1. GENERAL PROVISIONS
1.1. For all – including future – contracts between Elektro Metall Schwanenmühle GmbH, Business Park Schwanenmühle, 66851 Horbach, Germany (hereinafter also referred to as “Seller”), with entrepreneurs, legal entities under public law and special funds under public law that have their registered office in Federal Republic of Germany (hereinafter also referred to as “customer”), the following terms of delivery apply exclusively to deliveries of all buzzbar products and associated services (“deliverables”).
1.2. Deviating general terms and conditions of customers do not oblige the seller. Deviating conditions are hereby expressly rejected.
1.3. The contract and any changes, ancillary agreements, declarations on its termination and other declarations and notifications must be in writing, unless otherwise agreed in these terms and conditions.
2. OFFER AND CONCLUSION OF CONTRACT
2.1. All offers by the seller are non-binding unless they contain a specific acceptance period.
2.2. The seller can accept orders or commissions within fourteen days of receipt. If the order confirmation contains insignificant changes or additions, consent is deemed to have been granted if the customer does not object within four weeks.
2.3. All agreements between the seller and the customer must be in writing to be effective.
2.4 Information from the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, resilience, tolerances and technical data) and representations of the same (e.g. drawings and illustrations) are not guaranteed quality features, but descriptions or identification of the delivery or service .
3. INTELLECTUAL PROPERTY
3.1. Plans and other documents and tools of a physical and non-physical nature – also in electronic form – remain the intellectual property of the seller. They may only be used to the extent permitted by the seller and may not be modified, duplicated or made accessible to third parties. At the request of the seller, the client must return these items to the seller in full. The customer cannot assert any right of retention against this claim for return.
3.2. Insofar as delivery items or parts thereof are protected by industrial property rights or copyrights, the seller grants the customer a non-exclusive and non-transferable right to use them in accordance with the contract. Otherwise, the exploitation rights remain with the seller or manufacturer. Duplication or processing requires the prior written consent of the seller.
3.3. Company, brand and other marks on the delivery items may not be removed or changed.
4. SOFTWARE USE RIGHTS
4.1. All software products and software documentation contained in the Seller’s delivery items are protected by copyright for the Seller or the software manufacturers from whom the Seller has acquired a license. All copyrights and exploitation rights remain with the seller or the software manufacturers. The client will observe the copyright and exploitation rights and in particular will not delete or change the copyright notices.
4.2. With the payment of the agreed purchase price (if no separate purchase price is agreed for the software: upon delivery of the delivery items), the seller grants the customer the non-exclusive, unlimited and non-transferable right to use the software products and their documentation within the company of the customer in accordance with the contract client. The right of use refers to the specific scope of delivery in which the software is implemented or to the contractually agreed scope of use of the software. The customer is not entitled to pass the software on to third parties. Excluded from this is the passing on of integrated software in the (re)sale of complete delivery items with reference to the copyright and exploitation rights of the seller or those of the software manufacturer.
4.3. Any duplication of software and documentation requires the prior written consent of the seller. The making of a back-up copy is excluded from this provision, provided that the client provides it with the corresponding copyright notices of the original. In the event of a sale or other permanent transfer of the delivery items with the transfer of integrated software to third parties, the customer will either hand over the backup copy to the third party or destroy it. Editing and changes to the software also require the prior written consent of the seller, unless they have been expressly released for editing and changing. With the implementation of software processing and changes by the client, any warranty claim against the seller expires.
4.4. In the event of violations of these provisions, the seller reserves the right to terminate the rights of use and to assert claims for damages.
4.5. If necessary, the seller will submit further provisions of the software manufacturer to the customer.
5. PRICES AND PAYMENT
5.1. The prices apply to delivery “ex works” (exW – ex works: Business Park Schwanenmühle, 66851 Horbach, Germany; in accordance with the latest version of the Incoterms) but excluding packaging and insurance. Sales tax is added to the prices at the respective rate, as are customs duties, fees and other public charges in the case of export deliveries.
