valid since August 2006
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1. Validity

1.1 These general terms of sale and delivery (in the following “sales terms”) are only valid for contracts with (1) a business person if the contract relates to the operation of his commercial enterprise, (2) legal persons according to public law or (3) public authorities with state-operated funds.

1.2 Our sales terms shall apply exclusively. Conflicting sales terms or terms of the ordering party not in accordance with our own are excluded unless we have expressly agreed in writing to their validity. Our sales terms are also valid if we, being aware of conflicting or different sales terms of the ordering party, deliver without reservation to the ordering party without expressly objecting to such conflicting or different sales terms.

1.3 Our sales terms in the currently valid version shall also apply to all future business with the ordering party.

2. Conclusion of the contract and scope of the delivery

2.1 If the order qualifies as an offer according to § 145 of the BGB (German Civil Code), we can accept it within four weeks.

2.2 Orders are considered accepted if they are acknowledged in writing by us or if they are fulfilled on the agreed date or if the ordered goods are sent to the ordering party 14 days after the receipt of the quotation or as agreed by phone in individual cases. This does not apply to acknowledgements, fulfilments or shipments which do not bear a signature and which are recognisable to the ordering party as being generated by means of electronic data processing.

2.3 The scope of the delivery is governed by our written order acknowledgement.

2.4 All deliveries and services are subject to the regulations of the “Verband Deutscher Elektrotechniker” (Federation of German Electrical Engineers) to the degree that the regulations affect the safety of the delivered goods or services. Alternatives are permitted provided that they ensure the same level of safety by different means.

2.5 We reserve the rights of property and copyright for cost estimates, drawings and all other documents.

2.6 Cost estimates, drawings and all other documents shall not be divulged to third parties if they contain technical information that, as a whole or in the exact construction and composition of its parts, is not commonly known or readily accessible. We are subject to the same confidentiality with regard to the corresponding documentation from the ordering party. The party claiming that such information is commonly known or readily accessible shall be obliged to provide the corresponding evidence.

2.7 If the scope of the delivery or service includes a controller with the corresponding software, the controller and its hardware components and equipment become the property of the ordering party. All rights pertaining to the software, especially those of copyright and exploitation, remain ours as long as they are not expressly granted to the ordering party in these sales terms or through other agreements. The ordering party is granted only the right to use the software at no extra charge in accordance with the contract.

3. Prices

3.1 If no special agreement is made, the prices are ex works excluding packing.

3.2 The ordering party is permitted to return packing materials used for shipping to our company within the normal operating hours. Otherwise, we do not accept returned packing materials.

3.3 The prices do not include value added tax. The currently valid value added tax shall be added to the prices.

3.4 We reserve the right to increase our prices, if, after the conclusion of the contract, costs rise, particularly as a result of collective pay agreements or material price increases. Proof of such increases shall be furnished to the ordering party upon request.

4. Payment

4.1 Invoice settlement by cheque and bill of exchange is considered as conditional payment only and, in the case of payment by bill of exchange, requires our prior consent. The ordering party shall bear all costs associated with bills of exchange and cheques. We shall not be responsible for the protest being filed in due time.

4.2 The ordering party shall neither offset counterclaims nor exercise the right of retention resulting from any of the ordering party’s counterclaims, provided such counterclaims are contested by us or found to be not final and conclusive. The ordering party is permitted to exercise a right of retention only as far as its counterclaim is based on the same contract.

4.3 Payments are to be made within thirty days from the invoice date without deduction, net cash. In the case of delayed payment, interest for late payment of 5% p. a. above the corresponding official rate of discount of the Deutsche Bundesbank shall be charged without a prior reminder being required unless the customer provides proof of significantly lower interest charges.

5. Delivery time

5.1 Dates for delivery of goods and services shall only be binding if we have expressly confirmed such dates in writing. The observation of our delivery period obligations presupposes the timely and complete fulfilment of all obligations of the ordering party. The delivery period shall not commence before the complete clarification of all technical issues.

