§ 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.
(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.