Terms and Conditions – Sell 2018-03-09T17:03:20+00:00

General Terms and Conditions of Sale

of Pantera Communications GmbH & Co. KG

  1. General
    1. Our General Terms and Conditions of Sale apply exclusively; general business terms and conditions of the supplier conflicting with or deviating from our Terms and Conditions of Sale are only recognized insofar as we expressly agreed to them in writing. Our General Terms and Conditions of Sale shall also apply exclusively if we accept delivery of the supplier despite our knowledge of differing or contrary terms.
    2. All (special) agreements reached between ourselves and the customer with regard to the execution of a contract shall be in writing.
    3. These General Terms and Conditions of Sale shall also apply to all future business with the customer.
  2. Offers and conclusion of a contract / right of revocation for consumers
    1. Our offers shall always be subject to alteration without notice and without any commitment, i.e. they shall be understood as a request to provide an offer. Orders shall not be deemed to have been accepted until they have been acknowledged by us in writing no later than within a period of two weeks or through delivery of the ordered goods. In this case the delivery note or the invoice shall be the order confirmation.
    2. CUSTOMERS WHO ARE CONSUMERS WITHIN THE MEANING OF SECTION 13 OF THE GERMAN CIVIL CODE (BÜRGERLICHES GESETZBUCH – BGB) MAY CANCEL THEIR DECLARATION TO CONCLUDE A CONTRACT WITHIN A PERIOD OF TWO WEEKS IN WRITING (E.G. BY LETTER, FAX, EMAIL) OR BY RETURNING THE GOODS WITHOUT PROVIDING REASONS TO DO SO. THIS PERIOD SHALL BEGIN AT THE EARLIEST UPON RECEIPT OF THE PRODUCT AND THIS INFORMATION. FOR THE PERIOD OF CANCELLATION TO BE OBSERVED, POSTING OF THE NOTICE OF CANCELLATION OR RETURN SHIPMENT OF THE GOODS IN DUE TIME SHALL BE SUFFICIENT. THE CANCELLATION SHALL BE ADDRESSED TO: PANTERA COMMUNICATIONS GMBH & CO. KG, KARL-HAMMERSCHMIDT-STR. 50, 85609 ASCHHEIM BEI MÜNCHEN. CONSEQUENCES OF THE RETURN SHIPMENT: IN THE EVENT OF A VALID CANCELLATION, THE PERFORMANCE RECEIVED BY EITHER PARTY SHALL BE RETURNED AND ANY BENEFITS OBTAINED (E.G. INTEREST) SHALL BE RESTORED. SHOULD THE CUSTOMER BE UNABLE TO RESTORE THE ENTIRE OR PART OF THE PERFORMANCE RECEIVED FROM US, OR SHOULD HE BE ABLE TO RESTORE THE PERFORMANCE ONLY IN A WORSE CONDITION, HE SHALL COMPENSATE US FOR THE LOSS IN VALUE, IF ANY. THIS SHALL NOT APPLY TO DELIVERED GOODS THE WORSENING OF WHICH IS DUE, FOR EXAMPLE, ONLY TO CUSTOMERS’ EXAMINATION IN A RETAIL OUTLET. FURTHERMORE, THE CUSTOMER MAY AVOID THE DUTY OF COMPENSATION OF VALUE BY NOT USING THE GOODS AS IF THEY WERE HIS PROPERTY AND BY REFRAINING FROM ANYTHING THAT MAY AFFECT THEIR VALUE. THE CUSTOMER SHALL BEAR THE COSTS FOR THE RETURN SHIPMENT IF THE DELIVERED GOODS CORRESPOND TO THE ORDERED GOODS AND THE PRICE OF THE RETURNED GOODS IS LESS THAN 40 EUROS OR, IF HIGHER, THE CUSTOMER, AT THE MOMENT OF CANCELLATION, HAS NOT YET RENDERED THE COUNTERPERFORMANCE OR PARTIAL PERFORMANCE CONTRACTUALLY AGREED UPON. THE CUSTOMER SHALL MEET HIS OBLIGATION OF COMPENSATION WITHIN A PERIOD OF 30 DAYS FROM POSTING HIS DECLARATION OF CANCELLATION. HE CUSTOMER’S RIGHT OF CANCELLATION SHALL EXPIRE EARLIER IF, WITH THE CUSTOMER’S EXPRESS APPROVAL, WE HAVE STARTED TO PROVIDE OUR SERVICES/DELIVER THE GOODS BEFORE THE EXPIRY OF THE PERIOD OF CANCELLATION.
