General Terms and Conditions of Delivery and Payment
of Digitaltest GmbH
(non-binding translation of the German version – in case of doubt the German version of our General Terms and Conditions of Delivery and Payment shall always have precedence.)
§ 1 Scope of the contractual terms and conditions
(1) Our deliveries, services and offers shall be carried out in the entrepreneurial transactions exclusively based on these General Terms and Condition of Delivery and Payment. They shall form an integral part of all contracts which we conclude with our contractual partners (hereinafter referred to as “Buyer“) concerning deliveries and services offered by us. They shall also apply to future deliveries, services or offers, even if they have not been agreed separately again.
(2) Other contractual terms and conditions shall not become contractual contents even if we do not expressly object thereto.
(3) Our licensing provisions shall apply additionally to the delivery of standard software. §§ 611 ff. BGB [Civil Code] shall apply additionally to additional services (e.g. training).
§ 2 Conclusion of the contract
(1) Our offers are without obligation and are non-binding unless the offer is described as binding in writing. A legal commitment shall only be concluded through a contract which is signed by both parties or through a written order confirmation, also due to the fact that we begin with providing the services as per contract. Verbal collateral agreements, addendums or amendments or collateral agreements, addendums or amendments by telephone shall require a written confirmation.
(2) The Buyer shall be bound to declarations for the conclusion of contracts (contractual offers) for four weeks.
§ 3 Contractual object, scope of services
(1) We shall provide our services according to the recognised rules of technology. Decisive for the scope, type and quality is the contract signed by both parties or our order confirmation. Our type samples, which we shall send after the order has been placed upon request, shall be decisive for the execution. The Buyer should store these especially marked. Product specifications and other descriptions (e.g. type samples) only reflect approximate properties insofar as an exact correspondence is not necessary according to the purpose which was intended as per contract. They represent performance specifications, however no guarantees. A guarantee requires a written declaration by our management.
(2) The transport and if applicable return transport of objects of the Buyer is carried out, insofar as not agreed otherwise, at his costs and risk; the return transport shall however only be carried out at the express request of the customer.
(3) If our own appliance is damaged or destroyed or is lost as a result of or on the occasion of the proper execution of our service without it being our fault then we shall be entitled to request compensation from the Buyer in the corresponding application of § 670 BGB.
(4) Irrespective of whether the order is in itself executed or not type samples shall be remunerated separately.
(5) Insofar as not expressly regulated otherwise tools shall remain our property even if the Buyer has taken over a share of the costs.
§ 4 Price
Insofar as not otherwise agreed the prices shall apply plus value added tax ex works excluding freight and transport insurance. We reserve the right to charge surcharges for the event that there should be an increase in the material prices, wages, taxes, customs duties, other duties or fixed costs after the order has been accepted. The price shall be increased accordingly with the occurrence of the quoted currency.
§ 5 Payment
Our invoices are payable within 30 days after the invoice date pure net cash. In case of default in payment we shall charge interest on default in the amount of 9 % p.a. per started calendar month.
§ 6 Delivery and delivery time
(1) Deadlines and dates for deliveries and services, which we have announced, shall always only be deemed as approximate unless a fixed deadline or a fixed date has been expressly promised or agreed.
(2) The delivery time shall be extended by the period of time in which not all details of the execution have been clarified and both parties have reached an agreement about all terms and conditions of the business and refer to the completion in the plant.
(3) The observance of the deadlines and dates for deliveries and services presumes the satisfaction of the Buyer’s contractual duties, in particular the agreed terms of payment. The delivery time is extended by the period of time in which the Buyer is in default with the payment.
(4) We shall not be liable for the impossibility of the delivery or for delays in delivery, for which we are not responsible insofar as these have been caused by force majeure or other events which were not foreseeable at the time when the contract was concluded (e.g. interferences to operation, shortage of materials, transport delays, strikes, lawful lockouts, incorrect or late delivery by suppliers). Such events entitle us to postpone the delivery time for the duration of the impediments also if they occur during a delay in delivery. The same shall apply if official or other permits of third parties, which are necessary for the execution of deliveries, and documents or other information of the Buyer which are necessary for executing the delivery are not received or not in time as well as with a subsequent change to the order.
(5) We shall be entitled to partial deliveries if
- the delivery can be used by the Buyer within the framework of the intended purpose as per contract,
- the delivery of the residual delivery object is ensured,
- and the Buyer is not hereby incurred substantial additional expenses or substantial additional costs (unless we declare that we are willing to take over the additional costs).
(6) If we are in default with a delivery or service or if a delivery or service is not possible for us – no matter for what reasons – then our liability is limited according to § 10 of these General Terms and Conditions of Delivery and Payment.
