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General Terms and Conditions

General Terms and Conditions (GTCs) of SH Telekommunikation Deutschland GmbH
for commercial transactions
for the Ebotrade trademark

(Rev.: 04/2016)

General Terms and Conditions (GTCs) of SH Telekommunikation Deutschland GmbH for commercial transactions for the Ebotrade trademark.

Preamble

The following GTCs apply to all commercial goods orders placed with Ebotrade©. Ebotrade is a registered trademark of SH Telekommunikation Deutschland GmbH. All legal relationships are based on these GTCs between the ordering party and SH Telekommunikation Deutschland GmbH, Managing Director Mr. Wilke Stroman, Richmodstr. 10, 50667 Cologne, Germany.

§ 1 Scope

(1) These Ebotrade General Terms and Conditions apply exclusively to entrepreneurs in the sense of § 14 BGB [German Civil Code], legal entities under public law, and special funds under public law in the sense of § 310 Para. 1 BGB. Any conditions by the ordering party that conflict with or deviate from our GTCs shall only be acknowledged if we expressly agree to their validity in writing. All deliveries, performances and offers from Ebotrade in commercial transactions are exclusively based on these GTCs.

(2) By registering on the Ebotrade retailer portal, the ordering party declares that it has understood these General Terms and Conditions, and accepts the applicability of the latest GTCs to all legal transactions within the business relationship. These General Terms and Conditions also apply to all future transactions with the ordering party for similar legal transactions.

§ 2 Offer and conclusion of contract, use of the retailer portal

(1) Ebotrade’s offers are non-binding and subject to change without notice unless otherwise agreed in writing. The products represented on Ebotrade’s retailer portal for online orders (www.ebotrade.com) do not constitute a legally binding offer, but rather a non-binding online catalog. By clicking on the “Buy” button, the ordering party submits a binding order for the goods in the shopping cart. Next, Ebotrade sends the ordering party an email confirming receipt of the order. This confirmation does not constitute acceptance of the contract. Ebotrade can accept the order by sending an order confirmation or by processing the delivery. If the ordering party’s contract offer is refused, Ebotrade shall inform the ordering party of this immediately. The ordering party shall be bound to its request for 2 weeks.

(2) Use of the online shop in the Ebotrade retailer portal (www.ebotrade.com) requires prior approval from Ebotrade. The ordering party shall ensure that all of the information provided to Ebotrade for approval purposes is correct, and hereby confirms the legally binding nature of this information. If the ordering party’s information changes after registering in the retailer portal, the ordering party must inform Ebotrade of this immediately. All logins are personalized, and can only be used by the authorized user approved by Ebotrade. The registered ordering party must keep the login data and password secret, and may not allow third parties to access this data. The ordering party agrees to inform Ebotrade immediately if its username is misused. The online shop can only be used by entrepreneurs in the sense of § 14 BGB, legal entities under public law, and special funds under public law in the sense of § 310 Para. 1 BGB. There is no entitlement to access the Ebotrade online shop.

(3) The appearance, technical information and descriptions of a purchase item on Ebotrade’s web pages or in other advertising materials do not constitute a warranty of its properties. Property warranties must be expressly agreed. In case of doubt, Ebotrade does not provide any property warranties.

(4) Ebotrade reserves the right to customary trade deviations and deviations resulting from legal requirements, as well as minor deviations in quality and design; these do not represent defects unless they conflict with a contractual obligation.

§ 3 Prices, payment and default

(1) The prices stated in the online shop on www.ebotrade.com are pure net prices in euros, not including freight and transport.

(2) Unless otherwise agreed by Ebotrade and the ordering party, payment shall be made in advance. Payment due dates shall be based on the payment deadline on the invoice issued by Ebotrade. Payments must be made to the SH Telekommunikation Deutschland GmbH bank account shown on the invoice.

(3) For deliveries on open account, the entire invoice amount must be paid within the payment periods stated by Ebotrade on the invoice.

(4) Rebates and discounts can only be claimed by the ordering party if Ebotrade has acknowledged these on the invoice.

(5) Default in payment is considered to commence as soon as the payment falls due, without the need for a warning. In the event of default, Ebotrade shall be entitled to charge default interest of 8% over the base rate. The right to claim higher damages is reserved.

