General Terms and Conditions of Business and Delivery (General Terms and Conditions)

1.1    These General Terms and Conditions apply to all orders placed with AXRO Bürokommunikation Distribution Import Export GmbH, Schnackenburgallee 183-201, 22525 Hamburg, Germany (hereinafter “AXRO”). Unless expressly agreed otherwise in writing, these General Terms and Conditions, in conjunction with the order documents of AXRO, form the sole legal basis for the business relationship between the Customer and AXRO with regard to the purchase of products and services from AXRO. Terms and conditions of business of the Customer that conflict with the provisions hereof do not apply.

1.2    “Entrepreneur” (Unternehmer) means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. “Consumer” (Verbraucher) means every natural person who enters into a legal transaction for a purpose that is outside his trade, business or profession. The condition of being defined as a business entity (Kaufmann) within the meaning of these provisions is in accordance with the Handelsgesetzbuch (German Commercial Code – HGB).

1.3    In business dealings with entrepreneurs, these General Terms and Conditions are incorporated by reference for the ongoing business relationship upon registration with AXRO, and in no event later than upon placement of the first order.

1.4    The Customer is obligated to provide documentation of its status as an entrepreneur to AXRO by furnishing a valid business registration certificate (Gewerbeschein) prior to placing its first order, and otherwise upon request.

2.1    The depiction of the products offered by AXRO, the information stated, particularly in prospectuses, catalogs, advertisements, other advertising documents and on the Internet, etc., and illustrations, colors, goods samples, descriptions in offers, books of samples, price lists, and other documents are to be understood as approximate only. Such materials are compiled to the best of our knowledge, but do not constitute a binding offer. The order transmitted by the ordering party to AXRO is, regardless of the form in which transmitted (telephone, Internet, in writing, etc.), a binding offer to AXRO to enter into a contract. The ordering party is bound by that offer for 14 days as from receipt/acceptance thereof by AXRO. Within this time span, AXRO is permitted to state its acceptance of the offer. As a general principle, acceptance shall take place through transmission of confirmation of acceptance in text or written form, and in exceptional cases by way of sending of the goods. This also applies to amendments or addenda to the order. The control e-mail automatically sent electronically after placement of an order via the Internet does not constitute acceptance of a contract within this sense.

 
2.2    Should it be the case, by way of the exception, that the declaration of acceptance – or the delivery of the goods, if such delivery has taken place without such confirmation – does not take place until after two weeks have elapsed, the confirmation or delivery of the goods is considered a new offer to enter into a contract. The ordering party is permitted to accept such offer tacitly, e.g., by accepting and beginning to use the goods, or expressly. In this regard, AXRO waives the right to be notified of acceptance of the offer (Section 151 of the Bürgerliches Gesetzbuch (German Civil Code – BGB)).

2.3    Should AXRO accept the offer on modified conditions, e.g., at a different price, for a different quantity, a modified product, or similar, such declaration of acceptance or delivery, as the case may be, is to be considered an offer to enter into a new contract (Section 150 (II) BGB). If the ordering party does not contradict a modified confirmation within three days after receipt thereof, the new offer is considered accepted unless AXRO should not have expected that the modified offer would be accepted because it varied substantially from the original order.

3.1    Unless otherwise agreed, prices are to be understood as net prices in euros. AXRO shall deliver ex works (EXW). Taxes will be charged in accordance with the provisions set forth hereinafter, in compliance with the statutory regulations. Transportation and packaging expenses are also not included in the prices.

a)    Ordering parties based in Germany are required to pay the statutory value-added tax (VAT) (currently at 19% as the regular tax rate and 7% in exceptional cases) in addition to the net prices.

b)    Ordering parties based in countries in the European Union that are subject to the rules of intra-Community acquisition (EU Internal Market) are required, in accordance with the destination country VAT principle, to pay value-added tax in accordance with the national rules and regulations of the destination country if and insofar as the sale represents a taxable sale. For these orders, stating the VAT ID number is required. If the VAT ID number is not stated or is not stated in due time, AXRO is entitled, in order to avoid disadvantages, to charge the VAT pursuant to § 3 No. 3.1 letter a) of these General Terms and Conditions. Solely the ordering party is responsible for the taxation in the destination country.

