Bechtle Standard Terms
Version date: 7 May 2020
These are the Standard Terms of the Bechtle Group. The Bechtle Group consists of several companies: ARP NV, Bechtle direct NV, Bechtle Brussels NV (hereinafter jointly referred to as 'Bechtle'). Bechtle provides a wide range of ICT goods and services including but not limited to: software, hardware, management, repairs, maintenance, IT support, cloud and hosting services, consultancy, recycling services and webshop services.
These Standard Terms are divided into chapters. Chapter 1 contains general provisions applicable to all goods and services provided by Bechtle, including Software. Chapters 2 to 5 contain specific provisions applicable only to the supply of certain types of goods and services.
Chapter 1. General provisions.
Chapter 2. Supply of Goods.
Chapter 3. Supply of Software.
Chapter 4. Hosting and cloud services.
Chapter 5. Recycling services.
The provisions contained in this chapter 'General Provisions' relate to all Goods and Services provided by Bechtle and apply to every Agreement between Bechtle and the Customer.
Article 1. Definitions
All capitalised terms used in these Standard Terms, both singular and plural, have the meaning given to them in this Article.
- Account: the personal account of the Customer or an End User with which he or she gains access to (parts of) the Goods or Services.
- Customer: the legal or natural person acting in the exercise of a profession or business activity with whom Bechtle concludes an Agreement.
- Service(s): the services that Bechtle provides to the Customer, as described in the Agreement.
- End User: the natural person who uses the Goods or Services provided by Bechtle for the Customer.
- Hardware: the equipment (including any associated cabling and other accessories) that Bechtle supplies to the Customer, as described in the Agreement.
- Intellectual Property Rights: all intellectual property rights including in any case but not limited to copyrights, database rights, rights to domain names, trade name rights, trademark rights, design rights, related rights, patent rights, as well as rights to know-how.
- Customer Data: all data stored by the Customer or End Users through the Goods or Services.
- Materials: all websites, software, (web) applications, corporate identities, logos, leaflets, brochures, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice, reports and (other) creations of the mind, as well as preparatory material for these, and the data carriers on which the materials are contained.
- Maintenance: carrying out repairs or having repairs carried out, taking precautionary measures and checking the Goods and Services preventively or otherwise, if and to the extent specified in the Agreement.
- Agreement: the agreement between Bechtle and the Customer on the basis of which Bechtle will deliver the Goods or Services to the Customer and of which these Standard Terms, including any (later) processing agreement and service level agreement concluded between the Parties, form an inseparable part.
- Part(y)(ies): Bechtle and the Customer together or separately.
- Good(s): all goods (tangible objects), also referred to as products, that Bechtle delivers to the Customer, which may also include Hardware, as described in the Agreement.
- Software: software that Bechtle supplies to the Customer pursuant to the Agreement.
- Support: the provision of verbal (telephone) and written advice regarding the use and functioning of the Goods and Services.
- Confidential Information: any non-public information relating to one or both Parties and any information designated as confidential by a Party or which, by virtue of its nature or the circumstances under which it is disclosed, should already be treated as confidential.
- Webshop(s): the (personalised) webshop set up and hosted by Bechtle for the Customer, accessible via the Internet or via a link to the Customer's system, in which the Customer (or its End Users) can purchase Goods and, insofar as applicable, Software directly from Bechtle
Article 2. Applicability and interpretation
- The Standard Terms apply to all offers and quotations made by Bechtle, the performance of work by or on behalf of Bechtle and all Agreements.
- The applicability of purchase or other conditions of the Customer is expressly excluded. Any deviation from these Standard Terms must be expressly confirmed in writing by Bechtle and shall apply only once.
- The Agreement may consist of several documents. In the event of contradictions, the order of precedence set out below shall apply (where the documents mentioned first shall take precedence over those mentioned later):
a) any other written agreements made between the Parties;
b) the accepted quotation or the accepted offer;
c) any service level agreement concluded between the Parties;
d) any processing agreement concluded between the Parties;
e) any service description documents in relation to the Service;
f) these Standard Terms.
- In the event of contradictions between the chapters of these Standard Terms, the special provisions in the respective Chapters 2 to 5 shall take precedence over the general provisions in Chapter 1.
- Insofar as the various parts of the Agreement do not contain any contradictions, these shall apply in addition to each other.
Article 3. Conclusion of the Agreement
- The Agreement is concluded at the moment Bechtle sends written confirmation of the work after receipt of the Customer's acceptance of an offer or quotation. If no prior written acceptance or confirmation of an order has taken place, the Agreement is concluded when Bechtle complies, in whole or in part, with a request for delivery from the Customer, or when Bechtle sends an invoice to the Customer. Offers made by Bechtle in catalogues, brochures, price lists, webshops, etc. do not constitute an offer to enter into a contract on the part of Bechtle, but only an invitation to the Customer to place an order. Bechtle is not obliged to accept this order. Bechtle therefore reserves the right to refuse orders without giving reasons.
- All offers and quotations from Bechtle are without obligation and valid for a period of thirty (30) calendar days from the date of the offer. If the Customer accepts an offer or quotation after expiry of the period of validity and Bechtle expressly confirms this acceptance in writing, an Agreement is also concluded.
- If Bechtle has made an offer based on information originating from the Customer and this information proves to be incorrect or incomplete, Bechtle shall be entitled to dissolve or terminate the Agreement or to adjust the offer and prices accordingly, even after an Agreement has been concluded and without compensating the Customer.
- If the Customer does not formally accept Bechtle's offer, but nevertheless creates that impression (for example by having certain work carried out by Bechtle in advance), the offer shall also be deemed to have been accepted by the Customer.
- Bechtle shall not be obliged to accept a counter-offer from the Customer, not even if this counter-offer relates to subordinate aspects of Bechtle's offer.
