1 General terms and conditions of business and delivery
1. All our deliveries and services are carried out exclusively on the basis of these terms and conditions of sale and delivery. Regulations deviating from these conditions, in particular also terms and conditions of the buyer, only become effective with our written confirmation. The acceptance of deliveries or partial deliveries is in any case considered to be acceptance of our general terms and conditions. Changes and additions to a contract as well as ancillary agreements are only binding if they are confirmed by us in writing. These conditions also apply to further business relationships. If our conditions are changed, they apply from the time they are first received by the buyer.
II. Conclusion of the contract
1. Our offers are subject to change and non-binding. Subject to prior sale. Orders and agreements only become binding when they have been confirmed by us in writing. Delivery and invoicing are equivalent to written confirmation. The written confirmation is considered a commercial letter of confirmation.
2. The information contained in brochures or similar documents and the information provided with an offer, such as images, drawings, descriptions, dimensions, weight, performance and consumption data, information relating to the usability of devices for new technologies, are only approximate decisive, unless they are expressly designated as binding. Properties of the object of purchase are only guaranteed if they have been agreed in writing. Minor deviations from the description of the offer are considered approved and do not affect the fulfillment of the contract, provided that the deviation is not unreasonable for the buyer. This applies in particular to changes and improvements that serve technical progress.
III. Standard software
1. For the delivery of standard software, the license or other conditions of the manufacturer enclosed with the data carrier (e.g. diskette) and / or contained on it also apply. The buyer expressly recognizes the validity of these conditions by opening the sealed data carrier. The buyer who does not want to accept the manufacturer’s conditions has the right to withdraw, which must be exercised in writing within 10 days of receipt of the software.
2. The buyer undertakes not to make the software accessible to third parties, neither in the original nor in the form of complete or partial copies. The documentation and other printed documents may only be reproduced with our written consent.
3. Regardless of the time and reason for the termination of the contract, the buyer undertakes to return the original and all copies and partial copies of the software as well as the documentation and other documents provided in printed form to us. Software that is recorded on the buyer’s machine-readable recording media must be deleted immediately and completely. The buyer is obliged to confirm to the seller in writing that he has not kept or passed on any copies or partial copies, and that the stored software has been completely deleted.
4. As for the rest, the buyer and seller agree that a computer program (software) according to the current state of the art is an error-prone work that is created to carry out certain tasks. Errors that do not conflict with the intended use or which do not unreasonably reduce the utility of the software do not constitute a defect. The software manufacturers offer their own update regulations to correct small errors and update software, which are free of charge or for a fee from time to time and are available when needed.
5. Documents, screen dialogs and printouts of software products in the respective specified language. Unless otherwise stated, these are English / American versions. Even in software versions in other languages, IT-typical terms can come from the English-speaking area, such as DIR, COPY, … and similar.
1. Unless otherwise expressly agreed, our deliveries and services are carried out at the prices on the price list valid at the time the contract was concluded.
2. For goods that are delivered more than four months after the conclusion of the contract, we reserve the right to adjust prices up to the amount of our list prices valid on the day of dispatch.
3. If the costs on which the contract was based increase by more than 20%, then we can demand an appropriate price adjustment even with a fixed price agreement. If this is not approved, we can withdraw from the contract in whole or in part.
4. The agreed prices are ex warehouse in Straelen plus shipping costs (packaging, freight, insurance, etc.) as well as the VAT applicable on the day of delivery or other service without installation, training or other ancillary services. The dispatch takes place according to our free choice. We are entitled, but not obliged, to insure the goods on account of the buyer.
5. Unless otherwise agreed, payments must be made strictly net without discounts or other deductions.
6. Checks are only accepted on account of payment. All actual collection and discount charges will be charged.
7. If the buyer is in default of payment, he has, subject to the assertion of further rights, to pay default interest of 3% above the respective discount rate of the Deutsche Bundesbank, but at least 9% per year.
8. If the purchaser’s assets deteriorate, which give rise to doubts about his creditworthiness or willingness to pay, in particular in the case of bill and check protests, default in payment, payment arrears from other deliveries, sluggish payment methods, we are entitled, subject to our other rights, to prepayment or security demand to withhold our services until the advance payment or security deposit and, in the event of insufficient advance payment or security provision, withdraw from the contract in whole or in part. In any case, all of our claims from the contractual relationship are due immediately.
9. The buyer is only entitled to a right of retention if it is based on the same contractual relationship. The buyer can only offset counterclaims that are either undisputed or have been legally established.
V. Delivery time
1. Correct and timely delivery to us is reserved.
2. Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be stated in writing. We endeavor to adhere to them on time. The delivery period is met if the delivery item has left the warehouse by the time it expires or the buyer has been notified of readiness for dispatch.
3. In the event of force majeure and other unforeseeable, extraordinary and involuntary circumstances – e.g. operational disruptions due to fire, water and similar circumstances, failure of production facilities and machines, strikes and lockouts, lack of workers, material, energy, transport options, official interventions, etc., even if they occur at sub-suppliers, if we are prevented from fulfilling our obligations on time due to these circumstances, the delivery period is extended by a reasonable time. If we do not deliver after the delivery deadline, which has been extended by a reasonable time, the buyer can set us a reasonable grace period and withdraw from the contract after the grace period has expired without result.
4. If the specified circumstances make the delivery or service impossible or unreasonable, we shall be released from our delivery obligation.