  3. Prices
    1. All prices stated or stored in our price lists, electronic media, printed media and the like are without engagement and not binding.
    2. Generally, our prices are plus shipping and insurance costs, and taxes. For orders from abroad and shipments abroad our prices are exclusive of VAT, except for shipments within the EU for which the recipient has not furnished his VAT identification number with his order.
    3. We reserve the right to change our prices after the conclusion of the contract in the event of currency fluctuations, changes in customs duties or taxes, or changes in the prices of our own suppliers.
    4. In case of maintenance and service contracts, our services shall be remunerated on the basis of the work hours involved plus travel time, expenses and traveling costs.
    5. Our price quotations do not include support. However, there is a possibility to conclude a service or maintenance agreement against payment of a fee.
  4. Terms of Payment and Delivery, Pantera’s Rights in case of Breach of Duty by the Customer
    1. Unless otherwise provided for in the order confirmation, the purchase price shall be payable net (without deduction) within a period of 14 days from the date of invoice. The customer is obligated to accept delivery of the ordered goods within a period of two weeks. This two-week period shall begin the day following Pantera’s receipt of the ordered goods from its supplier.
    2. The deduction of a discount shall be subject to prior written agreement.
    3. If the customer is not a consumer within the meaning of Section 13 of the German Civil Code, he shall only be entitled to offsetting if his counterclaims have been declared final and absolute by a court decree, if they are uncontested, or have been recognized by us. Furthermore, he shall only be entitled to exert a right of retention if his counterclaim is based on the same contractual relationship.
    4. Furthermore, the customer’s timely and proper fulfillment of his obligations shall be a condition for our obligation to effect delivery. We reserve the right of plea of non- performance.
    5. If the customer is in default of acceptance or in culpable breach of other duties to cooperate, we are entitled to claim the damage suffered, including any additional costs incurred. We reserve the right to claim damages beyond this extent.
    6. If the requirements of paragraph e) are fulfilled, the risk of accidental loss or of accidental deterioration of the purchased goods shall pass onto the customer on the date of his being in default of acceptance or of his being in default as obligor.
    7. The provisions concerning our event of default are according to the legal regulations. In any case a late notice by the buyer is necessary. Should we be in default the buyer can charge us with all-inclusive (generalized) compensation for his damage caused by default. All-inclusive (generalized) compensation will amount to 0,5 % of the delivery value for each completed week of default, up to a maximum of 5% of the delivery value. We reserve the right to prove, that the buyer has no damage caused by default or his damage is significantly less than the aforementioned all-inclusive (generalized) compensation. Unless otherwise provided for, as a rule our shipments will be effected collect on delivery (cash) or against advance payment (bank transfer). Delivery against outstanding account shall only be possible if Hermes credit insurance confirms that a sufficient credit line in our favor exists at the time of delivery.
    8. Pantera shall be entitled to deny the customer removal the goods as long as the purchase price has not been settled. Any discounts that may have been agreed upon shall not be granted if the customer is in delay of payment regarding earlier shipments.
    9. If it is stated in the description of the goods in the order that the purchased goods are hardware, the object of the contract will be exclusively hardware. The shipment shall by no means involve the assignment of software, licenses, or rights of use for software. Software shall only be the object of the contract if this has been expressly stated in Pantera’s order confirmation. Especially in the case of second-hand hardware, it is possible that the respective items include installed software or that such software has not been completely deleted. It is exclusively the customer’s responsibility to know for certain if there are such software installations, rights and limitations of use, and licenses and the like. Pantera shall not assume any liability in this regard. Should third parties assert claims against the customer regarding software installed on the bought item, this shall by no means give rise to any claims of the customer against Pantera. Pantera shall provide exclusively hardware and shall not assume any liability for the quality and/or availability of the manufacturer’s services.
