SR System-Elektronik GmbH (Date: January 2013)
Our deliveries and services are made - also in the future - exclusively on the basis of the following terms and conditions, even if we do not refer to them specifically in individual cases. Their validity can only be excluded in whole or in part by express written agreement in individual business transactions. TGeneral terms and conditions, in particular the purchaser's terms and conditions of purchase, shall not apply to our deliveries and services. They shall also not bind us if we do not specifically object to them in individual cases; we hereby object to them. Our General Terms and Conditions of Delivery and Sale shall be deemed accepted at the latest upon receipt of the goods or services.
I. SCOPE OF DELIVERY OBLIGATION
- Our offers are subject to change without notice, even if they are made at the request of the customer. In principle, a legally binding contractual relationship with the customer only exists when we have confirmed the order in writing, which can also be done by fax, e-mail or computer without a signature; the same applies to changes or additions to the contract. Our written order confirmation shall be decisive for the scope, type and time of delivery.
- We reserve the right to make design, production and execution changes. Our catalogues - also in the Internet - are constantly revised. Illustrations and drawings contained therein are non-binding and are not part of the agreed quality. They also do not constitute a promise of durability or quality or even a guarantee.
- The documents belonging to the offer such as drawings, data sheets, files, illustrations, plans etc. are only approximate unless they are expressly designated as binding. The documents remain our property; we reserve all rights thereto. They may not be made accessible to third parties without our written consent and must be returned to us immediately at any time upon request.
- Call-off orders shall be called off and accepted in good time and in agreed partial quantities. In the case of call-off orders without agreement on running times, production batch sizes and acceptance dates, we can demand a binding specification of these at the latest 3 months after order confirmation. If the customer does not comply with this request within 3 weeks of the request for determination, we shall be entitled to set a two-week grace period and, after its fruitless expiry, to withdraw from the contract or reject the delivery and claim damages.
If the contractual quantity is exceeded by the individual call-offs, we shall be entitled, but not obliged, to deliver the surplus. We may invoice the surplus at the prices valid at the time of the call-off or delivery.
- The prices are generally EURO prices. The statutory value-added tax will be invoiced additionally at the applicable rate.
- The prices are valid for domestic deliveries ex works uninsured and excluding packaging as well as for foreign deliveries free German border or FOB German air or sea port, including export packaging and transport insurance.
- Surcharges and recalculations on the agreed remuneration are permissible if circumstances, such as material costs or increases in wage or energy costs, increases in public charges, etc., force us to do so and the delivery or service is to take place later than 4 months after conclusion of the contract. In the event of other price increases, the customer shall have a right of withdrawal in the event that the list price has risen considerably more sharply than the general cost of living. Deliveries from follow-up orders which are made after the time of a price change shall be invoiced at new prices without the purchaser having the right to withdraw from the contract.
- The delivery period begins with the dispatch of the order confirmation, but not before clarification of all details of order execution and not before receipt of an agreed advance payment or provision of materials. The delivery period shall be deemed to have been met if the delivery item has been dispatched or collected by the end of the delivery period or if readiness for dispatch has been notified if dispatch has not taken place through no fault of our own.
- Force majeure and other events for which we are not responsible which may jeopardise the smooth processing of the order, in particular delays in delivery on the part of our suppliers, traffic and operational disruptions, industrial disputes, lack of materials or energy, shall entitle us to withdraw from the contract in whole or in part or to postpone delivery without the customer being entitled to any compensation claims as a result. The customer may demand a declaration from us as to whether we intend to withdraw from the contract or whether we intend to fulfil the contract within a reasonable period of time. If we do not make such a declaration, the customer may withdraw from the contract.
We shall not be responsible for the aforementioned events or circumstances even if they occur during an already existing delay in delivery.
- In the event of a delay in delivery for which we are responsible, we shall be granted a reasonable grace period. After expiry of this period, the customer may claim damages and/or withdraw from the contract to the extent that the goods have not been reported ready for dispatch or delivered by expiry of the period. The customer shall not be entitled to withdraw from the contract if we are not responsible for the delay in delivery, i.e. exceeding the delivery period.
