General Terms and Conditions of Business

of con.train. consulting + training GmbH, Hamburg, Germany

I. Content and conclusion of supply agreements 

1. The conditions below apply to all agreements made by con.train. GmbH as seller of the products it makes and trades, as well as for services it performs.

2. The conditions below are essentially binding on both parties. Deviations will only be valid in law if they have been confirmed by us in writing; the sequence in which terms and conditions or terms of purchase are exchanged is irrelevant. Orders will be fulfilled and supplies made under our conditions. It goes without saying that we will pass on changes to articles which favour the customer, such as technical improvements, new colours or a more modern design. These general Terms and Conditions of Business apply exclusively to our supplies and services.

3. Purchasing conditions and other terms of business of the ordering party will not be binding on us, even if we do not expressly reject them.

4. Our quotations are given without obligation. Different arrangements may be made in individual cases. The order is only considered accepted on receipt of our written order confirmation.

5. The order confirmation is the determining factor in terms of the content and scope of the order. Information
relating to technical data and documents, illustrations, drawings and brochures given to the ordering party before and in connection with the order confirmation will be binding only if we have expressly confirmed this in writing.

6. A purchase contract only comes into existence when it is confirmed by us in writing. In the event of a lack of such written confirmation, the purchase contract will come into being when goods and/or services are accepted without demur and we issue an invoice.

7. Deviations from these Terms and Conditions of Business, supplementary agreements and subsidiary agreements will be effective only if they have been expressly confirmed by us in writing. The same applies to subsequent amendments and additions to supply agreements which have already been concluded.

8. With regard to continuous technical development and improvement of our products and those of other manufacturers, we reserve the right to make modifications to the design and execution of the details quoted in our various printed materials as long as this has no negative impact on the value of the products offered. 

II. Prices

 1. Prices are without obligation and apply ex the seller's warehouse plus carriage costs and statutory VAT at the cost and risk of the ordering party. Special services such as special packaging or express dispatch services will be invoiced separately. The prices prevailing at the time the order is confirmed apply to the delivery.

2. Prices are quoted ex Hamburg warehouse excluding packaging and carriage.

3. Transport packaging will be invoiced at cost. You may return the packaging to us at your cost and we will dispose of it. If you do not return the transport packaging to us, you accept responsibility for disposing of it in accordance with statutory packaging regulations.

4. The statutory value-added tax and packaging costs applicable in each case will be invoiced separately. 

III. Delivery date

 1. Assured delivery dates will be met whenever possible. If we are delayed, the ordering party can only withdraw from the agreement once we have been given an appropriate second delivery date at least three weeks later. All other claims by the ordering party in the event that supply does not take place or does not take place in time are excluded.

2. An agreed delivery deadline starts from the date of our order confirmation. The deadline is met if the subject of the delivery is dispatched before the deadline expires.

3. The delivery deadline will be extended by the time it takes the ordering party to give us all the details and documentation required to execute the order.

4. All agreed delivery dates apply assuming correct and timely delivery to ourselves.

5. The delivery time is extended as appropriate in the case of measures in the context of work being suspended, especially as a result of strike and lockout and of circumstances not attributable to ourselves such as mobilization, war, civil disorder and disruption of business, if evidence can be provided that these hindrances will delay production or delivery of the subject of the delivery.

6. The circumstances outlined above will not be considered attributable to us even if they occur during an existing delay.

7. In important cases, we will inform the ordering party about the start and finish of such hindrances.

8. The ordering party may not reject independent part-shipments. 

IV. Delivery, dispatch, transfer of risk

 a)  Vis-a-vis the buyer

 1. The seller will select the optimum transport route, avoiding part-shipments if possible, although it may not be possible to avoid these in individual cases. Individual dispatch to be in accordance with your information/dispatch documentation Delivery time to be as swift as possible except in the case of confirmed fixed dates.

2. The seller is free to choose the type of packaging if the ordering party has no special request (confirmed). Costs will be invoiced at cost to the seller, as low as possible.

3. Transport insurance in the name of the ordering party will be taken out for your security.

4. We are entitled to make part-shipments unless something different has been expressly agreed. Part-shipments are regarded as independent deliveries for payment obligations, transfer of risk and warranty obligations.

5. We may determine the type of transport, transport route and the company commissioned with transport at our discretion unless the ordering party gives any instructions.

6. The risk is transferred to the ordering party as soon as the consignment containing the subjects of the delivery leaves our warehouse. This also applies if buyer or seller use their own means of transport.

 b) Vis-a-vis the seller

1. The seller assumes the obligation to insure.

2. Risk is transferred when the goods are accepted on our premises once completeness has been checked.

3. The seller is entitled to make part-shipments unless something different has been expressly agreed. Part-shipments are regarded as independent deliveries for payment obligations, transfer of risk and warranty obligations unless we give any exclusions.