§ 4 Offsetting and retention rights

The ordering party is only entitled to offset payments if its counterclaims have been legally established or are undisputed. The ordering party is only entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

§ 5 Delivery time and transfer of risk during shipping

(1) The start of our specified delivery time assumes the timely and proper fulfillment of the ordering party’s obligations. We reserve the right to defense of non-fulfillment. Delivery deadlines shall apply exclusively on the condition of proper, timely self-delivery by Ebotrade. Unforeseen performance hindrances shall not be Ebotrade’s responsibility, and shall entitle Ebotrade to extend the delivery times or withdraw from the contract.

(2) If the ordering party is in default with acceptance or culpably violates other participation obligations, Ebotrade shall be entitled to request compensation for any resulting damages, including additional expenses. We reserve the right to assert further claims. If the above requirements are fulfilled, the risk of accidental destruction or accidental deterioration shall be transferred to the ordering party at the time when the ordering party was in default with acceptance or payment.

(3) Deliveries shall be ex warehouse in Bochum, at the ordering party’s expense. The risk of accidental deterioration or destruction of the goods shall be transferred to the ordering party upon handover, or, where applicable, upon delivery of the goods to the freight forwarder, shipping company or another company hired to handle the shipping. This applies regardless of whether the goods were shipped from the place of fulfillment and who pays the shipping costs. Ebotrade is entitled to provide delivery from another location. Partial deliveries and partial payments by Ebotrade are permissible.

(4) The ordering party’s legal claims and rights shall remain unaffected hereby.

 § 6 Reservation of title and assignment

(1) Ebotrade reserves the title to the delivered items until all claims from the delivery agreement have been paid in full. This also applies to all future deliveries, even if Ebotrade does not always expressly refer to this reservation. Ebotrade is entitled to take back the purchased item if the ordering party behaves in a manner that is counter to the contract.

(2) As long as the title has not yet been transferred, the ordering party must treat the purchased item with care. In particular, the ordering party must obtain adequate theft, fire and water-damage insurance for the item, at replacement value, at its own expense. If maintenance and inspection work must be performed, the ordering party must perform this in a timely manner at its own expense. If the title has not yet been transferred, the ordering party must inform Ebotrade immediately in writing if the delivered item has been pledged or is otherwise subject to third-party interference. If the third party is unable to repay Ebotrade the judicial and extrajudicial costs of a complaint as per § 771 ZPO [Code of Civil Procedure], the ordering party shall be liable for Ebotrade’s losses.

(3) The ordering party is entitled to resell the goods subject to reservation of title in the normal course of business. The ordering party hereby assigns the buyer’s claims from the resale of goods subject to reservation of title to Ebotrade in advance, up to the amount of the agreed final invoice amount (including value-added tax). This assignment applies regardless of whether the purchased item has been resold without or after any processing. Ebotrade hereby accepts the assignment. The ordering party shall remain authorized to collect claims even after the assignment. Ebotrade’s authorization to collect the claims itself shall remain unaffected hereby. However, Ebotrade shall not collect the claim as long as the ordering party has fulfilled its payment obligations from the collected proceeds, is not in default, and particularly as long as no requests have been made to initiate insolvency proceedings or to suspend payment.

(4) Any processing, machining or transformation of the purchased item by the ordering party shall always take place in the name and on the account of Ebotrade. In this case, the ordering party’s expectant rights to the purchased item shall persist for the transformed item. If the purchased item is processed together with other items that do not belong to Ebotrade, Ebotrade shall obtain co-ownership of the new item in proportion to the purchased item’s relationship to the other processed items at the time when they were processed. The same applies in the event that items are combined. If the combination takes place in such a way that the ordering party’s item is considered the main item, it is hereby agreed that the ordering party shall proportionally transfer co-ownership to Ebotrade, thus protecting the resulting sole or co-ownership for Ebotrade. In order to secure Ebotrade’s claims against the ordering party, the ordering party shall also assign to Ebotrade any claims that it accrues against a third party by combining the goods subject to reservation of title with real estate; Ebotrade hereby accepts this assignment in advance.

(5) Ebotrade hereby agrees to release the securities it is owed, at the request of the ordering party, if their value exceeds the claims to be secured by more than 20%.

(6) Ebotrade is entitled to assign claims from the business relationship with the ordering party.

§ 7 Warranty and notification of defects as well as recourse/manufacturer recourse

(1) The ordering party’s warranty rights assume that the ordering party has properly fulfilled its inspection and complaint notification obligations as per § 377 HGB [German Commercial Code].