- The Agreement fully reflects the rights and obligations of the Parties and supersedes all prior written and oral agreements, declarations, statements and conduct of the Parties.
Article 4. Performance of the Agreement
- After the conclusion of the Agreement, Bechtle will make every effort to perform the Agreement within the agreed time frame, or within a reasonable period of time if no time frame has been agreed. (Delivery) periods and deadlines stated by Bechtle are indicative and are not binding, unless the Parties expressly agree otherwise. Failure to comply with the stated (delivery) periods does not entitle the Customer to cancel the order or to refuse to receive or pay for the Goods or Services ordered, nor does it oblige Bechtle to pay any compensation to the Customer.
- Bechtle shall be entitled to engage third parties for the performance of the Agreement. Any costs related to this shall only be for the Customer's account if this has been agreed in advance.
- At Bechtle's request, the Customer shall provide all reasonable cooperation and all information and Materials that Bechtle indicates are required for the performance of the Agreement. Such cooperation may include providing access to necessary accounts, digital environments and physical locations.
- The Customer shall follow all reasonable instructions given by Bechtle in the context of the performance of the Agreement.
Article 5. Additional work
- If the Customer requests additional work or services that fall outside the scope of the Agreement, the Parties shall consult on this and Bechtle may make an additional offer for this work. Bechtle will only carry out the additional work after acceptance of the offer by the Customer. Bechtle shall be entitled to refuse a request for additional work.
- Bechtle does not need permission for additional work that Bechtle can demonstrate is reasonably necessary for the performance of the Agreement, or for additional work that reasonably arises from instructions from the Customer. Such work will be carried out on the basis of subsequent costing at Bechtle's hourly rate applicable at the time the work is carried out. Other costs incurred may also be charged.
Article 6. Goods or services of third parties
- The Customer grants Bechtle power of attorney to place orders for Goods or Services of third parties on behalf the Customer and for the Customer's account if this is necessary for the performance of the Agreement. Unless otherwise agreed, the related agreements shall apply directly between the Customer and the third party in question.
- Additional or different conditions may apply to the use of the Goods or Services of third parties. These conditions are available from Bechtle on request. The Customer agrees to these conditions in advance and is aware that the conditions may be amended from time to time.
- The Goods and Services of third parties may be invoiced either via Bechtle or directly to the Customer. If invoicing takes place via Bechtle, the Customer shall not be entitled to suspend any payment obligation due to a breach of contract by the third party in question.
- In no case shall Bechtle be liable in respect of Goods and Services provided by third parties.
Article 7. Support
- Bechtle offers Support with the delivery of the Service as mentioned in the Agreement, possibly supplemented with a service level agreement.
- Bechtle may impose restrictions on the use of the forms of Support offered. In addition, Bechtle shall be free to determine and/or change the availability and response times of the Support, unless agreed otherwise.
- Further and additional agreements on (different) availability of (telephone) Support and response times shall, if agreed by the Parties, be laid down in a service level agreement.
- The repair of damaged or lost (Customer) data of the Customer (if and to the extent possible) does not fall under Support as referred to in this Article and will be carried out on the basis of subsequent costing at the hourly rates applicable at that time.
Article 8. Maintenance
- Only if expressly agreed by the Parties will Bechtle perform Services relating to Maintenance and repairs for the Customer.
- If Hardware is (temporarily) unavailable to the Customer due to Maintenance or repair, and/or Bechtle is in possession of the Hardware, the Customer shall not be entitled to replacement Hardware unless and to the extent agreed otherwise between the Parties.
- Bechtle shall not be responsible or liable for any loss of data as a result of Maintenance or repairs. The Customer shall be responsible for making backups and back-up copies of these data, unless the Parties expressly agree otherwise in writing.
- The Customer shall be responsible at all times for timely reporting of observed errors in what Bechtle is required to manage or Maintain for the Customer under the Agreement. Bechtle will make every effort to solve any errors found or reported as soon as possible. Any further (performance) agreements in this respect may be laid down in a separate service level agreement.
- The costs for Maintenance do not include the costs incurred by Bechtle in the context of reinstallation, transport of the Hardware, replacement of consumables and parts of the Hardware and work resulting therefrom. Bechtle shall be entitled to charge these costs separately to the Customer.
- If it appears that Bechtle has to carry out Maintenance or work as a result of or related to user errors on the part of the Customer, improper use by the Customer, failure of the Customer to timely report malfunctions, external factors and applications and the actions of third parties, Bechtle may charge the Customer an additional fee.
- If, after Bechtle has collected and inspected the Hardware, the Customer does not wish a repair to be carried out, Bechtle shall return the Hardware unrepaired. Bechtle shall be entitled to charge costs incurred, such as return, collection and inspection costs, to the Customer.
Article 9. Confidentiality
- Bechtle and the Customer shall keep the Confidential Information of the other Party strictly confidential and shall only use it for the performance of the Agreement.
- The receiving Party shall ensure that Confidential Information is afforded the same level of protection from unauthorised access or use as its own confidential information, but at least a reasonable level of protection.
- The Parties shall also impose the obligations described in this Article on employees and any third parties to whom the Confidential Information is provided.
- The obligations laid down in this Article shall not apply in the case of information which:
a) is or becomes generally accessible to the public for reasons other than disclosure by the receiving Party in violation of the Agreement;
b) was already in the possession of the receiving Party before it was disclosed to it by or on behalf of the supplying Party;
c) is made available to the receiving Party on a non-confidential and lawful basis by a source other than the supplying Party; or
d) has been demonstrably developed independently by the receiving Party.
- If a Party receives an order from a competent authority to provide Confidential Information, it shall be entitled to provide such Confidential Information. However, the supplying Party shall be informed (in advance) of the order as soon as possible, unless this is not permitted. If the supplying Party indicates that it wishes to take measures against the order (e.g. by way of an application for interim measures), the receiving Party shall wait until a decision has been taken, insofar as this is legally possible.
