1. Scope of Application
1.1. The terms and conditions below apply to our supply of products including the licensing of software and firmware,
and to our rendering of services based on orders placed in our Online-Shop; they also apply if we perform an order
without reservation, even though we are aware that the customer’s terms and conditions conflict with or are different
from our Terms and Conditions of Sale. Customer’s conflicting or different terms and conditions only apply if they
are equivalent to the following terms and conditions or if we have in writing agreed that they apply.
1.2. All agreements between the customer and us regarding the performance of an order shall be made in writing.
The lack of a feature, which the customer expects because of our public statements, in particular in advertising,
only constitutes a defect if such feature is repeated in such written agreement.
2. Offer, Bid Documents
2.1. Our offers are not binding. A contract shall only be made when we have confirmed the customer’s order in
2.2 Orders can also be placed directly with IDENTsmart sales by e-mail, whereby the acceptance of the order is
confirmed by e-mail.
2.3 We reserve the right to technical and design changes with regards to descriptions and details in brochures,
catalogues and other documents, and to implement product changes with regards to design, construction and
materials, provided that these do not impair the product’s proper functioning.
2.4. We reserve all ownership and copyright in illustrations, drawings, calculations and other documents; they may
only be made available to third parties with our prior written consent; this applies in particular to documents marked
as “confidential“ or similar.
3. Withdrawal Instructions
3.1. Right of Withdrawal
You may without giving any reason withdraw from the contract within 14 days by sending a withdrawal notice in text
format (e.g. letter, Fax, email). The withdrawal period starts upon receipt of these withdrawal instructions in text
format, not, however, before the receipt of the goods (in case of recurring deliveries of goods of the same kind not
before receipt of the first partial delivery). The timely dispatch of the withdrawal notice is sufficient to meet the
withdrawal period. The withdrawal notice is to be addressed to:
D-83043 Bad Aibling
+ 49 8104 899 90 40
3.2. Consequences of the Withdrawal
3.3. Termination of Right of Withdrawal when ordering Software
3.3.1. If you order software on media, the right of withdrawal terminates when the shrink-wrap is removed or damaged.
3.3.2. If you order software for download, the right of withdrawal terminates as soon as we send you the license key
by email provided you have (a) expressly agreed that we send you the license key before the end of the 14 day
withdrawal period, and (b) confirmed that you have taken notice that the right of withdrawal terminates with such
4. Prices and Terms of Payment
4.1. Unless stated differently in the order confirmation, our prices are ex IDENTsmart GmbH (Bad Aibling) warehouse (Bad Aibling) including packaging and value-added tax at the then applicable statutory rate. You are responsible for customs and other import fees and taxes in case of shipment to countries outside the European Union.
4.2. Payments are made by prepayment, credit card, PayPal or cash on delivery (“Nachnahme”).
4.3. For direct customers the payment processing is handled by IDENTsmart GmbH and for online orders, the Rakuten Shop is acting in our name.
5. Shipment, Terms of Delivery, Passage of Risk
5.1. Unless stated differently in the order confirmation, we will deliver ex IDENTsmart GmbH warehouse (Bad Aibling) to the address provided by the customer. We are free to choose the type of shipment; risk passes to the customer upon delivery.
5.2. Dates for the delivery of products and services are not binding, unless they have been confirmed as binding in
5.3. Compliance with delivery dates for products and services is conditional upon clarification of all technical questions, timely receipt of necessary authorizations, documents to be supplied by the customer, releases and payments due, as well as the timely fulfillment of the customer’s other obligations. Failing which, said delivery dates shall be reasonably extended. We may rescind a contract if the export or import documents required for delivery to the customer, in particular a necessary US export license, are not issued, or if one of our suppliers does not deliver as ordered or on time.
5.4. If non-compliance with a delivery date is caused by force majeure, industrial dispute, unforeseeable hindrances
or other circumstances beyond our control, said dates shall be reasonably extended.