c)    For orders that lead to export to third countries, the general exemption from VAT pursuant to Section 4 (1) (a) of the Umsatzsteuergesetz (German Value-Added Tax Act – UStG) applies. Solely the ordering party is responsible for the taxation on the goods upon import thereof into the destination country. Any customs duties that may arise upon shipping, other import duties or tariffs, costs of inspection or other costs associated with shipping (e.g., for the preparation of customs and/or shipping documents) must also be paid by the ordering party.

d)    Orders that are billed as shipments to foreign countries (cf. letters b) and c) above) must also have their destination locations abroad. Such goods will not be shipped to destination locations within the Federal Republic of Germany.
 
3.2    Unless otherwise agreed, the ordering party is required to remit payment in advance via funds transfer upon purchasing goods. Upon purchasing goods, the purchase price for the goods and shipping thereof shall fall due, in case of any doubt, immediately after entry into the contract.

3.3    If AXRO accepts checks or bills of exchange as means of payment, it does so solely on account of performance. Costs arising as a result hereof shall be charged exclusively to the ordering party.

3.4    If and insofar as AXRO grants a certain period for payment in an individual case, such period does not constitute a deferral, but is binding nonetheless. In the event that such a period is exceeded, default interest in the amount of eight percentage points p.a. above the then-applicable base interest rate of the ECB shall be due and payable as from the following day.

3.5    The ordering party is not permitted to offset counterclaims of its own against claims of AXRO except where such counterclaims have been established with final, binding legal force or have been acknowledged by AXRO. Furthermore, the ordering party is not permitted to exercise any right of withholding, subject to corresponding preconditions, except in the case of counterclaims resulting directly from the same contractual relationship.

3.6    If multiple receivables vis-à-vis the ordering party are pending and the ordering party’s payment is not sufficient to discharge all receivables, the payment shall be applied in the order set forth in Section 366 (2) BGB. Provisions of the ordering party stipulating other rules on the application of payment shall have no legal effect.

3.7    AXRO is free to issue invoices for its services either via mail or electronically, via e-mail.

4.1    Deliveries shall be made to the delivery address stated by the ordering party. The risk of accidental loss or deterioration of the items purchased shall pass to the ordering party when the item is handed over to the forwarder, carrier or another person or body specified to carry out the shipment (Section 447 BGB). AXRO shall be released from its obligation to render performance by handing over the ordered goods to the forwarder, carrier, or other person or body specified to carry out the shipment.

4.2    AXRO is permitted to effect partial deliveries provided that they are not unreasonable for the ordering party.

4.3    AXRO strives to ship goods as soon as possible. Delivery periods and time limits that have been mentioned are, as a basic principle, subject to the proviso that AXRO has itself received supplies on time and in sufficient quantities. Subject to the precedence of a demonstrable individual agreement, if any, the only delivery time limits deemed binding are, in case of any doubts, those agreed in writing. An agreed delivery period commences as of the date of receipt of the order confirmation. Delivery is deemed to have been made within the agreed delivery period if the shipment is ready to ship within the time limit and such circumstance has been communicated to the ordering party. As a basic principle, compliance with a delivery time limit presupposes that the ordering party has met its own contractual obligations.

4.4    If non-compliance with, or a delay in, an agreed delivery time limit is attributable to events of force majeure, labor disputes, fire, unforeseen obstacles, or other impediments for which AXRO is not responsible, the delivery time limit shall be extended by the duration of such events. The foregoing provision applies accordingly in the event that AXRO is in default of delivery at the time of occurrence of such events. In important cases, AXRO shall notify the ordering party as soon as possible of the commencement and end of such impediments.

