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Acceptable Use Policy
Acceptable Use Policy
Systemhaus • Hosting • Webmarketing
General Business and Delivery Terms and Conditions Of The Company webalytics GmbH
Status: October 2016
§1 Validity of Provisions
The deliveries, services and offers of the company webalytics GmbH, Rathausstrasse 24, 68519 Viernheim, registered with the District Court Darmstadt, HRB (Commercial register, Section B) 92603, hereinafter referred to as webalytics, shall take place exclusively on the basis of these terms and conditions unless other and/or further terms and conditions are handed over by webalytics. These shall therefore also apply to all future terms and conditions, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. General terms and conditions of business of the buyer, in particular, purchase conditions, are hereby already contradicted, i.e. they are not recognised even if we do not expressly contradict them again after receipt by us.
Deviations from these terms and conditions shall only be effective if they are confirmed in writing by webalytics.
§2 Offer and Conclusion of Contract
The offers of webalytics are subject to change and non-binding. Declarations of acceptance and all orders require our written or telex confirmation to be legally effective. The same applies to supplements, amendments or subsidiary agreements. In the case of immediate delivery, the written confirmation may be replaced by the invoice.
Drawings, illustrations, dimensions, weights and other services are only to be understood as approximate values and in particular do not represent any assurance of properties.
If a Buyer exceeds his credit limit through his call-off, we shall be released from our delivery obligation.
Unless otherwise stated, webalytics shall be bound by the prices indicated in its offers for 14 days from their date. The prices stated in the order confirmation shall be decisive. Additional deliveries or services shall be charged separately.
Price quotations in a currency other than that valid for Germany shall lose their validity on the following day.
Unless otherwise agreed in writing, the prices are exclusive of transport ex warehouse Lampertheim, without installation, training or other ancillary services. Unless expressly stated otherwise, all prices are net prices plus the statutory value added tax applicable at the time of conclusion of the contract.
All work (installations, configurations, assemblies, troubleshooting, support via helpdesk, telephone, remotely or on site, etc.) shall be charged at an hourly rate of EUR 150.00 plus VAT, unless otherwise agreed in writing. For each process, every 15 minutes or part thereof (37.50 EUR plus VAT) shall be charged.
Work on working days outside webalytics' standard working hours shall be charged at a surcharge of 50% of the standard hourly rate. Work on Saturdays, Sundays and public holidays shall be charged at a surcharge of 100% of the standard hourly rate.
Travel time shall be charged at 60% of the hourly rate plus EUR 0.60 plus VAT per kilometre travelled from webalytics' registered office.
The goods shall be shipped in standard commercial packaging at our discretion. Any special packaging required shall be borne by the Buyer. webalytics shall be entitled, but not obliged, to insure the goods at the Buyer's expense.
§4 Delivery and Service Legislation
Dates and delivery periods are non-binding unless expressly agreed otherwise in writing or by telex. The specification of specific delivery periods and delivery dates by webalytics is subject to correct and timely delivery by our suppliers and manufacturers.
Delays in delivery and performance due to force majeure and due to other unforeseeable events that make delivery significantly more difficult or impossible for webalytics and for which webalytics is not responsible (this includes, in particular, war, warlike events, official orders, etc.) shall be excluded, (this includes, in particular, war, warlike events, official orders, non-issuance of export, import or transit permits, national measures to restrict trade, strikes, lock-outs and other operational disruptions of any kind, regardless of whether these events occur at webalytics or its subcontractors) shall entitle webalytics to postpone the delivery or service by the duration of the impediment. The delivery period shall also be extended by the period of time required for the delivery of the goods or services. The delivery period shall also be extended by the period of time that the Buyer himself is in default with the fulfilment of his contractual obligations.
If the impediment lasts longer than three months, the Buyer shall be entitled to withdraw from the contract - insofar as it has not yet been fulfilled - in whole or in part after setting a reasonable period of grace (at least 14 days). If the delivery period is extended in application of section 2 or if webalytics is released from its obligation, the Buyer shall not be entitled to derive any claims for damages from this. webalytics shall only be entitled to invoke the aforementioned circumstances if the Buyer has been notified immediately.
In the event that webalytics is responsible for non-compliance with bindingly agreed deadlines and dates and is in default, the Buyer shall be entitled to compensation for default in the amount of 0.25% for each full week of default, but in no case more than a total of 5% of the invoice value of the deliveries and services affected by the default. Any further claims shall be excluded unless the delay is due at least to gross negligence on the part of webalytics.
webalytics shall be entitled to make partial deliveries and provide partial services. In the case of delivery contracts, each partial delivery and partial service shall be deemed to be an independent service. The right to correct and timely self-delivery shall remain reserved.