5.6. In the event we do not comply with a delivery date confirmed as binding in accordance with Clause 5.2 or with the customer’s request in accordance with Clause 5.5 for reasons other than those stated in Clauses 5.3 and 5.4 above, the customer may rescind that part of the contract which covers the delivery or service in delay as far as we are responsible therefore, provided that the customer has served a written notice granting a reasonable extension of not less than 2 (more) weeks and stating its intention to withdraw from the contract in case this is not met. Should
we be in delay with regard to only part of a delivery or service due, the customer may only rescind the entire contract if partial performance is of no interest to it. Other claims exist only as stated in Clause 10 (Liability).
5.7. On our request, the customer shall within a reasonable period of time assert, whether - because of the delay in delivery - the customer rescinds the contract and/or claims damages in lieu of performance or still wishes performance.
5.8. To the extent that delivery is impossible, the customer is entitled to claim damages, unless the impossibility is due to reasons beyond our control. The customer’s claim for damages is, however, limited to 10 % of the value of the part of the delivery, which cannot be used.
5.9. If the customer defaults in acceptance or infringes its other contribution obligations, we may claim damages we incur, including additional expenditures. At that time, the risk of accidental loss or accidental deterioration shall also pass to the customer.
6. Reservation of Title
6.1. We reserve title to the products we supply (“Goods with Title Reserved”) until all our claims to remuneration from this contract and all other outstanding claims from the business relationship with the customer have been settled.
6.2. The customer is obliged to treat the Goods with Title Reserved with due care, and in particular to adequately insure them at its own expense.
6.3. Any combination, blending, processing or transformation of the Goods with Title Reserved is performed exclusively on our behalf; we acquire a pro rata joint ownership of the finished product or new item proportional to the value of the Goods with Title Reserved to the value of the other, processed, items at the time of processing.
6.4. The customer is entitled, in the due and orderly course of business, to resell the Goods with Title Reserved or items of which we have a joint ownership, subject to the reservation of title. By way of security, however, it hereby assigns to us, even at this stage, its future claims from passing on the Goods with Title Reserved up to the amount of the invoice value (including value-added tax) of the Goods with Title Reserved until all our claims specified in Clause 6.1 have been paid in full; we hereby accept the assignment. If we only have joint ownership of the items sold, the claims are in each case assigned only up to the value of that share, though with priority over the other
claims. Even after the assignment, the customer remains entitled to collect amounts due; this shall not affect our entitlement to collect amounts due ourselves. On our request, the customer shall inform us of the names and addresses of the purchasers concerned and of the nature and scope of its claims against these purchasers. We are entitled to disclose this assignment at any time in order to secure our payment claims. The customer is not permitted to offer Goods with Title Reserved as a pledge or security.
6.5. In the event of a third party seize or other attachment of the Goods with Title Reserved, the customer shall point out that this is our property and shall immediately notify us in writing. The customer shall bear all costs for an action claiming title to the attached property and other actions against such a third party attachment.
6.6. In case of customer’s breach of contract, in particular default in payment, or in case of insolvency proceedings or if suspension of payments is to be expected, we can revoke the customer‘s authorization to collect amounts due and to resell, process, treat or combine Goods with Title Reserved. Moreover, in the cases set out in sentence 1 we can, upon having fixed, to no avail, an adequate additional period of time for performance, withdraw from the contract and can at the customer’s expense take back the Goods with Title Reserved, or alternatively demand that
the customer’s claim against a third party to return the Goods with Title Reserved be assigned to us; an adequate period of time does not have to be fixed if customer seriously and definitely refuses to perform, in particular to arrange for payment or special circumstances exist which, after each party’s interests have been weighed, justify immediate termination. These rights exist even if the claims secured thereby have become time-barred. We are entitled to dispose of the Goods with Title Reserved and set off the proceeds against our claims against the
6.7. In so far as we are entitled to demand return of Goods with Title Reserved, the customer grants us the irrevocable and unconditional right of access to his business premises and operational facilities during normal working hours for the purpose of collecting the Goods with Title Reserved.
7.1. If during the limitation period in Clause 7.4 a product we delivered shows a defect, which already existed at the time of transfer of risk, we will at our expense repair the defect or supply a replacement. In case of services that require us to bring about a specific result (Werkleistungen, "Services"), we will free of charge improve or repeat the Service.
7.2. A product or Service is defective, if it does not conform to the written agreement between the customer and us; features, which the Buyer expects because of our public statements, in particular in advertising, are only agreed if listed in such written agreement. In the absence of a written agreement a product or Service is only defective if it does not conform to the product information in our Online-Shop.
