1) Scope of Application and Subject Matter of the Contract
1.1 These General Terms and Conditions (hereinafter referred to as the “GTC”) of MEGATECH communication GmbH (hereinafter referred to as the “Seller”) apply to all contracts for the supply of goods concluded between the Seller and a business customer (hereinafter referred to as the “Customer”) in respect of goods offered by the Seller. The incorporation of the Customer’s own terms and conditions is hereby rejected unless otherwise agreed.
1.2 These GTC shall also apply exclusively if the Seller, being aware of terms and conditions that conflict with or deviate from these GTC, carries out the delivery without expressly reserving its rights.
1.3 For the purposes of these GTC, a business customer means a natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the course of its commercial or independent professional activity. Public authorities and other institutions governed by public law shall also be considered business customers under these GTC if they act exclusively under private law when concluding the contract.
1.4 The subject matter of the contract is determined by the relevant product description provided by the Seller. Where the contract also covers the supply of software in addition to hardware, the licence terms and conditions of the relevant software manufacturer shall apply to the software supplied, provided that these have been validly incorporated into the contract.
In addition to these GTC, special terms and conditions of sale (“Project Terms”) apply to the sale of products from certain suppliers at special prices offered to the Customer by the Seller on behalf of those suppliers (also referred to as “project agreements” or similar). By ordering products at special prices, the Customer agrees to the Seller’s Project Terms, provided that these were made available to the Customer before the contract was concluded and were validly incorporated into the contract. If the Project Terms are not complied with, the Seller shall be entitled to reclaim any cash discounts, rebates and allowances granted on the basis of those Project Terms, or to charge the difference between the special prices and the regular prices, insofar as this is permitted under the agreed Project Terms and applicable law. To the extent permitted by law, the Customer undertakes to indemnify the Seller against all third-party claims arising from non-compliance with the Project Terms that may be asserted against the Seller, and to compensate the Seller for any damage resulting from such non-compliance.
In addition to these GTC, special terms and conditions of sale (“Special Terms”) apply to the sale of products from certain suppliers. By ordering products from suppliers whose products are subject to Special Terms, the Customer agrees to the applicable Special Terms, provided that they have been validly incorporated into the contract.
2) Conclusion of the Contract
2.1 The product descriptions presented by the Seller do not constitute binding offers by the Seller but are intended to enable the Customer to submit a binding offer.
2.2 The Customer may submit an offer to the Seller in particular by telephone, fax, email or post. If an online order form is made available to the Customer, the offer may also be submitted using that form. After placing the selected goods and/or services in the virtual shopping cart and completing the electronic ordering process, the Customer submits a legally binding contractual offer for the goods and/or services contained in the shopping cart by clicking the button that completes the ordering process.
2.3 The Seller may accept the Customer’s offer within five days:
- by sending the Customer written confirmation of the order or confirmation in text form (fax or email), in which case receipt of the confirmation by the Customer shall be decisive; or
- by delivering the ordered goods to the Customer, in which case receipt of the goods by the Customer shall be decisive; or
- by requesting payment from the Customer after the order has been placed; or
- if payment by direct debit is offered and the Customer selects this payment method, by debiting the total amount from the Customer’s bank account, in which case the date on which the account is debited shall be decisive.
If several of the above alternatives apply, the contract shall be concluded at the time when the first of these alternatives occurs. The acceptance period begins on the day following the dispatch of the Customer’s offer and ends at the close of the fifth day following the dispatch of the offer. If the Seller does not accept the Customer’s offer within this period, this shall be deemed a rejection of the offer, with the result that the Customer is no longer bound by their declaration of intent.
2.4 If an offer is submitted through the Seller’s online order form, the Seller shall store the contract text and send it to the Customer, together with these GTC, in text form (e.g. by email, fax or letter) after the order has been submitted. In addition, the contract text shall be archived on the Seller’s website and may be accessed free of charge by the Customer through their password-protected customer account using the relevant login details, provided that the Customer created an account before submitting the order.
