§ 1 Validity
1.These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with business partners and suppliers (Seller) of clicktel GmbH (clicktel). The GTCP only apply if the Seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.2.The GTCP apply in particular to contracts for the sale and/or delivery of movable goods ("goods") regardless of whether the Seller manufactures the goods itself or purchases them from suppliers. Unless otherwise agreed, the GTCP apply in the version valid at the time of clicktel's order or, in any case, in the version last communicated to the Seller in text form as a framework agreement for similar future contracts, without clicktel having to refer to them again in each individual case.
3.These GTCP apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall only become part of the contract if and to the extent that clicktel has expressly agreed to their validity in writing. This requirement of consent shall apply in all cases, for example even if the Seller refers to its general terms and conditions in the order confirmation and clicktel does not expressly object to this.
4.Individual agreements and information provided with our order take precedence over the GTCP. In case of doubt, trade clauses shall be interpreted in accordance with the Incoterms in the version valid at the time of conclusion of the contract.
5.References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCP.
6.clicktel reserves the right to obtain credit information about the Seller. clicktel may engage credit agencies or credit insurers for this purpose. In addition, clicktel is entitled to assign claims against the Seller (e.g. in the case of repayment claims) to debt collection agencies or factoring companies. The Seller declares his agreement to this, in particular with the necessary data transfer within the framework of the applicable data protection laws.§ 2 Conclusion of contract
1.Orders from clicktel shall be deemed binding at the earliest upon submission or confirmation in text form. The Seller must point out obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise, the contract shall be deemed not to have been concluded.
2.The Seller is required to confirm the order from clicktel in writing within a period of two weeks or, in particular, to execute it without reservation by dispatching the goods (acceptance). Late acceptance shall be deemed a new offer and requires acceptance by clicktel.3.Offers and cost estimates made by the Seller to clicktel are free of charge and non-binding.§ 3 Delivery time and delay in delivery
1.The delivery time specified by clicktel in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be two weeks from the conclusion of the contract. The Seller is obliged to inform clicktel immediately in writing if it is likely that it will not be able to meet the agreed delivery times.
2.If the Seller fails to perform or does not perform within the agreed delivery time or is in default, clicktel's rights (in particular to withdrawal and compensation) shall be determined in accordance with the statutory provisions.§ 4 Performance, delivery, transfer of risk, default of acceptance
1.The Seller is not entitled to have the service owed by him performed by third parties without the prior written consent of clicktel. The Seller bears the procurement risk for his services, unless otherwise agreed in individual cases.
2.Delivery shall be made DPU (Delivered At Place Unloaded) in accordance with Incoterms 2020 to the location specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to the registered office of clicktel in Kassel. 's respective destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).
3.The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (item number and quantity) and the clicktel order ID (date and number). If the delivery note is missing or incomplete, clicktel shall not be responsible for any resulting delays in processing and payment. Separate from the delivery note, a corresponding shipping notice with the same content must be sent to clicktel by email.
4.The risk of accidental loss and accidental deterioration of the goods shall pass to clicktel upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly in the event of acceptance. Delivery or acceptance shall be deemed to have taken place if clicktel is in default of acceptance.
5.The statutory provisions shall apply to the occurrence of default of acceptance on the part of clicktel. However, the Seller must expressly offer its performance to clicktel even if a specific or determinable calendar time has been agreed for an action or cooperation on the part of clicktel. If clicktel is in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions. If the contract relates to a non-fungible item to be manufactured by the Seller (custom-made product), the Seller shall only be entitled to further rights if clicktel undertakes to cooperate and is responsible for the failure to cooperate.§ 5 Prices and terms of payment
1.The price stated in the order is binding. All prices include statutory value added tax, unless this is shown separately.2.Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
3.The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice.
4.clicktel shall not owe any interest on arrears. The statutory provisions shall apply to late payments.
5.clicktel is entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. clicktel is entitled to withhold due payments as long as claims against the Seller for incomplete or defective services still exist.
6.The Seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.§ 6 Warranty
1.The statutory provisions and, exclusively in favour of clicktel, the following additions and clarifications shall apply to clicktel's rights in the event of material defects and defects of title in the goods, including incorrect and short deliveries, and in the event of other breaches of duty by the Seller.