7.3. The customer’s claims for defects are excluded:
- for insignificant divergences from the agreement or product information in our Online-Shop;
- for insignificant interference in usability;
- for damages caused after the transfer of risk by external influences such as fire, water, currency surge, etc.; improper installation, operation, use or maintenance; use in fields of application and environmental conditions other than those we expressly specified; and use in combination with other products not approved by us for this purpose, excessive stress or normal wear and tear;
- for software defects, which cannot be reproduced;
- for the customer’s or a third party’s improper alterations or repairs of products and results therefrom;
- in so far as the customer has not notified us of apparent defects within 5 business days of delivery and of hidden defects within 5 business days of discovery.
7.4. The limitation period for warranty claims is 12 months from delivery or acceptance of a Service if you are an enterprise, and in 24 months, if you are a consumer. This does not apply in cases of fraud, intent, gross negligence or personal injury. Repeat performance does not restart the limitation period.
7.5. During negotiations between the customer and us regarding the customer’s rights because of an alleged defect, the statute of limitation shall only be suspended with regard to this alleged defect. Negotiations, which suspend the statute of limitation, commence upon our receipt of written notification of the alleged defect. Negotiations, which suspend the statute of limitation, end when we have repeated performance or such repeat performance has failed,
when one party notifies the other in writing that it terminates the negotiations, or 3 months after the last statement of one party regarding the alleged defect was received by the other party.
7.6. The customer has to always first provide us the opportunity to repeat our performance within a reasonable period of time. Repeat performance does not constitute acceptance of a legal obligation.
7.8. The customer’s claims for compensation for expenses necessitated by our repeat performance, in particular transportation, travel, labor and material costs, are excluded as far as such are increased because products have been moved from the original place of delivery other than in line with the regular use of the products known at the time the contract was entered into.
7.9. If the analysis of an alleged defect shows that it is not covered by the above warranty, we shall charge for the failure analysis and repair, if any, at our then applicable rates; in this case, the shipment costs for the return of products will not be reimbursed and their return shall be at the customer’s expense and risk.
8.1. Irrespective of any possibility of the objective copyright protection of software, it is agreed between the parties that the applicable national and international copyright regulations shall be applied to our software provided under this contract.
8.2. We grant the customer a non-exclusive personal right to use software and its documentation.
8.3. The software may only be copied for the purposes of back-up, archive storage, replacement or tracing faults. Copies must bear the same copyright notices as the original.
8.4. If we grant any right to use software (software license), which is needed to operate hardware (operating system software), said right may only be transferred to third parties with our prior written consent; we shall not refuse consent without good cause. A software license for application software is not transferable. Without our prior written consent, the customer may neither grant sub-licenses nor pass on the software to third parties.
9. Intellectual Property Rights; Defects in Title
9.1. If a third party brings a legitimate claim against the customer because the use of delivered products in accordance with the contract in a country, which is a signatory to the European Patent Convention, constitutes infringement of an intellectual property right (e.g. a patent, copyright, or trademark), we shall be liable to the customer during the time period in Clause 7.4 as follows:
- We shall at our expense and discretion either procure for the customer the right to continue to use such products or replace or modify such products so that there is no longer an infringement. If this is not possible with reasonable means, the customer shall be entitled to the statutory rights to rescind the contract or reduce the price. The customer cannot demand reimbursement for expenses incurred in vain.
- The liability for damages is in accordance with Clause 10.
- Our above obligations exist only to the extent that the customer has promptly and in writing informed us of the claims asserted by the third party and has not recognized an infringement of the third party’s rights, and as far as the entire defense and the settlement negotiations are reserved for us. If the customer discontinues the use of products for damage reduction or other important reasons, the customer is obligated to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of intellectual property rights.
9.2. The customer’s claims are excluded as far as we are not responsible for the infringement of intellectual property rights or the customer is responsible for the infringement of the intellectual property rights.
9.3. The customer’s claims are furthermore excluded to the extent that the infringement results from compliance with the customer’s specifications and to the extent that the infringement results from the modification of a product, the combination of a product with other items or the use of products or parts thereof in a process, provided that the products as such do not infringe the intellectual property right.