5.2. Pricing is always in euros. At the request of the customer, offers can also be made in foreign currencies. The current exchange rate of this currency to the euro is used as a basis. Offers in foreign currencies are generally only valid for a period of two weeks. The contractor reserves the right to adjust offers due to exchange rate changes to the euro after the period of two weeks has expired.
5.3. A price adjustment is also possible if the material costs and/or production costs have increased by 10% since the date of the offer and the seller can provide credible evidence of a corresponding price increase. In this case, the seller is entitled to adjust the price accordingly.
5.4. Changes to the delivery item, which are to be carried out by the seller after the conclusion of the contract at the request of the customer, are only binding for the seller if agreed in writing. The client bears all resulting additional costs.
5.5. Payments are to be made as follows:
5.6. The seller is entitled to demand that the customer secure the price by means of a letter of credit from a major bank at any time.
5.7. All payments are to be made net no later than 30 days after the invoice date. Payments can be offset against other outstanding claims at the discretion of the seller. All payments are only deemed to have been made when the seller can dispose of them without reservation.
5.8. The customer only has the right to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established.
5.9. If the customer does not meet his payment obligations immediately despite a reminder, the seller is entitled:
5.10. If the customer does not pay by the due date, the outstanding amounts shall be subject to interest at 9 percentage points above the respective base interest rate from the due date;
5.11. The seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if he becomes aware of circumstances after the conclusion of the contract which are likely to significantly reduce the creditworthiness of the customer and through which the payment of the seller’s outstanding claims is endangered by the customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
6. DELIVERY AND DELIVERY TIME
6.1. Deliveries are made “ex works” (exW – ex works: Business Park Schwanenmühle, 66851 Horbach, Germany; in accordance with the latest version of the Incoterms).
6.2. Periods and dates for deliveries and services promised by the seller are only approximate unless a fixed period or date has been expressly promised or agreed.
6.3. Compliance with the delivery time presupposes that the order has been completely clarified, all permits have been granted and all documents, payments and securities to be provided by the customer have been received by the seller on time. The delivery time is extended appropriately if the above requirements are not all met in good time.
6.4. The delivery time is extended appropriately in the event of delays in delivery due to force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials, raw materials or energy, transport delays, strikes, lawful lockouts, difficulties in procuring the necessary official approvals, or non-existent, incorrect or late delivery by sub-suppliers) for which the seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the seller and the hindrance is not only of a temporary nature, the seller can withdraw from the contract.
If the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the seller.
6.5. Partial deliveries are permitted.
7. PASSING OF RISK, ACCEPTANCE
7.1. The transfer of risk is based on the agreed delivery clause according to Section 5.1. In the case of partial services and the provision of other services, the risk is nevertheless transferred in accordance with the delivery clause. The delivery item will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at his expense.
7.2. After delivery of the delivery items, the seller requests the customer to accept the delivery items immediately. If defects are found, they must be reported to the seller immediately.
8.1. If there is a defect, the seller is initially obliged and entitled to choose whether to rectify the defect or deliver a replacement. In the event of a defect being remedied, the seller shall bear the necessary expenses, insofar as these do not increase because the delivery item is located at a location other than the place of performance. The rectification is considered to have failed at the earliest with the second unsuccessful attempt, unless further attempts at rectification are appropriate and reasonable for the customer due to the delivery item.
8.2. The customer is entitled, at his option, to reduce the purchase price (reduction) or to withdraw from the contract and, in accordance with the statutory provisions in Section 10, to demand damages instead of performance if the seller seriously and finally refuses supplementary performance or if supplementary performance failed for the customer has been given an unreasonable or unsuccessful deadline for rectification. This does not apply if the seller is entitled to refuse subsequent performance based on statutory regulations.
8.3. Claims for defects are excluded if the seller was not notified of the defect immediately. The warranty also lapses in the event of only insignificant deviations from the agreed quality, in the event of only insignificant impairment of usability, natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or due to special or external influences that are not a prerequisite under the contract, as well as non-reproducible software errors. If improper changes are made by the party or third parties, there are no claims for defects for these and the resulting consequences.
