Allgemeine Geschäftsbedingungen

1. General terms and conditions

1.1 The following terms and conditions („General Terms and Conditions„) shall exclusively govern all purchases of products and related services („Products„) made by a purchaser („Reseller„) from Climb Global Solutions GmbH, Landsberger Strasse 155, Haus 1, 80687 München, Deutschland, +49-89-54192816, info@climbcs.de („Climb„). Other provisions, in particular general terms and conditions of the Reseller shall not apply, irrespective of whether they have been expressly rejected by Climb or not. The General Terms and Conditions shall also apply exclusively if Climb effects contractual performance without reservation in knowledge of other terms and conditions.

1.2 The General Terms and Conditions shall only apply to traders, i.e., natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity, legal entities under public law or special funds under public law.

1.3 The Terms and Conditions in force at the time of the Order will apply to the purchase contract between the Reseller and Climb.

1.4 Individual agreements concluded from case to case between Climb and the Reseller shall prevail. They require written form in order to be effective, as shall any modifications of, amendments to, or cancellation of any agreements between Climb and the Reseller as well as of these General Terms and Conditions. This also applies to the cancellation of this written form requirement. Means of telecommunication that do not contain at least a copy or facsimile of the signature of the issuing party, in particular simple e-mails, shall be sufficient to comply with the written form requirement.

2. Orders, Quotations

2.1 Orders can be placed by Reseller by email to the email address supplied on your quote or for selected products via our website („Order“). In the Order, the Purchase shall set out the description and purchase price of required product as well as who the license should be registered to and email address or physical address for delivery as determined by the product being supplied.

2.2 The Reseller shall be solely responsible for the accuracy, correctness, and completeness of the Order. The Seller shall not be liable for any errors, inaccuracies, or omissions on the Reseller’s side nor for any consequences arising therefrom.

2.3 After receipt of an Order, Climb will send an email to the Reseller acknowledging that Climb has received the Order. For the avoidance of doubt, this does not mean acceptance of the Reseller’s Order.

2.4 Orders placed by the Reseller shall only become binding for Climb upon acceptance of the Order by email under the heading “Order Confirmation” or by electronic delivery the Product and invoice. Climb shall have the right to accept orders within two weeks after their receipt.

2.5 The Reseller may request an offer from Climb („Quotation“). Quotations issued by Climb are non-binding. In the event that a Quotation issued by Climb is expressly designated in writing as binding, Climb shall be bound by such Quotation until the expiry date noted on the quote.

2.6 Climb reserves the title and copyrights in respect of any Quotations, other cost estimates, drawings and other documentation provided to Reseller in written, oral, electronic or other form („Documents“). The Documents and their content may only be made available or otherwise disclosed to third parties with the prior written consent of Climb and shall be returned immediately upon request of Climb if the agreement between Climb and the Reseller is not finalized. Any copies made shall be destroyed.

2.7 For certain types of Orders, Climb may require from Reseller evidence of the Reseller’s entitlement to Purchase. This applies, inter alia, to Orders for software upgrades or renewals for which the Reseller will need to provide to Climb the serial number of the current Product(s) or in case of Orders for educational or academic reasons for which Climb requires evidence of the Reseller’s academic status.

3. Delivery, acceptance of delivery

3.1 Physical deliveries shall be made at the request and expense of the Reseller, the Products will be shipped the destination provided on the purchase order. Unless otherwise agreed, Climb shall be entitled to determine the type of shipment (in particular, the transport company, shipping route, packaging).

3.2 The risk of accidental loss and accidental deterioration of the Products shall pass to the Reseller at the latest upon handover. In the case of sale by delivery, however, the risk of accidental loss and accidental deterioration of the Products as well as the risk of delay shall pass to the Reseller upon delivery of the Products to the forwarding agent, the carrier, or any other person or institution designated to carry out the shipment.

3.3 The delivery periods or delivery dates stated in the offer are non-binding, unless it has been agreed explicitly and in writing that they are binding in the individual case.

