I. SCOPE OF THESE Ts&Cs
1. Unless otherwise agreed in the individual case, agreements are exclusively concluded in accordance with the following provisions; by placing an order, the customer consents to our Ts&Cs.
We are only bound to conflicting or deviating conditions of the customer if we expressly accepted them in writing. Our Ts&Cs also apply if we are aware of conflicting or deviating conditions of the customer and perform our delivery or service without reservation.
2. These General Terms and Conditions apply to all of our deliveries and services and to all obligations resulting from a contractual relationship with the customer.
3. In the case of contractual relationship with enterprises and legal persons under public law, our Ts&Cs also apply to all future business relationships.
II. OFFER/AMENDMENTS OR SUPPLEMENTS
1. Our offers are non-binding, unless expressly provided otherwise.
2. An agreement between us and the customer is only concluded if the customer accepts our offer without reservations or the customer receives our written order confirmation, or we begin to perform delivery or service.
3. In those cases where we provide a written order confirmation, this order confirmation is decisive as regards content and scope of the agreement, unless expressly agreed otherwise.
4. Amendments, side agreements and supplements, as well as quality agreements [Beschaffenheitsvereinbarungen] or the assumption of warranties require an express agreement between the parties to be effective; this agreement must be in writing to be effective. The priority of the - also oral - individual arrangement according to Section 305b BGB [German Civil Code] remains unaffected.
III. ORDER PERFORMANCE
1. Unless expressly agreed otherwise, items to be delivered or services to be rendered (deliverables) must only meet the properties, technical data etc. as expressly agreed in the agreement; such properties or technical data only constitute the assumption of a warranty, if we expressly declare to be held liable under strict liability for such properties or technical data or if we expressly state that such properties or technical data are subject to a warranty; warranty statements must be made in writing to be effective.
2. We reserve the right to apply technical or design deviations from descriptions and specifications in our brochures,
catalogues or similar sales & marketing documents and to exchange products (or parts thereof) against products (or parts thereof) that are technically equivalent or better, without the customer being entitled to derive any rights or claims against us from these measures. Such descriptions and specifications, as well as advertising claims (also by the manufacturer) do not contain any warranty statements. Unless required otherwise by statutory provisions, we are only obliged to provide advice to the extent we assumed the provision of advice as a principal contractual obligation.
3. The customer is obliged to inform us in full of all facts and circumstances that are relevant for the performance of our delivery and/or service. We are not obliged to review data, information or other services provided by the customer regarding completeness and accuracy if the relevant circumstances in the individual case do not give rise to a review or we did not expressly assume such duty to review as a contractual obligation.
4. Insofar as work is performed at the customer site, required workplaces and work materials and equipment must be provided to our employees free of charge.
5. In those cases where we perform work outside of our premises, the customer is responsible to take all measures required to comply with the relevant duties of care, unless the nature of the subject or an arrangement with the customer requires or provides otherwise. We have the right to refuse performance of delivery and/or service, as long as required measures are not taken.
6. Notwithstanding our continued responsibility for the performance of contractual obligations, we are entitled without any restrictions to involve third parties for the performance of the agreement. If employees, whose assignment was contractually agreed, are not available for reasons we are not responsible for, we are permitted to replace these employees by other qualified employees.
IV. THE CUSTOMER’S DUTIES TO COOPERATE WITH DEVELOPMENT, MANUFACTURE AND CONSULTING SERVICES
1. Success in development projects routinely requires close cooperation between customer and us. For this reason, the contractual parties undertake to exercise mutual consideration, comprehensive and prompt information, as well as precautionary warning of risks and protection against interfering influences, also by a third party.
2. The customer undertakes, in the form of a material contractual obligation, to ensure that all agreed duties to cooperate and all agreed duties to provide services and materials are provided in the required quality and at the agreed dates i.e. the dates required for the project realisation without any additional cost to us. Insofar this is required for the project’s success, the customer will, in particular, provide sufficient own personnel, as well as qualified contacts for the entire project period. Insofar requirements to external systems are specified in the performance specifications or elsewhere in the agreement that are operated by the customer or by third parties, the customer is liable to us that these requirements are met.