2.5 Before submitting a binding order through the Seller’s online order form, the Customer can identify potential input errors by carefully reading the information displayed on the screen. One effective technical means of improving the visibility of input errors may be the browser’s zoom function, which enlarges the display on the screen. The Customer may correct their entries using the usual keyboard and mouse functions throughout the electronic ordering process until they click the button that completes the order.
2.6 The contract may only be concluded in German.
2.7 Orders are generally processed and communications are conducted by email and automated order processing. The Customer must ensure that the email address provided for order processing is correct and that emails sent by the Seller can be received at that address. In particular, if spam filters are used, the Customer must ensure that all emails sent by the Seller or by third parties commissioned by the Seller to process the order can be delivered.
2.8 Unless otherwise agreed, individually negotiated special terms shall not apply to other ongoing or future contractual relationships with the Customer.
2.9 If the Customer is financially unable to fulfil their obligations to the Seller, the Seller’s rights shall be governed by the applicable statutory provisions. This applies in particular if the Customer files for insolvency. Section 321 of the German Civil Code (BGB) and the provisions of insolvency law, particularly Section 112 of the German Insolvency Code (InsO), remain unaffected. The Customer shall inform the Seller in writing at an early stage of any impending inability to pay.
3) Prices and Payment Terms
3.1 Unless otherwise stated in the Seller’s product description, the prices quoted are net prices and are subject to statutory value-added tax (VAT). Packaging and shipping costs, loading, insurance (in particular transport insurance), customs duties and other charges may be invoiced separately.
3.2 Various payment methods are available to the Customer, as indicated in the relevant offer or, where applicable, in the Seller’s online shop.
3.3 If advance payment by bank transfer has been agreed, payment shall be due immediately upon conclusion of the contract, unless the parties have agreed on a later due date.
3.4 If payment by invoice has been selected, the purchase price shall become due after the goods have been delivered and invoiced.
3.5 If payment by invoice has been selected, the purchase price must be paid without deduction within ten (10) days of receipt of the invoice, unless otherwise agreed. The Seller reserves the right to carry out a credit check if payment by invoice is selected and to refuse this payment method if the credit check produces a negative result.
3.6 If payment by SEPA direct debit is selected, the invoice amount shall become due once a SEPA direct debit mandate has been granted, but not before the advance notification period for the payment has expired. The direct debit shall be collected when the ordered goods leave the Seller’s warehouse, but not before the advance notification period has expired. An advance notification (“Pre-Notification”) means any communication from the Seller to the Customer (e.g. invoice, policy or contract) announcing a debit via SEPA direct debit. If the direct debit cannot be collected due to insufficient funds or incorrect bank details, or if the Customer objects to the debit without being entitled to do so, the Customer shall bear the fees charged by the relevant credit institution for reversing the transaction, provided that the Customer is responsible for the failed payment or objection.
3.7 If a payment method offered by PayPal is selected, payment shall be processed by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22–24 Boulevard Royal, L-2449 Luxembourg (hereinafter “PayPal”), subject to PayPal’s terms of use, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or, if the Customer does not have a PayPal account, subject to the terms for payments without a PayPal account, available at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full. If the Customer selects a payment method offered by PayPal during the online ordering process, the Seller hereby declares acceptance of the Customer’s offer at the time the Customer clicks the button that completes the ordering process.
3.8 Payment shall be deemed received as soon as the corresponding amount has been credited to one of the Seller’s accounts. In the event of late payment, the Seller shall be entitled to default interest at a rate of ten percentage points above the applicable base interest rate, insofar as this agreement is legally effective. The Seller’s other statutory rights in the event of the Customer’s default shall remain unaffected. If amounts are overdue, incoming payments shall first be applied to any costs and interest and then to the oldest outstanding claim.
3.9 If unforeseeable cost increases occur (e.g. currency fluctuations or unexpected supplier price increases), the Seller shall be entitled to pass these increases on to the Customer insofar as this has been validly agreed in the contract and is permitted by law. This shall apply only if the agreed delivery date is more than four months after conclusion of the contract.
