Terms and Conditions

General Terms and Conditions of Delivery of Anqa IT-Security GmbH – Domestic (as of 12/2024)

1. General information, scope of application

1.1 The following General Terms and Conditions of Delivery (‘GTC’) apply to all contractual relationships (purchase, rental, licence and service support contracts as well as contracts for security awareness training) between Anqa IT-Security GmbH (‘Anqa’) as supplier and/or service provider and its customer, provided that the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law. They apply in the version current at the time of conclusion of the respective contract and published on the Anqa website as a framework agreement also for future contracts of the type mentioned in sentence 1 with the same customer, without Anqa having to refer to them separately in each individual case.

1.2 Any general terms and conditions of the customer that deviate from, contradict or supplement these GTC shall only become part of the contract if and to the extent that Anqa has expressly agreed to their validity in individual cases. This requirement for consent shall apply in all cases, even if Anqa carries out a delivery (hardware sale and/or software deliveries and support services) to a customer without reservation, despite being aware of the customer’s General Terms and Conditions. Any reference by Anqa to documents in which reference is made to the customer’s or third parties’ general terms and conditions does not constitute (in particular, no express) consent by Anqa to the inclusion of such general terms and conditions in the contract.

1.3 Legally relevant declarations and notifications that must be submitted by the customer to Anqa after conclusion of the contract, e.g. notification of defects, declarations of withdrawal, setting of deadlines, etc., must be in text form to be effective (Section 126b BGB).

2. Conclusion of contract, subject matter of the contract

2.1 A contract is concluded when Anqa sends an offer and the customer accepts it (text form within the meaning of § 126b BGB is sufficient in each case) and the customer signing and sending the licence and service support agreement or security awareness training agreement they have requested, as well as the additional order data processing agreement required in each case, within a period of three days after receipt of the offer. Text-based acceptance of the offer by the customer is only dispensable if this was no longer to be expected under the circumstances (e.g. due to the start of delivery by Anqa) or if Anqa has waived such a declaration. In any case, however, the licence and service support agreement or security awareness training agreement requested by the customer (in each case together with the order data processing agreement) must be signed and returned. By declaring acceptance, the customer confirms that the product specifications stated in the offer meet their requirements.

2.2 The binding order, together with the licence and service support agreement and these GTC, fully reflects the subject matter of the contract. Verbal commitments made by Anqa prior to the conclusion of this contract are not legally binding, unless it is expressly stated in the aforementioned contract documents that they are to remain binding. The product descriptions, documents, information, documentation or technical data provided to a customer by Anqa do not constitute guaranteed characteristics. Deviations that are customary in the trade and deviations that occur due to legal regulations, as well as minor other deviations, are permissible insofar as they do not impair the usability for the contractually intended purpose.

2.3 Anqa offers customers a choice between renting and purchasing the Network Box hardware. In the case of rental, the Network Box hardware remains the property of Anqa and must be returned immediately upon termination of the contract. The customer is obliged to back up their own data before returning the hardware.

3. Delivery

3.1 Agreed delivery times are subject to Anqa itself being supplied on time. In the event that Anqa does not receive timely delivery itself, the delivery period agreed with the customer shall be extended by the duration of the delay in delivery to Anqa. Anqa shall inform the customer of this immediately and notify them of an expected new delivery date as soon as possible.

3.2 In the case of mail order purchases, delivery deadlines shall be deemed to have been met when the goods are handed over to a shipping company or other third party commissioned to transport them. The delivery date shall be the date on which the order leaves the Anqa warehouse or, if this date cannot be determined, the date on which the delivery is made available to the customer.

3.3 Anqa shall determine the type of shipment, unless the parties agree otherwise upon conclusion of the contract. Special shipping requests by the customer shall be taken into account as far as possible; any additional costs incurred as a result shall be borne by the customer. Deliveries shall be made uninsured at the customer’s risk, unless otherwise agreed. The risk of deterioration or accidental loss shall pass to the customer upon handover to the carrier or other person responsible for shipping. This shall also apply if Anqa has assumed the costs of shipping, organised the transport itself or carried out the shipping with its own vehicles. At the express request and expense of the customer, Anqa may insure the delivery with transport insurance.

3.4 If its sources of supply are no longer available, in particular if Network Box Corporate Ltd. ceases to supply it, Anqa shall be entitled to withdraw from the contract if Anqa has no alternative sources of supply available. In this case, Anqa shall immediately inform the customer of the unavailability of the service and immediately refund any consideration already received.

3.5 In all other respects, the statutory provisions shall apply to any delay in delivery.

3.6 In the event of a delay in acceptance by the customer or at the customer’s request, Anqa shall store the goods at the customer’s expense and risk until the delay in acceptance has been remedied. Anqa shall charge storage costs at a rate of EUR 10 (plus VAT) per month or part thereof. The customer’s obligation to pay the purchase price within the applicable payment terms and to reimburse expenses and, if applicable, pay damages remains unaffected.

4. Invoicing

4.1 Unless otherwise agreed, invoice amounts are payable without deduction within eight (8) days of receipt of the invoice, plus statutory value added tax without deduction.