3. If it turns out that information or documents provided by the customer are incorrect, incomplete, ambiguous or objectively unworkable, the customer will, promptly after notice by us, make the required adjustments and/or additions. The customer will promptly remedy or cause remedy of any defects or malfunctions with customer provided components reported by us.
V. RIGHTS TO USE
1. Upon delivery of results (such as concepts, construction drawings, software or similar) that are developed within the scope of a customer order, we grant the customer a non-exclusive right to use to these results, unless expressly agreed otherwise in the agreement. Scope and content of this right to use results from the relevant specific arrangement.
2. Insofar results were not developed by us, we only grant those rights to use to which granting we are authorised by the relevant rightholder.
4. Independent from the scope of the rights transfer to the customer, we are in any case authorised to use ideas, concepts, acquired expertise etc. for other developments and services, also for other customers.
VI. TIME LIMITS, DEADLINES AND DEFAULT
1. Scheduling, as well as milestones in a project serve as orientation in the operating plan of a project. Deadlines have
a binding effect only if they are expressly agreed as binding deadlines; this arrangement must be made in writing to be effective.
2. Insofar binding time limits and deadlines were not agreed with us, we are only in default if the customer has unsuccessfully set a reasonable grace period to perform the owed delivery.
3. In each case, time limits begin to run first from the complete provision of all cooperation acts to be performed by the customer, as well as from receipt of an agreed down payment, if any. Subsequent change requests or delayed provided cooperation acts by the customer reasonably extend delivery periods and deadlines.
4. If a delivery owed by us is delayed due to unforeseeable circumstances through no fault of us (e.g. labour disputes, interruption of operations, transport impediments, raw material shortages, administrative measures - also as regards our upstream suppliers - as well as failure to timely delivery by our suppliers), we have the right to withdraw from the agreement in whole or in part or at our option defer delivery by the duration of the impediment. The customer will be informed without undue delay of the non-availability of products or services. In the case of our withdrawal, we will, in addition, repay the customer’s consideration. Damage claims of the customer are excluded.
5. If the customer does not meet its collaboration or cooperation obligations or its obligation to provide services and materials, in whole or in part, any thereby affected delivery or performance periods / dates are no longer binding, in particular, we are not in default. After unsuccessful reminder, we have the right to demand compensation for the loss incurred by us, including any additional expenses. In this case the risk of accidental loss or accidental deterioration of the delivery item also passes to the customer at the point in time the customer is in default of acceptance.
6. If the customer also fails to meet its collaboration or cooperation obligations or its obligation to provide services and materials within a reasonable grace period following another reminder, we are, in addition, entitled to terminate the agreement without notice. In this case we are entitled to compensation and remuneration claims, at a minimum in an amount resulting under Section 645 BGB [German Civil Code]; additional claims on our part remain unaffected. We are entitled to the same right if we, as a consequence of a delay caused by the customer, are no longer able to realise the project within an adequate period of time or only at significantly greater costs, for example due to other obligations.
7. If we are in default for reasons we are responsible for or our duty of performance is excluded for reasons we are responsible for due to impossibility according to Section 275 Para 1 BGB [German Civil Code] or we have the right to refuse performance according to Section 275 Para 2 and 3 BGB [German Civil Code], we are, subject to the limitations of liability in Item XI, which remain unaffected, exclusively liable in accordance with the statutory provisions.
VII. PASSING OF THE RISK
The risk of accidental loss or accidental deterioration of the delivery item also passes to the customer upon shipment if we assumed shipment cost or other additional services or in the case of a partial delivery. We refer to Item VI. 5. Sentence 3 of these Ts&Cs.
1. Insofar our delivery requires acceptance, the customer is obliged to acceptance. Minor defects, which do not seriously impair the delivery’s fitness for the contractually specified purpose, do not entitle the customer to refuse acceptance, notwithstanding the customer’s right to assert statutory claims for defects.