4.5    If the ordering party sustains damage and/or losses during a delay that has occurred as a result of fault on the part of AXRO, the ordering party is entitled, to the exclusion of further claims, to demand compensation for the delay. Such compensation shall amount to 0.5% for each full week of the delay, but not more in total than 5%, of the value of that portion of the overall delivery that cannot be used on time or as agreed as a result of the delay. AXRO reserves the right to prove that the amount of damage or loss actually sustained is lower than the amount of such compensation. It may be necessary to take violations of obligations on the part of the ordering party into account, with the effect of reducing the amount of compensation owed.

4.6    If shipping is delayed as a result of circumstances for which the ordering party is responsible, the risk shall pass to the ordering party as of the date on which the goods are ready for shipment. Upon the ordering party’s request and at the ordering party’s expense, AXRO shall take out insurance requested by the ordering party.

4.7    If shipping is delayed at the request of the ordering party, the ordering party shall be charged the costs arising as a result of warehousing thereof, starting one month after notice that the goods are ready to ship has been issued, but not less than 1% of the invoiced amount for each month. After an appropriate time limit has been set and has elapsed fruitlessly, AXRO is entitled to dispose otherwise of the object of delivery and to supply goods to the ordering party subject to an appropriate time limit after the delay has ended.

4.8    If the ordering party falls into default of acceptance of the goods, AXRO is entitled to claim the damage and/or losses sustained by it as a result thereof. Nothing herein shall affect the right of the ordering party to prove that amount of the damage or loss actually sustained is lower than the amount of the claim.

4.9    The ordering party is required to inspect the goods for completeness, correct addressing, and quality without delay after delivery thereof. Complaints regarding any apparent defects must be issued without delay after delivery of the goods; complaints regarding hidden defects must be issued without delay after the discovery thereof, or after the time at which it was objectively possible to discover such defects. Nothing herein shall affect the applicability of the provisions of Section 377 HGB.

4.10    Upon an arrangement to that effect between the Parties, it is possible to deliver the goods directly to customers of the ordering party. If and insofar as such customers are consumers, they are also to be considered, within the contractual relationship between AXRO and the ordering party, representatives of the entrepreneur with authorization to accept deliveries; in particular, they are subject, in the entrepreneur’s place, to the obligation to complain of any defects as stipulated in § 4.9 above; nothing herein shall affect the consumer’s rights vis-à-vis the consumer’s specific contractual partner.

5.1    AXRO reserves title to the goods until such time as all payments under the business relationship with the ordering party have been received; this reservation refers to the acknowledged final balance. In the event of conduct on the part of the ordering party that is in breach of contract, particularly in the event of default of payment, AXRO is entitled to take back the purchased item. Unless AXRO expressly states otherwise, taking back the goods does not constitute rescission of the contract. In such a case, AXRO is entitled to re-supply the ordering party with a different item within an appropriate time limit after full payment has been rendered. In the event of rescission, AXRO is authorized and empowered to make economic use of the goods subject to reservation of title. The proceeds thereof shall be applied toward the ordering party’s obligations, less appropriate costs of such use. Nothing herein shall affect the statutory rights of ownership stipulated in Sections 946 et seq. BGB.

5.2    With regard to the goods subject to reservation of title, the ordering party is obligated to keep the goods subject to reservation of title in proper condition and treat them with care for the duration of the reservation of title. While a reservation of title exists, the ordering party is obligated to store the goods subject to reservation of title properly and duly insure them. The ordering party hereby assigns to AXRO, already at this time, the further claims to which the ordering party is entitled with regard to the goods subject to reservation of title (e.g., based on tortious acts, insurance claims), up to the amount of the invoiced value of the goods subject to reservation of title. AXRO hereby accepts such assignment already at this time.

5.3    If third parties have access to the goods subject to reservation of title – particularly, for example, in the form of distraint or seizure thereof – the ordering party is required to notify such third parties of the rights of AXRO and to notify AXRO without delay so that AXRO can file an action pursuant to Section 771 of the Zivilprozessordnung (Code of Civil Procedure – ZPO). The ordering party is liable for costs arising as a result thereof, including the in-court and out-of-court costs of an action pursuant to Section 771 ZPO, where such costs cannot be recovered from the third party in question.