5.2 In the case of a default, our liability for damages shall be limited to 30% of the foreseeable damages in the case of ordinary negligence. Further claims to compensation for damages shall be excluded unless they are the result of gross negligence or intention.

5.3 The delivery period shall be extended in the event of labour disputes in our company, in particular strike and legal lockout, as well as in the case of unforeseeable events for which we are not responsible or which are beyond our control. The delivery period shall be extended for a time equal to the interruption of business caused by such events. This also applies if our subcontractors experience such circumstances, including illegal labour disputes. We shall not be responsible if the above circumstances occur while we are already defaulting. We shall inform the ordering party as soon as possible of the beginning and end of such circumstances obstructing due delivery

5.4 If, after a default has occurred, the ordering party sets a reasonable deadline and announces its refusal to accept the delivery after such deadline, it shall have the right to cancel the contract upon the unsuccessful expiry of such deadline.

5.5 If the ordering party defaults in accepting the delivery or disregards other duties, we shall have the right to claim damages incurred including any additional expenses. In such a situation, the risk of accidental loss or accidental deterioration of the purchase items shall be borne by the defaulting ordering party as soon as the default starts.

5.6 We shall have the right to partial deliveries within reason and in accordance with the intended use of the delivered goods and services, provided that the remaining partial deliveries are made within the delivery time.

6. Non-scheduled orders

6.1 The delivery time for quantities of items not scheduled when the order is placed shall be determined on the basis of our delivery capacity at the time of scheduling.

6.2 All orders not scheduled shall, unless otherwise agreed, be accepted at the end of one year after the conclusion of the contract at the latest.
This does not require a request for acceptance of the delivery. If this period expires, we shall at any time have the right to deliver and invoice the goods or cancel the contract immediately.

7. Cancellation, suspension or termination

7.1 Cancellation, suspension or termination of placed orders on the part of the ordering party requires our express written agreement.

8. Transfer of risk and shipping

8.1 The risk shall pass to the ordering party at the time the goods are transferred to the forwarder or any other person transporting or shipping the goods. This shall also apply to partial deliveries. It shall also apply if we bear the shipping costs.

8.2 If the delivery is delayed as a result of circumstances for which the ordering party is responsible, the risk shall pass to the ordering party at the time the goods are ready to be shipped provided that the ordering party has been informed that the goods are ready to be shipped.

8.3 If so desired by the ordering party, the delivery shall be insured through us according to the specifications of the ordering party and at its cost.

9. Warranty

9.1 The warranty rights of the ordering party are subject to the ordering party having duly carried out its duties concerning inspection and notification of defects in accordance with §§ 377, 378 of the HGB (German Commercial Code).

9.2 In the case of a defective delivery for which we are responsible, we shall have the right to repair or replace the goods at our discretion. In the case of a repair, we shall be obliged to bear all costs incurred in connection with the repair, such as transportation, travel, labour and material costs, provided such costs do not increase as a result of the fact that the purchased goods have been moved to a location other than the location contractually agreed upon as point of delivery.

9.3 If we refuse to repair a defect or to deliver a replacement or if we delay such repair or replacement unreasonably or if a reasonable number of attempts to repair or replace fails, the ordering party shall have the right to either cancel the contract or demand an appropriate reduction of the purchase price. 

9.4 The period of limitation for claims due to defects of the product is 2 years with the exception of compensation claims starting with the delivery of the product. The period of limitation for compensation claims is 1 year from the delivery of the product.

9.5 We shall only accept secondary liability for products essentially not of our own make if the ordering party’s warranty claims against the third-party supplier of such products cannot be enforced even if legal action is taken to a reasonable degree. We assign the liability claims against the third-party supplier of such products to the ordering party. We shall be liable for the non-recoverable costs of legal action against the third-party supplier of such products.

9.6 Replaced parts become our property.

9.7 Unless otherwise agreed, all other claims of the ordering party, regardless of the legal claim, shall be excluded. We shall not be liable for damages that did not occur to the delivered goods or services themselves; in particular, we shall not be liable for lost profit or any other damage to the property of the ordering party.