(2) Defect notifications for new goods shall lapse 12 months after the goods delivered by Ebotrade have been delivered to the ordering party. The warranty for used goods is hereby excluded. Before returning the goods, the ordering party must obtain approval from Ebotrade. The standard of care required for delivery of Ebotrade goods is that of a proper businessman. The burden of proof for a defect, as well as for its existence at the time of the transfer of risk, lies with the ordering party.

(3) If, despite duly exercised care, the goods are found to have a defect that was already present at the time of the transfer of risk, Ebotrade shall either rectify the defect or deliver replacement goods as it sees fit, subject to a timely notification of defect. Ebotrade must always have the option of providing supplementary performance within an appropriate period. Recourse claims shall remain unaffected by the above provision.

(4) If the supplementary performance fails, the ordering party can withdraw from the contract or reduce compensation, regardless of any damage compensation claims.

(5) Defect notifications shall not apply for an insignificant deviation from the agreed properties, for an insignificant impairment of usability, for natural wear and tear, or for damages resulting from faulty or negligent handling, overloading, inappropriate operating resources, or unusual external influences that are not assumed by the contract. If the ordering party or a third party performs improper repairs or modifications, no defect claims shall apply for these or for the resulting consequences.

(6) Claims by the ordering party for necessary supplementary performance expenses, particularly shipping, handling, labor and material costs, are hereby excluded if expenses increased because the goods delivered by Ebotrade were later taken to a location other than the ordering party’s facilities, unless this was in keeping with their intended use.

(7) Recourse claims by the ordering party against Ebotrade shall only apply to the extent that the ordering party has not made any agreements with its customer beyond the legally binding 8defect claims.


§ 8 Liability

(1) Ebotrade shall only be liable for violations of contractual and non-contractual obligations, particularly impossibility, default, fault in initiating contracts, or unauthorized actions – including by representatives and other agents – in the event of intent or gross negligence.

(2) To the extent that Ebotrade is liable for slight negligence, liability shall be limited to the amount of damages that were typically foreseeable at the time when the contract was concluded. In the event of slight negligence, Ebotrade shall not be liable for subsequent damages.

(3) The limitation of liability to slight negligence shall not apply in the event of a culpable violation of significant contractual obligations, particularly obligations that must be fulfilled in order for the contract to be properly executed and that the contractual partner reasonably assumed would be fulfilled.

(4) None of these liability limitations shall apply in the event of culpably caused loss of life, bodily injury or damages to health, even if and to the extent that Ebotrade has assumed a guarantee for the property of the sold item, in the event of fraudulent misrepresentation, and in cases of binding liability as per the Product Liability Act.


§ 9 Data privacy / creditworthiness check / confidentiality

(1) All customer information is saved and processed by SH in compliance with the applicable requirements of the Federal Data Privacy Act (BDSG) and the Telemedia Act (TMG).
In order to ensure that customer data is protected from third-party access, SH uses 256-bit SSL encryption certified by GlobalSign Organization Validation CA. The SSL encryption is used in transmitting sensitive data.

(2) The ordering party hereby authorizes Ebotrade to forward the provided data to commercial credit agencies or credit insurance companies in order to check the ordering party’s creditworthiness.

(3) The ordering party hereby agrees to maintain confidentiality with regard to all information obtained through the business relationship with Ebotrade that is recognizably protection-worthy or contains company secrets. This confidentiality obligation shall continue to apply even if the business relationship has been suspended or terminated.

(4) For the rest, the provisions of Ebotrade’s data privacy policy shall apply.


§ 10 Applicable law / place of fulfillment / place of jurisdiction / miscellaneous

(1) This contract and all of the Parties’ legal relationships are subject to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of fulfillment is Bochum. The exclusive place of jurisdiction for all disputes arising from this contract is our place of business, Cologne, unless contradicted by binding legal regulations. SH Telekommunikation Deutschland GmbH is entitled to bring legal action against the ordering party at the ordering party’s place of business.

(3) Any side agreements or deviating agreements must be confirmed in writing by Ebotrade in order to be valid. This also applies to any suspension of the written form.

(4) If individual provisions of this contract should be or become invalid or if they contain a loophole, this shall not affect the remaining provisions. The Parties hereby agree to create a legally permissible provision in place of the invalid provision that as closely as possible approximates the economic intent of the invalid provision, or fills the loophole.

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