4) Delivery and Shipping Terms
4.1 Unless otherwise agreed, goods and hardware shall be delivered by shipment to the delivery address specified by the Customer. For orders placed through the online shop, the delivery address entered there shall be decisive. Software shall be delivered electronically by download from the Seller’s server, unless the parties have agreed otherwise.
4.2 The Seller shall be entitled to make partial deliveries insofar as this is reasonable for the Customer. In the event of permissible partial deliveries, the Seller shall also be entitled to issue partial invoices.
4.3 The Seller reserves the right to withdraw from the contract if it is not supplied correctly or properly by its own supplier. This shall apply only if the failure to deliver is not attributable to the Seller and the Seller has concluded a specific covering transaction with the supplier with the due care required. The Seller shall make all reasonable efforts to obtain the goods. If the goods are unavailable or only partially available, the Customer shall be informed without undue delay and any consideration already paid shall be refunded without undue delay.
4.4 The risk of accidental loss and accidental deterioration of the goods sold shall pass to the Customer as soon as the Seller has handed the goods over to the forwarding agent, carrier or other person or institution designated to carry out the shipment. This shall also apply if the Seller bears the transport costs. Transport insurance shall only be arranged at the Customer’s specific request and at the Customer’s expense.
4.5 If delivery is impossible for reasons attributable to the Customer, for example because the goods do not fit through the Customer’s entrance door, front door or stairwell, or because the Customer cannot be found at the delivery address provided despite having been notified of the delivery time with reasonable notice, the Customer shall bear the costs of the unsuccessful delivery and shall be obliged to pay a flat-rate compensation for delay. This shall amount to 1% of the value of the total delivery or the part of the total delivery not accepted for each full week of delay, up to a maximum of 8%. The parties remain free to prove that the actual damage was higher or lower.
4.6 If shipment of the goods to the Customer is delayed for reasons attributable to the Customer, the risk shall pass to the Customer upon notification that the goods are ready for shipment, provided that the statutory requirements for such transfer of risk are met. Any storage costs incurred after the transfer of risk shall be borne by the Customer if the Customer is responsible for the delay.
4.7 In the case of collection by the Customer, the Seller shall first inform the Customer by email that the ordered goods are ready for collection. After receiving this email, the Customer may collect the goods by arrangement with the Seller. In this case, no shipping costs shall be charged.
5) Force Majeure
In the event of force majeure affecting the performance of the contract, the Seller shall be entitled to postpone delivery for the duration of the impediment and, in the case of prolonged delays, to withdraw from the contract in whole or in part, insofar as permitted by law. No claims for damages may be derived from this, provided that the Seller is not responsible for the relevant breach of duty and no mandatory statutory claims apply.
Force majeure shall include all events that are unforeseeable by the Seller or that, even if foreseeable, are beyond the Seller’s control and whose effects on contractual performance cannot be prevented by reasonable efforts on the part of the Seller. Any statutory claims of the Customer shall remain unaffected.
6) Delay in Performance at the Customer’s Request
If shipment or delivery of the goods is delayed at the Customer’s request by more than one month after notification that the goods are ready for shipment, the Customer may be charged storage fees for each additional month commenced, amounting to 0.5% of the purchase price, up to a maximum total of 5% of the purchase price. The parties remain free to prove that the actual damage was higher or lower.
7) Retention of Title and Rights
7.1 The Seller shall retain title to the delivered goods until the purchase price owed has been paid in full. The Seller shall also retain title to the delivered goods until all claims arising from the business relationship with the Customer have been satisfied, insofar as such extended retention of title can be validly agreed. Rights shall be granted subject to the condition precedent of full payment of the remuneration owed, insofar as this is legally permissible under the relevant licence and contractual terms.
7.2 If the delivered goods are processed, the Seller shall be deemed the manufacturer and shall acquire ownership of the newly created goods insofar as permitted by law. If processing takes place together with other materials, the Seller shall acquire ownership in proportion to the invoice value of its goods compared with the value of the other materials, insofar as such acquisition of ownership is legally possible. If, in the event of combination or mixing of the Seller’s goods with an item belonging to the Customer, the Customer’s item is deemed to be the principal item, the Seller shall acquire co-ownership in proportion to the invoice value of the Seller’s goods compared with the invoice value or, in the absence of an invoice value, the market value of the principal item, insofar as permitted by law. In these cases, the Customer shall be deemed the custodian.