9.8 The above exclusion of liability shall not apply if the damages result from intention or gross negligence on our part. Neither shall the above exclusion apply if the ordering party claims damages for non-performance according to § 463, 480, section 2 of the German Civil Code (BGB) due to the lack of a warranted quality.

9.9 In the case of a violation of an essential constractual obligation, caused by ordinary negligence on our part, our liability for property damages and personal injury shall be limited to the amount covered by our product liability insurance. The ordering party shall have the right ot request that we disclose our insurance policy.

10. Liability

10.1 Any liability for damage exceeding the liability as per sections 9.7, 9.8 and 9.9 hereto shall be excluded, irrespective of the legal nature of the claim.

10.2 The regulation as per the above section 10.1 shall not apply in the case of claims according to §§ 1.4 German Product Liability Act. This shall also be true in the case of initial inability or impossibility which can be attributed to us.

10.3 If our liability is excluded or limited, this shall also apply to the personal liability or our officials, employees, staff members, representatives and vicarious agents.

11. Retention of title

11.1 We retain the title of ownership to the delivery item until the receipt of all payments resulting from our business relations with the ordering party. If the ordering party acts in violation of the contract, in particular in the event of default in payment, we shall have the right to take back the delivery item. After taking it back, we shall have the right to its realisation. The profit from this realisation – less reasonable costs of realisation – shall be used to set off the account payable of the ordering party.

11.2 The ordering party is obliged to treat the delivery item with care. In particular, the ordering party shall, at its own cost, adequately insure the item at the original value against damages resulting from fire, water and theft. If maintenance and inspection work is required, the ordering party shall carry out such maintenance and inspection work at the appropriate times and at its own cost.

11.3 In the case of an attachment or other action by a third party, the ordering party shall inform us in writing immediately. If the third party is unable to reimburse us for judicial and extrajudicial expenses incurred in connection with civil action according § 771 ZPO (German Code of Civil Procedure), the ordering party shall be liable for our incurred losses. After taking back the delivery item, we shall have the right to its realisation within a reasonable time period after we announce our intention of realisation.

11.4 The ordering party shall have the right to resell the delivery item. However, by entering into this contract, the ordering party shall assign to us all rights and claims against its customers or third parties to all receivables in the amount of the invoice total (including value-added tax) which the ordering party shall receive as a result of the resale, regardless of whether the delivery item was resold directly or converted. The ordering party shall have the right to collect the receivable even after the claim has been assigned to us. This shall not affect our right to collect the debt ourselves. We undertake, however, not to collect such receivables as long as the ordering party meets its payment obligations in connection with such collected profits, is not delaying payment, has not applied for commencement of bankruptcy or composition proceedings or is not insolvent. However, if any of the above is the case, the ordering party shall have the obligation to furnish us with information on all assigned claims and on the appropriate debtors, provide all the information required for collection, submit the corresponding documents and inform the debtors (third parties) of the assignment.

11.5 If the delivery items are converted or integrated into other products, such conversion or integration shall always be performed on our behalf. If the delivery item is integrated into other products not belonging to us, we shall acquire co-ownership of the new item proportional to the value of the purchase item in relation to the other integrated products at the time of integration. The resulting product is subject to the same terms as the objects delivered with the retention of
title.

11.6 If the delivery item is inseparably combined with other products not belonging to us, we shall acquire co-ownership of the new item proportional to the value of the purchase item in relation to the other combined products at the time of combination. We agree to release the security owed to us, at the request of the ordering party, up to the point that its realisable value exceeds the nominal value of the receivables to be secured by 10%, provided that these are still outstanding. The ordering party shall always have the right to release if the estimated value of the security exceeds the value of the receivables to be secured by 50%.

11.7 The ordering party shall also assign to us its claims against third parties, as security for our claims against the ordering party, that arise through the integration of the delivery item into a piece of real estate.

