General sales terms and conditions of iCOGNIZE GmbH

§ 1 Scope of application – general information

(1) The following sales terms and conditions of iCOGNIZE GmbH (hereinafter referred to as: iCOGNIZE) apply exclusively. Any terms and conditions of the client which are contrary to or deviate from the sales terms and conditions of iCOGNIZE are only valid if they have been confirmed in writing by iCOGNIZE. The same applies to amendments and supplements to these General sales terms and conditions. Oral promises and subsidiary agreements require written confirmation by iCOGNIZE. The sales terms and conditions of iCOGNIZE also apply if iCOGNIZE delivers to the client without reservation, knowing that the client’s terms and conditions are in conflict with or deviate from the terms and conditions of iCOGNIZE.

(2) The sales terms and conditions of iCOGNIZE apply only to companies in the meaning of § 14 Abs. 1 BGB [German Civil Code].

§ 2 Offer

(1) If the order qualifies as an offer according to § 145 BGB, iCOGNIZE can accept it within 2 weeks after receipt.

(2) Ownership right and copyright to illustrations, drawings, calculations and other documents are reserved by iCOGNIZE. It also applies to written documents which are designated as “confidential”. Before passing them on to third parties, the client must obtain explicit permission of iCOGNIZE.

§ 3 Deliveries

(1) Documents, which belong to the order, such as illustrations, drawings and weight specifications, shall only form part of the contract if they have been expressly designated as binding by iCOGNIZE.

(2) iCOGNIZE is entitled to deliver contractual products deviating from the client’s order, if the product modification does not affect its technical performance and functionality nor – if a specific design was agreed - its external appearance.

(3) We reserve the right to make partial deliveries and issue corresponding invoices unless otherwise agreed in writing or the client proves that a partial delivery does not fulfil their interest.

(4) Delivery times set by iCOGNIZE represent in principle non-binding estimates unless they have been expressly designated as binding in writing. The prerequisite for a binding delivery promise is the prior final clarification of all contractual, technical and organisational questions concerning the order.

(5) Agreed delivery dates are considered met if the contractual product was handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing. If the shipment of goods ready for dispatch is delayed for reasons for which iCOGNIZE cannot be held responsible, the contractual products can be stored at the client’s expense and risk.

(6) The delivery date is agreed according to the expected capacity of iCOGNIZE and is subject to unforeseen circumstances and obstacles, irrespective of whether these occur at iCOGNIZE or at the manufacturer, such as force majeure, government measures, failure to obtain official permits, industrial disputes of any kind, sabotage, shortage of raw materials, delayed deliveries of materials through no fault of the manufacturer. Such events postpone the delivery date accordingly, even if they occur during a delay that has already occurred.

If iCOGNIZE is responsible for a delay in delivery, the client may withdraw from the contract in whole or in part after the expiry of a reasonable respite period set in writing by iCOGNIZE. In the event that the respite period set in writing is not kept and if the client incurs damages as a result of the delay, they are entitled to compensation for each full week amounting to maximum 0.5% (with a total limit of maximum 5%) of the value of the part of the full delivery which could not be put into useful operation due to the untimely completion of particular involved items. The compensation to be paid hereunder by iCOGNIZE is to be specified in the final settlement. Any further claims for compensation by the client are excluded in all cases of delayed delivery, even after expiry of the set respite period, unless the client proves to iCOGNIZE that they have incurred higher damages due to the delay in the individual case.

(7) The possible conclusion of transport insurance, as well as a possible assumption of the transport costs, have no influence on the transfer of risk.

§ 4 Prices – payment terms and conditions

(1) Unless otherwise stated in the order confirmation, the prices of iCOGNIZE “ex works” apply, excluding packaging, which is invoiced separately.

(2) The statutory value-added tax is not included in the prices of iCOGNIZE. This is stated separately on the invoice at the statutory rate on the day of invoicing.

(3) The deduction of a discount requires a special written agreement.

(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due immediately and payable within 10 days of the invoice date. In the case of a payment delay, the statutory provisions apply.