7.3 The Customer may neither pledge nor transfer by way of security any items subject to retention of title or rights. The Customer may resell such items in the ordinary course of business only if acting as a reseller, provided that the Customer’s claims against its own customers arising from the resale have been validly assigned to the Seller and the Customer transfers title to its customer subject to payment. Upon conclusion of the contract, the Customer assigns to the Seller, by way of security, its claims against its customers arising from such resales, and the Seller hereby accepts this assignment.
7.4 The Customer shall notify the Seller without undue delay of any third-party access to goods owned or co-owned by the Seller or to assigned claims. Any amounts collected by the Customer that have been assigned to the Seller shall be forwarded to the Seller without undue delay insofar as the Seller’s claim is due.
7.5 If the value of the Seller’s security rights exceeds the secured claims by more than 10%, the Seller shall, at the Customer’s request, release a corresponding portion of the security rights.
8) Liability for Defects / Warranty
If the purchased goods are defective, the statutory provisions governing liability for defects shall apply. Subject to mandatory statutory provisions, the following shall apply by way of deviation:
8.1 Claims for defects shall not arise in respect of natural wear and tear or damage occurring after the transfer of risk as a result of improper or negligent handling, excessive use, unsuitable operating materials or particular external influences not contemplated by the contract. If the Customer or third parties carry out improper modifications or repair work, no claims for defects shall arise in respect of such modifications or repairs or their consequences, unless the Customer can prove that the reported fault was not caused by those modifications or repairs.
8.2 For new goods, the limitation period for claims based on defects shall be one year from the transfer of risk, insofar as such a reduction is legally permissible. For used goods, rights and claims based on defects shall be excluded insofar as such an exclusion is legally permissible.
8.3 The above limitations of liability and reductions of limitation periods shall not apply:
- to goods that have been used for a building in accordance with their customary use and have caused the building to be defective, where mandatory statutory limitation periods apply;
- to claims for damages and reimbursement of expenses where statutory provisions do not permit a limitation;
- if the Seller fraudulently concealed the defect;
- to claims arising from a guarantee that has been assumed;
- in cases of intent or gross negligence, or injury to life, body or health, insofar as mandatory law precludes such limitations; or
- to statutory rights of recourse within a supply chain, particularly under Sections 445a, 445b and 478 of the German Civil Code (BGB), as amended from time to time.
8.4 In the event of subsequent performance, the Seller shall have the right to choose between repair and replacement, unless the applicable statutory provisions provide otherwise.
8.5 If replacement delivery takes place as part of the Seller’s liability for defects, the limitation period shall not restart solely as a result of the replacement delivery. Mandatory statutory provisions governing the commencement of a new limitation period or the suspension of a limitation period shall remain unaffected.
8.6 If subsequent performance is carried out by way of replacement delivery, the Customer shall return the goods originally delivered to the Seller within 30 days. The return package must state the reason for the return, the Customer’s name and the number assigned to the purchase of the defective goods so that the Seller can identify the returned goods. If the returned goods cannot be identified for reasons attributable to the Customer, the Seller shall be entitled to suspend processing of the return until the identification issue has been resolved, insofar as permitted by law. The Customer shall bear the costs of reshipment unless the statutory provisions provide for a different allocation of costs.
8.7 If the Seller supplies non-defective goods for the purpose of subsequent performance, the Seller may claim compensation for use from the Customer in accordance with Section 346(1) of the German Civil Code (BGB), insofar as legally permissible in the specific case. Other statutory claims shall remain unaffected.
8.8 If the Customer is a merchant within the meaning of Section 1 of the German Commercial Code (HGB), the Customer shall be subject to the commercial inspection and notification obligations under Section 377 HGB. If the Customer fails to comply with these notification obligations, the goods shall be deemed approved in accordance with the applicable statutory provisions.