Article 10. Prices and payments
- All prices quoted by Bechtle are in euros and are exclusive of turnover tax and other government levies, travel and accommodation costs, telecommunication costs and shipping costs such as courier costs, postage and shipping materials.
- Bechtle shall be entitled to pass on to the Customer any change in factors affecting the price of Bechtle, including purchase prices, exchange rates, import and export duties, insurance rates, freight rates, other levies or taxes and increases in the CPB price index.
- All prices mentioned in catalogues and on the website are subject to price changes.
- Bechtle shall be entitled to invoice in advance and electronically. All invoices must be paid within thirty (30) days of the invoice date, unless otherwise agreed in writing.
- Bechtle shall be entitled to increase the prices annually, as of January, by a maximum of five (5) percent, without the possibility for the Customer to terminate the Agreement.
- Prices may be increased by Bechtle with immediate effect due to changed rates charged by suppliers for Goods or Services that are passed on pro rata to the Customer, without the possibility for the Customer to terminate the Agreement.
- If Bechtle increases the prices outside the cases described in this Article, the Customer shall be entitled to terminate the Agreement in writing by and at the latest until the date on which the price increase takes effect.
- The Customer shall not be entitled to set off any payment obligation incumbent on the Customer against any claim against Bechtle for any reason whatsoever.
- Complaints regarding the amount of the invoices sent by Bechtle must be reported in writing within a maximum of 72 hours of the invoice date, which period shall be deemed to be the due date.
- If the Customer fails to pay an invoice within the payment period, the Customer shall be in default by operation of law, without a prior warning or notice of default being required. In such case, Bechtle shall be entitled to charge the legal interest for commercial transactions on the amount as well as a fixed compensation for extrajudicial collection costs, estimated at 10% of the invoice amount.
- Before delivering its Services and/or Goods, or continuing with the delivery, Bechtle shall be entitled at all times to demand, at its discretion, sufficient advance payment or security for the fulfilment of the Customer's payment obligations, whether or not in the form of a bank guarantee, surety or deposit, and Bechtle shall be entitled to suspend further deliveries if the Customer fails to meet this demand, also in the event that a fixed delivery time has been agreed, all this without prejudice to Bechtle's right to claim damages for late or non-performance of the Agreement.
- If Bechtle has good reason to fear that the Customer will fail to fulfil its (payment) obligations, Bechtle shall be entitled to take back the Goods delivered under retention of title as referred to in Article 20.9 of these Standard Terms. In that context, the Customer shall grant Bechtle free access to its premises and/or building in order to enable Bechtle to exercise its rights. After repossession, the Customer will be credited for the market value, which shall in no case exceed the original purchase price less the costs relating to the repossession.
Article 11. Consultancy services and reporting
- Bechtle will make every effort to ensure that all advice, information, data, reports and records provided under the Agreement are complete and accurate, but cannot give any guarantees in this respect and this therefore constitutes an obligation of means.
- Any advice, information, data, reports and records provided are only intended for the Customer's own use, unless agreed otherwise.
- The Customer cannot invoke an error or defect in the report or advice if changes have occurred on the part of the Customer after the conclusion of the Agreement and these have affected the report or advice in question.
- The Customer cannot invoke an error or defect in the report or advice after the Agreement between the Parties has terminated.
Article 12. Intellectual Property Rights
- The Intellectual Property Rights to all Software and Materials and to all Goods and Services supplied, developed, provided or made available by Bechtle under the Agreement are vested in Bechtle or its licensors. The Customer shall treat these items, as well as the information contained therein, in particular know-how concerning the services to be provided, as Confidential Information and not make them available to third parties.
- The Customer shall not be entitled to modify the Materials and Goods provided by Bechtle within the framework of the Agreement.
- The Customer shall not be permitted to remove or modify any indication of Intellectual Property Rights on Materials and Goods. It shall not be permitted either to remove indications of a confidential nature from Bechtle's Materials and Goods.
- The Customer shall be responsible for any Materials and Goods made available to Bechtle and guarantees that their use by Bechtle will not infringe any rights of third parties. The Customer shall indemnify Bechtle against claims from third parties in connection with or arising from the aforementioned guarantee.
- Bechtle shall be entitled to use the Customer's (trade and trademark) name and distinguishing marks for promotional purposes.
Article 13. Defects and liability
- The obligation to inspect the Goods and/or Services delivered by Bechtle rests exclusively with the Customer.
- The Customer must report any visible defects in Goods or Services to Bechtle at the time of delivery, under penalty of acceptance by the Customer.
- The Customer must report any hidden defects in Goods or Services to Bechtle within a period of fourteen (14) calendar days following the time at which the Customer may reasonably be deemed to have discovered the hidden defect, under penalty of acceptance by the Customer.
- No complaint relating to visible or hidden defects in the Goods or Services shall release the Customer from its payment obligations. In addition, the Customer waives its right to compensation.
- In the absence of agreement between the Parties on a solution for defects in Goods and/or Services, the Customer shall, at the latest within a period of three (3) months following the notifications referred to in Articles 13.2 and 13.3, bring a liability claim before the competent court, under penalty of forfeiture of this claim.
- With regard to the provision of Services by Bechtle, the following applies, except in case of intent or gross negligence on the part of Bechtle or its employees:
a) Bechtle's obligations qualify as obligations of means, unless expressly agreed otherwise;
b) Bechtle shall only be liable for foreseeable damage that is the immediate and direct consequence of an attributable shortcoming in the performance of the Service;
c) Bechtle shall not be liable for unforeseeable damage, or damage that is not the immediate and direct result of an attributable shortcoming in the performance of the Service, including damage due to loss of turnover or profit, damage due to loss of savings, damage due to the cessation or reduction of production or business operations, damage due to delays, damage to image, loss of goodwill or damage due to loss of data.
d) Bechtle shall not be liable for damage caused by its employees;
e) Bechtle shall not be liable for any damage resulting from force majeure or an external cause, including an act or omission by the Customer or its employees;
f) Aside from the free re-performance of the faulty Service, Bechtle's liability shall in any case be limited to the amount of the price paid by the Customer for the performance of the Service.