- The customer shall only be entitled to claims for damages instead of performance if the cause of the damage is based on intent or gross negligence on our part. This shall not apply in the case of a transaction for delivery by a fixed date.
- Delivery obligations and delivery periods shall be suspended as long as the customer is in default with acceptance of the goods or other obligations, without this affecting our rights arising from the customer's default, or without the customer having exceeded his credit limit granted by us. In this case, the risk of accidental loss or accidental deterioration shall also pass to the customer at the time at which he defaults.
- The originally agreed delivery period shall be cancelled if the order is amended with our written consent.
- Appropriate partial deliveries as well as deviations (max. +/- 10 %) from the order quantities are permissible as far as these are reasonable for the customer taking into account the interests of the customer.
- The weight and quantity of the delivered goods as determined by us shall be decisive for the calculation.
- Shipment shall always be at the expense and risk of the customer from a location to be determined by us.
- Packaging, type of dispatch and dispatch route shall be selected by us at our free discretion, unless the customer has special wishes in this respect. Additional costs for special requests of the customer shall be borne by the customer. We assume no obligation for cheapest shipping.
- If dispatch or delivery is delayed at the request of the customer, we shall be entitled to set a reasonable acceptance period for the customer and, after its fruitless expiry, to demand immediate acceptance and compensation for our damage caused by default.
V. PAYMENT TERMS
- Payment is subject to the conditions stated in our order confirmation. Payments for deliveries abroad must always be made by irrevocable, confirmed letter of credit.
- Cheques will only be accepted with the usual reservation. In the case of payments of any kind, the day on which we can dispose of the amount shall be deemed the day of performance.
- If payments are deferred or made later than agreed, interest in the amount of 9 percentage points above the respective base interest rate shall be charged for the interim period without the need for a reminder. We reserve the right to assert further claims for damages caused by default. The customer reserves the right to prove a lower damage caused by default.
- The customer shall not be entitled to offset any counterclaims unless his claims have been acknowledged by us, are undisputed or have been legally established. The customer is also not entitled to any right of retention on account of disputed counterclaims.
- All our claims shall become due immediately if the terms of payment are not complied with or if we become aware of circumstances which are likely to reduce the creditworthiness of the customer. We shall then also be entitled to make outstanding deliveries only against advance payment or provision of security or to withdraw from the contract after a reasonable period of grace and/or to demand damages instead of performance. In addition, we may prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect ownership of the delivered goods at the expense of the customer and revoke the collection authorisation in accordance with Section IX. 7. The customer hereby authorises us to enter his premises in the aforementioned cases and to take away the delivered goods.
- Payments are always offset against the oldest due invoice. As long as an older invoice is outstanding, the customer is not entitled to claim a discount for the payment of later invoices.
VI. COMPLAINTS AND NOTICES OF DEFECTS
- Complaints due to incomplete or incorrect delivery or complaints due to recognisable defects must be notified to us in writing immediately, at the latest within 2 weeks of receipt of the goods. Other defects must be reported in writing immediately, at the latest however within 2 weeks after discovery. Warranty claims are excluded if complaints or notifications of defects are not made in due time. In the event of timely notification, we shall be obliged to provide a warranty in accordance with Section VII.
- In the event of damage in transit, the customer must provide us with a railway or postal damage assessment or one from the carrier.
- Defects in part of the delivered goods shall not entitle the customer to complain about the entire delivery unless the partial delivery is of no interest to the customer.
- In the event of defects in the delivery items, we shall be entitled at our discretion to remedy the defects or make a replacement delivery within a warranty period of 12 months. This does not apply if the law stipulates longer periods. In the event of rectification of defects, we shall be obliged to bear all expenses required for the purpose of rectifying the defects, in particular transport, labour and material costs, provided that these are not increased by the fact that the delivery items have been taken to a location other than the place of performance.