3.4 Climb shall not be in delay in delivery if a supplier does not supply Climb correctly or on time for reasons beyond the control of Climb and although Climb has concluded a congruent hedging transaction with the supplier.

3.5 Climb shall also not be in delay in delivery, to the extent the Reseller has failed to present duly or on time the documentation, licenses, permits, releases or other formalities required for shipment or has failed to meet other obligations. This shall not apply if Climb is responsible for the delay.

3.6 At the request of Climb, the Reseller shall declare within a reasonable period of time whether it elects to withdraw from the agreement because of the delay in delivery or whether it insists on delivery being executed.

3.7 Climb shall be entitled to effect partial deliveries, provided that their acceptance is not unreasonable for the Reseller, in particular if the delivery of the remaining ordered Products is ensured and the partial delivery does not constitute a significantly increased effort or considerable additional costs for the Reseller (unless Climb declares itself willing to bear these costs). Each partial delivery may be invoiced separately.

3.8 The Reseller is in default of acceptance if it fails to collect the Products on the binding delivery date as agreed. In the case of non-binding delivery periods or delivery dates, Climb shall be entitled to inform the Reseller, subject to a notice period of two weeks, that the Products are ready for collection; if the Reseller fails to collect the Products by the expiry date, it shall be in default of acceptance. The Reseller is not entitled to refuse acceptance due to minor defects.

4. Prices, Payment

4.1 Unless otherwise agreed, the prices valid and displayed in a valid price list or feed at the time of the Order apply. Prices shall be understood excluding packaging and shipping costs. Any applicable value added tax shall be calculated separately at the statutory rates as valid from time to time and shall be payable by the Reseller in addition.

4.2 In the case of sale by delivery, the Reseller shall bear the shipping costs and the costs of any transport insurance requested by the Reseller. Any customs duties, fees, taxes, and other public charges shall be borne by the Reseller.

4.3 Payment shall be made via bank transfer to the account designated by Climb, or alternatively by credit or debit card, or, if applicable, through the Reseller’s credit account (“Credit Account”), subject to the credit account terms supplied at time of setup. In case of payment by debit card or credit card, Climb will not charge the Reseller’s debit card or credit card until dispatch of the Order. All payments shall be made in the currency of the supplied invoice.

4.4 If the Reseller fails to make payment by expiry of the due date for payment, it shall be in default without further notice. Decisive for the timeliness of the payment is the receipt of the invoiced amount in the bank account specified.

4.5 In case of default of payment Climb shall be entitled to charge default interest at the statutory rate. The right to assert further damages is reserved.

5. Retention of title

5.1 Title to the Products supplied by the Distributor shall remain with the Distributor until full payment of the purchase price by the Reseller. The Reseller is authorised to resell the Products in the ordinary course of business; however, the Reseller hereby assigns to the Distributor all claims arising from such resale to the extent of the unpaid purchase price.

6. Software

6.1 By ordering from Climb the Reseller agrees, when required, to pass on the Product manufacturer’s End User Licence Agreement (EULA) of the relevant Product(s). The terms of this EULA, and any other agreement or agreement you agree to or sign from the manufacturer of the Product(s), overrides any information given to you in writing or verbally from Climb. It is the end users responsibility to read and understand the terms of any such agreement with the manufacturer of the Product(s).

7. Quality of the Products, specifications and application, guarantees

7.1 The quality of the Products shall be defined only by the agreed specification. It is the responsibility of the Reseller to check whether the Products are suitable for the intended purposes.

7.2 In the case of Software, no third-party rights shall affect the Reseller’s use of the Software within the scope agreed in the purchase contract in the country of first purchase.

7.3 Information provided by Climb in word, writing or any other form regarding suitability, including application, processing and other use, as well as technical consultation provided by Climb is given to the best of Climb’s knowledge, but shall be regarded as non-binding information and shall not release the Reseller from the obligation to inspect the Products supplied by Climb for their suitability for the intended purposes. Application, processing and any other use of the Products are beyond the control of Climb and are therefore the sole responsibility of the Reseller.