5.4    The ordering party is authorized and empowered to resell the goods subject to reservation of title within the ordinary course of its business. Such authorization to resell the goods subject to reservation of title is granted only in the event that the reservation of title is passed along. The authorization expressly does not apply to transfers of the goods by way of security or to pledging thereof.

5.5    In the event that the Customer fails to pass along the reservation of title when reselling the goods, the Customer hereby assigns to AXRO, already at this time, all of the Customer’s claims on the purchaser of the goods or third parties arising from the resale, up to the amount of the invoiced sum. AXRO hereby accepts such assignment already at this time. This advance assignment takes place regardless of whether the resale has taken place without processing or after processing of the goods. The same applies accordingly to receivables for a final balance based on a current account if the ordering party has agreed thereto with its own customer. AXRO agrees not to collect on such receivables as long as the ordering party complies with its payment obligations, does not fall into default of payment, no application for initiation of insolvency proceedings has been filed, and payments have not been discontinued. If, however, one of these cases does occur, AXRO is entitled to demand that he ordering party notify AXRO of the receivables assigned and the debtors therefor, provide all information necessary to collect on the claims, surrender the associated documentation, and disclose the assignment to the debtors (third parties).

5.6    If the goods subject to reservation of title are processed or transformed, such actions always take place on AXRO’s behalf. If the goods subject to reservation of title are inseparably combined or mixed with other items not owned by AXRO, AXRO shall acquire co-ownership in the new item in proportion to the value of the combined, mixed goods subject to reservation of title.

5.7    AXRO agrees to release the items of security to which it is entitled at the ordering party’s request insofar as the realizable value of our items of security exceeds the receivables to be secured thereby by more than 10% on an ongoing basis. AXRO is entitled to choose which items of security to release.

6.1    If a product is already defective when delivered (in case of a warranty claim), AXRO shall – at the Buyer’s option – initially replace the defective product at its own expense with an equivalent product or have the defective product professionally repaired (Section 439 BGB). If the statutory prerequisites have been met, the ordering party shall have the further rights pursuant to Section 437 (1) through (3) BGB, subject to the limitation of liability pursuant to § 8 hereof.

    No warranty claim shall be considered to exist in the following cases in particular:

-    in the event of damage and/or losses sustained by the ordering party through misuse or improper use, insofar as such damage and/or losses are not based on defective installation or assembly instructions;
-    in the event of damage and/or losses sustained as a result of the products having been exposed to harmful external influences on the ordering party’s premises (particularly extreme temperatures, moisture, unusual physical or electrical strain, voltage fluctuations, lightning strike, static electricity, fire).
-    AXRO moreover furnishes no warranty for any errors or faults caused by improper repairs performed by a service partner not authorized by the manufacturer.

6.2    Should it transpire during the product inspection that the complaint regarding the defect is obviously unfounded, the ordering party is obligated to pay a lump sum of € 40.00 to AXRO as compensation for time, effort and expenses; nothing herein shall affect the rights of both Parties to prove that the actual time, effort and expenses incurred were lower or higher in amount in the individual case than this sum. Should a warranty claim in fact be present, AXRO shall reimburse the ordering party for the shipping costs spent immediately after effecting the cure (Section 439 (II) BGB).

6.3    If the ordering party sends the goods in to obtain a replacement product, the compensation for use shall be in accordance with the following provision:

If and insofar as the ordering party has been able to use the goods in a condition that is free of defects between the time of delivery and the time of return shipping thereof, the ordering party is required to pay compensation commensurate with the value it has derived from the use thereof. For each month or portion of a month during which the goods have been used, lump-sum compensation for use in the amount of 10% of the purchase price or value, as the case may be, of the replaced goods shall fall due for payment. Notwithstanding the foregoing, the compensation for use of toners and inks shall be calculated according to the amount used. In all cases, nothing herein shall affect the rights of both Parties to prove that compensation for use of the goods should be lower or higher.