(5) iCOGNIZE is entitled, in spite of the client’s regulations stating the contrary, to first offset payments against the client’s older debts. If costs and interest have already been incurred due to the delay, iCOGNIZE is entitled to set off the payment first against the costs, then against the interest and finally against the main service price.

(6) Any set-off or execution of the right of retention by the client based on counterclaims not recognised by iCOGNIZE or not legally established is excluded.

(7) If the client exceeds the due date specified in § 7 par. 2 or a due date agreed on separately in writing with iCOGNIZE, iCOGNIZE is entitled to make future deliveries only concurrently against cash payment or after advance or security payment by the client. Delay of payment by the client shall further result in all payment claims of iCOGNIZE from the business relationship with the client, for which iCOGNIZE has accepted bills of exchange or payment in installments, becoming due immediately.

§ 5 Acceptance – transfer of risk

(1) The client must check the goods thoroughly, immediately after receipt, for completeness and conformity with the invoice. If a complaint is not made within a period of 8 days after the receipt of a service, acceptance shall be deemed to have taken place. The complaint must contain an exact description of the defects which it concerns. The client is also obliged to do so if the goods are intended for resale. Recognizable defects must be notified to the client in writing immediately upon receipt from the forwarding agent, post, railway, etc. If the client collects the goods in person, they must be checked immediately upon receipt for visible defects. In the case of hidden defects, the above-mentioned period is counted from the moment at which the defects first become apparent. After the end of the above-mentioned period, reports of defects will no longer be accepted.

(2) Insignificant defects that do not impair the functionality of the delivered item do not entitle the client to refuse acceptance.

(3) The risk passes onto the client upon the handover of the contractual product to the carrier, their agent or other persons named by iCOGNIZE but at the latest upon the direct handover of the contractual product to the client or their agent. This provision also applies to returns after rectification of defects or service against payment.

§ 6 Cancellation – refusal of acceptance

(1) If the client cancels an order confirmed by iCOGNIZE in whole or in part without being entitled to do so, or refuses to accept ordered contractual goods in whole or in part without justification, disregarding the respite period of 10 days, iCOGNIZE shall be entitled terminate the agreement without further notice in whole or in part, irrespective of the requirements of § 323 par. 2 BGB and demand a lump-sum compensation from the client in the amount of 30% of the order value of the cancelled or not accepted contractual goods. The client is entitled to prove that the damages incurred by iCOGNIZE are considerably lower than the lump-sum compensation claim.

Optionally, iCOGNIZE is also entitled to charge the client for the damages resulting from their cancellation or refusal of acceptance.

Further rights of iCOGNIZE are not excluded by the above provision.

(2) An agreement on the postponement of delivery dates must be made in writing. If the delivery date is postponed by more than four weeks at the request of the client, iCOGNIZE is entitled to demand an advanced payment from the client amounting to 50% of the order value.
§ 7 Retention of title

(1) The contractual goods delivered to the client shall remain the property of iCOGNIZE until all claims of iCOGNIZE arising from the business relationship with the client have been fulfilled in full.

(2) The client is obliged to treat the object of sale with care; in particular, they are obliged to insure it sufficiently at their own expense against fire, flooding and theft replacement value. If maintenance and inspection works are necessary, the client must carry them out in good time at their own expense.

(3) The client is revocably entitled to pass on the goods subject to retention of title in the ordinary course of business under retention of title, but not to pawn or transfer them by way of security in any form. If third parties access the goods, the client must inform them that they are a property of iCOGNIZE and notify iCOGNIZE immediately. If iCOGNIZE files an action against the third party under § 771 ZPO [German civil procedure code] and the third party is not able to reimburse the court and out-of-court costs of a lawsuit incurred by iCOGNIZE, the client is liable for the damages incurred by iCOGNIZE. In the event of resale to third parties, the client is responsible for ensuring that the third party takes into account the rights of iCOGNIZE.

(4) If the goods subject to the retention of title are combined or mixed with other goods that do not belong to iCOGNIZE, iCOGNIZE acquires co-ownership in proportion to the invoice value of the goods subject to the retention of title to the remaining goods. The processing of goods subject to the retention of title is carried out for iCOGNIZE as manufacturer according to § 950 BGB, without committing iCOGNIZE. In the case of processed goods, co-ownership of iCOGNIZE arises under the above provisions. The client secures the sole ownership or co-ownership of iCOGNIZE arising from the above.