7.4 The seller warrants the agreed quality and that no third-party rights prevent the contractual use of the contractual software.

7.5 Guarantees, in particular guarantees as to quality, shall only be binding for Climb to the extent that they (i) are contained in an offer or an order confirmation (ii) are expressly referred to as „guarantee“ or „guarantee of quality“, and (iii) expressly define the obligations resulting from such guarantee for Climb.

8. Defect rights – Physical products only

8.1 The Reseller’s claims for defects (Mängelrechte) are subject to the Reseller inspecting the Products upon delivery and submitting a proper notice of defects in accordance with § 377 German Commercial Code (HGB).

8.2 A notice of defect shall be submitted in writing and shall specifically state the respective defect. Complaints regarding incomplete delivery and other visible defects shall be brought to Climb’s attention in writing without undue delay and no later than one week after delivery, hidden defects without undue delay and no later than one week upon their detection. The acceptance of the Products may not be refused for defects that are not of a material nature. Claims based on defects that are notified belatedly are excluded.

8.3 The costs for the inspection of the Products shall be borne by the Reseller. Defective Products shall be made available to Climb for inspection upon request. Climb may then at its discretion issue you with an authorised returns (RMA) number and advise you of the appropriate returns address.

8.4 Climb will remedy defects by subsequent performance (Nacherfüllung), at its own discretion, either by correcting the defect (rectification) or by supplying a non-defective Product (replacement). This applies accordingly to defects of title. In the case of Software Climb shall also be deemed to have remedied the defect if it provides the Reseller with temporary solutions, provided that these remedy the defect. The same applies if the defect can be circumvented by using the Software in a different way, provided that the Reseller can continue to use the Software in a reasonable manner. The Reseller is obliged to accept a new Software version if the scope of functions specified in the purchase contract is retained and the acceptance does not result in significant disadvantages for the Reseller. Rectification includes, where necessary, the adaptation of the user documentation.

8.5 Subsequent performance shall be effected without any acknowledgment of a legal obligation. In the case of rectification, the remaining period of the original statutory period of limitations shall begin with the return of the rectified Product. The same shall apply if a replacement has been delivered.

8.6 Reseller’s claims for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded, to the extent the expenses are increased as a result of the Products being brought to a place other than the agreed place of delivery; Climb shall be entitled to charge such additional costs to the Reseller.

8.7 If subsequent performance finally fails, the Reseller may reduce the purchase price or rescind the agreement.

8.8 Any other claims for defects, regardless of their nature, shall be excluded without prejudice to any claims for damages limited pursuant to Section 9.

8.9 The Reseller shall bear the reasonable costs of an unjustified assertion of claims for defects (e.g. if the Product was not defective); the same applies if Climb wrongfully grants defect rights without being obliged to do so.

8.10 The limitation period for claims for defects is one year as from the date of delivery. This limitation shall not apply, however, if (i) a defect was fraudulently concealed or (ii) a guarantee regarding the quality of a Product was given (in this context, where applicable, the guarantee and/or limitation period laid down in the guarantee shall apply). In case of damage claims, this limitation shall further not apply in the following cases: (i) liability pursuant to the German Product Liability Act, (ii) injury to life, body or health, (iii) intent, (iv) gross negligence on the part of governing bodies or executives of Climb. If Climb delivers the Software to the Reseller via download, the limitation period begins when Climb provides the download link, including the access data.

8.11 Rights of recourse on the part of the Reseller, if the Products are sold to a consumer, remain unaffected. Such rights of recourse exist only insofar as the Reseller has not entered into agreements with its customer that exceed the statutory claims for defects.

