TERMS AND CONDITIONS ("TERMS") AS OF SEPTEMBER 2014
Dr.-Rudolf-Eberle Straße 2
All our past, present and future offers, orders, products and services (hereinafter referred to as the "Product") are provided subject exclusively to our Terms, which can be accessed on our website. The Terms form part of all contracts made with us; they apply even if not specifically referenced.
Our Terms only apply to companies ["Unternehmer"] (German Civil Code [BGB] § 14, § 310). Our Terms apply exclusively. The customer's terms and conditions do not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled without reservation.
2. Formation of the Contract
Our offers are non-binding unless expressly stated otherwise. We can accept the customer's orders within 10 business days. A contract is not formed, even if the order is given verbally, until we confirm the order or start providing the Product, whichever comes first.
Oral and phone agreements are only legally valid if we confirm them in writing. Any obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for any claims. We only undertake contractual guarantees ["Garantie"] that we have explicitly identified as such in writing.
The order confirmation or, if the order is filled immediately, the delivery note exclusively governs the scope and subject matter of the Product. If the order confirmation or delivery note contains changes to the customer's purchase order, the customer is deemed to have consented to them if the customer unconditionally accepts the Product and does not object in writing immediately. If the customer changes or adds to the order after the order has been confirmed, we are entitled to adjust prices and extend delivery deadlines.
Our offers are based on information provided by the customer, without knowledge of the customer's circumstances or requirements. The customer bears the utility risk and the fitness for purpose risk, even if we perform on the basis of the customer's drawings, specifications, specimens, plans, et cetera. We only assume liability for a particular intended use or a specific technical fitness if specifically and expressly agreed upon in writing.
Information, samples, specimens or illustrations in catalogs, price lists or other advertising materials are approximations only (e.g. weights, dimensions, values in use, allowable loads, tolerances or technical data) unless exact conformity is necessary for the Product to be used for the contracted purpose. Any reference to technical standards is only a description of our Product, not a guarantee of certain characteristics.
If we manufacture samples or a prototype that are/is approved by the customer, our Product will be deemed contractually compliant if it conforms to the samples or prototype. This also applies if we produce the Product based on plans that we have created and the customer has approved.
Unless otherwise agreed, we are not liable to provide instruction or advice. If we provide advice or technical information not covered by the agreed-upon scope of supply for the Product, the advice or information will be provided without any liability whatsoever.
While providing the Product, if we realize that the Product cannot be provided due to technical or process reliability constraints or that specific Product requirements have to be modified, we will notify the customer and suggest alternatives wherever possible (change request). We will provide the customer with a supplementary offer in this regard. The customer must notify us in writing whether he consents to the change; notification must be given without undue delay, but no later than within 10 business days of receiving the offer. Either party can rescind the contract if no agreement is reached. The customer must reimburse all the expenses that we have incurred up to that point. The customer is expressly prohibited from claiming damages as a result.
Any documentation (such as manuals) that we may maintain for certain Products will be available to the customer digitally on data storage media or as a free download on our website.
Goods supplied for inspection If we supply goods to the customer so that he can inspect them or choose among them, the purchase contract will only become binding upon approval by the customer. Approval is deemed given if the customer does not (a) object to the purchase in writing or (b) return the delivered goods within 10 days of receiving them. The customer is liable for any accidental loss or deterioration from the time that the goods are handed over.
3. Prices & Payment
Our list prices apply, as they may change from time to time. Unless otherwise agreed, the prices are ex warehouse and do not include value-added tax or additional services such as packaging.
The Product is deemed to be in compliance with promises or guarantees even if the actual Product deviates 10 % from such promises or guarantees (tolerance).
If we incur additional costs because we have been given incomplete information, unclear objectives or unclear tasks which the customer fails to complete or correct despite being requested to do so, these additional costs will be charged separately based on the current list price as it may change from time to time.
Unless otherwise agreed, invoices are due immediately without any discounts.
In determining timeliness, payment is deemed to be made when our account is credited.
We can demand advance payment and/or exercise a right of retention with respect to additional Products in the event of a default in payment or reasonable doubt as to the customer's ability to perform.
The customer may only exercise a right of retention or set-off if his claims against us are undisputed, upheld by final and absolute judgment or based on defects.