§5 Default of Acceptance
For the duration of the Buyer's default in acceptance, webalytics shall be entitled to store the delivery items at the risk and expense of the Buyer. webalytics may also use a warehouse keeper or a freight forwarder for this purpose.
During the period of default in acceptance, the Buyer shall pay webalytics a flat rate of 1% of the purchase price per month, up to a maximum of EUR 25.00, as compensation for the storage costs incurred without further proof. In the event that higher storage costs are incurred, webalytics shall be entitled to demand reimbursement of these costs from the Buyer against proof.
If the Buyer refuses to accept the delivery items after the expiry of a grace period set for him or declares that he does not wish to accept the goods, webalytics may refuse to fulfil the contract and demand compensation for non-fulfilment. webalytics shall be entitled to demand either a flat rate of 25% of the agreed purchase price or compensation for the actual damage incurred from the Buyer as compensation for damages.
§6 Delivery Quantity
Visible quantity differences must be reported to webalytics in writing immediately upon receipt of the goods, concealed quantity differences within 4 days of receipt of the goods. Acceptance of the goods by the forwarder or carrier shall be deemed proof of quantity, perfect wrapping and loading.
§7 Transfer of Risk
The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. In the event of direct delivery by webalytics, the risk shall pass to the Buyer as soon as the goods have been handed over to him. If shipment is delayed or becomes impossible through no fault of our own, the risk shall pass to the Buyer upon notification that the goods are ready for shipment or delivery. Any assumption of transport costs by webalytics agreed in individual cases shall not affect the transfer of risk.
§8 Warranty (Only Valid if Not Excluded in Writing)
webalytics warrants that the products are free from manufacturing and material defects. The warranty in accordance with the following provisions shall be 6 months, unless separately agreed in writing.
The warranty obligation shall commence on the date of delivery. If our operating or maintenance instructions are not followed, modifications are made, parts are replaced or consumables are used which do not comply with the original specifications, any warranty shall lapse insofar as the defect is attributable to this. This shall also apply if the defect is due to improper use, storage and handling of the devices, or third-party intervention or the opening of devices. Insignificant deviations in colour, dimensions and/or other quality and performance characteristics of the goods shall not trigger any warranty rights.
The Buyer shall be obliged to notify webalytics of any defects in writing or by telex without delay, but no later than seven days after receipt of the delivery item.
In the event that the Buyer notifies webalytics that the products do not comply with the warranty, webalytics shall require that the defective part or device and an exact description of the defect, including the model and serial number and a copy of the delivery note and/or invoice with which the device was delivered, be sent or delivered to webalytics for repair. The devices must arrive free of charge and will be delivered again free of charge by webalytics, unless the transport costs are out of proportion to the order value. No new warranty periods shall come into effect as a result of the replacement of parts, assemblies or entire devices. The warranty is limited exclusively to the repair or replacement of the damaged delivery items. When sending in the equipment to be repaired, the Buyer must ensure that any data on it that is essential to him is backed up by copies, as this data may be lost during repair work.
webalytics shall be entitled to repair the defective item up to three (3) times or to deliver a new item. If the repair fails after a reasonable period of time, the Buyer may, at his option, demand a reduction in payment or rescission of the purchase contract.
Liability for normal wear and tear is excluded.
Only the direct Buyer shall be entitled to warranty claims against webalytics and such claims shall not be assignable.
The above-mentioned paragraphs conclusively contain the warranty for products and exclude other warranty claims of any kind, unless there is intent or gross negligence on the part of webalytics.
§9 Retention of Title
Until all claims to which webalytics is entitled against the Buyer now or in the future for any legal reason have been settled, the Buyer shall grant webalytics the following securities, which we shall release at the Buyer's request at the Buyer's discretion, insofar as their value exceeds the claims by more than 20%.
The goods shall remain the property of webalytics until payment has been made in full.
The Buyer is entitled to process and sell the goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted.
If the Buyer defaults on payment or culpably fails to fulfil other material confidential obligations, webalytics shall be entitled to take back the goods in question or, if applicable, to demand assignment of the Buyer's claims for restitution against third parties. The repossession or seizure of the goods subject to retention of title by us shall not constitute a withdrawal from the contract, unless the law on instalment payments applies.