DEFECTS IN TITLE
8.4. If the use of the delivery items leads to an infringement of industrial property rights or copyrights at the place of delivery within the statutory periods, the seller will, at its discretion, either grant the customer the right to continue using it or modify the delivery items in such a way that the property rights or copyright infringement no longer exists.
If this is not possible under economically reasonable conditions, the seller will take back the delivery items and reimburse the purchase price less an amount that takes into account the use and condition of the delivery items when they are returned.
In addition, the seller will indemnify the customer against undisputed or legally established claims of the relevant property right or copyright holder.
8.5. The aforementioned obligations are final in the event of an infringement of industrial property rights and copyrights. They only apply if
9. STATUTE OF LIMITATION
Warranty claims due to a defect in quality or title expire one year after acceptance, but no later than 18 months after delivery.
10.1. The seller is liable to the customer in the following cases:
11. RESERVATION OF TITLE *
11.1. Unless otherwise agreed, the delivery items (reserved goods) remain the property of the seller until full payment of all claims to which the seller is entitled from the business relationship with the customer and future claims – including balance claims from current accounts.
11.2. The customer must treat the reserved goods with care. He must insure them at his own expense against fire, water and theft damage.
11.3. The customer is entitled to sell the reserved goods in the ordinary course of business. The client may neither pledge the reserved goods nor assign them as security. He is obliged to secure the rights of the seller in the credited resale of the reserved goods. The customer’s claims for payment against his customers from a resale of the reserved goods as well as those claims of the customer regarding the reserved goods that arise from another legal reason against his customers or third parties (in particular claims from tortious acts and claims for insurance benefits), including all balance claims from current accounts the customer hereby assigns the entire amount to the seller as a precaution. The seller hereby accepts the assignment. The customer may collect these claims assigned to the seller for his own account and in his own name for the seller as long as this authorization is not revoked. This does not affect the seller’s right to collect the claims himself; however, the seller will not assert the claims himself and will not revoke the direct debit authorization as long as the customer duly meets his payment obligations. However, if the customer acts in breach of contract – in particular if he is in default with the payment of a claim for payment – the seller can demand that the customer informs the seller of the assigned claims and the respective debtors, informs the respective debtors of the assignment and Seller hands over all documents and provides all information that he needs to assert the claims.
11.4. The client must support the seller in taking measures to secure and, if necessary, to enforce the seller’s retention of title. If third parties assert rights to the delivery item or dispose of it, the customer will inform the seller immediately.
11.5. If the customer is in default of payment or otherwise seriously violates the contract, the seller is entitled to take back the delivery item. The taking back and seizure of the delivery item by the seller do not count as withdrawal from the contract.
11.6. If the retention of title is not effective in the above form according to the law of the country of destination, the client must cooperate in establishing a security interest for the seller that corresponds to the provisions of his country.
12. FINAL PROVISIONS
12.1. The place of jurisdiction for any disputes arising from the business relationship between the seller and the customer is the place of performance. However, the seller is entitled to sue the customer at any legally competent court. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
12.2. The relationships between the seller and the client are exclusively subject to the law of the Federal Republic of Germany, excluding the UN sales law and excluding the conflict of laws, international private law.
12.3. The customer may only transfer the rights from this contract to third parties with prior written consent.
* SUPPLEMENTARY CLAUSE FOR EXTENDED RETENTION OF TITLE:
The following simple and extended retention of title is agreed:
b) The supplier and customer already agree that if they are combined or mixed with other items that do not belong to the supplier, the supplier is entitled to co-ownership of the new item in the amount of the share that results from the ratio of the value of the connected items or mixed reserved goods at the value of the remaining goods at the time of connection or mixing. In this respect, the new item is deemed to be reserved goods.
c) The regulation on the assignment of claims according to No. 3 also applies to the new item. However, the assignment only applies up to the amount that corresponds to the value of the processed, combined or mixed reserved goods invoiced by the supplier.
d) If the customer connects the reserved goods with land or movable property, he shall, without the need for further special declarations, also assign his claim to which he is entitled as remuneration for the connection with all ancillary rights as security in the amount of the connected reserved goods to the others related goods at the time of connection to the supplier.