2. Acceptance is deemed to be granted if - the customer refuses to declare acceptance in violation of Item VIII. 1. above or the customer refuses a joint acceptance inspection in spite of a demand including a reasonable set time limit; or - the customer does not declare acceptance in writing without undue delay after a joint acceptance inspection has been conducted, although the customer was asked by us to do so within a period of seven working days, unless the customer specifies within this period in writing the defects due to which the customer refuses acceptance, whereby we will again point out to the customer the significance of its conduct under this agreement on the commencement of the time limit.
3. In the case of independent separate partial performances, we have a claim to partial acceptances.
4. Intellectual performances are deemed to be accepted if the customer does not expressly raise reservations in written form within 30 days after receipt of these intellectual performances and specifically designates the defects, whereby we will again point out to the customer the significance of its conduct under this agreement on the commencement of the time limit. In the case of such a reservation we will review our performance. If the reservation turns out to be unjustified, the customer is obliged to bear the incurred costs, unless the customer is only at fault for slight negligence.
IX. PRICES AND PAYMENTS
1. The prices stated by us are decisive. Applicable statutory VAT is to be added, if applicable. Unless agreed otherwise, we do have a claim to the reimbursement of expenses in addition to the agreed remuneration.
2. Our invoices are payable without deduction of discount and free of expense in accordance with the agreed payment schedule, otherwise within 15 working days from invoice date. If we accept cheques in the individual case based on express arrangements, acceptance is only on account of payment and also without deduction of discount. Discount charges are to be borne by the customer, we only recognise cheque payments as fulfilment once the respective amounts are credited to our bank account without reservations. We reserve the right to demand reasonable partial and advance payments.
3. If we have several claims against the customer, we decide against which liability a payment is credited. The customer is only entitled to set-off rights if its counter-claims are recognised by declaratory judgement, are uncontested
or recognised by us in writing. The same applies to the assertion of rights of retention. Claims arising from the same legal relationship, in particular, claims for compensation for defect remedy costs or (project) completion costs are excepted from the above provision.
4. If, after the conclusion of the agreement, we become aware of circumstances which call into question our claims against the customer due to the customer’s lacking financial capacity, we have the right to carry out still outstanding deliveries only against advance payment or the provision of security and after the unsuccessful expiry of a set time limit for such payment or security to withdraw from the agreement; Item VI. 5. of these Ts&Cs applies accordingly.
5. In the case of delay in payment the customer owes default interest at the statutory rate, unless we can furnish proof of a greater damage to the customer.
X. CLAIMS FOR DEFECTS
1. If we provided a defective delivery or rendered a defective performance, the customer is obliged to give us the opportunity to supplementary performance within reasonable time limits, unless supplementary performance is unreasonable to the customer in the individual case or special circumstances exist that justify an immediate withdrawal from the agreement under consideration of the interests of both parties.
2. We are entitled to the right of choice between remedy of the defect or delivery of a defect free product or performance in any case.
3. The customer is obliged to inspect the delivery item as to obvious defects, which are readily apparent to a prudent businessperson. Within one (1) week after receipt of delivery, notice must be given in writing of any obvious defects, such as for example missing components or documentation materials, as well as readily identifiable damages.
4. The customer is obliged to give notice to us in writing within one (1) week after the identification of defects that - before the expiry of the prescription periods for claims to defects - become first obvious at a later date.
5. If the customer violates its duty to inspect and to give notice, the delivery item is, in-spite of the respective defect, deemed to be approved.
6. The customer must assert claims for defects in writing, stating all identified defects and indicating the circumstances according to which notice is given of these defects.
7. A defect does not exist, if a fault / bug claimed by the customer is not reproducible. If the customer made changes or alterations to delivered components, hardware or software, the customer is only entitled to claims for defects if the customer can demonstrate that its changes or alterations were not the cause for the defect.