Proof of export
If a customer located outside the Federal Republic of Germany (foreign territory buyer) or its authorized agent collects Products from us and transports or ships them to foreign territory, the customer must provide us with the proof of export required for tax purposes. If this proof is not provided, the customer will have to pay the value-added tax required in the Federal Republic of Germany on the invoice amount for the Products.
4. Delivery, Passage of Risk
The Product is provided and the documents are prepared in accordance with ICC Incoterms® 2010.
We are allowed to provide the Product early, in parts, or in amounts that exceed or fall short of the contracted amounts as long as this is not unreasonable.
The delivery deadline is deemed to be met if the carrier picks up the shipment for shipping within that period; we assume no liability for carrier delays. We will insure the Product and/or shipping at the customer's expense if so instructed in advance by the customer.
If the Product has to be accepted, risk will pass upon acceptance. The acceptance must be performed without delay after issuance of the ready-to-accept notice. The customer may not refuse acceptance due to an insignificant defect.
Risk of accidental loss and deterioration passes to the customer no later than upon acceptance or handover to the carrier. If the acceptance or shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuance of the ready-to-accept or ready-to-ship notice.
Any obligation to accept deliveries is not affected by opposing regulations or the absence of permits and approvals.
Delivery deadlines or other deadlines promised in writing or verbally are only approximate unless we have agreed to a fixed delivery deadline in writing. Delivery deadlines begin upon receipt of the order confirmation, the full, complete and non-defective provision of customer-supplied materials, but not before all technical and commercial questions have been resolved or any required advance payment has been credited.
We will comply with the delivery deadline subject to timely delivery by our own suppliers. We are not liable for faults of our suppliers; any claims for damages against these suppliers will be assigned to the customer. After a non-binding delivery deadline expires, the customer may only withdraw from the contract after he has fixed in writing an additional period of at least 30 days for us to perform our obligations and warns us that he will refuse performance if we do not perform within this additional period.
Force majeure events, government actions, and other circumstances for which we are not at fault – for example, strikes, operational upsets, inability to procure permits, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office – that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for impossibility or delays due to such events. The customer may ask us to declare within two (2) weeks whether we wish to withdraw from the contract or perform within a fair and reasonable period. We may partially or completely withdraw from the contract if we cannot be reasonably expected to perform for the above reasons; this does not entitle the customer to damages. In this case, the customer is exempted from his obligation to render counter-performance. The customer may withdraw from the contract after fixing an additional reasonable period of time for us to perform our obligations if he can no longer be reasonably expected to accept the Product for the above reasons. We will provide notification of delays regardless of their cause.
In the event of a delay in performance due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to a maximum of 5% of the amount invoiced for the Product affected by the delay. We may furnish proof that the damages are smaller. In all other regards, our liability is governed by the liability provisions of these Terms.
The customer bears the storage costs after the risk passes. If we store the Product, storage costs will be 0.5% of the unpaid invoiced amount for each whole or partial month, beginning one month after the ready-to-ship notice has been issued. The right to claim and prove that storage costs are higher, lower or non-existent remains reserved.
5. Retention of Title
We reserve all rights – including, but not limited to, copyrights, ownership rights and other intellectual property rights – in and to all specimens, tools, specifications, models, plans, data, drawings, cost estimates, tangible and intangible information, and similar items provided to the customer in electronic or any other form. Any reproduction or release to third parties is prohibited.
The customer will grant us the following security until the settlement of all the claims (including any and all outstanding balances on running accounts) that the customer owes to us now or in the future on any legal grounds whatsoever; we will release the security at our option on request insofar as its value exceeds the secured claims by more than 20%:
We retain title to the Product until all payments owed under the business relationship have been received. The following applies during the retention of title:
- The Product remains our property. The Product is always processed or modified for us as the manufacturer, without us incurring any obligation thereby. If our ownership ceases to exist due to combination, the contracting parties now hereby agree that our resulting (co-)ownership of the unitary item will transfer to us in proportion to the pre-tax invoiced value. The customer holds our (co-owned) property in safe custody free of charge.
- The customer keeps the Product in good condition. The customer insures the Product for our benefit at the customer's expense against theft, breakage, fire, water and other perils to the extent that the customer can be reasonably expected to do so. Proof of insurance must be presented on request.
