1. General Provisions
1.1 All deliveries, services and offers are provided exclusively on the basis of these delivery and payment conditions even if not expressly mentioned during negotiations. These conditions shall also apply to future business relations even if not expressly agreed upon once again. At the latest on acceptance of our delivery or service our conditions shall be deemed to have been accepted.
1.2 Any conditions of the customer which conflict with or deviate from our conditions shall only apply if these have expressly been agreed in writing.
1.3 We reserve the right to make standard technical and design modifications to the delivery items provided that this does not affect the customer to an unreasonable extent or has any impact on their usability.
2.1 Our employees are not authorized to enter into verbal agreements or give any assurances which are not included in the content of the written contract.
2.2 Delivery times are approximate and non binding unless we have expressly confirmed their binding nature.
3.1 Our prices (in the currency stated) are ex warehouse Küssaberg. Packaging, loading and shipping costs as well as the costs of any agreed transport or other insurance shall be invoiced separately prices are subject to value added tax at the statutory rate on the date of invoicing.
3.2 Should the delivery date be later than four months after conclusion of the contract and in the meantime, there have been changes regarding the price basis (price increase of raw materials, wage increases), we shall reserve the right to adjust our prices accordingly.
3.3 In the case of partial deliveries we may invoice each shipment separately.
3.4 If no prices have been agreed upon conclusion of the contract, our prices valid on the date of delivery shall apply.
4. Payment Terms
4.1 Our invoices are payable within 10 days with a cash discount of 2% or strictly net within 30 days as from the date of invoice
4.2 If the customer is in default of payment, we shall be entitled to charge default interest at a rate of 8 percentage points above the base interest rate. We may at any time claim a proven higher interest loss and charge this accordingly.
4.3 In the event of non-compliance with the terms of payment, default or the occurrence of other circumstances which may jeopardise the creditworthiness of the customer, all amounts due shall immediately become payable. In this case we shall also be entitled to demand that other agreed deliveries to the customer are paid in advance or paid cash on delivery.
4.4 The customer has the right to withhold or offset payments against counter claims only insofar as such claims have been legally established, are undisputed or have been accepted by us.
4.5 We are under no obligation to accept bills of exchange or checks. Credits to this effect shall always be subject to redemption (on account of payment, not on account of performance). They shall be credited on the date on which we are able to dispose of the equivalent value. Bills will be credited net of the costs and fees charged for the transfer.
5. Time of Performance and Impediments to Performance
5.1 Our delivery period commences on sending the order confirmation, but not before the customer has provided the necessary documents, approvals and clearances and not before receipt of the agreed advance payment or deposit and clarification of all technical issues.
5.2 The delivery deadline shall be deemed to have been met if by then the delivery item has left our warehouse or notification that the item is ready for dispatch has been issued.
5.3 For orders on demand, the ordered goods must all be fully purchased within 12 months of the order date. Changes to agreed call-off dates must be notified 45 days in advance in writing.
5.4 In the event of a delay in delivery and on expiry of a reasonable grace period of at least three weeks, the customer may withdraw from the contract; However, in the case of orders on demand withdrawal may only be in respect of the individual delayed call-off. In the event that it is impossible for us to deliver, the customer shall be entitled to withdraw from the contract with immediate effect. Delivery shall be deemed to be impossible if the delay in delivery is longer than one month. Notwithstanding the provisions of paragraph 5.4, claims for damages including any consequential damages are excluded. The same shall apply to reimbursement of expenses.
5.5 The exclusion of liability pursuant to paragraph 5.3 shall not apply if the agreed exclusion or limitation of liability for damages resulting from loss of life, loss of limb or loss of health is due to willful or negligent breach of duty on our part or due to Willful or negligent breach of duty on the part of our legal representatives or agents. Nor shall this exclusion of liability apply if the agreed exclusion or limitation of liability for other damages is due to willful or negligent breach of duty on our part or due to willful or negligent breach of duty on the part of our legal representatives or agents. If we are in culpable breach of a material contractual obligation, our liability shall not be excluded but limited to foreseeable damage typically occurring under this type of contract.