  5. Legal consequences for non-acceptance of the ordered commodity/service
    1. If a customer who is not a consumer within the meaning of Section 13 of the Civil Code rescinds the contract, he shall pay a damage penalty in the amount of 20% of the net purchase price. The customer shall, however, be free to prove that the damage suffered was inferior to such amount. This shall not affect our right to claim damages beyond this extent. Rescission of the contract shall be excluded if the ordered goods are software, or goods we have ordered ourselves directly from the producer, or if the goods have been adapted to the customer’s specific requirements. The consumer’s right of cancellation pursuant to clause 2 b) shall remain unaffected.
    2. Hardware or software products sold through Pantera are free of any vendor service coverage (unless otherwise agreed). This shall be valid for a period of 90 days from product delivery by Pantera. Please note that once a vendor has been processed by the manufacturer, it may not be canceled or returned.
  6. Change of Performance/Partial Shipments/Reservation of Title
    1. In the case of an impediment to performance for which we are not responsible, we are entitled to deliver changed or adapted products other than those ordered, provided that this does not substantially affect their fitness for use.
    2. We shall be entitled to make partial shipments and invoice them separately (partial invoices). If any goods or services are no longer available, we reserve the right of non-performance and the right to rescind the contract. We shall, however, give prompt notice whenever the goods/services are no longer available. Any advance performance/payments made by the customer shall be promptly refunded.
    3. Deliveries shall be effected only on the basis of the reservation of title described below. This shall also apply to all future shipments, even if we do not each time expressly make reference to the reservation of title.
      Title to the delivered goods shall be reserved until complete settlement of the items of the delivery contract. We shall be entitled to recall the purchased goods if the customer acts in breach of the contract, in particular if he is in default of payment.
    4. The buyer shall treat the purchased goods carefully as long as title to the goods has not passed to him. Especially for goods of considerable value, he shall take out, at his own expense, sufficient insurance against theft, fire and water damage equivalent to the replacement value. In the event that maintenance and inspection are required, they shall be carried out by the customer in due time and at his expense. As long as title to the goods has not passed to the customer, he shall inform us promptly in writing whenever the delivered items are pledged or subject to third-party claims. If such third party is not able to reimburse us for the court and out- of-court costs for bringing an action pursuant to Section 771 of the German Code of Civil Procedure, the customer shall be liable to us for the loss incurred.
    5. The customer is entitled to resell the reserved goods in the ordinary course of business. The customer shall here and now assign to us his claims against the buyer from the resale of the reserved goods in the amount of the invoice total (including VAT) agreed upon with us. his assignment shall apply whether the purchased goods have been resold without processing or following processing. The customer shall be authorized to collect such claims also after their assignment. This shall not affect our right to collect the claims ourselves. We shall, however, not collect such claims as long as the customer meets his payments from the proceeds obtained, is not in delay of payment, has not filed a petition for insolvency, or has not suspended payments. In such case, however, we may demand that the customer inform us of the claims assigned and of his debtors, provide us any data necessary for the collection of such claims, furnish us with the relevant documents, and inform the debtors (third parties) of the assignment.
    6. Any processing or modification of the purchased items by the customer shall always be made on our behalf. If the item subject to our retention of title are processed with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion to the ratio of the value our item (the final invoice amount including Value Added Tax) to the other processed objects at the time of processing. In addition, the provisions concerning the items sold under reservation of title shall apply analogously to the items resulting from such processing.
    7. If the item subject to our retention of title are irrevocably mixed with other objects not belonging to us, then we shall acquire co-ownership of the new mixed item in proportion to the ratio of the value our item (the final invoice amount including Value Added Tax) to the other processed objects at the time of mixing. If the items are combined in a way that the item of the customer will be considered as the main item, it is understood that we shall be assigned a proportionate co- ownership by the customer. The customer shall hold the independently or jointly owned item that has come into existence in custody for us.
    8. Upon the customer’s request, we shall undertake to release the securities provided to us to the extent that the realizable value of such securities exceeds the claim to be secured by more than 10%; the securities to be released shall be selected by us.
