AGB

§ 1 General – Scope of application 

Our terms and conditions of delivery shall apply exclusively; we shall not recognise any terms and conditions of the purchaser that conflict with or deviate from or supplement our terms and conditions of delivery unless we have expressly agreed to their validity in writing. Our terms and conditions of delivery shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions are contrary to, supplementary to or deviate from our terms and conditions of delivery.

All agreements made between us and the customer for the purpose of executing this contract must be set down in writing in this contract.

Our terms and conditions of delivery shall only apply to companies or legal entities under public law or a special fund under public law within the meaning of Section 310 (1) of the German Civil Code (BGB) and also to all future transactions with the customer.

§ 2 Offer – offer documents 

Our offers are subject to change. We reserve the right to make technical changes as well as changes in shape, colour and/or weight within the scope of what is reasonable.

With the order of a product the orderer is bound according to § 145 BGB. We are entitled to accept the contractual offer contained in the order within four weeks of receipt. Acceptance shall be made exclusively by means of a written order confirmation.

If the order is placed electronically, we shall confirm receipt of the order without delay. However, the confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt may also be combined with the declaration of acceptance.

The conclusion of the contract with the customer is subject to correct and timely self-delivery by our suppliers. The effectiveness of the reservation of self-delivery is dependent on the fact that a congruent legal transaction has been concluded with the supplier and that we are not responsible for the non-delivery. The customer shall be informed immediately of the non-availability of the services. The consideration will be refunded by us without delay, insofar as it has already been paid.

§ 3 Prices – Terms of Payment 

Unless otherwise stated in the order confirmation, our prices are “ex works” excluding packaging, which will be invoiced separately.

The statutory value-added tax is not included in our prices; it will be shown separately at the statutory rate on the day of invoicing.

The deduction of a discount requires a special written agreement.

The customer is obliged to pay our remuneration net (without deduction) within 7 days of the invoice date. If the customer is in default of payment, we shall be entitled to demand default interest in the amount of 8 % above the respective base interest rate. The assertion of further damage caused by default remains unaffected by this.

The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

– In addition, all rights of retention vis-à-vis us – irrespective of the legal relationship – are excluded in commercial transactions. The rights of the customer are only assignable with our written consent.

§ 4 Delivery time 

If a period for the execution of the order by us is specified or agreed with the customer, this period shall commence upon receipt of our order confirmation, but not before receipt of all documents, approvals, releases or other information to be procured by the customer for the execution of the order, in particular not before clarification of all technical questions.

Insofar as we are prevented from timely fulfilment of the contract due to special circumstances such as lack of energy, traffic disruptions, strikes, lockouts, unforeseen technical difficulties, delays due to inspection and approval procedures under customs or export control law or other procurement, manufacturing or delivery disruptions which lie outside our area of responsibility and which demonstrably have a considerable influence on our fulfilment of the obligation to perform, the delivery period for the execution of the order shall be extended by the respective period of time between the occurrence and the elimination of the obstacle. This shall also apply if

circumstances occur at our suppliers or subcontractors. In the event of an impediment to performance, we undertake to notify the customer immediately of both the occurrence and the elimination of the impediment. The agreement of the reservation of self-delivery in accordance with § 2 clause 4 is not

shall not be affected by the two preceding paragraphs. 4.

If we are in default of delivery for reasons for which we are responsible, the customer shall be entitled to demand a lump-sum compensation for default in the amount of 1% of the delivery value for each full week of default, up to a maximum of 5%. Any further claim for damages shall be excluded unless the damage is foreseeable and typical. 

§ 5 Transfer of risk 

Unless otherwise agreed in writing, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon handover or, if shipment is desired, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. 

If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the customer at the time at which he defaults in acceptance. 

§ 6 Cooperation of the Purchaser

The customer shall provide us with a contact person and a postal and e-mail address at which the contact person can be reached. This contact person must be authorised by the customer to make the decisions required within the framework of the order processing or to bring about such decisions without delay. Likewise, we shall name a contact person for the customer who can make the decisions required for the processing of the order or bring them about without delay.

If no contact person has been named in a separate form, the authorised representative of the customer listed in the order shall be deemed to be the contact person regulated in accordance with section 1.

§ 7 Delivery item

Our specifications regarding dimensions, weight, performance and material are made with care, but are non-binding unless they are expressly designated as binding. The same applies to all design specifications and proposals. We reserve the right to make changes due to technical developments.

Drawings, samples and documents produced by us remain our property. They may not be made accessible to third parties without our written consent. In this respect, we refer to the existence of industrial property rights or copyrights. Models, tools and other equipment for the execution of an order always remain our property, even if we charge a share of the costs.

A functional final test of our products is only part of the delivery item if this has been agreed separately. In the absence of a separate agreement, the functional final inspection shall be the responsibility of the customer.

§ 8 Warranty for defects 

The purchaser’s warranty rights presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). 

We guarantee that our products are manufactured according to the latest state of the art and in a conscientious manner. Nevertheless, defects in our products in hardware and software design and in the manufacturing processes are not unavoidable. For unavoidable defects in this sense, we shall only be liable for subsequent delivery or rectification (supplementary performance); any further warranty rights of the customer shall be excluded in these cases. The same applies to functional defects of our products if we are only responsible for a visual inspection and not also a functional inspection and the functional defect could have been discovered during a functional inspection. We provide a warranty for the quality regulated in clause 7 – with the exception of insignificant deviations – in that we, at our discretion, either subsequently deliver a defect-free product or rectify the defective condition after setting a reasonable deadline by the purchaser. If we decide on supplementary performance by remedying the defect, the customer shall only have further warranty rights if the remedying of the defect has failed twice. The reasonable period of grace shall not commence before the defect and our obligation to substitute have been established and proven. 