5.6 Should unforeseen impediments occur which are beyond our control and which we are unable to avert under the circumstances despite reasonable precautions and due care and regardless of whether they affect us or one of our suppliers such as force majeure, delays in delivery of essential raw materials , changes in official import / export regulations, or failure to deliver on time or according to the contract on the part of our suppliers, we shall be entitled to withdraw either in full or in part from the contract or to extend the delivery period by the duration of such impediment. The same rights shall apply in the event of strike or lock-out at our premises or at those of our suppliers. We shall inform our customers immediately in the event of such circumstances.
6. Transfer of Risk
6.1 The risk shall be transferred to the customer upon handing over of the ordered delivery items to the carrier. In so far as acceptance is to take place, this shall be decisive for the transfer of risk.
6.2 Even if our delivery items and services prove to have minor defects, they are to be received or accepted by the customer notwithstanding its rights under paragraph 8.
6.3 Partial deliveries shall be permissible provided that this is acceptable for the customer.
7. Retention of Title
7.1 We retain title to all delivered goods until the customer has made all current payments and future payments relating to the business relationship with us. The retention of title also covers spare parts and replacement parts even if these have already been installed.
7.2 In the event of breach of contract on the part of the customer and in particular default in payment, we shall be entitled to repossess the goods. The customer hereby gives advance consent to this repossession in such a case. Repossession shall only be deemed a withdrawal from the contract if this is expressly stated by us. All costs relating to the repossession of the goods (in particular, transport costs) shall be for the account of the customer.
7.3 The customer may neither pledge nor assign nor transfer the delivery goods as security in respect of its indebtedness to third parties. In the event of seizure or other interventions by third parties, the customer shall notify us in writing immediately.
7.4 The customer shall be entitled to resell or process the delivered goods in the ordinary course of business. The customer shall hereby already now assign to us all receivables from the resale or processing of the goods and on any other legal grounds (in particular insurance or tort) to the mutually agreed amount of the final invoice (including value added tax). Even after such assignment the customer shall be entitled to collect these receivables while our right to collect such receivables ourselves remains unaffected. We undertake not to collect such receivables as long as the customer meets its payment obligations from the proceeds it receives, is not in default of payment to us and no application for insolvency proceedings against it has been instituted or payments have not been suspended.
Is this the case, however, the customer shall notify us upon request of the assigned receivables and debtors, provide all information necessary for the collection of the debt, submit the relevant documents and notify the debtor (third party) of the assignment.
7.5 The amount of collateral we are entitled to shall not be collected insofar as the value of our collateral exceeds the nominal value of the receivables to be secured by 30%.
7.6 The assertion of the retention of title in the event of default in payment or risk or seizure of the delivery goods by us shall constitute a withdrawal from the contract.
8. Liability for Defect in Delivery
8.1 We shall accept liability for defect in delivery or services in the event that it has fulfilled its inspection and notification obligations in accordance with § 377 HGB [German Commercial Code] as follows: Should there be a defect in the delivered goods, we shall be entitled at our discretion to remedy the defect or supply an item free of defect (subsequent performance). The prerequisite shall be that it is not a question of a minor defect. A defect would be considered to be minor if the goods delivered by us were only slightly defective to a percentage which is to be accepted as customary for such products. In the event that one or both types of remedy are impossible or disproportionate, we shall be entitled to refuse to remedy the defect. Likewise,
8.2If the remedy mentioned in paragraph 8.1 is impossible or fails, the customer shall have the option either to reduce the purchase price accordingly or to withdraw from the contract pursuant to the statutory provisions. This shall apply particularly in the event of culpable delay or refusal to remedy the defect or also if it fails a second time. In this respect as paragraph 8.3. below does not provide otherwise, further claims by the customer, regardless of the legal grounds (in particular claims arising from breach of main and ancillary contractual obligations, reimbursement of expenses with the exception of those defined in § 439 para. 2 BGB [German Civil Code], tort or any other tortious liability) are excluded. This shall apply particularly to claims for damages beyond the scope of the delivery of goods or services as well as to claims for loss of profits. Also included are claims which do not result from the defective nature of the item purchased.
The foregoing provisions shall also apply in the event of delivery of the incorrect item and short deliveries.