- The customer shall grant us the time and opportunity required at our reasonable discretion to remedy the defect. Replaced parts become our property.
- If the supplementary performance fails, we allow a reasonable period of grace granted to us to expire without delivering a new delivery or remedying the defect, or if the supplementary performance is impossible or is refused by us, the customer shall have the right to withdraw from the contract or to reduce the purchase price just as in the event of our inability to perform the supplementary performance.
- The warranty does not apply to defects and/or damage resulting from natural wear and tear, nor to defects and/or damage resulting from faulty or negligent handling, excessive strain, unsuitable use, incorrect handling, etc., nor to such influences as are not assumed under the contract, unless the damage is attributable to our fault.
- The warranty claim cannot be transferred to third parties without our written consent.
- We shall not be liable for the resulting defects in the event of improper modifications and repair work on the delivery items carried out by the customer or third parties.
- For essential third-party products, our liability shall be limited to the assignment of the warranty claims to which we are entitled against the supplier of the third-party product, unless the satisfaction of the assigned right fails or the assigned claim cannot be enforced for other reasons.
- Further claims of the customer against us on whatever legal grounds are excluded, unless otherwise agreed below, in particular a claim for compensation for damages which do not occur and/or exist on the delivered goods themselves (e.g. loss of profit, consequential damages, other financial losses); this exemption from liability does not apply if we are compulsorily liable due to intent, gross negligence or a promise of guarantee or if an essential contractual obligation has been breached or in the event of injury to life, limb or health. Essential contractual obligations are obligations, which protect legal positions of the customer that are material to the contract, which the contract in accordance with its contents and purpose, shall guarantee to the customer, as well as obligations without whose fulfilment proper performance of the contract would not be possible at all and whose adherence the customer may in general count on. In case of negligent, but not grossly negligent violation, our liability is limited to the compensation of the damage that is foreseeable and typical at the time of conclusion of the contract.
- The above provisions shall apply mutatis mutandis to deliveries of goods other than those stipulated in the contract.
VIII. LIABILITY, STATUTE OF LIMITATIONS
- The exclusion and limitation of our liability for damages, as regulated in Section VII. 8., shall also apply mutatis mutandis to all cases of our liability for damages due to breach of duties arising from legal or quasi contractual obligations and from tortious acts. Claims according to sections 1, 4 Produkthaftungsgesetz (product liability law) as well as due to performance hindrance at contract conclusion or impossibility for which we are responsible remain unaffected by this. This exemption from liability shall not apply if we are compulsorily liable due to intent, gross negligence or a promise of guarantee or if an essential contractual obligation has been breached or in the event of injury to life, limb or health. Essential contractual obligations are obligations, which protect legal positions of the customer that are material to the contract, which the contract in accordance with its contents and purpose, shall guarantee to the customer, as well as obligations without whose fulfilment proper performance of the contract would not be possible at all and whose adherence the customer may in general count on.
- If our liability for damages is excluded or limited, this shall also apply to the personal liability of our organs, employees as well as vicarious agents.
- The claims of the purchaser mentioned in paragraph 1 shall generally become statute-barred after 24 months, calculated from the end of the year of the transfer of risk. If the statutory period of limitation is shorter than 24 months, this period shall apply to the Customer's respective claims. The shortening of the limitation period shall not apply to claims arising from tort or product liability.
- The statutory regulations on the burden of proof shall remain unaffected.
IX. RETENTION OF TITLE
- All delivered goods shall remain our property (reserved goods) until all claims have been settled, in particular the respective balance claims to which we are entitled from the business relationship with the customer. This shall also apply if payments are made for specially designated claims.
- If the customer combines and mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new object in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires as a result of combination, the customer hereby transfers to us the ownership rights to the new item to which he is entitled to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us free of charge. The resulting co-ownership rights shall be regarded as reserved goods within the meaning of paragraph 1. We accept the transfer.