If the supplementary performance finally fails, the customer may in principle demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at his discretion. In the event of a minor breach of contract, in particular in the event of minor defects, the customer shall not be entitled to rescind the contract. With regard to the assertion of a right of withdrawal and a claim for damages, we refer to § 9. 

The Purchaser shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. 

Unless otherwise agreed in writing, the warranty period shall be as follows
otherwise agreed in writing, for all products supplied by us. However, it shall expire prematurely as soon as the purchaser attempts to carry out repairs or changes or fails to follow operating instructions. The warranty period begins with the date of delivery.

Public statements, recommendations or advertising by the manufacturer, in particular in brochures, leaflets, etc., do not constitute a contractual description of the quality of the products.

The Purchaser is hereby advised that the quality specifications set out in the performance description do not constitute guarantees in the legal sense. Quality specifications and guarantees that go beyond the product description shall only be deemed to have been declared to the customer if they have been recorded in writing by us.

§ 9 Buyer’s right of withdrawal and
other liability of the seller 

The buyer may withdraw from the contract insofar as the entire performance becomes finally impossible before the passing of risk in accordance with § 5 or the delivery has not taken place within a reasonable period of time, which may not be less than one month, unless the impediment to performance is at least predominantly attributable to the seller or it is a case in accordance with § 4 para. 2 of these provisions. Insofar as partial performances are possible which are otherwise usable by the buyer even after termination of the contract, the right of rescission shall be limited to the parts not yet performed.

If the impossibility occurs during the delay in acceptance or through the fault of the buyer, the buyer shall remain obliged to counter-performance. If partial performance within the meaning of paragraph 1 has already been rendered, there shall also be a claim to remuneration in this respect.

If the purchaser or a third party carries out modifications or repair work on the delivery item without our prior written consent, we shall not be liable for the resulting consequences. The provision of § 8 remains unaffected by this. 

We shall be liable in full for damage caused intentionally.

We shall be liable for damage culpably caused by us in cases of
gross negligence and for the slightly negligent breach of an obligation which is essential for achieving the purpose of the contract, to the amount of the typical and foreseeable damage. We shall only assume liability beyond this to the extent covered by our business liability insurance and pecuniary loss liability insurance up to a maximum amount of € 500,000.00.

§ 10 Retention of title 

We retain title to the delivery item until receipt of all payments arising from the business relationship with the customer. In the event of any breach of contract by the customer, in particular default of payment, we shall be entitled to take back the delivery item. The taking back of the delivery item by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the delivery item by us, on the other hand, always constitutes a withdrawal from the contract. After taking back the delivery item, we shall be entitled to realise it; the realisation proceeds shall be set off against the liabilities of the customer less reasonable realisation costs.

The customer is obliged to treat the delivery item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.

Liability for damage not occurring to the delivery item is excluded except in cases of intent and gross negligence. Liability for aviation risks directly or indirectly connected with the delivery item is also excluded.

Liability for personal injury, for the absence of a quality for which we have given a guarantee, as well as liability under the Product Liability Act shall remain unaffected by Clause 5 and Clause 6.

A limitation period of one year shall apply to all claims asserted against us for damages or compensation for futile expenses in the case of contractual and non-contractual liability – except in cases of intent or personal injury. The period begins at the point in time specified in § 199 paragraph 2 BGB. It comes into effect at the latest on expiry of the maximum periods specified in § 199 paragraph 3 and paragraph 4 BGB. The provision of § 8 number 5 remains unaffected.

The use of RoHS-compliant alternative articles for the manufacture of the delivery item by us is permissible in each individual case, even without express approval to this effect by the Purchaser, provided that the technical product specification as such remains unchanged for the alternative articles used by us for the manufacture of the delivery item, apart from unavoidable modifications in terms of process technology (e.g. processing temperature) and material technology (RoHS substance limits). We point out that the purchaser is obliged to observe the provisions of EU Directives 2002/95/EC (RoHS) and 2002/96/EC (WEEE) as well as the national regulations issued in implementation thereof (Germany: ElektroG) in their respective applicable version and is responsible in particular for compliance with the corresponding usage and disposal specifications.

The customer shall be responsible for ensuring that the products or parts thereof purchased from us are not subject to national or international export or import restrictions. If a product or parts thereof are subject to an export or import restriction, the customer shall procure the necessary export or import licences at its own expense. In the event of established violations of export or import restrictions, the customer shall expressly release us from any liability and responsibility in the external relationship – irrespective of the legal grounds. In the event of a violation, the customer shall also bear all damages incurred by us as a result. We accept no liability for delays in delivery resulting from national or international export restrictions or for the fact that a delivery cannot be carried out at all due to national or international export restrictions.
cannot be carried out at all due to national or international export restrictions. We shall not be liable for compensation or damages in this case.

In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO, the purchaser shall be liable for the loss incurred by us. 

The customer is entitled to resell the delivery item in the ordinary course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery item was resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, he is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. However, if one of these cases exists, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment. 

If the delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other mixed items in such a way that the item of the customer is to be regarded as the main item and it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us. The customer also assigns to us the claim to secure our claims against him which arise against a third party through the connection of the delivery item with a property. 

We undertake to release the securities to which we are entitled at the request of the customer insofar as the value of our securities exceeds the claims to be secured by more than 20 %; the choice of the securities to be released is incumbent on us. 

§ 11 Place of Jurisdiction – Place of Performance 

If the customer is a registered trader, our registered office shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence. 

Unless otherwise stated in the order confirmation, our registered office shall be the place of performance. 

§ 12 Partial invalidity 

Should any provision of this agreement be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Instead, the parties undertake to replace the invalid or unenforceable provision with a provision that comes as close as possible to the economic intention of the invalid or unenforceable provision. The same procedure shall be followed to fill any gaps in the contract.