8. If it turns out that a defect claimed by the customer does not exist, in particular, if a defect claimed by the customer is not reproducible, we have the right to demand a reasonable remuneration for our expenditures, unless the customer is only at fault for slight negligence.
9. If supplementary performance fails or we refuse supplementary performance or supplementary performance is unreasonable to the customer, the customer is exclusively entitled to the remaining statutory claims for defects (withdrawal, price reduction, self-help [BGB], damages or reimbursement of futile expenses). Damage claims exclusively exist according to Item XI of these Ts&Cs.
10. If the defect is only an insignificant deviation from an agreed quality/specification, the client is only entitled, at our option, to supplementary performance or adequate price reduction. If a certain quality/specification is not agreed, the same applies in the case of an insignificant deviation from the fitness for the required use under the agreement or otherwise usual use that is customary for goods of the same kind and which the customer may expect according to the nature of the goods.
XI. LIABILITY AND WITHDRAWAL
1. We are exclusively liable for damages according to the following provisions: We are liable in principle
• for intentional or gross negligent acts
• for any culpable violation of material contractual duties.
2. Insofar we are liable in cases of simple negligence, as to the amount our obligation to pay damages is limited to damages that are typical and foreseeable for such agreements.
3. Otherwise, any liability for property and pecuniary damages is excluded.
4. Excepted from this limitation of liability is the liability under the German Product Liability Act, as well for injuries to life, body and/or health.
5. If the object of performance is a construction, consequential damages arising from defects are excluded once the customer causes, based on our provided performance, the manufacture of corresponding tools or similar or has undertaken equivalent acts.
6. We are only liable for the restoration of data, if the customer has ensured that the data can be reproduced with
reasonable effort. For this reason, the customer is obliged to routinely backup data and programmes in application adequate intervals.
7. Insofar our liability for damages is excluded or limited under the above provisions, this also extends to the individual liability of our corporate bodies, employees and other staff, representatives and vicarious agents and also applies to all claims for culpa in contrahendo, violation of incidental duties and claims arising from tort (Sections 823 et seq. BGB [German Civil Code]), however, not to claims according to Sections 1, 4 ProdHaftG. [German Product Liability Act].
1. The customer’s claims for defects prescribe after one (1) year from the statutory commencement of the period of prescription. Excepted from this are claims according to Sections 438 Para 1 No. 1, 2; 634a Para 1 No. 2 BGB [German Civil Code]
2. Other contractual claims of the customer, if the customer is a businessperson, for violations of duties prescribe after one (1) year from the statutory commencement of the period of prescription.
3. Unaffected from the above provisions are statutory periods of prescription in the following cases:
• for damages arising from injuries to life, body or health;
• for other damages that are based on an intentional or gross negligent violation of duties by us, our legal representatives or vicarious agents;
• for the customer’s right to withdraw from the agreement in the case of a violation of a duty for which we are responsible and that is not a defect of the purchased goods or the work;
• for claims arising from wilful concealment of a defect and from a warranty of condition [Beschaffenheitsgarantie] within the meaning of Section 444 or Section 639 BGB [German Civil Code];
• for claims to reimbursement of expenditure according to Section 478 Para 2 BGB [German Civil Code].
4. The period of prescription in the case of a right of recourse against a supplier according to Sections 478, 479 BGB [German Civil Code] remains unaffected; this period of prescription is five years from the delivery of the defective goods.
XIII. RESERVATION OF TITLE
1. All delivered goods remain our sole property until our purchase price claim is satisfied, in the case of enterprises, until all of our claims from the business relationship is satisfied.
2. In the case of a current account balance, we reserve title until the balance is offset; in the case of acceptance of bills of exchange or cheques until they are honoured.