- The customer may only sell the reserved goods in the ordinary course of business, at his terms and conditions, if they contain a comprehensive retention of title corresponding to these provisions, and as long as it is not in default, provided that the claims from the resale in accordance with paragraphs 4 and 6 are transferred to us. The customer shall not be entitled to dispose of the reserved goods in any other way; in particular, the right to dispose of the reserved goods shall be deemed to be revoked without further ado if insolvency proceedings are instituted against the customer's assets or liquidation is initiated.
- The customer's claims arising from the resale of the reserved goods are hereby assigned to us. They serve as security to the same extent as the reserved goods. We hereby accept the assignment.
- If the reserved goods are sold by the customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the reserved goods sold in each case. In the event of the sale of goods in which we have co-ownership shares pursuant to paragraph 2, the assignment of the claim shall apply to the amount of these co-ownership shares.
- If the reserved goods are used by the purchaser to fulfil a contract for work and services or a contract for work and materials, paragraphs 4 and 5 shall apply accordingly to the claims arising from this contract.
- The customer is entitled to collect claims from the sale in accordance with paragraphs 3, 5 and 6 until revoked by us, which is permissible at any time. We shall only make use of the right of revocation in the cases set out in Paragraph 3 and Section V. 5. In no case shall the customer be entitled to assign the claims to any other party. At our request he is obliged to inform his customers immediately of the assignment to us - insofar as we do not do this ourselves - and to provide us with the information and documents required for collection. The customer is not permitted to pledge or assign the reserved goods as security.
- Our retention of title is conditional in such a way that upon full payment of all claims, ownership of the goods subject to retention of title shall pass to the customer without further ado and he shall be entitled to the assigned claims without restriction. If the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice at the customer's request. The realisable value of the securities as collateral value shall be decisive for the valuation of the securities.
- The customer must inform us immediately of any seizure or any other endangerment or impairment of our property and claim rights by third parties, handing over the seizure protocols or other documents, and must do everything in his power to protect our rights.
- We are entitled at any time to enter the customer's warehouse and business premises in order to remove, separate or label the reserved goods. Upon request, the customer shall provide us with all relevant information about the reserved goods and surrender any necessary documents. The customer is obliged to comprehensively insure the reserved goods in our favour at his own expense and to provide us with proof of such insurance upon request. He hereby assigns all resulting insurance claims to us; we accept the assignment.
- The assertion of our retention of title shall not be deemed a withdrawal from the contract. The customer's right to possession of the reserved goods shall lapse if he fails to fulfil his obligations under this or any other contract. We shall then be entitled to take possession of the reserved goods ourselves and, without prejudice to the customer's payment and other obligations towards us, to dispose of them in the best possible way by private sale or by auction. The proceeds of the sale shall be credited to the customer's liabilities after deduction of the costs. Any surplus shall be paid to him.
- If the retention of title or the assignment is not effective according to the law in the area of which the goods are located, the security corresponding to the retention of title or the assignment in this area shall be deemed agreed. If the cooperation of the customer is necessary, it shall take all measures necessary to establish and maintain such rights.
X. OTHER TERMS
- Place of performance and - if the customer is an entrepreneur - place of jurisdiction for both parties to the contract is D - 78078 Niedereschach-Kappel, Germany. We are also entitled to sue the customer at his general place of jurisdiction. For the interpretation of delivery clauses, the INCOTERMS as amended from time to time shall apply.
- The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between us and the customer. The application of the United Nations Convention on Contracts for the International Sale of Goods(CISG) and other conflict of law rules do not apply.
- Should any of these terms and conditions and the contractual provisions be or become invalid, this shall not affect the validity of the remaining provisions. The ineffective provisions shall be reinterpreted in such a way that the intended legal and economic purpose is achieved. The same shall apply if a gap in the contract which needs to be filled becomes apparent during execution of the contract. The contracting parties undertake to replace the ineffective provisions immediately by legally effective agreements or to close the contractual gap.