Invoices are payable by invoice, cash in advance, (cash on delivery) crossed cheque, (cash on delivery) Euro cheque, direct debit or cash on collection, depending on the agreement. Payment shall be made in accordance with the details in the offer, the order confirmation or the invoice. Payment terms stated herein are binding for both parties.
Delivery shall always be made freight collect, i.e. at the Buyer's expense by post, by forwarding agent or by his own vehicle, unless expressly agreed otherwise.
webalytics shall be entitled to offset payments against the Buyer's older debts, despite the Buyer's provisions to the contrary. If costs and interest have already been incurred, webalytics shall be entitled to offset the payment first against the costs, then against the interest and finally against the main performance. The Buyer shall be informed of this.
Payment shall only be deemed to have been made when webalytics can dispose of the amount. Cheques shall only be accepted on account of performance and shall only be deemed to be payment after they have been cashed.
If the Buyer defaults on payment, webalytics shall be entitled to charge interest at a rate of 4% above the Bundesbank discount rate applicable at that time, but no less than 10% per annum, from the date in question.
If webalytics has received permission from the Buyer to collect amounts due from deliveries, services and/or contracts by direct debit and if the direct debit is not honoured or returned by the Buyer's credit institution, webalytics shall be entitled to charge a fee for this in the amount of 10% of the invoice amount, but at least EUR 15.00 plus VAT plus the fees caused by the non-encashment/return of the direct debit. If the costs incurred by webalytics are higher, webalytics shall be entitled to charge the actual costs incurred.
In the event of a deterioration in the Buyer's assets that gives rise to doubts about his ability to pay or his creditworthiness, such as in the case of bill and cheque protests, default of payment, slow payment and the pendency of composition or bankruptcy proceedings, webalytics shall be entitled, subject to the rights to which webalytics is otherwise entitled, to withhold advance payment or security deposit(s) and, in the event of insufficient advance payment or security deposit(s), to withdraw from the contract in whole or in part. In this case, all claims of webalytics arising from the contractual relationship shall become due immediately.
The Buyer shall only be entitled to offset or exercise a right of retention if the counterclaims have been legally established or are undisputed.
§11 Prohibition of Assignment
The assignment of claims against webalytics to third parties shall be excluded unless webalytics has expressly consented to the assignment. Unless the claims in question are generally unassignable claims pursuant to §8 clause 7 of these GTC (warranty claims), consent shall be granted if the Buyer proves material concerns that outweigh the interests of webalytics in maintaining the prohibition of assignment.
§12 Limitation of Liability
Claims for damages arising from impossibility of performance, positive breach of contract, culpa in contrahendo and tort are excluded both against webalytics and against webalytics' vicarious agents, unless webalytics has acted with intent or gross negligence.
Insofar as software is included in the scope of delivery, it is provided to the Buyer solely for use, i.e. the Buyer may not copy it, lend it or even resell it. A multiple right of use requires a special written agreement.
Notwithstanding clause 1, the respective right of use of the manufacturer/author of the software is acknowledged by the Buyer upon opening the original packaging of the software.
The Buyer shall be obliged to keep secret for an unlimited period of time all information that becomes accessible to him in connection with webalytics' deliveries and that is clearly recognisable as business or trade secrets of webalytics due to other circumstances and is to be kept confidential and, insofar as this is not necessary to achieve the purpose of the contract, neither to record it nor to pass it on to third parties or to exploit it in any way.
§15 Data Protection
webalytics shall be entitled to process the data about the Buyer received with regard to or in connection with the business relationship, irrespective of whether this data originates from the Buyer himself or from third parties, in accordance with the Federal Data Protection Act.
Re-export from the Federal Republic of Germany is subject to German and US regulations and is not permitted without official approval. Goods purchased from the USA bear the "ECCN" (Export Control Commodity Number) 1565 (A) MT. The export of our goods to non-EU countries requires our written consent, irrespective of the fact that the Buyer is responsible for obtaining any official import and export permits. The Buyer is responsible for compliance with the relevant regulations up to the end consumer.
§17 Applicable Law
The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relationship between webalytics and the Buyer. Insofar as the Buyer is a registered trader within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the registered office of webalytics shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Furthermore, the registered office of webalytics shall be the place of performance as well as the place of transfer within the meaning of the Packaging Ordinance.
Should individual or several provisions of these General Terms and Conditions be or become invalid or contain a loophole, the contracting parties undertake to enter into negotiations with the aim of replacing or supplementing the invalid or incomplete provision with an appropriate individual agreement which corresponds as far as possible to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected.