1 Validity
(1) All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Terms and Conditions of Delivery. They shall form an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as the "Principal") for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Principal, even if they are not separately agreed again.
(2) Terms and conditions of the Principal or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the seller refers to a letter containing or referring to the terms and conditions of the client or a third party, this does not constitute an agreement to the validity of those terms and conditions.
2 Offer and conclusion of contract
(1) All offers made by the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders within four hours of receipt.
(2) Information provided by the seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(3) The seller retains ownership or copyright of all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. Without the express consent of the Seller, the Client may not make these items available to third parties, either as such or in terms of their content, disclose them, use them himself or have them used by third parties, or reproduce them. At the Seller's request, he shall return these items to the Seller in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are in the currency stated plus packaging, the statutory value added tax, unless the services are subject to the reverse charge procedure. In the case of export deliveries, plus any customs duties in the recipient country, import turnover tax in the recipient country as well as fees and other public charges.
(2) Insofar as the agreed prices are based on the Seller's list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount)
(3) Unless otherwise agreed in writing, the Seller shall deliver only against advance payment or as an "onhold" transaction. After three deliveries and payments have been made, the payment method can be changed to "invoice" without any further written agreement
(4) If delivery on account has been agreed, invoice amounts are to be paid within 24 hours after receipt of the goods, without any deduction, unless an individual payment term has been agreed with the buyer, but not longer than 7 days. The date of receipt by the seller is decisive for the date of payment. Cheques are not accepted. Payments shall be deemed to have been made when the amount has been finally credited to the Seller's account or a cash payment has been made. If the Principal fails to make payment when due, interest of 5% p.a. shall be payable on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(5) Offsetting against counterclaims of the Principal or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been established as final and absolute.
(6) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Principal and which jeopardise the payment of the Seller's outstanding claims by the Principal arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
(7) In the case of "onhold" transactions with 10/90 payment, the seller may withdraw from the contract if the buyer is in default with the balance payment for more than 24 hours from the availability date/time. The availability date/time is deemed to be the time when the seller or a third party appointed by the seller notifies the buyer that the delivery has been allocated to the buyer. In the event of default, the seller may withdraw from the contract and claim its damages in the actual amount, but at least 10% of the total amount, and use for this purpose any advance payments already made by the buyer.
(8) In the event of the buyer's refusal to take delivery, despite provision of the contractually agreed service, the seller may withdraw from the sale 2 hours after provision of the service and claim its damages in the actual amount, but at least 15% of the total amount, and use any advance payments already made by the buyer.
(9) Seller has the right to assign its claims against the principal to third parties.
(10) If the principal is in default of payment of a claim, all other claims against the principal may be made due.
(11) Principal shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against it outside Germany.
4 Delivery and delivery time
(1) Deliveries shall in principle be made ex Seller's warehouse. The warehouse may also be operated by a third party.
(2) Periods and dates for deliveries and services promised by the seller shall always be approximate unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
(3) The Seller may - without prejudice to its rights arising from default on the part of the Principal - demand from the Principal an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the Principal fails to fulfil its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the delivery of goods or services). The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in procuring the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller is only entitled to make partial deliveries if- the partial delivery is usable for the Client within the scope of the contractual purpose,- the delivery of the remaining ordered goods is ensured and- the Client does not incur any significant additional expenditure or additional costs as a result (unless the Seller agrees to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller's liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is 34128 Kassel, Germany, unless otherwise specified. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.
(2) The method of dispatch and the packaging shall be at the Seller's discretion.
(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the dispatch. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g. shipping or installation). If dispatch or handover is delayed due to a circumstance caused by the Principal, the risk shall pass to the Principal from the day on which the delivery item is ready for dispatch and the Seller has notified the Principal of this.
(4) Storage costs after the passing of risk shall be borne by the Principal.
In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The Seller reserves the right to claim and prove further or lower storage costs.
(5) The Seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer's expense.
(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted if the Buyer has paid the purchase price in full.(6) In the case of "onhold" transactions, a commissioned third party has drawn up an IR and this is not objected to within 2 hours of receipt.
(7) In the case of deliveries to German customers who wish to have the goods shipped outside Germany, the economic transfer shall take place when the goods are handed over by the Seller to the carrier.
(8) Unless the Buyer gives instructions, the Seller shall decide on the choice of carrier and the mode of transport.
6 Industrial property rights
(1) In accordance with the provisions of this § 7, the Seller warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it on account of the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement. If he does not succeed in doing so within a reasonable period of time, the Principal shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Principal shall be subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers delivered by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Principal or assign them to the Principal. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful.
7 Liability for damages due to fault
(1) The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 8 insofar as fault is relevant in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item free of material defects in a timely manner as well as advisory, protective and custodial obligations which are intended to enable the Principal to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Principal's personnel or to protect the Principal's property from significant damage.
(3) Insofar as the Seller is liable for damages on the merits in accordance with § 8 (2), this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage which are the result of defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the seller.
(5) Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of performance owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 8 shall not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
8 Retention of title
(1) The retention of title agreed below serves to secure all the Seller's respective existing current and future claims against the Buyer arising from the supply relationship for electronic devices existing between the contracting parties (including balance claims from a current account relationship limited to this supply relationship).
(2) The goods delivered by the Seller to the Buyer shall remain the Seller's property until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title taking their place in accordance with this clause shall hereinafter be referred to as reserved goods.
(3) The Buyer shall hold the reserved goods in safe custody for the Seller free of charge.
(4) The Buyer shall be entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (clause 9). Pledges and transfers of ownership by way of security are not permitted.
(5) If the reserved goods are processed by the Buyer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Buyer hereby assigns its future ownership or - in the aforementioned proportion - co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the seller shall, insofar as the main item belongs to him, transfer to the buyer pro rata co-ownership of the uniform item in the ratio stated in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller by way of security the claim against the purchaser arising therefrom - in the event of co-ownership of the Seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The seller revocably authorises the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorisation in the event of realisation.
(7) If third parties access the goods subject to retention of title, in particular by way of seizure, the buyer shall immediately draw their attention to the seller's ownership and inform the seller thereof in order to enable the seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for this.
(8) The Seller shall release the goods subject to retention of title and the items or claims replacing them on request at its discretion if their value exceeds the amount of the secured claims by more than 98%.
(9) If the seller withdraws from the contract in the event of behaviour contrary to the contract on the part of the buyer - in particular default of payment - (realisation event), he is entitled to demand the return of the reserved goods.
9 Final provisions
(1) The place of jurisdiction for all possible disputes arising from the business relationship between the seller and the client shall be Kassel or the registered office of the client, at the choice of the seller. Kassel shall be the exclusive place of jurisdiction for actions against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Seller and the Principal shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole. Note:The Client acknowledges that the Seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract.