4. The seller may determine the type of transport, transport route and the company commissioned with transport at its discretion unless we give any instructions. 

V. Services

1. Our order confirmation/invoice is the determining factor for all conditions affecting services (e.g. installation of hardware and software).

2. All services performed are considered "services". Legal stipulations covering performance of services do not apply. Defects which arise after a service has been performed will be remedied at no charge only insofar as they were caused by the seller deliberately or contrary to his better judgement. Extra functions requested by the ordering party are excluded from this condition.

3. The seller is liable for material and other damage attributable to him to a maximum total value of € 100,000. Within these limits, the seller is liable in the case of damage attributable to him for no more than the expense incurred if the ordering party had performed a data backup at fixed intervals, but at least once a day.

4. Liability for security systems (access systems, firewalls or similar systems) and their protective functionality, consisting of hardware and software and configuration services, is excluded as a matter of principle.

5. These restrictions on liability do not apply insofar as the damage is caused deliberately or through gross negligence. The seller accepts no liability for loss of profit.

6. Liability for consequential losses as a result of the services provided by the seller and as a result of faulty operation of the software by the ordering party or hardware and/or software faults is hereby agreed to be excluded. 

VI. Training sessions

 1. Sphere of application: the conditions below apply to all orders for seminar and training events and supplement the relevant quotation or description of the seminar insofar as the parties have not agreed anything different in writing.

2. Subject: a distinction needs to be made between "corporate seminars" for a client's participants and "standard seminars" for participants from a variety of companies.

3. Scope: the description of the content of the seminars offered contains only the key points of the seminars. At the special request of the client or of seminar participants, the content of an individual seminar can be modified to suit his/their requirements. This must be agreed in writing.

4. Registrations: registrations for standard seminars should be made in writing if possible or by telephone no less than 10 working days before the seminar starts. Registrations will be confirmed in writing. If a seminar does not take place due to insufficient numbers, we reserve the right to cancel no less than 5 working days before the seminar starts. If a seminar event is cancelled due to force majeure or other unforeseen events, there is no claim for the event to be run on this date. In such cases we will offer replacement dates.

5. Fees: all services will be performed under the conditions of the written confirmation. The fee in the confirmation is binding. The seminar fee includes the services in accordance with our confirmation.

6. Withdrawal: registrations confirmed in writing can be cancelled at no charge up to 10 working days before the seminar starts. However, we will levy an administration fee of 25 % of the seminar fee if the cancellation is made up to 5 working days before the seminar starts. If notification of withdrawal is received after this deadline, we will invoice the full cost of the seminar. In this case, you have the right to receive the seminar documentation. Payment conditions: the seminar invoice should be paid immediately upon receipt without deduction.

7. Seminar times: all seminars begin at 09.15 and end around 16.15. Any changes will always require written confirmation from us.

8. Usage rights: the seminar documentation given to participants in a seminar is subject to the copyright of the author/the owner of the applicable intellectual property rights. Reproduction, in whole or in part, is prohibited.

9. Usage rights: the seminar documentation given to participants in a seminar is subject to the copyright of the author/the owner of the applicable intellectual property rights. Reproduction, in whole or in part, is prohibited. 

VII. Replacement/return

1. Replacement of delivered goods is possible only within five working days of delivery and always incurs a processing fee of 10 % of the value of the product. Products cannot be replaced or returned if the original packaging is opened or damaged.

2. We can only accept a complaint for processing if data media/products cannot be read or are defective. 

VIII. Acknowledgement of copyright and warranty arrangements

When the original packaging/plastic wallet is opened, the ordering party acknowledges the manufacturer's copyright and warranty conditions. Original packaging is defined as all packaging of the seller and his sub-suppliers. 

IX. Payment 

1. Payments are made in accordance with the details on our order confirmation/invoice.

2. We reserve the right to cede claims.

3. If the customer does not meet the agreed payment objectives, the seller is entitled by §286 and §288 of the BGB [Buergerliches Gesetzbuch - German Civil Code] to charge late payment interest of 8 % above the relevant base interest rate from the date payment became due. We reserve the right to pursue further claims for damages due to delayed payment.

4. Bills of exchange or cheques will only be accepted following agreement and as conditional payment. Fees for discount and paying-in will be borne by the ordering party. We accept no liability for presentation in good time.