4.2 In the case of outstanding invoices, Anqa shall use incoming payments to settle the oldest invoice item plus any accrued default interest and costs, in the order of costs, interest and principal claim.

4.3 The customer shall only have a right of retention or a possibility of offsetting if the customer’s claims are undisputed or have been legally established. However, the customer’s right of retention is also excluded in respect of undisputed or legally established claims of the customer if these are not based on the same contractual relationship as the claim of Anqa in respect of which the customer asserts the right of retention.

4.4 Orders that include a rental fee and where the rented Network Box has not been installed within two months of the dispatch date will be invoiced monthly from that point onwards.

5. Retention of title (only for purchases of the Network Box)

5.1 Until full payment of all due claims arising from the ongoing business relationship between Anqa and the customer, Anqa retains title to the goods sold (Network Box, hereinafter referred to as ‘reserved goods’).

5.2 The goods subject to retention of title may not be pledged to third parties or transferred as security by the customer until all due claims arising from the current business relationship have been settled in full. If the goods subject to retention of title are intended for commercial resale by the customer, the customer may resell them to its customers in the ordinary course of business, provided that it is not in default of payment. In the event of such resale, the customer hereby assigns to Anqa as security all claims to which it is entitled against its customers in future as consideration for the resale of the goods subject to retention of title, including all ancillary claims; Anqa accepts this assignment. Anqa revocably authorises the customer to collect the claims assigned to Anqa for its own account in its own name. The authorisation to collect may be revoked at any time if the customer does not properly meet its payment obligations to Anqa. Anqa may collect the assigned claims in its own name if the customer is in default with its payment obligations with regard to the goods subject to retention of title, if an application has been filed to open insolvency proceedings against the customer’s assets, or if there is any other deficiency in the customer’s ability to pay which Anqa can infer as jeopardising the realisation of its claims. In such cases, Anqa may also demand that the customer disclose the assigned claims and their debtors to Anqa, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third-party purchasers) of the assignment.

5.3 If the goods subject to retention of title are not resold, the customer is obliged to store the goods subject to retention of title carefully for Anqa. Until full payment has been made for the goods subject to retention of title, they must be insured against loss and damage at the customer’s expense within the usual limits. The customer assigns any claims arising from insurance contracts to Anqa until full payment has been made for the goods subject to retention of title.

5.4 In the event that the goods subject to retention of title are combined or inseparably mixed (§ 947 ff. BGB) of the goods subject to retention of title with other items not belonging to Anqa in such a way that one of the other items is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership of the new item to Anqa in proportion to the value of the goods subject to retention of title to the other items and shall store this for Anqa. In this case, the parties agree to transfer the co-ownership share in this contract.

5.5 In the event of third-party access to the goods subject to retention of title, in particular seizures, the customer shall indicate Anqa’s sole or co-ownership and inform Anqa immediately in order to enable Anqa to enforce its property rights. If the third party is unable to reimburse Anqa for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these costs insofar as they are responsible for the third party’s access to the goods subject to retention of title.

5.6 After termination of the contract, it is possible to send the purchased Network Box hardware to Anqa for free deletion of the data stored on it in accordance with data protection regulations. The customer shall bear the costs of delivery and return.

6. Scope of delivery, duties of care

6.1 Unless otherwise specified in the licence and service support agreements, the nature of the delivery shall be determined exclusively by the offer and the specifications and explanations provided by Anqa.

6.2 Upon purchase of the Network Box, the customer shall notify Anqa in writing (§ 126b BGB) of any obvious defects immediately after delivery and of any defects that can only be detected upon proper inspection of the goods within ten (10) working days of receipt of the goods at the latest, specifying the exact nature of the defect. Section 377 (3) HGB applies to hidden defects. If the customer fails to report defects within the specified period, the delivery shall be deemed to have been approved.

6.3 In the case of a rental of the Network Box, the customer shall accept the goods as being in accordance with the contract. The customer’s right to compensation for initial defects in accordance with Section 536a BGB is waived; this does not apply to claims for injury to life, limb or health, or in the event of intent or gross negligence on the part of Anqa. The customer’s rights to rectification of defects remain unaffected.

6.4 The customer is informed that the Network Box is always dependent on a customer-specific configuration. Any transfer of the Network Box to third parties – including the customer’s group companies – therefore always requires the prior consent of Anqa.

7. Warranty for defects

7.1 In the event of a purchase of the Network Box by the customer, the following provisions shall apply to any defects in the hardware and/or software:

Anqa shall initially have the right, at Anqa’s discretion, either to remedy the defect or to deliver defect-free goods to the customer (subsequent performance). The customer shall grant Anqa the time and opportunity necessary for subsequent performance and shall hand over the rejected goods to Anqa for inspection and for the purpose of remedying the defect. In the event of a replacement delivery by Anqa, the customer shall return the defective goods to Anqa; these shall become the property of Anqa. The provisions on ‘Network Box troubleshooting’ in the licence and service support agreement between Anqa and the customer shall apply to the rectification of defects.
Anqa shall be given two attempts at subsequent performance. Only if the subsequent performance fails or is refused by Anqa may the customer assert further statutory warranty claims. If the customer’s request for rectification of defects proves to be unjustified, the customer shall bear the expenses incurred by Anqa for the purpose of inspection and subsequent performance (in particular transport, labour and material costs), unless the customer is not responsible for the unjustified request for rectification of defects.
The customer has no right of withdrawal due to an insignificant defect. The provisions in Section 8 apply to any claims for damages and reimbursement of expenses by the customer due to defects.