6.4    Rescission is permitted only in the case of not insignificant defects (Section 323 (V) BGB). Claims for damages exist only pursuant to the provisions of § 8 of these General Terms and Conditions (Section 475 (III) BGB). As a basic principle, complaints regarding partial performance do not constitute grounds for refusal of the remaining delivery unless the ordering party can no longer reasonably be expected to abide by the contract.

6.5    Furthermore, products delivered within the Federal Republic of Germany may also be subject to claims against the manufacturer within the scope of a (contractual) guarantee commitment granted by the manufacturer. Such claims are governed by the corresponding guarantee terms and conditions.

6.6    Handling of returns is subject to the Return Terms and Conditions of AXRO, which are appended hereto.

7.1    In business dealings with entrepreneurs, the warranty period for used and new items is one year as from the passage of risk unless AXRO has maliciously concealed the defect in question. This provision does not apply to claims for damages that have arisen based on gross negligence or intent.

7.2    Nothing herein shall affect the statutory limitation period for recourse claims by entrepreneurs insofar as the newly manufactured goods are sold to consumers within the scope of business operations. Statutory recourse claims shall exist only insofar as AXRO’s customer has not entered into any agreements with its own customers that go beyond the statutory claims regarding defects.

7.3    In business dealings with entrepreneurs, the limitation period for claims shall commence as of the provision of the goods or the time at which they are turned over to the forwarder or carrier, as the case may be. If the manufacturer has granted a guarantee, such circumstance shall not extend the limitation period for claims pursuant to § 7.1 hereof. The ordering party bears the full burden of proof with regard to any and all prerequisites for claims, particularly with regard to the defect itself, the time at which the defect was identified, and the timely submission of the complaint regarding such defect.

7.4    If and insofar as third-party products exhibit defects during the warranty period, AXRO’s customer shall contact the manufacturer of such third-party products first in order to remedy the defects with such manufacturer. If this action fails, the foregoing provisions with regard to the warranty furnished by AXRO shall apply accordingly.

10.1    AXRO grants access to its Web shop for an unlimited term, subject to compliance with these General Terms and Conditions and the terms of use contained herein. Upon the termination of the business relationship or in the event of a violation of these terms and conditions, misuse, or for other good cause, AXRO reserves the right to block access to the Web shop without complying with a particular notice period.

10.2    The Web shop access information is intended only for the personal use of the authorized persons registered by the Customer. The access information, along with the associated password, must be kept strictly confidential and must not be disclosed to third parties. Use or disclosure of the access information for or to external price research software or similar software tools is prohibited. The Customer is required to ensure that its agents and employees also comply with this obligation to maintain confidentiality. The Customer and/or its agents and employees are not permitted to disclose information on prices, availability, etc., that has been obtained from the electronic systems or the Web services or AXRO or saved from there to third parties outside of the company without express approval. Likewise, they are not permitted to save the data received on any computer other than their own without authorization.

10.3    The Customer agrees that after an employee who was granted access to the protected AXRO Web shop section leaves the Customer, the Customer will have that employee’s access deleted without delay or have any password previously used by that employee changed.

10.4    The Customer is liable for any and all misuse (including through ordinary negligence) of its Web shop access or the access of the employees acting on the Customer’s behalf. The Customer shall bear the burden of proof with regard to demonstrating that it is not responsible for the unauthorized use and for demonstrating that the Customer took all of the necessary security measures to prevent misuse.

11.1    The place of jurisdiction for all present and future claims arising out of the business relationship with parties defined as business entities (Kaufmann status), public-law legal entities, or public-law special funds, including claims regarding bills of exchange and checks, is the location in which AXRO has its registered office. AXRO is also entitled to bring legal action against the ordering party at any other statutory place of jurisdiction.