5. If agreed part-payment rates are not adhered to, the entire sum outstanding becomes due immediately. If we become aware of a bill of exchange or cheque protest, a stopped payment or any other concrete sign of a material deterioration in the assets of the ordering party, we can then demand immediate payment of all outstanding claims without regard to any agreed deferment arrangement. In such cases we can furthermore make the delivery of other goods ordered conditional upon pre-payment of the purchase price.

6. Offsetting with counterclaims is excluded if these counterclaims are disputed by us and are not established with legal force.

7. Retention of the purchase price due to counterclaims of this kind is also excluded in commercial business dealings.

8. New parties placing orders can only receive their first two orders against cash payment, payment in advance or cash on delivery. 

X. Retention of title

The goods remain the property of the seller until payment is complete. The buyer may sell on goods supplied in regular business dealings, but cedes to the seller all claims to which he is entitled immediately or subsequently. 

XI. Warranty and liability for defects 

1. Claims under warranty by the ordering party exist to the extent which arises from the warranty claims of the seller against the relevant manufacturer in business dealings among registered traders. To this end, the seller cedes his claims under warranty against the manufacturer in question to the ordering party. The ordering party in turn authorizes us to lodge claims under warranty in our own name.

2. We guarantee that the subjects of the delivery are free of defects in accordance with the relevant state of the art.

3. We do not accept any liability for damages caused by unsuitable or improper use, as a result of ignoring instructions for use or as a result of faulty or careless handling.

4. Any liability lapses if the ordering party allows devices to be interfered with and/or repaired by persons not so authorized without the express agreement of ourselves or the manufacturer.

5. Obvious defects should be reported in writing immediately, but in any event no more than 3 working days after receipt of the delivery: otherwise all claims relating to defects are excluded. The terms of §§ 377, 387 HGB [Handelsgesetzbuch - German Commercial Code] also apply in commercial dealings. 

XII. Liability in other cases

1. The liability of the seller and his vicarious agents for damage caused to the buyer is limited both to cases of breach of significant contractual obligations and to damages the type and scope of which we should have foreseen as a potential consequence of breach of contract when the agreement was concluded, taking account of circumstances which the buyer realized or should have realized. In the case of the gross negligence of his vicarious agents in a non-executive function, the seller's liability is furthermore limited to compensating the damage typically foreseeable for a contract.

2. In all other cases which are not regulated elsewhere in these sales conditions, all claims by the ordering party for compensation for damages of any kind are excluded, regardless of their basis in law. This exclusion of liability applies in particular also when the contract is poorly executed and when pre-contractual and subsidiary contractual obligations are breached, and also applies to extra-contractual claims, especially to claims arising from prohibited actions and product liability. Exclusion of liability extends to our employees and vicarious agents. Exclusion of liability does not apply to deliberate action or gross negligence.

3. The seller is liable for damages attributable to him to a total maximum of € 1,000,000 in the case of damage to persons and € 100,000 in the case of material and other damage. The contractor accepts no liability for loss of profit. 

XIII. Withdrawal and compensation for orders not completed 

1. We can withdraw from the agreement if we become aware of stopped payment, opening of insolvency or bankruptcy proceedings, rejection of insolvency due to lack of funds, bill of exchange or cheque protests or other concrete indications that the asset situation of the ordering party is deteriorating.

2. If we withdraw from the agreement or if the order is not executed for reasons attributable to the ordering party, then the ordering party has to pay us lump-sum compensation of 15 % of the purchase price for our expenses and loss of profit. We reserve the right to demand higher compensation for damages if we can prove that such damages have been sustained.

3. The lump-sum compensation payment will be reduced by the amount the ordering party can prove that expenses or damages have not been incurred/sustained. 

XIV. Explanation

Within the meaning of our terms and conditions, an ordering party is any entity taking our products, whether buyer, customer, client or ordering party. 

XV. Place of fulfilment, place of jurisdiction, partial ineffectiveness, applicable law

1. Place of jurisdiction and fulfilment is the seller's registered place of business.

2. Hamburg is agreed as the place of fulfilment for all services due by both parties as a result of the contract, including any claims for reimbursement.

3. In commercial dealings with business entities which are not business entities as designated by § 4 HGB and with legal entities, the place of jurisdiction for all legal disputes arising from the agreement, including bill of exchange and cheque matters, is agreed to be Hamburg; we are also entitled to open proceedings at the customer's registered place of business.

4. If individual terms of the supply agreement or these general terms and condition of sale are ineffective, the remaining terms continue to be binding and effective.

5. German law applies to cross-border supplies. Application of the Convention on Contracts for the International Sale of Goods [CISG] is excluded.

 

con.train. consulting + training GmbH
Osterrade 7A
21031 Hamburg, Germany
HRB 57337
Managing Director: Jörn Roßdeutscher

 

Hamburg, March 2010