2.clicktel is not obliged to inspect the goods or make special enquiries about any defects upon conclusion of the contract. In partial deviation from the statutory provisions, clicktel is therefore entitled to claims for defects without restriction even if clicktel was unaware of the defect at the time of conclusion of the contract as a result of gross negligence.
3.The commercial obligation to inspect and give notice of defects is subject to the statutory provisions of Sections 377 and 381 of the German Commercial Code (HGB) with the following proviso: clicktel's obligation to inspect is limited to defects that are apparent during clicktel's incoming goods inspection upon external examination, including the delivery documents (e.g. transport damage, incorrect or short delivery) or that are recognisable during clicktel's quality control in random sampling. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. Notwithstanding the obligation to inspect, clicktel's complaint (notification of defects) shall in any case be deemed to have been made immediately and in good time if it is sent within five working days of discovery or, in the case of obvious defects, of delivery.§ 7 Supplier recourse
1.clicktel is entitled to its statutory claims for expenses and recourse within a supply chain (supplier recourse) without restriction in addition to its claims for defects. In particular, clicktel is entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement delivery) that clicktel owes its customer in the individual case. This does not restrict clicktel's statutory right of choice (Section 439 (1) BGB).
2.Before clicktel acknowledges or fulfils a claim for defects asserted by its customer, it shall notify the Seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not provided within a reasonable period of time and no amicable solution is found, the claim for defects actually granted by clicktel shall be deemed to be owed to the customer. In this case, the Seller shall be responsible for providing evidence to the contrary.§ 8 Producer liability
1.If the Seller is responsible for product damage, they shall indemnify clicktel against third-party claims to the extent that the cause lies within their control or organisational sphere and they themselves are liable in external relations.2.As part of its indemnification obligation, the Seller shall reimburse expenses arising from or in connection with claims by third parties, including recall campaigns carried out by clicktel. clicktel shall inform the Seller of the content and scope of recall measures as far as possible and reasonable and give the Seller the opportunity to comment. Further legal claims remain unaffected.
3.The Seller shall take out and maintain product liability insurance with adequate coverage.§ 9 Data protection
clicktel processes the Seller's personal data obtained in connection with the business relationship only in accordance with the provisions of the relevant data protection laws. Details can be found in clicktel's privacy policy. In particular, clicktel may transfer company data (including, where applicable, personal data of contact persons) to specialised service providers for credit checks or insurance coverage. The Seller warrants that it has obtained all necessary consents from its employees.§ 10 Value added tax compliance and obligations to cooperate
1.Both contracting parties undertake to conduct their business in accordance with the law, in particular to comply with all relevant tax laws and regulations. They shall take all reasonable organisational measures to prevent involvement in VAT evasion or fraud in their supply chains. In particular, the contractual partner assures that it is not involved in so-called carousel transactions or other VAT fraud schemes. Each party shall inform the other immediately if there are any indications of VAT fraud or other tax irregularities in relation to the business relationship.
2.The Seller shall proactively provide clicktel with its valid VAT identification number (VAT ID) and its status as an entrepreneur prior to the conclusion of the contract. The Seller must ensure that its VAT ID is valid for cross-border EU transactions and can be retrieved from the Federal Central Tax Office. clicktel is entitled to verify the Seller's VAT ID number and their status as an entrepreneur (e.g. by means of a qualified confirmation request). If no valid VAT ID number is available or if this cannot be verified, clicktel is entitled to treat the delivery as taxable.
3.The Seller shall provide clicktelwith all tax-relevant information and evidence truthfully and without delaythat clicktel requires for the correct VAT treatment of the respective deliveryor service. This includes, in particular, certificates or declarations requiredunder the Value Added Tax Act (UStG), the Value Added Tax ImplementationRegulation (UStDV) or administrative regulations. The Seller of anintra-Community purchase of goods shall confirm to clicktel in writing uponrequest that the delivered goods have been received in the country ofdestination (confirmation of arrival in accordance with Section 17a UStDV) andshall cooperate in providing any additional documentary and accounting evidencein accordance with Sections 6a UStG, 17a ff. UStDV. The Seller is also obligedto provide clicktel with proof of export of the goods for deliveries to thirdcountries (e.g. through export accompanying documents, customs exit notes,etc.). If the Seller fails to comply with these obligations to cooperate andthereby prevents or jeopardises the proof of VAT exemption, they shall beliable to clicktel for the VAT incurred and any related expenses or damages.
