to demand compensation for each complete week of said default in the amount of 0.5%, but not more than 5% of the net price of that part of the supplies which was unable to be put to meaningful use on account of said default. 9. Both claims for damages on the part of the customer for delay in deliveries and claims for compensation in lieu of performance which go beyond the limits cited in 8.) shall be excluded in all cases of delayed delivery, whether or not a time limit set by us for delivery has expired or not. This shall not apply if there is compulsory liability in cases of malice aforethought, gross negligence or those of loss of life, personal injury or impairment of health. The customer shall, within the framework of the existing legal provisions, only have the right to withdraw from the contract if we are responsible for the delay in delivery. There shall be no shift in the burden of proof to the detriment of the customer associated with the above regulations. 10. If despatch or delivery are postponed by more than a month at the wish of the customer following notice of readiness for shipment, the customer may be charged storage money for each month or part of a month in the amount of 0.5% of the net price of the items to be delivered, though not more than 5% altogether. The parties to the contract shall still be at liberty to provide evidence of the actual storage costs' having been higher or lower as the case may be. General Standard Terms and Conditions, MyGuide (HK) Ltd., Ebertallee 19, 22607 Hamburg, Germany, valid from Oktober 2006 11. The customer shall have the right to withdraw from the contract summarily if it becomes completely and finally impossible for us to carry out the performance as a whole before the passage of risk. Furthermore, the customer shall have the right to withdraw from the contract if it becomes impossible to make part of the delivery or if he has a justified interest in rejecting the partial delivery. If this is not the case, the customer shall be obliged to pay the contract price which relates to the partial delivery. The same shall apply in cases where we are incapacitated or unable to comply. In all other cases, § 7 shall apply.§ 4 Prices and payment
1. Our prices are in Euros. 2. These prices shall apply, unless otherwise stipulated in the confirmation of the order, ex Hamburg or ex the place of storage named by us, and shall not include installation, commissioning or assembly costs (see separate assembly conditions), packaging, carriage, import duties, postal or insurance costs. These shall be invoiced to the customer separately. 3. All payments are to be made exclusively to us in full discharge. 4. Unless any other express agreements have been made in writing, all payments are to be made in full, i.e. without any kind of deduction, immediately after receipt of the delivery. At our discretion we reserve the right to carry out the delivery C.O.D. or to request payments in advance. If delivery is desired on outstanding account (i.e. when a certain period is allowed for payment), we will require to be given the opportunity to carry out an investigation of the customer's creditworthiness. 5. We shall pass on any decrease in generally applicable prices / charges to the customer. Such decrease in prices or charges shall apply to amounts falling due at the same time as or after the effective date of the change in price. Prices may be increased without its being necessary to give notice of such increase. However, no such price increase shall have any effect on existing contracts, provided that the customer's order was received by us before the announcement of the price increase and provided that we deliver the contractually agreed object to the customer within a period of four months following receipt of the order. 6. Turnover tax shall be invoiced at the rate applicable at the time of performance. If the rate of turnover tax changes during the duration of the contract, the periods with the different turnover tax rates shall be deemed to have been agreed separately. 7. If we have also assumed responsibility for installation or assembly, and in the absence of any other agreement, the customer shall, in addition to the remuneration agreed, bear all necessary incidental expenses such as travel expenses, the costs of tool transportation and that of personal luggage and separation allowances. For installation and assembly, our general standard terms and conditions for installation and assembly shall apply. 8. The customer shall only have the right to retain payment or to offset it with counter-claims if the latter are undisputed or have been established as legally binding. 9. If the period allowed for payment has expired, we shall have the right - subject to further claims for damages in cases of default on the part of the customer - to demand interest at an annual rate of 8% above the currently applicable basic interest rate in accordance with §247 of the German Civil Code, without its being necessary to issue a reminder or set a time limit. 10. If the customer falls into arrears culpably with the payment of an amount which is not merely immaterial, the contractually agreed purchase price shall fall due immediately. This shall also apply in cases where it becomes clear, after conclusion of the contract, that our pecuniary claim is to be viewed as at risk on account of insufficient capacity to pay on the part of the customer, or where other circumstances arise which allow conclusions to be drawn as to a material deterioration in the customer's capacity to pay after the conclusion of the contract. Apart from that, we shall also be entitled, in the abovementioned cases, to the rights described in §321 of the Civil Code.§ 5 Despatch and passage of risk