- With regard to the provision of Goods by Bechtle, the following applies, except in case of intent or gross negligence on the part of Bechtle or its employees:
a) Bechtle is not a manufacturer or specialist seller of the Goods;
b) The contractual guarantee granted by Bechtle to the Customer in respect of Goods shall be equal to the guarantee actually granted to Bechtle in advance by the manufacturer or the specialist seller of the Goods, unless otherwise agreed in writing;
c) In view of the nature of the Goods, Bechtle's legal obligation to indemnify for hidden defects in Goods is limited to one (1) year from the delivery of the Goods;
d) Bechtle shall only be liable for foreseeable damage that is the immediate and direct consequence of hidden defects in Goods;
e) Bechtle shall not be liable for unforeseeable damage that is not the immediate and direct consequence of hidden defects in Goods, including the damage referred to in Article 13.7 (c)
f) Bechtle shall not be liable for any damage due to hidden defects in the Goods resulting from force majeure or an external cause, including an act or omission by the Customer or its employees;
g) Bechtle shall not be liable for damage due to hidden defects in the Goods caused to property or persons belonging to the Customer or caused to third parties, for which the Customer shall indemnify Bechtle.
h) Aside from the free re-delivery of the Goods, Bechtle's liability for damage due to hidden defects in the Goods shall in any case be limited to the amount of the price paid by the Customer for the Goods.
- The Customer shall indemnify Bechtle against any claims from third parties arising from a breach of the Agreement by the Customer.
Article 14. Force majeure
- Bechtle shall not be liable for the fulfilment of any obligation under the Agreement if such fulfilment is prevented as a result of force majeure. Neither can Bechtle be held liable for any damage resulting from this.
- In this context, force majeure shall mean, in addition to what is understood by this in law and jurisprudence, all external causes, foreseen or unforeseen, over which Bechtle has no influence, but which prevent Bechtle from fulfilling its obligations. In any case, force majeure shall include power failures, internet failures, telecommunications infrastructure failures, network attacks (including (D)DoS attacks), attacks from malware or other malicious software, domestic unrest, delays or failure to deliver by suppliers, force majeure on the part of suppliers, machine breakdowns and other business interruptions (whether at Bechtle or at its suppliers), transport disruptions and other events beyond its control, such as mobilisation, war, blockade, insurrection, acts of terror, epidemic, pandemic, devaluation, strikes, staff shortages, import and export restrictions, supply stagnation, fire, floods, storms, as well as sudden increases in import duties and excise duties and/or taxes, failure to obtain necessary permits and other government measures.
- If, due to force majeure, Bechtle is prevented from carrying out all or part of the agreed work or if it is unable to deliver the Goods and Services (on time), it shall be entitled, without judicial intervention, to suspend the performance of the Agreement or to regard the Agreement as having been dissolved in whole or in part, at its discretion, without being obliged to pay any compensation or guarantee. In the event of suspension, Bechtle shall only be obliged to continue compliance with its obligations as soon as this is reasonably possible.
- Insofar as Bechtle has already partially fulfilled its obligation under the Agreement or will be able to fulfil it at the time force majeure occurs, and the part already fulfilled or to be fulfilled has independent value, Bechtle shall be entitled to invoice the part already fulfilled or to be fulfilled separately. The Customer shall be obliged to pay this invoice.
Article 15. Non-solicitation
- Throughout the term of the Agreement, as well as for one (1) year after it expires, the Customer shall not be permitted to hire employees of Bechtle or to have them work for it in any other way, directly or indirectly, without written permission from Bechtle.
- For this purpose, employees of Bechtle shall mean persons employed by Bechtle or any of its affiliates or who were employed by Bechtle or any of its affiliates not more than one (1) year prior to the termination of the Agreement, regardless of the reason.
- In the event that the Customer fails to comply with the prohibition described above, the Customer shall owe Bechtle fixed damages of €100,000 per breach, without prejudice to Bechtle's right to claim damages if the damage actually suffered is higher than the penalty owed by the Customer.
Article 16. Term and termination
- An Agreement within the framework of a well-defined one-off project shall end, by operation of law, upon completion of that project.
- The term of a continuing agreement shall be laid down in the Agreement. If this does not specify a term, it shall be deemed to have been entered into for an initial period of twelve (12) months.
- If the Agreement is a continuing agreement, it will be tacitly renewed for subsequent equal periods after the initial term.
- If the Agreement has been entered into for a definite period of time, it may be terminated by either Party in writing at the end of the term with due observance of a notice period of one (1) month.
- If the Agreement has been entered into for a definite period of time, neither of the Parties shall be entitled to terminate the Agreement prematurely, except in the situations described in this Article.
- If the Agreement has been entered into for an indefinite period of time, it may be terminated by either Party in writing at any time with due observance of a notice period of six (6) months.
- The Parties may immediately suspend or terminate the Agreement in writing, without notice of default, if:
a) the other Party breaches one or more of its obligations under the Agreement, and fails to remedy such breach within a period of ten (10) calendar days following a written notice to that effect;
b) there is a petition for bankruptcy of the other Party or bankruptcy is granted to this other Party;
c) the activities of the other Party are ceased or the business of the other Party is wound up; or
d) part of the assets of the other Party is seized.
e) There is a change of control on the part of a Party within the meaning of Article 1:14 of the Code of Companies and Associations.