8.9 If the Customer returns goods to the Seller for the purpose of subsequent performance, the Customer is requested to enclose a return accompanying note stating the RMA number and Customer number. The Customer may obtain this return accompanying note and RMA number upon written or telephone request by calling 09903/9324-0, by fax at 09903/9324-200 or by email at
9) Liability
The Seller shall be liable to the Customer for claims for damages and reimbursement of expenses arising from contractual, quasi-contractual and statutory obligations, including tort claims, as follows:
9.1 The Seller shall be liable without limitation on any legal basis:
- in cases of intent or gross negligence;
- in cases of intentional or negligent injury to life, body or health;
- under an express guarantee, unless otherwise validly agreed in this respect; and
- under mandatory liability provisions, such as the German Product Liability Act.
9.2 If the Seller negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless unlimited liability applies under the preceding clause. Material contractual obligations are obligations imposed on the Seller by the contract, according to its content, in order to achieve the purpose of the contract, the fulfilment of which is essential to the proper performance of the contract and on compliance with which the Customer may regularly rely.
9.3 In all other respects, the Seller’s liability shall be excluded insofar as such exclusion is permitted by law.
9.4 The above liability provisions shall also apply to the Seller’s liability for its vicarious agents and legal representatives.
10) Limitation Period
Except for claims governed by the section “Liability for Defects / Warranty”, claims by the Customer against the Seller shall become time-barred one year after the Customer becomes aware of the facts giving rise to the claim, and in any event no later than five years after the service has been performed, insofar as such a reduction is legally permissible. Mandatory statutory limitation periods shall remain unaffected, particularly in cases of intent, gross negligence, injury to life, body or health, fraudulent concealment of a defect, guarantees that have been assumed and other claims that cannot be excluded or limited by agreement under applicable law.
11) Rights of Retention and Assignment
11.1 The Customer’s rights of retention and rights to refuse performance are excluded unless the Seller does not dispute the counterclaims on which they are based or those counterclaims have been established by a final and binding judgment. Statutory rights of retention and rights to refuse performance arising from the same contractual relationship shall remain unaffected.
11.2 The Customer may not assign claims arising from the contract concluded with the Customer, particularly any claims for defects, insofar as such exclusion is legally permissible. Mandatory statutory provisions, particularly those concerning certain monetary claims, shall remain unaffected.
12) Redemption of Promotional Vouchers
12.1 Vouchers issued free of charge by the Seller as part of promotional campaigns for a specified validity period and which cannot be purchased by the Customer (hereinafter “Promotional Vouchers”) may only be redeemed in the Seller’s online shop and only during the specified period.
12.2 Individual products may be excluded from the voucher promotion if the relevant restriction is stated in the Promotional Voucher.
12.3 Promotional Vouchers may only be redeemed before the order is completed. Subsequent crediting is not possible.
12.4 Only one Promotional Voucher may be redeemed per order.
12.5 The value of the goods must be at least equal to the value of the Promotional Voucher. Any remaining balance shall not be refunded by the Seller.
12.6 If the value of the Promotional Voucher is insufficient to cover the order, one of the other payment methods offered by the Seller may be selected to pay the difference.
12.7 The balance of a Promotional Voucher shall neither be paid out in cash nor bear interest.
12.8 The Promotional Voucher shall not be refunded if the Customer returns goods paid for in whole or in part with the Promotional Voucher under a statutory right of withdrawal.
12.9 The Promotional Voucher is intended solely for use by the person named on it. Transfer of the Promotional Voucher to third parties is prohibited. The Seller is entitled, but not obliged, to verify whether the respective voucher holder is substantively entitled to redeem it.
13) Applicable Law and Jurisdiction
13.1 All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the laws governing the international sale of movable goods.
13.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law with its registered office within the territory of the Federal Republic of Germany, the Seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract. If the Customer’s registered office is outside the territory of the Federal Republic of Germany, the Seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract. In the above cases, however, the Seller shall in all circumstances also be entitled to bring proceedings before the court at the Customer’s registered office.
14) Alternative Dispute Resolution
The Seller is neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board.