1. The risk shall pass over to the customer at the moment when the object of delivery leaves our warehouse (i.e. ramp). This shall also be the case when partial deliveries are made or if we have also assumed responsibility for other performances, e.g. shipping costs or delivery and installation. If an acceptance inspection is required, this shall prevail with regard to the passage of risk. It must be carried out immediately on the date fixed for acceptance, or alternatively when notice of readiness to accept has been given. The customer shall not have the right to refuse acceptance of the delivery if the goods have an immaterial defect. 2. If the despatch or the acceptance is delayed or not carried out on account of circumstances for which we cannot be held responsible, the risk shall pass to the customer as from the day on which notice of readiness to despatch or accept was given. We hereby acknowledge our obligation to take out, at the customer's expense, the insurance of the customer's choice. 3. Having said that, despatch shall be carriage forward. If we have undertaken to bear the transport costs we shall be entitled to choose whether we shall deliver the goods carriage prepaid or make remuneration for the carriage envisaged in the contract. Additional costs incurred by express delivery or air carriage requested by the customer or additional costs which come about as a result of the particular nature of the goods are to be borne by the customer in all cases. The same shall apply to additional freight costs to sites further away than those envisaged in the contract. The route and method of despatch shall, unless otherwise agreed, be a matter of our choice. General Standard Terms and Conditions, MyGuide (HK) Ltd., Ebertallee 19, 22607 Hamburg, Germany, valid from Oktober 2006 4. If despatch is delayed at the wish or by the fault of the customer, the goods shall be stored at the customer's expense and risk. In such cases, notice of readiness to despatch shall be tantamount to actual despatch. For the rest, the risk shall pass over to the customer when the goods are entrusted to a transport company or carrier, and in any case when they leave the warehouse at the very latest. 5. Any packaging which the customer desires or which we consider necessary (cardboard or wooden boxes) shall be invoiced at prime costs and shall be non-returnable. The customer shall have no right whatsoever to cut invoices in order to cover costs which he incurs pro rata in the course of recycling or disposing of such packaging. 6. In the case of transport damage, our insurance conditions shall be binding on the customer and form part of the purchase contract. The time limits within which claims are to be registered must be observed and adhered to. These are, at present, two weeks. The insurance conditions may be made available to the customer if he so desires, together with any conditions which may have changed in the period leading up to the time of the claim. The customer shall have a duty to cooperate in the ascertainment of loss or damage. The customer shall be obliged to take all measures available to keep the loss or damage to a minimum. The ascertainment and settlement of loss or damage shall be carried out by us or by our agent. A claim shall not give the customer the right to refuse payment. On the contrary: the amount invoiced by us shall fall due on the same date as the one on which it would have fallen due had there been no loss or damage.§ 6 Warranty claims
Subject to § 7, we issue guarantees as follows for defects of quality and legal imperfections to the product, further claims being excluded:The customer shall not be entitled to reject deliveries on account of defects which are merely immaterial. Defects of quality We shall be liable as follows for defects of quality: 1. All defects in parts or performances are, according to our choice, to be rectified by us free of charge, delivered or rendered anew, which, within the period of limitation, prove to have a defect of quality - regardless of how long they have actually been in operation -, provided that said defect was already caused during the period before the passage of risk. 2. There shall be no guarantee whatsoever on used objects. Warranty claims on new objects shall fall under the statute of limitation in 12 months. This shall, however, not apply if the law, i.e. §§ 438 para. 1 no. 2 (buildings and building accessories), 479 para. 1 (claims under a right of recourse) and 634a para. 1 no. 2 (structural and constructional defects) of the Civil Code, prescribes longer periods, in cases of loss of life, personal injury or impairment of health, cases of breach of obligation by malice aforethought or gross negligence on our part or cases in which we fraudulently fail to disclose a defect or defects. The legal provisions dealing with the suspension of the running of time (tolling), suspension of prescription and recommencement of limited periods of time shall remain unaffected by this. 3. The customer shall notify us of defects of quality without delay and in writing. 4. In the case of notification of defects, the customer shall have the right to withhold payments to an extent which is in reasonable proportion to the defects of quality in question. The customer shall only have the right to withhold payments at all if the notification of defects made is one as to the justification of which there can be no doubt. If the notification of defects was wrongful or unjustified, we shall be entitled to demand from the customer that the costs we have incurred as a result of it be reimbursed. 5. First we are to be given the opportunity to remedy the situation within a reasonable period of time. 6. If our attempt to remedy the situation fails, the customer shall be entitled - notwithstanding any claims for damages which he may be entitled to make in accordance with § 7 - to withdraw from the contract or make a reduction in remuneration. 7. There shall be no warranty claims in cases where there is a merely immaterial deviation from the agreed nature of the product, or in cases where its serviceability is immaterially impaired. We shall not offer any guarantee covering defects, loss or damage incurred by inappropriate or improper use, provided that said defects, loss or damage are not attributable to a fault of ours. This shall also apply to defects, loss and damage which are attributable to incorrect assembly or commissioning on the part of the customer or on the part of a third party or parties not authorised by us, unless the defect was caused by a fault of ours. No reversal of the burden of proof shall be associated with this. We shall not offer any guarantee covering defects, loss or damage which are attributable to alterations or maintenance carried out improperly, natural wear and tear, incorrect or negligent treatment, unsuitable equipment or facilities, exchanged materials, faulty construction work, unsuitable building-land or chemical, electrochemical or electrical influences, and for which we are not responsible. 8. Claims on the part of the customer with regard to expenses necessary for the purposes of remedying defects, in particular transport costs, labour costs and materials costs, shall be excluded if said expenses are increased because the object delivered has subsequently been transported to a place other than the principal place of business or a branch of the customer, unless said transportation complies with the use of the object as intended or envisaged in the terms of the contract. General Standard Terms and Conditions, MyGuide (HK) Ltd., Ebertallee 19, 22607 Hamburg, Germany, valid from Oktober 2006 9. Claims under a right of recourse against us on the part of the customer in accordance with § 478 of the Civil Code (contractor's recourse) shall only stand up to the extent that the customer has not made any agreements with his own customer which go beyond the legally applicable warranty claims. As regards the scope of the customer's claim under a right of recourse against us in accordance with § 478 para. 2 of the Civil Code, no. 8 shall also apply mutatis mutandis. 