- In the event that the Agreement is terminated, Bechtle's claims against the Customer shall be immediately due and payable.
- If the Agreement is dissolved, the Customer will still owe the amounts already invoiced and there will be no cancellation obligations. The Customer may only dissolve the part of the Agreement that has not yet been performed by Bechtle.
Article 17. Amendments
- Bechtle shall be entitled to amend (parts of) these Standard Terms from time to time. Any amendments must be notified by Bechtle to the Customer at least one (1) month in advance.
- If an amendment to the Standard Terms announced by Bechtle negatively affects the position of the Customer, the Customer may object to this in writing, stating its reasons, before the amendment in question comes into effect. In the event of an objection, Bechtle may reconsider the amendment and decide to withdraw it in whole or in part.
- If Bechtle decides to implement the amendment despite the Customer's objection, the Customer shall be entitled to terminate the Agreement in writing by, and at the latest until, the date on which the amendment takes effect.
- If the Customer does not object to the intended amendment in writing, stating reasons, within seven (7) calendar days after its announcement by Bechtle, the Customer shall be deemed to have agreed to the amendment.
Article 18. Choice of law and forum
- The Agreement and these Standard Terms are exclusively governed by Belgian law.
- Any disputes arising out of or in connection with the Agreement shall be submitted to the Business Court of the jurisdiction to which the relevant Bechtle entity belongs.
- The applicability of the Vienna Sales Convention is expressly excluded.
Article 19. Other provisions
- Neither of the Parties shall be entitled, without prior written permission from the other Party, to transfer its rights or obligations under this Agreement, either wholly or in part, to a third party.
- Notwithstanding the foregoing, Bechtle shall be entitled to transfer its rights and obligations under the Agreement without permission to a parent, sister or subsidiary company, or to a third party that takes over the Goods and Services or the relevant business activities of Bechtle. Bechtle shall inform the Customer as soon as possible if such a transfer has taken place.
- Unless expressly agreed otherwise with Bechtle, all Goods or Services ordered by the Customer are exclusively intended for the Customer's own internal use and not for resale. If the Customer occasionally wishes to sell a Service or Goods to another party, the Customer must request Bechtle's written permission to do so.
- If (part of) a provision in the Agreement proves to be null and void, voidable or otherwise invalid, this shall not affect the validity of the remainder of this provision or the entire Agreement. In such case, the Parties shall adopt (a) new (partial) provision(s) to replace the original (partial) provision(s), which shall give shape to the intention of the original (partial) provision as far as is legally possible.
- For the purposes of the Agreement, in writing shall include, in addition to notices of default, communication by non-automated e-mail provided that the identity of the sender and the integrity of the content are sufficiently established, except for dissolution or termination of the Agreement.
- Bechtle's records and log files shall be regarded as valid evidence, subject to evidence to the contrary from the Customer.
- Bechtle shall respect the privacy of its Customers. Bechtle processes and protects personal data in accordance with the applicable legal requirements and in accordance with its privacy statement.
The provisions in this Chapter 'Supply of Goods' relate to the supply of Goods, including Hardware (whether or not via a Webshop), and related Services that Bechtle may perform for the Customer.
Article 20. Purchase of Goods
- The Parties may agree that the Customer purchases Goods from Bechtle. Only if the Agreement relates to the purchase of Goods shall the conditions set out in this Article apply.
- After conclusion of the Agreement Bechtle shall make every effort to deliver the Goods to the Customer in accordance with the Agreement. The risk of loss, theft or damage of the Goods passes to the Customer at the moment the Goods are shipped to the Customer.
- In principle, Bechtle will deliver the Goods to the address of the Customer's company known to Bechtle.
- If the Parties so agree, Goods may also be delivered to another address or specific location at premises of the Customer or to an address of an End User. Bechtle may charge additional costs for this.
- In the event that the Customer refuses Goods to be delivered by Bechtle, does not pick them up at an agreed collection time, provides incorrect information about the delivery address and/or delivery of Goods is not possible for other reasons attributable to the Customer, Bechtle shall be entitled to store the Goods at the Customer's risk. Any costs for (external) storage of Goods shall be borne by the Customer. If the Goods in question have not been collected by the Customer or delivered to the Customer's premises within three (3) months, Bechtle shall also be entitled to assign or sell the Goods to third parties. The foregoing is without prejudice to any outstanding payment obligations of the Customer and shall not entitle the Customer to credit any amounts already paid for the Goods.
- The Customer must inspect the Goods delivered and check for any visible defects at the latest at the time of delivery. If the Customer discovers damage or other defects, the Customer must report this immediately and in writing to Bechtle. When doing so, the Customer must provide a sufficient explanation of the damage or defects and send sufficient proof to Bechtle to enable Bechtle to assess the validity of the report.
- If the Customer fails to report any damage or defects to Bechtle within the period referred to in the previous paragraph, the Goods will be deemed to have been delivered without damage or defects.
- If Bechtle, at the Customer's request, delivers the Goods without packaging, this shall be at the Customer's risk and Bechtle can never be held liable for transport damage.
- All Goods delivered to the Customer by Bechtle shall remain the property of Bechtle until the Customer has paid the full amount owed for them. The Customer shall not be entitled to resell or pledge or otherwise encumber the goods covered by the retention of title.
- All hardware, Software and other Materials to be used by Bechtle in the provision of the service shall remain the property of Bechtle, even if the Customer pays a fee for their development by Bechtle.
- The Customer is expressly forbidden from having Maintenance or repairs carried out by third parties on Hardware delivered by Bechtle which is (still) the property of Bechtle or (still) falls under its right of retention of title.
- The Customer shall inform Bechtle immediately if a third party wants to establish or assert rights to or wants to seize (or have a third party seize) the Goods falling under the retention of title as referred to in the previous paragraph. The Customer hereby grants unconditional and irrevocable permission to Bechtle (or third parties designated by Bechtle) to enter all those places where Bechtle's property is located and to take back the items concerned in such case.