11.8 We agree to release the security owed to us, at the request of the ordering party, up to the point that its realisable value exceeds the nominal value of the receivables to be secured by 10%, provided that these are still outstanding. This shall be the case if the nominal value of all assigned receivables and the market price or, if such is not available, the purchase or manufacturing price of the goods is more than 150% of the secured receivable unless the ordering party proves that this release limit of 150% is not appropriate in the individual case. If we are required to settle the value-added tax at the time of realisation, the required level of cover shall increase from 110% or 150% by the currently applicable value-added tax.

12. Software license

12.1 We grant the ordering party a non-exclusive, personal license for the usage of the software supplied by us. The ordering party is permitted to use the software only in accordance with these sales terms and the individual license.

12.2 Usage is the ongoing or temporary, whole or partial reproduction of the machine-readable licensed material by loading, displaying, executing, transmitting, or saving for the purpose of processing the instructions and data such material contains or for the purpose of monitoring, examining or testing the program functions such material contains.

12.3 The ordering party shall not rent out the software or otherwise give third parties access to the software for even limited periods of time. This is not applicable if such access is granted free of charge or if it does not serve commercial purposes. The ordering party may only assign the rights to third parties if (a) the ordering party informs us in writing prior to assigning the rights, and (b) the third party confirms in writing that the sales terms with regard to the software are binding for it and (c) the ordering party does not keep any copies of the software. We can object to the assignment of the rights if (a) the recipient of the software is a competitor of ours, or (b) the assignment is in conflict with export restrictions.

12.4 The ordering party must not copy, translate, edit, arrange or rework the software in any other way without our prior written consent. This limitation does not apply to (a) the creation of a backup copy provided that this is required to ensure that future usage is possible, (b) the reproduction, provided that this is required for the usage as described in paragraph 12.2, (c) the correction of defects of the software, provided that we fail to correct such defects within a reasonable period of time, after having offered to remedy the situation within a reasonable period of time and under reasonable conditions in response to a written inquiry from the ordering party and given that the ordering party has accepted such offer. All copies of our software made by the ordering party shall bear indications of the copyright and all other indications of our industrial property rights found on the copies of the software delivered by us. 

12.5 The ordering party must not disassemble, decompile, reverse engineer the software or use any other method in order to get access to the source code or to find out information on the structure or design of the software unless (a) such is indispensable for the purpose of obtaining information on making an independently created computer program interoperable with other programs and (b) this information has already been made available to the ordering party by us in response to a written inquiry within a reasonable period of time and (c) such methods are applied by the ordering party or a person authorised to use a copy of the software or by an authorised person acting on behalf of such a person. Information gained may only be used to ensure the interoperability of the independently created program. Such information must not be made available to third parties. It must neither be used in the development, manufacture or marketing of a program serving a largely similar purpose nor be used for any other activities that infringe on the copyright.

12.6 The license expires (a) 10 days after the receipt of written notification from the ordering party that it no longer wishes to use the software, or (b) at the point in time the license is terminated by us as a result of a violation of the terms of these general terms of sale.

12.7 Upon the expiry of the license, the ordering party shall be obliged to cease using the software, remove the software from the computer and, at its own cost, return all copies and partial copies of the software to us or destroy all such copies and partial copies and provide us with evidence of their destruction.

13. Place of jurisdiction – governing Law

13.1 The sole place of jurisdiction with the exception of the dunning procedure is the location of our company for all disputes arising directly or indirectly from the contractual relationship if the ordering party is a business person and does not belong to the persons listed in § 4 Article 1 of the Deutsches Handelsgesetzbuch (German Commercial Code) (non-registrable merchant), is an artificial person under public law or a public authority with state-operated funds. At our discretion, we can also take judicial and extrajudicial action at the general place of jurisdiction of the ordering party.

13.2 The contract is subject to German law. International private law is excluded. The application of the UN convention on contracts for the international sale of goods (UNCISG) is expressly excluded.