The following terms of delivery and payment regulate legal relationships between us and our customers. The customer’s deviating terms and conditions, which we have not expressly acknowledged in writing, are not binding for us, even if we have not expressly objected to them. Any other agreements, modifications and ancillary agreements shall require our written confirmation to become effective.
2. OFFER AND ORDER CONFIRMATION
Our offers are non-binding. The extent of our performance obligation shall only be defined by our written order confirmation. Our documentation, on which offer or order confirmation is based, such as illustrations, drawings, technical data sheets, measurements and weight specifications, shall generally be understood as approximate estimations, unless explicitly stated by us as binding.
3. COPYRIGHT AND RETENTION OF TITLE IN DRAWINGS AND THE LIKE
We retain the title to drawings, sketches, quotes and other documents that accompany our offers and order confirmations. The customer may only use them for the agreed purpose and may not duplicate them without our consent nor disclose them to third parties. On request, these documents and all duplicates hereof shall be returned to us.
4. PRICES AND TERMS OF PAYMENT
Prices quoted by us are quoted ex works plus VAT at the legal rate valid at the time of delivery without packaging. Packaging shall be charged at our choice.
All orders are based on the prices and discounts valid at the time of delivery. Prices are generally quoted in EUR and shall also be paid in EUR. Payments are only deemed to have been made on the day on which the seller can dispose of the amount without any losses.
In case of default in payment, interest on arrears amounting to 5% above the discount rate of the German Federal Bank shall be paid subject to assertion of further damages by us.
All our receivables are due immediately in case a payment deadline has not been met or the buyer violates any other contractual arrangements or we become aware of any circumstances that are likely to reduce the buyer’s creditworthiness. Furthermore, in such a case, we are entitled to execute outstanding deliveries only against advance payment or security deposit and to withdraw from the contract after setting a reasonable grace period or to demand compensation for non-performance. We may also refuse the sale of any goods delivered under retention of title, request their return to us or transfer of the indirect possession at the expense of the buyer and withdraw any direct debit authorization. Any right to withhold performance on the part of the buyer shall be excluded in business transactions between merchants. The buyer is not entitled to any right of retention. This shall not apply in business transactions with non-merchants as far as the counterclaim is based on the same contract. The buyer may only be entitled to offset against his counterclaims if they are explicitly declared undisputed or have been legally established. We are not obligated to accept bills of exchange.
5. RETENTION OF TITLE
The purchased goods remain our property until the accounts receivable the seller is entitled to based on the purchase contract have been balanced. If the buyer is a legal entity of public law, a special fund under public law or an entrepreneur who, when concluding the contract, is acting in the context of his commercial or independent professional activity, the retention of title shall also persist for the seller’s claims against the buyer arising from the current business relationship until any claims in connection with the purchase have been settled.
On the buyer’s request, the seller is obligated to waive the retention of title when the buyer has indisputably fulfilled all claims in relation with the purchased goods and when there is an adequate security for any other claims arising out of the current business relationship.
In case the buyer is in default of payment, the seller may rescind the contract. In addition, if the seller is entitled to compensation instead of performance and takes back the sold goods, seller and buyer agree that the seller will pay the usual purchase price of the sold goods at the time of return. As long as the retention of title persists, the buyer may not dispose of the purchased goods nor contractually grant a right of use to third parties.
6. DISPATCH AND DELIVERY
When dealing with entrepreneurs, we are only liable if we, our executives or vicarious agents are guilty of willful intent, gross negligence or injury to life or health.
When the purchased object is handed over to the freight forwarder or carrier or picked up by the customer but, at the latest, when it leaves the factory or warehouse, any risk will pass to the buyer.
7. DELIVERY PERIOD
The delivery period starts on the day we confirm the order but not before all execution details have been completely clarified. The agreed delivery period is extended by the period in which the buyer is in default of his obligations arising out of this or any other transaction – irrespective of our rights due to the buyer’s default. This applies accordingly if we have agreed a fixed delivery deadline.
If we ourselves are in default, the buyer shall grant us an adequate grace period. After this grace period has passed, the buyer may cancel the purchase if the goods have not yet been notified as ready to dispatch until this moment.
Any claims for damages due to non-observance of delivery periods or deadlines shall be excluded. This exclusion shall not apply insofar as one of our executives – in business transactions with merchants – or any of our employees – in business transactions with non-merchants – is responsible for the delay due to gross negligence.
Force majeure events entitle us to postpone delivery by the duration of such hindrance and an adequate lead time or to withdraw from the contract with respect to the part of the contract not yet fulfilled. Force majeure includes strike, lock-out and other circumstances which make delivery much more difficult or otherwise impossible, regardless of whether they concern us or one of our suppliers. The buyer may request a statement from us whether we want to withdraw from the contract or deliver within an adequate period. If we do not provide this statement, the buyer may rescind the contract.