Article 21. Rental and lease of Goods
- The Parties may agree that the Customer will rent or lease Goods from Bechtle. Only if the Agreement relates to the rental or lease of Goods shall the conditions set out in this Article apply.
- After conclusion of the Agreement Bechtle shall make every effort to make the Goods available to the Customer in accordance with the Agreement. The risk of loss, theft or damage of the Goods passes to the Customer at the moment the Goods are shipped to the Customer.
- Bechtle shall grant the Customer, for the duration of the Agreement or, if a different rental or lease period has been agreed, for the duration of the agreed rental or lease period, the right to use the Goods in accordance with the conditions set out in this Chapter and any additional conditions agreed by the Parties.
- The Customer shall only use the Goods for the purposes for which the Goods are intended by their nature and shall closely follow any instructions given by Bechtle and/or the manufacturer when doing so.
- The Customer shall not be entitled to transfer, sublet, pledge or otherwise encumber the Goods without Bechtle's prior express written consent.
- The Goods will be deemed to have been delivered undamaged, unless the Customer indicates to Bechtle in writing, at the latest at the time of delivery, and providing sufficient evidence, that the Goods are damaged.
- Only Bechtle shall be entitled to manage the Goods and to carry out Maintenance or any other form of preservation or modification of the Goods.
- In the event that the Customer modifies the Goods without Bechtle's prior express permission, the Customer shall be obliged to reimburse the costs incurred by Bechtle to remedy errors, problems or otherwise.
- During the term of the Agreement, the Customer must keep the Goods adequately insured (at its own expense) against, among other things, fire, water damage and theft. The Customer shall provide Bechtle with evidence of this at Bechtle's first request.
- Loss, theft or damage of the Goods shall not affect the Customer's agreed payment obligations. Any costs for the repair or replacement of the Goods shall be borne by the Customer.
- In the event of loss, theft or damage of the Goods, the Customer shall be obliged to notify Bechtle of this in writing without delay. In such case, Bechtle shall make every effort to repair or replace the Goods (or have them repaired or replaced) at the Customer's expense within a reasonable period of time. Bechtle shall also be entitled to recover all its damage and costs resulting from the loss, theft or damage from the Customer.
- If a third party wants to seize the Goods (or have them seized), establish rights to them or realise rights to the Goods, the Customer shall notify Bechtle of this in writing without delay. The Customer hereby grants unconditional permission to Bechtle to enter all those places where the Goods are located and to take them back.
Article 22. Installation and configuration of Hardware
- The Customer shall be responsible for installing and configuring Hardware delivered by Bechtle after delivery, unless the Parties agree that Bechtle will install and/or configure it. When doing so, the Customer must strictly follow all instructions given by Bechtle and any instructions or documentation supplied with the Hardware.
- If so agreed, Bechtle shall install and/or configure the Hardware at a location and in a manner specified in the Agreement. Bechtle shall be entitled to refuse the installation and/or configuration of Hardware at a certain location if, in its professional opinion, the location is not possible or the proper functioning of the Hardware at the location in question cannot be guaranteed.
- Bechtle shall be entitled to engage third parties for the installation and/or configuration of the Hardware as referred to in the previous paragraph.
- The Customer shall provide Bechtle or the third part(y)(ies) engaged by Bechtle access to the designated location and provide the necessary cooperation for the installation and/or configuration of the Hardware.
- The Customer remains responsible for the correct power supplies and network connections. If the aforementioned facilities and other reasonably necessary facilities are not available, Bechtle may not be able to carry out a correct and complete installation and/or configuration.
- If the Parties agree on results, deadlines or periods and Bechtle is (partly) dependent on the Customer's cooperation or compliance with certain agreed conditions, Bechtle shall never be liable for failure to meet these results, deadlines or periods if this is (partly) the result of the Customer's failure to cooperate or comply with the agreed conditions.
Article 23. Warranties on Goods
- The Customer accepts that the Goods only contain the functionality and other properties as found by the Customer at the time of delivery. The Goods delivered by Bechtle shall exclusively be covered by the manufacturer's warranty, unless additional warranties are expressly provided in the Agreement. Information regarding the manufacturer's warranty is available from Bechtle on request.
- If the Parties agree on certain warranties, these shall not apply to damage or defects (1) resulting from injudicious use, (2) not related to faults in the materials used and/or the manufacture, (3) resulting from incorrect storage or conservation of the Goods, or (4) resulting from climatic or other influences.
- Claims of the Customer on the basis of this Article shall not affect the Customer's payment obligations towards Bechtle. The Customer waives its right to compensation.
Article 24. Returns
- Returning purchased Goods is only possible with the prior written consent of Bechtle. Bechtle's consent to a return shall never imply any acknowledgement of liability.
- If the Customer returns Goods delivered to Bechtle which are free of defects, the Customer shall pay Bechtle compensation amounting to 10% of the invoice amount, with a minimum of EUR 60.00. In case of a faulty delivery of the Goods by Bechtle, no compensation shall be due. A return request must be made within three (3) calendar days of delivery, with the exception of smartphones, for which the request must be made within 48 hours. After an RMA (return merchandise authorisation) number has been assigned, the Goods must be in Bechtle's possession at the latest within five (5) calendar days, indicating this number as a mandatory condition. Returns without an RMA, order confirmation or invoice number, or unstamped, cash on delivery, opened, damaged and/or incomplete returns will be refused by Bechtle. Special orders, individual configurations, software, projection equipment, furniture & safes, memory modules and the items listed in our online shop are excluded from return.
- When the Agreement expires or is terminated, rented or leased Goods will be collected by Bechtle as soon as possible.