10. For the rest, § 7 (liability) shall apply to claims for damages. There shall be no further claims or claims other than those determined in said § 7 on the part of the customer against us or the customer's employees on account of a defect of quality. 11. To the extent that the exchange of products is necessary in the process of satisfying the warranty claims of the customer, the ownership of the exchanged product shall pass over to us, provided that it is not already in our possession in the context of retention of ownership. The customer shall confirm that all exchanged products are still in their original condition. The replacement made available by us may not be new, but it must in all cases be fully functional and shall have at least the same degree of functionality as the exchanged product. The replacement made available by us shall receive the same warranty status as the exchanged product. Before any exchange of a product or part of a product, the customer shall remove all extra fittings, parts, options and alterations which were not delivered by us. Furthermore, the customer shall confirm that exchanged products are not encumbered with any third party rights of the kind that might be opposed to such exchange. 12. We guarantee that the software provided to the customer shall correspond to his programme specifications, provided that said software is installed on the corresponding systems in such a way as to comply with our guidelines. If we have delivered to the customer any software, interfaces etc. expressly as third party products, our liability shall be restricted to the assignment of the claims which we would be entitled to make against the supplier of said third party products. Claims in this respect may only be contemplated if the customer is not able on reasonable terms to realise his claims against the third party. Neither shall we offer any guarantee that the software will run faultlessly in all the combinations chosen by the customer, particularly if these combinations were not among those specified by us at the outset. This shall also apply to the compatibility of the documents, software and data if used on third party devices. We shall not accept any liability for the loss or alteration of data caused by faulty discs of the customer or by work carried out on incompatible data systems of the customer or of third parties, or by the flawed definition of the requirements with regard to smooth data transfer. Only such software faults as can be reproduced at any time shall be deemed to be subject to warranty. If at a later date technical documents, software or other data are transferred to the customer without such transfer's being the subject of a contractual commitment, the customer shall accept them in the condition they are in at the time of said transfer. The customer is aware of the fact that these documents, software or data will not have been maintained or updated and that they may, therefore, already be technically outdated. 13. Guarantees on the part of the manufacturer or supplier of a product shall be passed on to the customer without any obligation on our part. 14. Notwithstanding the customer's warranty claims as listed in § 6, we hereby point out that it is not possible, given the current state of technology, to preclude faults in IT products under all application conditions. Thus we do not make any assurance to the customer that any product will run interruption-free or fault-free. Patent or trademark rights / copyright and legal imperfections 15. In the absence of any other agreement, we shall be under obligation to carry out delivery, in the country of the place of supply only, free of patent or trademark rights and copyright of third parties. If a third party makes justifiable claims against the customer for breach of patent or trademark rights or copyright caused by supplies which were made by us and have, since their delivery, been used in a way that confirms with the conditions of the contract, we shall be liable to the customer within the period determined in § 6.2 as follows: a) We shall according to the customer's choice and at the customer's expense either obtain a right of use for the products concerned, or alter the products delivered in such a way that the patent or trademark rights and copyright are no longer violated, or exchange them. If it is not possible for us to do this on reasonable terms, the customer shall be entitled to withdraw from the contract or reduce payment as he would normally be entitled to do by law.
b) Our obligation to pay compensation shall be oriented according to § 7.
c) The abovementioned obligations of ours shall only apply if the customer informs us immediately and in writing as to the claims made by said third party, and does not acknowledge that there has been a violation, and if we are able to reserve all defensive measures and composition negotiations. If the customer ceases to use the products delivered in order to minimise the loss or damage or for other important reasons, he shall be obliged to draw the attention of the third party to the fact that no acknowledgement of a violation of patent or trademark rights or copyright is associated with said cessation of use. 16. The customer shall not be entitled to make any claims if he is responsible for the breach of patent or trademark rights or copyright. General Standard Terms and Conditions, MyGuide (HK) Ltd., Ebertallee 19, 22607 Hamburg, Germany, valid from Oktober 2006 17. Neither shall the customer be entitled to make any claims if the breach of patent or trademark rights or copyright is caused by special input on the part of the customer, by a kind of use which we could not have foreseen or by the customer's altering the product delivered or using it together with products not supplied by us. 18. In the case of breaches of patent or trademark rights or copyright, the provisions of § 6 nos. 4, 5 and 9 shall apply mutatis mutandis to the entitlements of the customer set out in no. 15 a). In the case of other legal imperfections, the provisions of § 6 nos. 1 to 14 shall apply mutatis mutandis. 19. The customer shall not be entitled to make any claims on account of a legal imperfection against us or against his employees other than those dealt with in said § 6.