11.2    In business dealings with entrepreneurs, the joint place of performance between the Parties is the location in which AXRO has its registered office.

11.3    The language of the contract is German.

11.4    The contractual relations between the Parties are subject to German law. The application of the uniform laws on international purchases of movable property and on entry into international purchase agreements concerning movable property is expressly ruled out, as are the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict-of-laws provisions.

In order to enable smooth handling of returns in your own interests, we request that you observe the following terms and conditions.

1.    Please be sure to label your return shipments with the RMA (return merchandise authorization) number, since the return shipment otherwise cannot be allocated properly or can be allocated properly only with substantial effort. You can obtain the RMA number from our online service section at http://www.axro.de/DE/de/service/rma.php, after entering your information.
2.    Please be sure to pack loose or open items adequately (e.g., toners must be packed separately, in dustproof packaging).

3.1 Principle

Please bear in mind that as a basic principle, we can accept return shipments of goods from our customers only if we are legally obligated to accept them, particularly if we have supplied a defective product (in case of a warranty claim) or if we have supplied incorrect goods not ordered by the Customer.

3.2 Acceptance of returns out of goodwill

If we accept returned goods without being legally obligated to do so, we do so purely out of goodwill and without acknowledging any legal obligation. We expressly reserve the right to return goods that have been returned to us and that we are not obligated to accept to the Customer at the Customer’s expense or to bill the Customer for costs we incur in handling these goods.
We will not under any circumstances accept any returned goods that we are not obligated to accept if these goods:
a) are not saleable, for example because the goods and/or their packaging are damaged, bear adhesive markings, or have been written on;
b) are subject to an expiration date less than twelve months in the future;
c) were purchased specifically for the Customer; or
d) were delivered to the Customer more than four weeks before that time.

3.3 Acceptance of returns of incorrectly delivered, damaged, or defective goods

Insofar as we are obligated to accept returns, please note the following:

3.3.1 The quantity or nature of the goods delivered by us do not correspond to the goods you ordered

•    Please note that in the case of incorrect quantities, special documents may be required, such as a declaration made in lieu of an oath (eidesstattliche Erklärung) documenting the missing quantity.

3.3.2 Damage occurring in transit
3.3.2.1 Visible (evident) damage occurring in transit

•    Please note that any visible damage should absolutely be confirmed and noted on the waybills of the forwarder or carrier when the delivery of damaged goods is accepted.
•    Visible damage should be reported online immediately to our service staff.
•    To be able to process your damage report effectively, we generally need the following information from you:
1.    Packing slip/invoice number
2.    Damaged items
3.    Pictures of damage
4.    Copy of delivery document, with duplicate

In our experience, our insurer rejects claims for visible damage occurring in transit if no notation is made on the shipping documents.

3.3.2.2 Hidden damage occurring in transit

•    Please report damage occurring in transit that is not immediately visible and is not identified until after a detailed inspection of the package or the pallet to our service staff online without delay.
•    To be able to process your damage report effectively, we generally need the following information from you:
1.    Packing slip/invoice number
2.    Damaged items
3.    Pictures of damage
4.    Copy of delivery document
3.3.3 Defective goods

In the event of a warranty claim, please state all of the necessary information in our online tool. You will then receive a return slip with an RMA number. This slip facilitates our processing of your complaint. Please be sure to enclose the return slip with the RMA number with your return shipment. Goods are returned “delivered free” (frei Haus).

In order to process your complaint, it is moreover necessary to enclose documentation with the shipment showing the error or defect in the goods (e.g., test printouts, error logs, SMC log).

All items must be packed securely (e.g., goods that can spill out must absolutely be packed in dust-proof packaging).

Goods that are not subject to warranty claims will be available for you to pick up for 14 days. At your request, they will be returned to you for a lump-sum shipping charge of € 10.00.

You can also take advantage of direct processing of your warranty claims by the relevant manufacturer. You benefit from faster handling, shorter throughput times, and substantially lower costs.

Please also notify your customers of the possibility of direct processing via the manufacturers.