Delivery deadlines are considered met if the goods leave our factory as scheduled. Partial deliveries shall be allowed.
8. IMPOSSIBILITY, ADAPTATION OF THE CONTRACT
In case of impossibility or adaptation of the contract, the following applies if the contracting partner is a merchant:
If it is impossible for the supplier or ordering partner to deliver or perform the services, the general legal principles apply under the following condition:
If impossibility is the supplier’s fault, liability is limited insofar to the foreseeable damage. This shall not apply where liability is mandatory due to willful intent or gross negligence. Any liability without fault as defined by the Germany Product Liability Act shall remain unaffected. The preceding regulations do not imply any change in the burden of proof to the detriment of the buyer.
This shall not apply where liability is mandatory due to willful intent or gross negligence. The ordering party’s right to withdraw from the contract remains unaffected by the delivery or service, which cannot be put into proper operation because of the impossibility. Any claims for damages of the ordering party that exceed the mentioned limit of 10 % shall be excluded. This shall not apply where liability is mandatory due to willful intent or gross negligence. The ordering party’s right to rescind the contract shall remain unaffected.
If the delivered item is faulty, legal stipulations apply. The statutory limitation period for defect claims is 2 years. In transactions with entrepreneurs, we may choose as subsequent performance to remove the defect or to deliver a faultless item; otherwise, the buyer’s entitlement due to defective goods become time-barred within one year.
Any warranty claims of the buyer depend upon the fact that the buyer notifies obvious defects within one month after delivery. The obligations to examine the goods and give notice of any defect acc. to §377 of the German Commercial Code, which apply to merchants, shall remain unaffected.
We take back any goods recognized by us as defective and deliver faultless goods in replacement. Instead, we may also pay a refund for the reduced value. Should a subsequent performance or replacement delivery fail, non-merchants are entitled to reduced remuneration or cancellation of the contract, as they choose. Any further claims, also for any consequential damages of the buyer, shall be excluded unless they are based on the absence of an assured property. To remedy the defect, the ordering party shall grant the supplier the time and opportunity which is deemed necessary in its reasonable discretion. If he denies this, the supplier is not obligated to remedy the defect. Any return of rejected goods shall only be allowed with our consent. If the customer requests examination of goods delivered by us with regard to a defect for which we would be liable, we charge a processing fee for each examined device that does not have any defect.
Our liability for whatever legal reason is limited to willful intent and gross negligence. We give technical advice for applications to the best of our knowledge. However, any information and details about the suitability and use of our goods is non-binding and do not release the buyer from its own tests and trials. The buyer is responsible for observing legal and official regulations when using the goods. We shall only be liable for the fitness of the goods for certain purposes if we have explicitly guaranteed this in writing.
Any returns shall be made in original or any other adequate packaging.
10. TECHNICAL MODIFICATIONS
We shall explicitly reserve the right to any modifications in the sense of technical progress and due to discontinuation of components.
If a cost estimate is desired before repairs are made, this shall explicitly be mentioned. Costs for dispatch and packaging are at the expense of the buyer. The invoice amount for repairs is immediately due without any reduction. Repairs, also those covered by warranty, are generally made in our factory unless there is a deviating written agreement.
Any return of delivered goods is only possible after consultation and upon agreement and charging appropriate reductions. The return of customized solutions and software is generally excluded.
All returns shall be accompanied by the delivery note or invoice copy. The buyer bears the costs for returns and/or returns are “free domicile”.
13. DATA PROTECTION
All data necessary for handling the business relationship are stored and processed by the seller in consideration of the German Data Protection Act.
14. PLACE OF FULFILLMENT AND JURISDICTION
For contracts with merchants, legal entities of public law and special funds under public law, the place of performance for deliveries and the place of jurisdiction is Rottweil with the proviso that we are entitled to sue at the place of the buyer’s registered office or a buyer’s subsidiary.
15. FINAL PROVISIONS
The law of the Federal Republic of Germany applies. Any regulation of the UN Convention on Contracts for the International Sale of Goods shall not apply for the relationship between us and the buyer.
When our goods are exported by our buyers to territories outside the Federal Republic of Germany, we do not assume any liability in case any property rights of a third party are violated by our goods. The buyer is obliged to compensate for the damage caused by the export of goods that are not expressly delivered by us for export. If any provision of these General Terms and Conditions is invalid, the validity of the other provisions hereof shall not be affected. The customer and we will replace the invalid provisions by new provisions which are legally admissible and which come closest to the intended legal and economic sense and purpose.
Any amendments and additions to these General Terms and Conditions shall be made in writing to be effective.