3. The customer is authorised to resell goods delivered by us in the normal course of business and without an arrangement of an exclusion of assignment. The customer hereby assigns to us its claim arising from the resale with all ancillary rights up to the final gross invoice amount of the claim; in the case of current account arrangements of the customer with third parties, this also applies accordingly to the claim arising from the current account balance. The customer remains authorised to collect the assign claim also after the assignment. Our right to collect these claims remains unaffected. We undertake, however, to refrain from collecting the claim, as long as the customer meets its payment obligations arising from the collected proceeds, the customer does not default in payment and, in particular, an application for the opening of insolvency proceedings has not been filed or the customer declared cessation of payments. If this is the case, the customer undertakes to disclose to us the assigned claims and their debtors and to provide us with all information required for collection, to deliver to us associated documents and to inform the debtors (third parties) about the assignment.
4. Processing or transformation of delivered goods by the customer is performed on behalf of us in any case. If the goods are processed with other goods that are not our property, we acquire co-ownership to the new object according to the ratio between the value of the purchased goods (final gross invoice amount) and the value of the other processed goods at the point in time of their processing. The provisions on the goods delivered subject to the retention of title also apply to the new object created by processing.
5. If, in the case of delivery of goods into another country, certain measures are necessary to make the retention of title effective in the importing state, the customer is obliged to point out this fact and to conduct such measures at its own expense. If the law of the importing state does not permit a retention of title but allows us, however, to retain other rights to the goods, we are authorised to exercise all rights of this kind. Insofar adequate security of the claims cannot be achieved by these measures, the customer is obliged to procure at its expense other collaterals for the delivered goods or other collaterals.
6. The customer may not pledge or transfer the goods subject to retention of title by way of security and the customer is obliged to promptly notify us of any attachments that are made at the request of third parties.
7. (20) We undertake to release securities owed to us at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 20%. We have the right to select the securities to be released.
XIV. SUBCONTRACTING OF PERFORMANCE
We have the right to engage third parties for the performance of our contractual obligations and to subcontract the customer order in whole or in part, provided legitimate interests of the customer are not impaired by this subcontracting.
XV. DETERIORATION OF THE CUSTOMER’S ASSETS
1 If, after the conclusion of the agreement, we become aware of facts that call into question the customer’s solvency, we have the right to demand payment in full or provision of a corresponding security before we continue to perform the customer order or after setting a reasonable grace period for the full payment or provision of security to withdraw from the agreement.
2. Facts that call into question the customer’s solvency are, in particular, attachments or other execution measures and
3. This also applies to the application for the opening of insolvency proceedings.
XVI. FORCE MAJEURE
1. If a delivery/performance is not possible due to force majeure, in particular, due to raw material, energy or workforce shortages, labour disputes, serious transport disruptions, interruptions of operations through no fault of us or unforeseeable interruptions of operations, administrative measures for which we are not at fault or other events for which we are not responsible, we are not obliged to provide delivery/performance as long as the performance impediment continue.
2. If the impediments according to Item XVI. 1. continue for more than 4 months, we have the right to withdraw from the agreement if we are no longer interested in the performance of the agreement as a consequence of the impediment. At the request of the buyer we will declare after the expiry of the period, whether we withdraw or meet our duties of performance within a reasonable period.
XVII. PROHIBITION OF ASSIGNMENT, SET-OFF AND RIGHTS OF RETENTION
1. Assignment of claims arising to the customer from the business relationship is excluded.
2. The customer is only authorised to set-off and assertion of Sections 273, 320 BGB [German Civil Code] if its counterclaims are either uncontested or recognised by declaratory judgement. Claims arising from the same legal relationship, in particular, claims for compensation for defect remedy costs or (project) completion costs are excepted from the above provision.
XVIII. PLACE OF PERFORMANCE, PLACE OF JURISDICTION AND GOVERNING LAW
1. Place of performance for all deliveries and performances is Neckarsulm unless agreed otherwise.
2. Exclusive place of jurisdiction for all claims arising from this business relationship against businesspersons and legal persons under public law is Heilbronn. We are, however, also entitled to bring an action against the customer before any other legally competent court.
3. All business relationships and the legal relationships as a whole between the customer and us are exclusively governed by German law; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.