4.At clicktel's request, the Seller must disclose and provide evidence of any existing certifications or proof of status as "tax reliable", e.g. certification in accordance with Section 22f UStG, proof of a tax compliance management system or any official status such as Authorised Economic Operator (AEO). The Seller shall also endeavour to request corresponding evidence from its suppliers and customers in order to ensure a consistently "clean" supply chain.
5.Each contracting party shall inform the other immediately if any tax irregularities arise that affect the joint business relationship. These include in particular: (a) the invalidity or revocation of its own VAT identification number or registration in another Member State, (b) the relocation of the company's registered office abroad, (c) the ordering of tax audits (special VAT audit, tax audit) insofar as these affect the contractual relationship, as well as preliminary results of such audits, (d) suspicion or investigations of VAT fraud against one's own company or responsible persons.
6.If the contracting parties work together within the framework of a transaction in a supply chain with several entrepreneurs (chain transaction) in which goods are delivered directly from the first supplier to the last customer, they shall cooperate closely in order to assess the delivery correctly for VAT purposes. In particular, they shall coordinate the movement of goods and inform each other who is arranging the transport so that the delivery in question is assigned to the correct delivery relationship within the meaning of Section 3 (6a) of the UStG. The same applies to cross-border deliveries via a consignment warehouse: If the parties use a consignment warehouse in another EU country or within Germany for the temporary storage of goods for call-off deliveries, they undertake to comply with the requirements of the statutory consignment warehouse regulation (Section 6b UStG and Article 17a of the VAT Directive), in particular the advance designation of the purchaser, 12-month period, keeping special stock records and reporting in the summary report to the Federal Revenue Service. If one of the requirements is not met or no longer applies in an individual case, the parties shall treat the delivery for tax purposes in accordance with the relevant regulations (e.g. intra-Community transfer followed by domestic delivery).7.If one party determines that there is reasonable suspicion that the other contracting party is involved in VAT fraud or comparable serious tax evasion, or if the contracting party significantly violates the above compliance obligations despite a warning, the other party is entitled to terminate the affected contracts without notice or, where applicable – to withdraw from contracts that have not yet been fulfilled. Good cause shall be deemed to exist in particular if the contractual partner is involved in official investigations pursuant to Section 370 of the German Fiscal Code (AO) (tax evasion) or related offences. In such cases, clicktel shall also be entitled to temporarily suspend the business relationship with the Seller until the suspicion has been cleared up.
8.If clicktel suffers damage as a result of tax misconduct on the part of the Seller, the Seller is obliged to compensate for the damage and to indemnify clicktel against any claims by third parties. The Seller indemnifies clicktel against all additional claims by the tax authorities arising from the Seller's breach of its obligations to cooperate or provide evidence under this § 11 or from the Seller providing incorrect information. If clicktel incurs tax losses (e.g. denial of input tax deduction or tax exemption pursuant to Section 25f UStG) due to its involvement in a fraudulent VAT transaction, the Seller shall compensate clicktel as if the tax law had been properly complied with. Further legal claims by clicktel remain unaffected.§ 11 Limitation period
1.The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified below.
2.Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims for defects shall be three years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for third-party claims for surrender of property shall remain unaffected. Furthermore, claims arising from defects of title shall not become time-barred as long as the third party can still assert the right against clicktel.
3.The limitation periods under sales law, including the above extension, apply to the full extent permitted by law to all contractual claims for defects. Insofar as clicktel is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply, unless the application of the limitation periods under sales law leads to a longer limitation period in individual cases.§ 12 Place of jurisdiction, applicable law, severability clause
1.If the Seller is a merchant, a legal entity under public law or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between clicktel and the Seller shall be Kassel or the Seller's registered office, at clicktel's discretion. In this case, however, Kassel shall be the exclusive, including international, place of jurisdiction for legal action against clicktel. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
2.The relationship between clicktel and the Seller is governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
3.Insofar as the contract or these General Terms and Conditions of Purchase contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Purchase if they had been aware of the loophole.§ 13 Language
These General Terms and Conditions of Purchase have been written in German and English. In the event of discrepancies between the two versions, the German version shall prevail. The English version is to be understood only as a non-binding translation of the German version.