- The customer has a revocable right to sell and process the Product in the ordinary course of business, provided he is not in default. The Product may not be pledged or assigned as security.
- The customer now hereby assigns to us, as security, claims arising from the resale of the Product, in lieu of the Product, or otherwise in respect of the Product (e.g. insurance, tort), including all ancillary rights, regardless of whether or not the Product is processed before it is resold. We hereby accept the assignment.
- The customer has a revocable right to collect the claims assigned to us in the customer's own name and for our account. Our right to collect the claims ourselves remains unaffected thereby. We have the right of disclosure.
- If third parties attempt to attach the Product, including, but not limited to, by means of enforcement measures, the customer will inform the third party of our ownership interest and notify us forthwith. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties.
We may withdraw from the contract and require the customer to immediately restore the Product to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed Product by private contract.
If the customer is a merchant as defined in the German Commercial Code (HGB) the customer must carefully inspect the received Product without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay ("notice of defects"). Damages sustained in transit or during shipping must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the Product is deemed to be free from defects and in conformity with the purchase order, unless the defect was not detectable during the inspection. Notice of such defects must be given immediately after discovering them.
Any resale, installation or other use of an allegedly defective Product is deemed approval of performance as contracted, and to that extent precludes the possibility of claims for defects.
Any negotiation on our part about notices of defects does not constitute a waiver of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.
We extend no guarantee of compliance with any special regulations that apply to the customer's business or to imports and exports, nor do we guarantee that any necessary permits or approvals have been obtained. The Product may only be used in the country for which it has been ordered. Unless otherwise agreed upon, the customer bears the responsibility, liability and costs of any exports. With regard to exports, the customer agrees to comply with legal provisions (e.g. dual use), including, but not limited to, the provisions of German foreign trade law. Liability for infringements of intellectual property rights outside Germany will only be assumed under a separate written agreement.
We are entitled to deviate from the stipulated quality or quantity standards due to the materials, or to modify the Product to reflect technical progress in terms of construction, design, dimensions, weight or color within the customary industry tolerances, provided (a) this does not restrict the usability of the Product for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances.
We warrant that the software will substantially conform to the functions described in its associated documentation, provided that the software is used in accordance with the agreed-upon prerequisites and operating conditions (e.g., operating system). We extend no warranty that the program functions of the customer's selected software will meet his requirements or that the software will be compatible with any of his other existing software programs. The customer will report faults without unreasonable delay, providing enough detail where possible (presenting the error messages and describing the steps taken) so we can begin correcting the errors in a targeted manner. Where possible, the customer will immediately provide us, without limitation, with all the necessary electronic information and documents, and, if possible, in a form that allows the fault to be reproduced. If reasonable for the customer, the defect may also be remedied by providing an alternate solution, a workaround or a software update.
If the Product is defective, we will discharge our obligation to remedy the defect by, at our option, repairing the defective Product or replacing it with a non-defective Product. We can refuse a type of remedy or the entire remedy if it is impracticable for us. The customer must give us the requisite time, opportunity and access to remedy the defect; otherwise, we are exempted from all liability for the resultant consequences.
If we decide to provide a replacement, we may stipulate that it can only be provided concurrently with the return of the defective Product. Replaced parts become our property.
We bear the expenses necessary to remedy the defect to the extent they have not been increased by the transportation of the Product to a location other than the place of performance. The customer bears any removal, installation or other costs.
If we fail to remedy the defect or refuse to perform either type of remedy, the customer may, after fixing a reasonable additional period for us to perform our obligations, withdraw from the contract, reduce the compensation and/or claim damages. The right to a price reduction is excluded unless the defect is merely insignificant, was concealed with the intent to deceive or relates to a contractual guarantee as to certain characteristics.
The customer is entitled to remedy the defect himself, or to have it remedied by third parties, and to demand reimbursement of the necessary expenses from us, solely in emergencies that jeopardize operating safety, or to avert unreasonably severe damage or loss, in which case we must be notified immediately.
If the customer or a third party performs a repair without first giving us an opportunity to remedy the defect, we will assume no liability for the resultant consequences. The same applies to any modifications made to the Product, the replacement of parts or the use of consumable materials that do not conform to the original specifications without our prior consent, unless the defect is not caused thereby.