- The Customer shall be obliged to return Goods to Bechtle in an undamaged condition, except for normal wear and tear of the Goods. If Bechtle finds that the Customer has modified the Goods without Bechtle's written permission, or the Goods are damaged, any costs for replacement or repair will be for the Customer's account.
- Any costs associated with returns shall be borne by the Customer.
The provisions in this Chapter 'Supply of Software' relate to the supply of Software and related Services by Bechtle to the Customer.
Article 25. Licence
- If Bechtle supplies certain Software to the Customer on the basis of the Agreement, the Customer shall only acquire the non-exclusive, non-transferable and non-sublicensable rights of use arising from the Agreement or otherwise granted in writing by Bechtle.
- If Bechtle sells or supplies a software licence to the Customer, the Customer shall be obliged, unless otherwise agreed in writing, to conclude this licence agreement directly with the licensor. Bechtle will never become a party to such a license agreement. The Customer shall indemnify Bechtle against all damage that may possibly result from the non-fulfilment of such a licence agreement by the Customer.
- Unless otherwise agreed, the right of use to Software shall only apply for the duration of the Agreement and the right of use shall only relate to the use of the Software by one person on one device.
- Costs for any updates and upgrades of the Software are not included in the Agreement, unless their provision is explicitly part of the agreed Services.
- The Customer shall not be entitled to modify the Software provided by Bechtle within the framework of the Agreement.
- The Customer shall not be entitled to a copy of the source code of the Software and is expressly prohibited from retrieving it by means of reverse engineering, decompilation or similar techniques, except insofar as provided otherwise by mandatory law.
- Bechtle (or its supplier) may take (technical) measures to protect the Software provided. If Bechtle (or its supplier) has taken such security measures, the Customer shall not be permitted to circumvent or remove this security.
Article 26. Implementation and installation of Software
- If the Parties have agreed that the Software must be implemented or installed by Bechtle, Bechtle shall take care of this in accordance with the provisions of the Agreement.
- During the implementation or installation of the Software, the Customer shall provide all necessary cooperation and comply with Bechtle's reasonable requests. After implementation and/or installation Bechtle shall deliver the Software to the Customer.
- If the Parties agree on results, deadlines or periods and Bechtle is (partly) dependent on the Customer's cooperation or compliance with certain agreed conditions, Bechtle shall never be liable for failure to meet these results, deadlines or periods if this is (partly) the result of the Customer's failure to cooperate or comply with the agreed conditions.
Article 27. Warranties on Software
- The Customer accepts that the Software only contains the functionality and other properties as found by the Customer at the time of delivery ('as is'), i.e. with all visible and invisible faults and defects.
- The Customer shall be responsible for checking the calculations or processing of Customer Data carried out by means of the Software. Bechtle does not guarantee that all calculations and/or processing are error-free at all times.
- Claims of the Customer on the basis of a warranty on Software shall not affect the Customer's payment obligations towards Bechtle. The Customer waives its right to compensation.
The provisions in this Chapter 'Hosting and cloud services' relate to the Services in the field of hosting and cloud services, which may also include hosting of Webshops, which Bechtle may perform for the Customer.
Article 28. Access to the Service
- In order to facilitate the Customer's access to the Services, an Account may be required. If the Agreement so requires, Bechtle may create an Account for or on behalf of the Customer (and if necessary End Users) and provide login details (user name and password).
- All login details of the Customer (and its End Users) are strictly personal and may not be shared with any other person. These login details must be treated as Confidential Information.
- Bechtle may assume that everything that happens from the Accounts for which it has provided the Customer with login details takes place under the management and supervision of the Customer.
- If login details of an Account are lost or leaked, the Customer shall immediately take all measures that are reasonably necessary and desirable to prevent misuse of the Account. The Customer shall also immediately report this to Bechtle, so that any additional measures can be taken to prevent misuse of the Account and/or the Services.
- If the Service is linked to the Customer's own system by means of an Application Programming Interface (API) link, Bechtle shall provide the Customer with an API key. The Customer shall be responsible for the implementation of the API link, unless the Parties agree otherwise. Furthermore, the Customer must only use the API key for the use of the API by the Customer. Without written permission from Bechtle, third parties shall not be allowed to use the API key. Bechtle may provide the Customer with a new API key after changes in the Services or Maintenance.
Article 29. Rules of use
- The Customer guarantees that the Services will not be used by it or its End Users for activities that conflict with any applicable laws or regulations. In addition, it is expressly forbidden (whether lawful or not) to offer, upload or distribute any Materials through the Services, which:
a) contain malicious content (such as malware or other malicious software);
b) infringe the rights of third parties (such as Intellectual Property Rights), or are unmistakably defamatory, insulting or discriminatory, or stir up hatred;
c) constitute a violation of the privacy of third parties, including in any case, but not limited to, the unjustified distribution of personal data of third parties;
d) contain hyperlinks, torrents or references to (locations of) Materials that infringe copyrights or other Intellectual Property Rights; or
e) include child pornography, bestiality pornography or animations thereof, or appear to be intended to help others find such Materials.
- The Customer shall refrain from hindering other Bechtle customers or causing damage to the systems and networks of Bechtle or others. It is forbidden to start processes or programmes of which the Customer knows or should reasonably suspect that these hinder or damage Bechtle or others.
- If, in Bechtle's opinion, hindrance, damage or any other danger to the functioning of the systems or networks of Bechtle or third parties arises, Bechtle shall be entitled, without prior notice of default and with immediate effect, to take all measures it reasonably considers necessary to avert or prevent this danger.
- Bechtle may pass on the costs reasonably necessary for the measures referred to in the previous paragraph to the Customer if the danger is caused by or is specifically aimed at the Customer's systems.