§ 7 Place of performance, shipment
(1) The place of performance for all obligations from the contractual relationship is Stutensee-Blankenloch. If we also owe the installation the place of the installation shall be the place of performance.
(2) Type of shipment and packaging are subject to our dutiful discretion.
(3) The risk shall pass to the Buyer no later than when the object of delivery is handed over to the carrier, freight forwarder or other third parties who are determined for carrying out the shipment. If the shipment or the hand-over of the goods is delayed for reasons for which the Buyer is responsible the risk shall pass to the Buyer from the date upon which we are ready for shipment and have informed the Buyer thereof.
§ 8 Acceptance
(1) Insofar as the goods are to be accepted we can, insofar as we are entitled to make partial services, also request partial acceptances.
(2) Insofar as the goods are to be accepted the acceptance shall be deemed as carried out if
- the delivery and, insofar as we owe the installation, the installation has been completed.
- we have informed the Buyer thereof by referring to the acceptance fiction regulated herein and have requested him to accept the goods,
- twelve workdays have passed since the delivery or installation and
- the Buyer has failed to accept the goods within this period of time for another reason than owing to a defect which was reported to us and which makes the use of the contractual object impossible or essentially impairs this use.
§ 9 Warranty
(1) The scope of services agreed according to § 3 Par. 1 shall be decisive for the scope of the warranty. A substantial reduction in the quality remains out of consideration.
(2) The delivered objects are to be carefully inspected by a qualified employee of the Buyer immediately after delivery to the Buyer or to a third party determined by him. They shall be deemed as approved if we have not received a report of a defect in a written form with regard to obvious defects or other defects, which were identifiable with an immediate, careful inspection, within seven workdays after delivery of the object or otherwise within seven workdays after discovery of the defect or the point in time in which the defect was identifiable for the customer with normal use of the delivered object without a more detailed inspection. Upon our request the delivered object for which a complaint was made is to be returned to us carriage paid. In case of justified report of defects we shall remunerate the costs of the most reasonable shipment route; this shall not apply insofar as the costs are increased, because the delivered object is located at another location than the location of the use as intended.
(3) In case of defects of quality we are initially entitled and obliged to subsequent improvement and substitute delivery at our choice which is to be made within a reasonable period of time. In the event of a failure, i.e. the subsequent improvement or substitute delivery is deemed impossible, unreasonable, refused or unreasonably delayed the Buyer can cancel the contract or reduce the purchase price by a reasonable amount.
(4) If a defect is due to our fault the Buyer can demand damages under the pre-requisites as determined in § 10.
(5) In case of defects to parts of other manufacturers, which we can not remedy for reasons under licensing law or actual reasons we shall at our choice assert our warranty claims against the manufacturers and suppliers on our account or assign these to the Buyer. Warranty claims against us exist with such defects under the other pre-requisites and according to these General Terms and Conditions of Delivery and Payment if the judicial assertion of the afore-mentioned claims against the manufacturers or suppliers was unsuccessful or, for example has no prospects of success owing to insolvency. The statute-of-limitations of the relevant warranty claims of the Buyer is inhibited for the duration of the lawsuit.
(6) Insofar as not expressly otherwise agreed in writing the delivered object is designed for one-shift operation. It requires a regular qualified inspection. A first inspection is necessary no later than six months after delivery. The inspection includes in particular the examination of all critical parts such as power supply units, ventilators, filters, VAC-valves and interfaces. We offer an inspection which meets these requirements at the conditions as stated in our respective actual price lists. The warranty shall cease to apply if the Buyer does not observe the afore-mentioned instructions or modifies the delivered object has it modified by third parties without our consent and the remedy of the defect is rendered impossible or made unreasonably more difficult through the non-observance of the instructions or the modifications. In any case the Buyer shall however bear the additional costs for remedying the defects which are incurred through the non-observance of our instructions or the modification.
(7) The replacement of parts subject to wear and tear such as filters, contact pins and relays is to be arranged for by the Buyer in the event of wear and tear. Warranty claims shall not be incurred in this case.
§ 10 Liability
(1) We shall pay damages or reimbursement of fruitless expenses, no matter for what legal grounds, in particular if the delivery is impossible, delayed, faulty or false, breach of contract, breach of duties of contractual negotiations and tortious act, always in full:
a) In case of wilful intent, gross negligence and guarantee we shall be liable to an unlimited extent according to the statutory provisions; this shall also apply to claims for damages with the injury to life, the body and health and with claims from the Product Liability Act.
b) Insofar as an essential breach of contract is not affected so that the achievement of the contractual intention is at risk (cardinal duty; in particular default) our liability for simple negligence is limited to the typical damages which were foreseeable when the contract was concluded.
(2) We reserve the right to file an objection for co-fault. The Buyer in particular has the duty to arrange for regular qualified inspections and to replace parts subject to wear and tear in the event of wear and tear.
(3) The afore-mentioned liability exclusions and restrictions shall also apply to the same extent for the benefit of our bodies, legal representatives, employees and other vicarious agents.
(4) Insofar as we provide technical information or act as consultants and this information
and advice is not included as the scope of services which are owed as per contract,
this will take place free of charge and under the exclusion of all liability.
§ 11 Statute-of-limitations
(1) The statute-of-limitations
a) for claims for repayment of the purchase price from cancellation or reduction is one year from delivery or, insofar as an acceptance is necessary, from the acceptance, however for properly reported defects no less than three months from submission of the effective declaration of cancellation or reduction;
b) with other claims from defects of quality one year from delivery or, insofar as an acceptance is necessary, from the acceptance;
c) with claims from defects of title two years, if the defect of title is not due to the breach of an intangible right of a third party;
d) with other claims for damages or reimbursement of fruitless expenses two years, beginning from the point in time at which the Buyer gained knowledge of the circumstances which justify the claim or should have gained knowledge without gross negligence.
(2) The statute-of-limitations shall occur by no later than with the expiry of the maximum deadlines determined in § 199 BGB.
(3) Shorter warranty periods shall be agreed in an individual case for used goods.
(4) However, in case of compensation for damages and reimbursement of expenses from wilful intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in § 10 Par. 3 the statute-of-limitations shall always apply.
§ 12 Reservation of title
(1) We reserve the right to the property to the delivered object until the full payment of all claims from the supply contract. We are entitled to take the purchased object back if the Buyer behaves in breach of the contract. The taking-back of the purchased object does not represent a cancellation of the contract as long as this has not been expressly declared in writing.
(2) The Buyer undertakes to treat the purchased object carefully as long as the property has not yet been transferred to him. He in particular undertakes to sufficiently insure it at his own costs at the new value against damages due to theft, fire and water. If service and inspection work has to be carried out the Buyer must carry this out in time at his own costs. As long as the property has not yet been transferred the Buyer must inform us immediately in writing if the delivered object is seized or exposed to other interventions of third parties. Insofar as the third party is not in the position to reimburse us the court and out of court costs of an action according to § 771 ZPO [Code of Civil Procedure] the Buyer shall be liable for the loss suffered by us.
(3) The Buyer is entitled to resell the reserved goods in normal business transactions. Excepted from this is the software licence acquired in the basic system. This is non-transferable and expressly requires our consent. The Buyer hereby now already assigns the claims of the buyer from the resale of the reserved goods to us in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased object has been resold without or after processing. The Buyer remains authorized to collect the claim even after the assignment. Our authorization to collect the claim personally remains unaffected thereby. We shall however not collect the claim as long as the Buyer satisfies his payment obligations from the collected proceeds, is not in default of payment and in particular no application has been filed for the opening of insolvency proceedings or payments have been suspended.
(4) The processing or conversion of the purchased object by the Buyer is always carried out on our behalf. In this case the expectant right of the Buyer to the purchased object is continued for the converted object. Insofar as the purchased object is processed with other objects, which do not belong to us, we shall acquire the co-ownership to the new object as a ratio of the objective value of our purchased object to the other processed objects at the time of processing. The same shall apply to the event that goods are mixed. Insofar as they are mixed to the extent that the Buyer’s object is to be seen as a main object it is deemed as agreed that the Buyer assigns us pro rata co-ownership and keeps the thus produced sole ownership or co-ownership in safekeeping on our behalf.
§ 13 Non-disclosure obligation
All information, drawings, models, prices, etc., which are handed over to the Buyer by us for producing the delivered object, are to be considered as business secrets and treated confidentially. They may not be exploited or reproduced for other purposes by the Buyer or made accessible to third parties. Upon request they are to be handed over to us immediately together with all copies or reproductions. The Buyer shall be liable for all damages suffered by us from the breach of one of these obligations.
§ 14 Final provisions
(1) The place of jurisdiction for all possible disputes from the business relationship is at our choice Karlsruhe or the registered seat of the Buyer. Karlsruhe shall be the exclusive place of jurisdiction for actions against us. Mandatory statutory regulations concerning places of jurisdiction remain unaffected hereby.
(2) The relations between the Buyer and us are exclusively subject to the law of the Federal Republic of Germany under the exclusion of the UN law governing the international sale of goods.
(3) In the event of loopholes in the regulations those legally effective regulations shall be deemed as agreed to fill the loopholes which the contractual partners would have agreed according to the commercial objective of their agreements if they had known about the loophole in the regulations.