We do not extend any warranties in cases of inappropriate or improper use or repairs, improper assembly or placement into service by the customer or third parties, failure to follow processing guidelines or user manuals, natural wear and tear, improper or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or chemical, electrochemical, electrical or environmental influences, unless we are at fault for such cases.
The customer is liable for any unjustified notices of defects if the defect's cause lies within the customer's area of responsibility and the customer acted at least negligently in failing to recognize this fact. We will bill for any expenses not attributable to us under our liability for defects in accordance with our current list prices.
The customer only has remedies over against us as set forth in German Civil Code [BGB] § 478 to the extent that the customer's agreements with the consumer do not go beyond the statutory claims for defects. The period of limitation is only tolled in accordance with German Civil Code [BGB] § 479 if the customer has demonstrably extended a warranty to his own customer.
Any further claims or claims not governed by these Terms that the customer may have due to a defect are excluded.
We have unlimited liability under statutory provisions for fraud, willful misconduct, personal injuries, under guarantees of certain characteristics, the German Product Liability Act [Produkthaftungsgesetz] and wherever the losses are covered by our general liability insurance.
We are also liable for grossly negligent breaches of duty as provided for by statute; only if the grossly negligent breach of duty pertains to an immaterial contractual obligation is our liability limited to the foreseeable damages or losses which are typical for the contract.
In the case of slight negligence, we are liable for breaches of material contractual obligations, but only for the foreseeable damages or losses which are typical for the contract and which could be expected to occur. Material contractual obligations are obligations (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer does and may consistently rely.
In the event of a delay in performance due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to a maximum of 5% of the amount invoiced for the Product affected by the delay. We may furnish proof that the damages are smaller.
We assume no liability whatsoever in any other case. The liability exclusions and limitations also apply to our directors, officers, legal representatives, employees, and other agents for whom we are vicariously liable.
The customer must maintain insurance in the scope customary for his industry and structure (e.g., without limitation, business interruption insurance). Contributory fault by the customer reduces our liability accordingly.
The customer is responsible for regularly backing up his data. We are not liable for any damages or losses arising from data loss due to negligence if the customer failed to ensure that the data could be restored with reasonable effort and cost from data material kept in machine-readable form.
8. Liability Disclaimer and Limitation
Where liability is limited to the foreseeable damages or losses which are typical for the contract, our liability for each damage or loss occurrence is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other types of damage or loss; the total liability for all damages and losses within a given calendar year is limited to twice these amounts.
This limitation does not apply if liability is unlimited by law or if the damages or losses are covered by the general liability insurance policy.
The customer will notify us in writing if he could sustain damages or losses in excess of this liability limitation by using our Product. In this case, we will make the customer an offer to take out additional insurance to cover the additional risk.
The limitation period for warranty claims expires as provided for by law, generally after 24 months.
9. Property Rights, Non-Disclosure, Data Protection
If the customer provides us with works (e.g. logos, photos, advertising copy etc.) to be integrated or processed with our Product, the customer will be responsible for ensuring that he has all the rights needed to provide the Product.
Unless otherwise expressly agreed in writing, the customer is responsible for the legality of the Product, including, without limitation, with respect to trademark, copyright and competition law. We will notify the customer of any legal risks that come to our knowledge.
In the exceptional case where we assume the legal responsibility for third-party property rights under a written agreement, the following will apply: If using the Product infringes on domestic industrial property rights or copyrights, we will, at our expense and option, either procure a license for the customer, modify the Product to be non-infringing, or replace the Product with a non-infringing Product. If this is impracticable for us, the customer can assert all statutory rights. This obligation only exists if the customer notifies us of any asserted claims without undue delay, refuses to acknowledge the infringement and we retain all options to defend ourselves. If the customer stops using the Product to reduce damages or for other good reasons, the customer must advise the third party that this suspension of use does not constitute an acknowledgement of infringement.
The customer may not assert claims for infringements which are his responsibility or which are caused by the customer's special requirements, by a use which we could not foresee, or by the customer changing the Product or using it with products which we did not supply. The customer hereby holds us harmless from any and all third-party claims and will pay reasonable court costs, our reasonable attorneys' fees and the third party's reasonable attorneys' fees as demanded by third parties due to the violation of third-party rights.
The customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, know-how and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. This does not, however, apply to contents which are publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on his employees and associate companies and on third parties to whom the contents have to be disclosed.
The customer consents to our processing his data (communication data, responsible employees, nature and extent of the customer's purchase orders, etc.) for contract administration and execution. We may also use the data to inform the customer about our products and services if they are typically used in connection with the Product that the customer has purchased from us.
Upon the provision and payment of the software, we will grant the customer a non-exclusive, non-transferrable contractual right to use the software on one computer in his company for his own business purposes, unless otherwise agreed.
We retain all other rights in and to the software including related materials (source code, updates, documentation) and any copies made thereof, even if the customer makes changes to it or combines it with his own software or that of a third party. The customer is not permitted to grant sub-licenses.
The customer is not permitted to reverse-engineer or decompile the software or cause the software to be reverse-engineered or decompiled except and to the extent expressly contracted for or permitted by law.
Software provided for testing purposes may only be used for testing purposes and not for business purposes.
10. Final Provisions
These Terms also apply to associate companies of the customer within the meaning of German Stock Corporation Act § 15 [AktG]. The customer must bind his associate companies to observance of these Terms.
Any amendments and modifications hereto that are not based on an individual agreement must be made in written form (including fax and e-mail). This also applies to a waiver of the written form requirement. If any provisions of these Terms are or become invalid, the validity of the remaining provisions will be unaffected thereby.
The customer may not assign to third parties any rights granted in this contract without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.
Our assembly and service terms govern any work, repairs or assembly activities that we may perform at the customer's request in connection with the Product. Placing an order constitutes acknowledgement of these terms.
The German wording controls in cases of doubt if the contract or the Terms are drawn up in more than one language.
German law applies unless national law inevitably conflicts with it. If the customer is a merchant as defined in the German Commercial Code (HGB) and unless otherwise agreed and irrespective of the agreed upon Incoterm, our principal place of business is the place of performance and jurisdiction, including with respect to warranty claims. We are, however, entitled to bring action against the customer at the court that has jurisdiction over the place of the customer's residence.
The Zurich Arbitration Court has jurisdiction over all legal disputes with customers outside the EU arising out of or in relation to the contract in accordance with the Swiss Rules of International Arbitration of the Swiss Chamber of Commerce. The court of arbitration consists of three arbitrators. The seat of the arbitration is in Zurich, Switzerland. Arbitration proceedings are conducted in the contract language.
Please follow our instructions regarding damages sustained in transit very carefully. Non-compliance with procedural requirements exempts the transport insurance company from its liability for claims. If damages are sustained in transit, you should safeguard your claims by involving the carriers' agents – as defined in their relevant provisions – in the damage assessment process early on, i.e.:
EXTERNALLY VISIBLE DAMAGES OR LOSSES:
- Must be documented prior to shipment acceptance by making a note on the waybill. For rail shipments: a damage report must also be requested from the railway company.
- For postal shipments: the postal service should acknowledge any damage in writing before damaged packages etc. are accepted.
DAMAGES OR LOSSES THAT ARE NOT IMMEDIATELY VISIBLE
- i.e. damages or losses not discovered until the shipment is unpacked: the carrier must be notified in writing without delay. The notification deadlines are as follows:
a) Postal service: immediately (within 24 hours at the latest) after delivery by the carrier
b) Railway company: no later than 7 days after delivery by the carrier
c) Freight forwarder transports in connection with railway transports: no later than 4 days after delivery by the carrier
We recommend submitting the necessary information to the carriers as follows:
Account Office ______________
(or Postal Office, Freight Forwarder, Trucking Company ______).
The shipment ___________
(Waybill, number of packages, signature information)
sent by (Consignor __________)
from __________to __________
arrived here on __________
and was accepted without any objections because it had no externally visible damage. Opening the shipment, however, revealed that the contents had been damaged and/or stolen in transit. We hold you responsible for the resulting damages. If you deem it necessary, you can evaluate the damage for yourself at
(Name, city, street, street number).
In addition, we ask that you notify the sender at our company and provide the delivery note and/or invoice number. Please attach the documents listed in the above information sheet to your complaint.