(5) If the client’s actions which present a breach of the contract, in particular, in the event of a payment delay, or in the event of the client’s bankruptcy, iCOGNIZE is entitled to retrieve the object of sale. Retrieving the object of sale by iCOGNIZE constitutes a withdrawal from the contract. After retrieving the object of sale, iCOGNIZE is entitled to sell it; the proceeds shall be offset against the client’s liabilities after a deduction of sales costs at a reasonable amount.

In order to assert the retention of title to the goods subject to the retention of title, iCOGNIZE is entitled to enter the business premises of the client and to retrieve the goods subject to the retention of title without the need to set a further deadline or to comply with the conditions specified in § 323 par. 2 BGB, unless the amount of the delayed payment is insignificant.

(6) If iCOGNIZE secures contractual goods at the client’s or third parties’ premises while exercising the retention of title, this shall not be deemed a withdrawal from the contract.

(7) The client resigns from their claims to the goods subject to the retention of title at the invoice value at the moment of placing the order at iCOGNIZE. The client is entitled and obliged to collect claims in the ordinary course of business. The entitlement of iCOGNIZE to collect the claim itself remains unaffected. However, iCOGNIZE undertakes not to collect the claim as long as the client fulfils their payment obligations from the proceeds received, do not fall into arrears and if no application for the opening of insolvency proceedings has been made and no payments have been suspended. In such cases, iCOGNIZE may demand that the client discloses to iCOGNIZE the assigned claims and the debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. At the request of iCOGNIZE, the client shall name the assigned claims. In order to secure the payment claims, iCOGNIZE may disclose the assignment if the client delays their payment or becomes insolvent.

(8) If the value of securities exceeds the payment claims of iCOGNIZE by more than 20%, iCOGNIZE shall release the excess part of the securities at the request of the client.

(9) Items delivered for test and demonstration purposes remain the property of iCOGNIZE. They may only be used by the client on the basis of a separate agreement with iCOGNIZE.

After the end of the agreed period or, if no such period has been settled at a written request of iCOGNIZE, the client shall return the test or demonstration devices to iCOGNIZE at their own expense, including shipment insurance. If the return of the devices is delayed by more than 14 days, iCOGNIZE is entitled to demand compensation for use amounting to 2% of the list price of the devices for each month or part thereof during which the delay persists. It does not exclude further claims of iCOGNIZE.

§ 8 Warranty

(1) Statements made by iCOGNIZE regarding the products and services are merely descriptions of the nature of the goods unless iCOGNIZE expressly assures or guarantees certain properties of the product or service in writing. The technical data and descriptions of products contained in the product information alone do not represent any assurance of certain properties or a corresponding guarantee. An assurance of properties in the legal sense or a guarantee is only given if the respective details have been confirmed as such in writing by iCOGNIZE.

(2) The parties are aware that it is not possible according to the current state of technology to exclude software errors under all conditions of use. iCOGNIZE does not guarantee that the program functions meet the client’s requirements or that they work together in the selection made by the client.

(3) Excluded from the warranty are, in particular, defects or damages which are attributable to: operational wear and tear and normal wear and tear, improper use, operating errors and negligent behaviour on the part of the client, operation with the wrong type of current or voltage and connection to unsuitable power sources, fire, lightning, explosion or network-related voltage surges, moisture of any kind, incorrect or faulty program, software and/ or processing data as well as any consumable parts, unless the client proves that these circumstances are not the cause of the defect complained about. Furthermore, the warranty shall be void if the serial number, type designation or similar markings, which serve to settle the identity of the product, are removed or made illegible.

(4) These warranty claims against iCOGNIZE become valid upon delivery of the item and expire after 12 months. They are not transferable. Irrespective of the above, iCOGNIZE passes on any further guarantee and warranty promises made by the manufacturer to the client in full, without being liable for them.