7.2 In the event of rental of the Network Box by the customer, the following provisions apply to any material defects therein:

The customer shall notify Anqa immediately of any defects that occur during the rental period. If the customer culpably fails to do so and damage to the delivered goods results, the customer shall be liable to Anqa for damages. The provisions on ‘Network Box troubleshooting’ in the licence and service support agreement between Anqa and the customer shall apply to the rectification of defects. There shall be no delay in rectifying defects if Anqa responds within the deadlines specified in the licence and service support agreement. The customer is not entitled to remedy defects themselves or have them remedied. The provisions in Section 8 apply to any claims for damages and reimbursement of expenses by the customer due to defects.

8. Exclusions and limitations of liability, force majeure

8.1 Anqa shall not be liable, regardless of the legal basis, for damages and expenses incurred by the customer as a result of slight negligence on the part of legal representatives, organs, employees, staff, vicarious agents, assistants, suppliers or subcontractors of Anqa. Furthermore, Anqa shall not be liable for indirect damages and consequential damages, including lost profits. However, the exclusions of liability pursuant to this Section 8.1 shall not apply to the breach of essential contractual obligations, the observance of which is essential for the proper execution of the contract and on the fulfilment of which the customer may therefore regularly rely (cardinal obligations).

8.2 In the event of a slightly negligent breach of a cardinal obligation within the meaning of clause 8.1, Anqa’s liability for all contractual, non-contractual or other damages and expenses, including lost profits, shall be limited to the amount of the foreseeable damage typical for this type of contract, regardless of its legal nature.

8.3 The above exclusions and limitations of liability pursuant to Sections 8.1 and 8.2 shall not apply to claims for injury to life, limb or health, to claims under the Product Liability Act or in cases of intent or gross negligence. Furthermore, the above exclusions and limitations of liability shall not apply to claims for damages and reimbursement of expenses due to defects if Anqa has fraudulently concealed the defect or violated any quality guarantee it may have given.

8.4 The exclusions and limitations of liability pursuant to the provisions in clauses 8.1 to 8.3 shall also apply mutatis mutandis to claims by the customer against legal representatives, organs, employees, staff, vicarious agents, assistants, suppliers and subcontractors of Anqa.

8.4 Unless expressly agreed otherwise, no third parties shall be included in the protective effect of the contract between Anqa and the customer. Accordingly, Anqa shall not be liable under the contract concluded with the customer to third parties who are not themselves parties to the contract.

8.5 Anqa shall not be liable for force majeure, i.e. events beyond Anqa’s control (e.g. war, revolts, (terrorist) attacks, epidemics, natural disasters or strikes) that prevent Anqa from performing its contractual obligations. In the event of force majeure, Anqa shall be released from its performance obligations for the duration of the force majeure. The period for Anqa to fulfil its obligations shall be extended by the duration of the interruption caused by the force majeure. If the force majeure is expected to last longer than three months, either party may terminate the contract.

9. Limitation period, guarantees

9.1 Claims for defects in sales contracts shall become time-barred in the case of § 438 (1) No. 3 BGB (German Civil Code) one year after the start of the statutory limitation period, unless Anqa has fraudulently concealed the defect or violated any quality guarantee it may have given. Otherwise, the regular limitation period (§ 195 BGB) for other contractual or non-contractual claims against Anqa is two years from the start of the statutory limitation period, unless mandatory statutory limitation periods preclude this.

9.2 The limitation periods specified in Section 9.1 shall not apply to claims based on intent or gross negligence, claims under the Product Liability Act, claims for injury to life, limb or health, or claims for breach of cardinal obligations within the meaning of Section 8.1. In all of the above cases, the statutory limitation periods shall apply.

9.3 The provisions in Sections 9.1 and 9.2 shall also apply mutatis mutandis to claims by the customer against legal representatives, organs, employees, staff, vicarious agents, assistants, suppliers and subcontractors of Anqa.

9.4 The agreement of a guarantee must be in writing and is only effective if it describes the content of the guarantee as well as the duration and geographical scope of the guarantee protection in a sufficiently specific manner and is expressly designated as a ‘guarantee’.

10. Applicable law, place of jurisdiction, legal consequences in the event of partial invalidity

10.1 The legal relationship between Anqa and the customer shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of law provisions.

10.2 The exclusive place of jurisdiction for all claims and disputes arising from and in connection with the contractual relationship shall be Cologne. However, Anqa shall alternatively be entitled to bring an action at the customer’s general place of jurisdiction.

10.3 Should one or more of the provisions of these General Terms and Conditions of Delivery be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions and the contract in which they are included. In this case, the parties undertake to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the economic meaning and purpose of the invalid or unenforceable provision. The same applies in the event of a loophole.