5. In other cases, the buyer is entitled to set us a reasonable grace period in writing with a threat of rejection if we exceed the agreed delivery time by more than six weeks. If the grace period expires without result, the buyer is entitled to withdraw from the contract.
6. If the buyer suffers damage because we have culpably not adhered to the binding delivery times or are in default, he is entitled to compensation in the amount of 0.5% for each week of the delay, but in total up to a maximum of 2.5% of the invoice value of the deliveries and services affected by the delay.
7. Adherence to the delivery period presupposes the fulfillment of all contractual obligations of the buyer.
VI. Transfer of risk
1. The risk passes to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left our production facility or our central warehouse for shipment, regardless of whether the shipment is from the place of performance and who bears the freight costs . If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk is transferred to the buyer upon receipt of the notification of readiness for dispatch.
2. We are entitled to make partial deliveries.
VII. Retention of title
1. All our deliveries are made subject to retention of title. Ownership is only transferred to the buyer when he has discharged all his liabilities from the business relationship with us, in the case of payment by check, only when it has been redeemed.
2. Pledging or assignment by way of security is prohibited beforehand. Resale is only permitted in the ordinary course of business. In the event that the goods subject to retention of title are resold, the purchaser hereby assigns to us his purchase price claim against the purchaser in full.
3. If the buyer is in default with a payment in whole or in part, if he suspends his payments or if there are other justified doubts about his solvency or creditworthiness, he is no longer entitled to dispose of the goods. In such a case, we can assert the rights from § 455 BGB and / or revoke the buyer’s authorization to collect from the recipient of the goods. We are then entitled to request information about the recipient of the goods, to notify them of the transfer of the claim to us and to collect the buyer’s claims against the recipient of the goods.
4. If the value of all security rights to which we are entitled under these provisions exceeds the amount of all secured claims by more than 25%, we will release a corresponding part of the security rights at the request of the buyer.
5. For the duration of the retention of title, the goods owned by us are to be insured by the buyer against fire, water, theft and burglary. The rights from this insurance are assigned to us. We accept this assignment.
1. In the event of defects in the delivery item, which also includes the lack of warranted properties, we are entitled, at our option, to repair the defective delivery item or to deliver a new one. We guarantee for the replacement part and the repair in the same way as for the delivery item. If the repair or replacement delivery fails, the buyer is entitled to reduce the payment (reduction) or to cancel the contract (rescission). A rework has failed if it has been tried several times and the buyer cannot be expected to carry out further rework.
2. The buyer’s warranty claims are excluded if the buyer fails to report obvious defects within two weeks and non-obvious defects within six months of delivery in writing. This does not affect the merchants’ inspection and complaint obligations under Sections 377 and 378 of the German Commercial Code (HGB).
3. The prerequisite for the guarantee is that, at our option, the defective delivery item can either be inspected and checked by us at the purchaser’s premises or, at our request, sent back to us. Replaced parts become our property.
4. The above provisions apply accordingly to those claims of the buyer for rework, replacement delivery or compensation for damages that arose from suggestions or advice made within the framework of the contract or from breach of secondary contractual obligations.
5. Liability for the consequences of changes and repairs carried out by the buyer or third parties is excluded. At the same time, any warranty claim expires.
6. The assignment of warranty claims to third parties is excluded.
7. If the buyer sells the items we have delivered to third parties, he is prohibited from referring to us because of the associated legal and / or contractual warranty claims.
8. If the buyer is a merchant, notices of defects do not affect the due date of the purchase price claim, unless their justification has been recognized by us in writing or has been legally established.
1. Claims for damages, regardless of the legal reason, in particular due to poor performance, positive breach of contract, breach of secondary obligations and negligence in contract negotiations as well as tort are excluded. This does not apply in the event of a lack of warranted characteristics, intent, gross negligence, breach of essential contractual obligations, delay in performance and impossibility of performance for which we are responsible.
2. Claims for compensation for lost profit, lack of savings, indirect and / or consequential damage are excluded. This does not apply in the event of a lack of guaranteed properties, intent or gross negligence.
3. We are not liable for the recovery of data unless we caused it to be destroyed deliberately or through gross negligence and the buyer has ensured that this data can be reconstructed with reasonable effort from data material that is kept available in machine-readable form.
X. Right of return
1. If a right of return is agreed for individual products, the goods must be handled carefully and returned to us free of charge by the agreed deadline in order to make use of this option. In the case of dispatch, the buyer must pack the goods securely for transport and insure them at his own expense. The buyer bears the costs for shipping there and back. Section III applies accordingly to standard software.
XI. Place of performance, place of jurisdiction and legal system
1. For contracts with registered traders, the place of performance for delivery and payment as well as the place of jurisdiction is agreed to be Straelen, with the proviso that we are also entitled to sue at the place of the buyer’s registered office or branch.
2. The law of the Federal Republic of Germany applies. The provisions of the uniform sales law and the Uncitral sales law do not apply in the relationship between us and the buyer.
XII. other agreements
1. Should individual provisions of these conditions be or become ineffective in whole or in part, this shall not affect the validity of the remaining conditions.
2. Deviations from these conditions must be made in writing. This written form agreement can also only be changed in writing.
3. The buyer agrees that we use the data obtained from the business relationship within the meaning of the Data Protection Act for our own business purposes, including within the group, including our subsidiaries.