9.4. In addition, the customer’s claims are excluded for infringing acts after the customer has been warned or has otherwise become aware of a possible infringement, unless we have in writing agreed to further infringements.
9.5. If a claim as stated in Clause 9.1 is brought against the customer, we shall be entitled to rescind the contract with regard to outstanding deliveries.
9.6. The sale of products does not include a license to use our intellectual property rights, which cover a combination of products or products respectively processes, in which the products are used or can be used.
9.7. Clause 7 applies to all other defects in title.
9.8. All claims against us and our agents because of a defect in title, which go beyond or differ from those in this Clause 9, are excluded.
9.9. The customer likewise is liable to us, if claims are alleged against us because of an alleged infringement of intellectual property rights, which are based on our compliance with the customer’s instructions or modification of products for the customer.
10.1. We are only liable for damages caused by slight negligence if such are due to a material breach of duty, which endangers the achievement of the objective of the contract, or the failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the contract.
10.2. In cases of Clause 10.1, the liability is limited to the damage, which is typical for such contracts and which could have been foreseen
10.3. Our liability is also limited to the damage, which is typical for such contracts and which could have been foreseen, if the damages are caused by the gross negligence of one of our agents or employees, who is not an officer or executive.
10.4. In cases of Clauses 10.1 and 10.3, our liability is limited to a maximum amount of EURO 100.000 respectively Euro 10.000 for financial losses.
10.5. The customer’s claims for damages caused by our slight negligence or by the gross negligence of an agent or an employee of ours, who is not an officer or executive, which are not based on defects and thus not subject to time-barring in accordance with Clause 7.4 are time-barred at the latest 2 years from the point in time the customer became aware of the damage and regardless of the customer’s awareness at the latest 3 years after the damaging event.
10.6. With the exception of liability under the Product Liability Law, for defects after having given a guarantee, for fraudulently concealed defects and for personal injury, the above limitations of liability shall apply to all claims, irrespective of their legal basis, in particular to all claims based on breach of contract or tort.
10.7. The above limitations of liability also apply to the customer’s claims for damages against our employees or agents, if any.
11. Export / Re-Export
Products (hardware, software), which are the subject matter of this contract, may be subject to German, American or other national export control regulations. The customer undertakes to observe these control regulations in the event of exporting/re-exporting products or technical data, which it has obtained from us; this also applies to products which it has manufactured on the basis of said technical data. We are entitled to refuse to perform this contract if the above-mentioned control regulations would be infringed as a result.
Right of Withdrawal
You may without giving any reason withdraw from the contract within 14 days by sending a withdrawal notice in text format (e.g. letter, Fax, email). The withdrawal period starts upon receipt of these withdrawal instructions in text format, not, however, before the receipt of the goods (in case of recurring deliveries of goods of the same kind not before receipt of the first partial delivery). The timely dispatch of the withdrawal notice is sufficient to meet the withdrawal period. The withdrawal notice is to be addressed to:
D-83043 Bad Aibling
+ 49 8104 899 90 40
Consequences of the Withdrawal
In case of a valid withdrawal, either party has to return what it received from the other party and transfer to the other party any gains received therefrom (e.g. interest), if any. If you cannot return the goods and gains (e.g. benefits from usage) - in whole or in part - or can only return the goods and gains – in whole or in part - in a deteriorated condition, you have to compensate us for lost value, if any. For the deterioration of the goods you need only compensate us as far as such is due to any handling of the goods, which exceeds the examination of the characteristics and functionality of the goods. “Examination of the characteristics and functionality” means testing
and trying out the respective goods as is possible and customary in a store. Goods that can be shipped by parcel mail are to be returned at our risk. You have to bear the regular costs for the return shipment Reimbursement obligations must be met within 14 days. The period starts for you when you dispatch the withdrawal notice and for us upon our receipt of same.
Termination of Right of Withdrawal when ordering Software
If you order software on media, the right of withdrawal terminates when the shrink-wrap is removed or damaged.
If you order software for download, the right of withdrawal terminates as soon as we send you the license key by email provided you have (a) expressly agreed that we send you the license key before the end of the 14 day withdrawal period, and (b) confirmed that you have taken notice that the right of withdrawal terminates with such agreement.