    9. In order to exert its rights under the reservation of title in compliance with the above provisions, Pantera shall be allowed to enter all of the customer’s premises and seize the reserved goods.
  7. Export
    1. The delivered products may contain technologies and software that are subject to the export control regulations of the Federal Republic of Germany and import/export control regulations of the United States of America or of other countries to which the products are delivered or where the products are used. The customer shall undertake to observe such regulation.
    2. Pursuant to the above export regulations, the products must not be delivered or licensed to specifically defined users, countries, or users engaged in activities involving weapons of mass destruction or genocide. The customer knows that there are varying restrictions, depending on the goods acquired, provided for by the export control regulations and that these regulations are regularly modified. The customer declares that he will observe the valid regulations prior to each export or re-exportn.
  8. Passing of Risk
    1. The risk shall pass onto the customer in any case as soon as the goods are delivered to the forwarding agent, the carrier or any other person in charge of the transport, or as they leave the warehouse for shipment. In case of return shipments to us, the risk shall pass onto us upon acceptance of the goods in our warehouse.
  9. Warranty and Liability
    1. The customer’s warranty claims shall be subject to the customer’s proper fulfillment of his obligation of inspection and notification of defects pursuant to Section 377 of the German Commercial Code.
    2. If the purchased item is defective we may choose between subsequent performance by remedying the defect or delivery of a new item without defects. In case of remedying the defect we shall bear all costs for the remedy of the defect up to the amount of the purchase price.
    3. If subsequent performance is unsuccessful, the customer may either rescind the contract or demand reduction of the price.
    4. We shall assume liability provided by law for any damage claims – not depending on the legal basis – in the scope of fault-based liability in cases of intent or gross negligence. We shall assume liability provided by law in cases of simple negligence under reserve of a more lenient liability standard in case of injury to life, limb or health and in cases of culpable breach of an essential contract duty. In the latter case our liability is limited to the foreseeable damage that will typically occur.
    5. The limitation of liability under 4. shall also apply in case of breach of duty by our representatives or persons for who’s fault we are liable by law. The limitations shall not apply, if we have intentionally withheld a defect or have assumed a guarantee for the quality of the good. The limitations also not apply in case of claims based on product liability law (Produkthaftungsgesetz).
    6. The buyer shall not be able to rescind or resign because of a breach of duty which is not a defect, if the breach of duty is not our fault. A free right of the buyer to rescind or resign (e.g. §§ 651,649 BGB) shall not apply. Liability shall be excluded except as otherwise provided for hereunder.
    7. The period of limitation for warranty claims shall be 12 months from the date of passage of risk.
    8. The period of limitation for delivery recourse claims pursuant to Sections 478, 479 of the German Civil Code shall remain unaffected; it shall be five years from the delivery of the defective item.
    9. For Clarification: The termination of an already activated service contract (SMARTnet) during its agreed runtime does not entitle the customer – for no reason – to get a credit note (Refund) neither in whole nor partly.
  10. Overall Liability
    1. Liability for damages beyond the extent provided for in clause 8, regardless of the legal nature of the asserted claim, shall be excluded. This shall apply in particular to damage claims based on fault regarding the conclusion of a contract or on other breach of duty, or to claims for compensation of damage to property based on tort pursuant to Section 823 of the German Civil Code.
    2. The limitation set forth under paragraph a) shall also apply if instead of claiming damages the customer claims compensation of useless expenses.
    3. Any exclusion or restriction of damage claims towards us shall apply analogously to personal liability for damages of our employees, staff members, representatives and persons employed in performing our obligations.
  11. Place of Performance, Jurisdiction, Governing Law
    1. If the customer is a businessman who has concluded this contract in carrying on his commercial business, place of performance shall be Munich. For any present and future claims arising from a business relationship with businessmen, the courts of Munich shall have exclusive jurisdiction. The courts of Munich shall also have jurisdiction if the customer has no general jurisdiction in Germany, transfers his habitual residence or domicile to a place outside Germany after the conclusion of the contract, or if his habitual residence is not know at the time of filing an action.
    2. These General Terms and Conditions of Sale and the entire legal relationships between Pantera and the customer shall be governed by the laws of the Federal Republic of Germany. The application of the UN convention shall be excluded.