9. Liability

9.1 The liability of Climb for damages caused by simple negligence is limited to damages resulting from the breach of material contractual obligations, the fulfilment of which is prerequisite to the proper execution of the agreement and in the observance of which the contractual partner regularly trusts and is entitled to trust; in this case, however, liability shall be limited to the typically foreseeable damage. This limitation of liability shall equally apply to any damage caused by gross negligence on the part of employees or agents of Climb, who are not governing bodies or executives of Climb.

9.2 In cases governed by Section 9.1 liability shall be limited to 3-fold of the purchase price of the delivery concerned.

9.3 In cases governed by Section 9.1 the limitation period shall be two years from the point in time in which the claim arose and the Reseller became aware of the circumstances giving rise to the claim. Irrespective of Reseller’s knowledge, the claim shall become statute-barred three years after occurrence of the event giving rise to the damage. The limitation period for claims for damages due to defects shall be determined pursuant to Section 8.10.

9.4 The above limitations of liability shall apply to all claims for damages irrespective of their legal basis, with the exception of claims for damages by the Reseller (i) due to fraudulently concealed defects, (ii) for defects which are covered by a guarantee that was given regarding the quality of a Product (in this context, where applicable, the guarantee and/or limitation period laid down in the guarantee shall apply), (iii) according to the German Product Liability Act, (iv) for death, damage to body or health, (v) for intent or (vi) for gross negligence on the part of corporate bodies or executives of Climb.

9.5 The above limitations of liability shall also apply to claims for damages by the Reseller against Climb’s officers, executives, employees or agents.

9.6 The above limitations of claims for damages shall apply accordingly to the claim for reimbursement of futile expenses.

10. Trademarks

10.1 All trademarks should only be used with the trademark owners written permission

11. Force Majeure

11.1 Climb is hindered in its performance of its contractual obligations due to force majeure such as mobilization, war, terrorism, riots, natural disasters, fire or other unforeseeable circumstances for which Climb is not responsible, such as strikes or lawful lock-outs, operational or transport disruptions, difficulties in procuring raw materials, virus and other attacks by third parties on the IT system of Climb, insofar as these occur despite the observance of the usual care taken in protective measures, as well as direct or indirect effects of epidemics or pandemics (including COVID-19), including associated official authorities, legal or other measures, the agreed delivery periods shall be extended by the duration of the hindrance plus a reasonable start-up period, but by three months at the most. Climb shall not be held responsible for the aforementioned circumstances even if they occur during an already existing default. Climb shall inform the Reseller of the beginning and the expected end of such circumstances as soon as possible.

11.2 If the hindrance lasts six weeks or longer, each party may rescind the agreement.

12. Compliance with regulations and export

12.1 Reseller shall comply with all applicable legal, regulatory and governmental requirements, including applicable import and export regulations and other laws of the country in which Reseller sells, otherwise places on the market or uses the Products. Reseller shall obtain and maintain, in a timely manner, all necessary permits and licenses and any other authorizations required to use or export the Products under all such applicable laws.

12.2 Climb is entitled to withhold delivery to the Reseller if the delivery to the Reseller would violate such applicable laws or if the required permits have not been procured and this is not due to the fault or responsibility of Climb.

13. Set-off and right of retention

13.1 Set-off and the exercising of a right of retention by the Reseller for disputed counterclaims or counterclaims that are not established as final and absolute is excluded unless the counterclaims are based on the same contractual relationship.

14. Assignment

14.1 The Reseller shall not assign its rights and obligations in connection with deliveries, neither in part nor in their entirety, without the prior written consent of Climb. Climb is entitled to assign its rights and obligations in connection with deliveries, in particular to associated companies as defined in § 15 German Stock Companies Act (AktG).

15. Applicable law, place of jurisdiction, miscellaneous

15.1 All legal relations between Climb and the Reseller shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

15.2 Exclusive place of jurisdiction for all disputes arising out of or in connection with a delivery shall be at the registered office of Climb; Climb shall, however, be entitled to file a suit against the Reseller at its registered place of business.

15.3 Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.