8.3 The exclusion of liability pursuant to paragraph 8.2 shall not apply if the agreed exclusion or limitation of liability for damages resulting from loss of life, loss of limb or loss of health is due to willful or negligent breach of duty on the part of the user or due to willful or negligent breach of duty on the part of our legal representatives or agents. Nor shall this exclusion of liability apply if the agreed exclusion or limitation of liability for other damages is due to willful or negligent breach of duty on our part or due to willful or negligent breach of duty by our legal representatives or agents. If we are in culpable breach of a material contractual obligation, our liability shall not be excluded but limited to foreseeable damage typically occurring under this type of contract. In all other respects, it is excluded pursuant to paragraph 8.2. Furthermore, the exclusion of liability shall not apply in those cases where under the Product Liability Act in the event of defects in the goods supplied there is liability for personal injury or damage to property relating to privately used items. Nor shall it apply in the case of assumption of a guarantee and assurance of a characteristic feature if a defect covered by this thereby activates our liability.
The aforementioned shall apply accordingly to any reimbursement of expenses.
8.4 We shall accept no liability for damages on the following grounds: Unsuitable or improper use, faulty installation or commissioning by the customer or third parties, natural wear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences (insofar as they are not attributable to us) or improper modifications or repair work carried out by the customer or third parties without our prior approval.
8.5 Claims for price reduction and exercising the right of withdrawal shall be excluded if the claim for remedy is time-barred. Claims arising from manufacturer redress remain unaffected.
9. Liability for Ancillary Obligations
If through our fault the item delivered cannot be used by the customer according to the contract or damage arises as a result of omitted or faulty execution owing to suggestions and consultations as well as other ancillary contractual obligations (in particular instructions for the operation and maintenance of the delivery item) before or after conclusion of the contract, then to the exclusion of further claims on the part of the customer the provisions in paragraph 8 and 10 shall apply accordingly.
10. Withdrawal from the Contract on the Part of the Customer or Other Liability on our Part
10.1 The following provisions shall apply to breaches of contract over and above liability for defects and shall neither exclude nor restrict the statutory right of withdrawal. Likewise, our legal or contractual rights and claims shall be neither excluded nor restricted.
10.2 The customer may withdraw from the contract if the overall performance is definitely impossible. The same shall apply to our inability to provide goods or services. If there is a delay in performance and the customer grants us a reasonable period within which to complete the performance following justification of the delay and this extended deadline is not met, the customer shall be entitled to withdraw from the contract.
10.3 Withdrawal shall be excluded if the customer is solely or largely responsible for the circumstances which entitle the customer to withdraw or if the reason occurred within our scope of responsibility at the point of time of acceptance on the part of the customer.
11. Limitation Period
All claims by the customer for whatever legal reason shall be subject to a limitation period of twelve months. For deliberate or fraudulent conduct and claims under the Product Liability Act, the statutory periods shall apply. The statutory periods shall also apply to defects in a building or delivery items which were used in accordance with their customary purpose for buildings and were the cause of their defectiveness.
12. Place of Performance, Place of Jurisdiction and Applicable Law
12.1 The place of performance is Küssaberg, Germany.
12.2 The place of jurisdiction is Küssaberg, Germany. We shall be entitled to institute proceedings against the customer at other admissible places of jurisdiction.
12.3 In respect of all claims and rights under this contract, the law of the Republic of Germany shall apply and the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
13. Warranties, Advertising
13.1 We shall only accept warranties subject to special agreement with our customers. Reference to DIN standards only serves as a product specification and does not constitute a warranty.
13.2 We shall only be liable for public statements, in particular with regard to our advertising, if we have initiated them ourselves. In such cases, a warranty obligation only exists if our advertising has actually influenced the decision of our customers to avail themselves of our goods or services.
14. Other Provisions
14.1 We hereby advise the customer that various semiconductor elements in their uninstalled state are subject to export restrictions and in particular require export licenses. The customer shall observe these provisions should any items procured from us be exported.
14.2 Any amendments to this contract shall only be effective with our consent.
14.3 If any individual provision of these terms of delivery and payment becomes ineffective or void either in full or in part, this shall not affect the validity of the remaining provisions. Our customers and we shall undertake to agree on a valid provision which comes closest to the economic purpose of the ineffective or void provision.
As of March 2015