Article 30. Notice and take down
- If Bechtle discovers or is informed by a third party that the Customer is storing or distributing unlawful Materials using the Services, or is otherwise acting unlawfully or in breach of the Agreement, Bechtle may, without prior notice of default and with immediate effect, block access to the relevant Materials and/or Services, or remove the relevant Materials, without having to make a backup. Bechtle will make every effort not to touch any other Materials and will inform the Customer as soon as possible of the measures taken.
- Bechtle shall be entitled to provide the name, address and other identifying details of the Customer and/or End Users to a third party who complains that the Customer and/or the End User in question is infringing its rights, provided that the applicable requirements under the law and case law have been met.
- Bechtle shall endeavour to act as carefully and adequately as possible after complaints about the Customer and/or End Users, but shall not be liable for damage arising from the measures taken pursuant to this Article.
Article 31. Limits of use
- Bechtle may set limits to the capacity (such as the amount of data traffic, data storage, power, computing power, etc.) that the Customer may or can actually use via the Service. If the Parties have not made any agreements in this respect, there is a limit based on fair use.
- Fair use is deemed to exist if the Customer uses a maximum of twice as much capacity as other Bechtle customers in a comparable situation.
- If Bechtle establishes that the Customer violates the fair use policy described in this Article or the agreed usage limits, Bechtle shall be entitled to charge reasonable costs for this or, after prior warning to the Customer, to restrict access to or use of the Service.
- Bechtle shall not accept any liability in the event of improper functioning of the Services if Bechtle ascertains that the Customer does not comply with the fair use policy or the agreed usage limits.
Article 32. Availability and backups
- Bechtle shall endeavour to achieve uninterrupted availability of the Services, but only offers guarantees in this respect if this has been agreed in an additional service level agreement.
- Only if this has been agreed in the Agreement or service level agreement shall Bechtle make regular backup copies (backups) of Customer Data stored by the Customer on Bechtle systems, and make these available to the Customer on request, for a fee.
Article 33. Maintenance
- Bechtle or its subcontractor will perform Maintenance on the Services.
- The performance of Maintenance may result in the temporary inability or only limited ability to use the Services in question. If Bechtle anticipates that certain Maintenance will result in total or partial unavailability, Bechtle shall make every effort to carry out the work at times when the use of the Services is limited.
- If possible, Bechtle shall make every effort to announce planned Maintenance to the Customer in advance.
- Bechtle shall not be obliged to provide Maintenance, Support or assistance with respect to old versions of software for which an update has already been rolled out.
- If the Customer reports a malfunction or defect to Bechtle, this will only be taken into consideration if the defect is demonstrable and reproducible.
- Bechtle may modify the functionality of the Service from time to time. The Customer's feedback and suggestions are welcome, but Bechtle shall be entitled not to make the adjustments if it has reasonable grounds not to do so. Bechtle shall endeavour, but shall not be obliged, to give at least two (2) working days' notice that updates will be carried out. In no case shall the Customer be entitled to claim an announced update which has not been carried out due to circumstances.
Article 34. Customer Data
- All rights relating to Customer Data, including any Intellectual Property Rights, are vested in the Customer. Bechtle obtains a right to use the Customer Data to the extent necessary for the performance of the Agreement.
- After the end of the Agreement, and provided the Customer has fulfilled its payment obligations in full, Bechtle may, at the Customer's request, provide a copy of the Customer Data in a common file format. The Customer must submit a request to this effect to Bechtle before the date on which the Agreement ends. In the absence of such a request, or after Bechtle has provided the requested copy, Bechtle shall be entitled to delete all Customer Data (including any backups thereof). Bechtle shall be entitled to pass on all reasonable costs associated with the provision to the Customer.
The provisions in this Chapter 'Recycling services' shall apply if Bechtle provides Services related to the resale, recycling and disposal of Hardware and destruction of data for the Customer.
Article 35. Purchase, recycling and destruction
- After the conclusion of the Agreement, Bechtle shall make an inventory and inspect the Hardware. On the basis of the inspection, Bechtle shall categorise the Hardware on the basis of its suitability for i.) purchase and resale, ii.) recycling/destruction, and iii.) re-use.
- If, in Bechtle's opinion, the Hardware qualifies for purchase and resale by Bechtle, Bechtle may make an offer to the Customer for a one-off fee for taking over the Hardware from the Customer, or agree a percentage of the sale price with the Customer to which the Customer will be entitled when Bechtle sells the Hardware.
Article 36. Disposal of Hardware
- Bechtle shall collect the Hardware to be disposed of from the Customer, or may request the Customer to deliver the Hardware to an address designated by it, at its own risk and expense. From the moment of physical transfer of the Hardware from the Customer to Bechtle, the Hardware becomes the property of Bechtle.
- The Customer shall not be permitted to place or have placed outside the Customer's premises the Goods which, in view of their nature, are not suitable for outdoor use or can be used outside the Customer's premises.
- The Customer warrants that the Hardware does not contain any hazardous waste, such as chemical waste, toxic, corrosive, explosive or radioactive substances, as well as other substances that may be hazardous to humans and the environment.
- If Bechtle decides (on site) that the Hardware and/or certain substances or materials are not suitable for disposal by Bechtle or are offered for disposal by the Customer in violation of the preceding paragraph, Bechtle shall at all times be entitled to refuse the Hardware, substances or materials in question.
- Bechtle will only dispose of the Customer's packaging materials if the Parties have expressly agreed on this.
Article 37. Data on the Hardware
- Insofar as not otherwise agreed between the Parties, the Customer shall be responsible for making any necessary backups and copies of data stored on the Hardware. Bechtle shall not be liable for the deletion of data stored on the Hardware disposed of.
- Unless the Parties agree otherwise, Bechtle shall not be liable for the loss of data stored on the Hardware disposed of and the Customer shall be responsible for removing the data stored on Hardware before it is made available to Bechtle.