(5) If a warranty claim is made, iCOGNIZE may choose to perform the repair or replacement itself or use contractors. Replaced parts become the property of iCOGNIZE. If iCOGNIZE refuses to remedy the defect or does not remedy the defect within 30 days, the client is entitled to demand either the cancellation of the contract or an appropriate reduction of the purchase price at their discretion. Further claims or claims other than those mentioned above, in particular claims for compensation for damage which has not occurred to the delivery item itself or to legal assets of the client, such as loss of profit and other financial losses, are excluded unless iCOGNIZE has acted with intent or gross negligence, has fraudulently concealed the defect which caused the damage or has assumed a corresponding guarantee for the quality of the goods. The limitation of liability shall not apply to injuries to life, body or health in the case of a breach of duty.

(6) In the event of a repair, iCOGNIZE assumes all transport, travel, labour and material costs. All other costs of the rectification of defects, as well as the incidental costs associated with a replacement delivery - in particular, insurance, packaging, accommodation and storage costs, shall be borne by the client.

(7) If the examination of a warranty claim shows that it is not justified, iCOGNIZE is entitled to demand reimbursement of all expenses.

(8) If demonstration devices or used items are delivered, any warranty shall be void. Claims for damages are excluded. The above limitations of warranty do not apply if iCOGNIZE has acted with intent or gross negligence, has fraudulently concealed the defect, causing the damage or has assumed a corresponding guarantee for the quality of the goods. The exclusion of liability shall also not apply to injuries to life, body or health in the case of
a breach of duty.

§ 9 Liability

(1) The liability of iCOGNIZE under warranty is settled in § 8. As far as no further claims of the client result from the following regulations, they are excluded, irrespective of the legal basis. iCOGNIZE is not liable for damages that have not occurred to the delivery item itself; in particular, iCOGNIZE is not liable for lost profits or other financial losses of the client. The compensation obligation of iCOGNIZE is, in any case, limited to the damage foreseeable at the time of conclusion of the contract.

(2) The limitation according to par. 1 shall also apply if the client demands the replacement of useless applications instead of compensation for damages.

(3) The exemption from liability shall not apply if essential contractual obligations have been violated or if the damage is due to a grossly negligent or intentional violation of obligations by iCOGNIZE or its contractors. The above exclusions and limitations of liability also do not apply to claims under the Product Liability Act or for damages resulting from the violation of life, body or health in the case of a breach of duty. If the liability of iCOGNIZE is excluded or limited, it also applies to the personal liability of its employees, workers, representatives and contractors.

§ 10 Place of performance – place of jurisdiction – applicable law – miscellaneous

(1) If the client of iCOGNIZE is a company, the following applies: the place of performance for the deliveries of iCOGNIZE is: the plant for deliveries “ex works” and our warehouse for other deliveries. The place of performance for the client’s payment obligation and the place of jurisdiction for both parties to the contract is the registered office of iCOGNIZE. iCOGNIZE is also entitled to sue the client at their general place of jurisdiction.

(2) The applicable law is the law of the Federal Republic of Germany, excluding the “United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980”.

(3) Should any provision of these general sales terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions.

§ 11 Data protection

(1) All personal data provided by the client will be collected, processed and stored by iCOGNIZE solely in accordance with the provisions of the German data protection law.

(2) Processing of the contract concluded with the client requires the use of their personal data. Passing on the data to third parties takes place exclusively in the case of companies involved in the processing of the contract and for the purpose of its processing. The data are deleted as soon as they are no longer required for billing purposes.

(3) Any other use of data requires the explicit consent of the client. The details of the data collected and their respective use result from the privacy policy of iCOGNIZE.

(4) The client can allow iCOGNIZE, in particular the employees of the hotline, to access the system and the client data available in the system, i.e. order and delivery data as well as technical system data. If access is required to process support requests, a hotline employee will inform the client in advance. In any case, the client can allow or deny access before it takes place and revoke the permanent access right at any time.

(5) The client has the right to receive information about the stored data concerning them, free of charge. The client has the right to revoke their consent to the storage of their data at any time with effect for the future at the address of iCOGNIZE contained in the provider information.