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TOS

These general terms of service (TOS) apply to all business conducted with our customers, including future contracts. The GTC need not be cited for each new agreement. Differing terms and conditions on the part of the customer can only be included in the corresponding agreement with our specific written consent.

I. Quotations

1. Our quotations are non-binding. The members of our sales staff are not authorised to make verbal undertakings of any kind when concluding an agreement, or to make verbal additions or modifications to existing customer agreements, unless the scope of their authority leaves them obliged to do so by law. The list of items or services to be supplied is as shown in our written order confirmation. The requirement for written form also applies to guarantees.

2. The sole object of the agreement is the item sold, with its features, characteristics and intended purpose described in accordance with the product description supplied by the manufacturer. No other or additional feature, characteristic and/or intended purpose shall apply unless it is specifically confirmed by us in writing.

3. The item supplied may differ in detail from that quoted, or supplied as a sample or prototype, provided such changes are permitted by the corresponding DIN norms or other applicable technical standards. The right is reserved to make minor design changes and technical modifications, provided the purpose of the agreement is not infringed and the change does not suppose unreasonable inconvenience for the buyer.

II. Prices

1. Unless otherwise agreed, our prices are quoted ex-works, without packaging and subject to value added tax (VAT) at the applicable rate.

2. Prices are calculated on the basis of those valid on the date of despatch and, in the case of blanket orders, the price valid on the delivery due date, unless fixed prices have been specifically agreed to in advance.

III. Payment and billing

1. Our invoices are payable strictly net at ten days, counted from the date shown on the invoice. Invoices for amounts below €50 and bills for installation, repair, form and tooling work are to be settled immediately and in full. Items delivered outside Germany must be paid for in advance, unless there is agreement to the contrary. Payment must be made in good time, so that it is available in our account by no later than the established due date.

2. If a payment deadline is exceeded and a reminder has been issued, we shall be entitled to charge interest on overdue accounts at 5% above the current base rate, with other overdue accounts charged at 8% above the current base rate. If it can be shown that higher interest has been incurred, e.g. due to recourse to a current account credit facility, the resulting costs may likewise be billed. The right to make further claims on overdue accounts is hereby specifically reserved.

3. Counter-claims that are disputed by us or not legally established entitle the customer to neither retention nor settlement per contra.

4. If we subsequently learn of circumstances that suppose a considerable worsening of the customer’s financial situation, with a likelihood of danger to our claims for payment, we shall be entitled to demand immediate payment of credits, regardless of the payment deadline previously established.

5. If the customer falls behind in payments and a reasonable deadline extension has been exceeded, we shall be entitled to repossess the items purchased. We may also prohibit the resale or further processing of such items. Repossession on our part does not suppose our withdrawal from the agreement. We can in any case rescind the right to collect in accordance with section VI. 5, and demand advance payment or bank guarantees for all outstanding deliveries.

6. We are entitled to cede to a third party our claims arising from this commercial relationship.

7. Our claims arising from the said commercial relationship are subject to the legislation affecting their expiry.

IV. Delivery times

1. Delivery times and deadlines are regarded as met if the items in question leave our production plant or (in the case of transport by a third party) our despatch department by the corresponding due date, or if the corresponding notice of readiness for despatch has been issued.

2. Delivery times may be extended on such reasonable grounds as labour disputes, (with particular reference but not limited to strikes and lockouts), fire, shortages of raw materials, other operational problems, action on the part of official authorities, delays in the delivery of vital raw materials and input items or force majeure, or by the occurrence of unforeseen, unavoidable and emergency events that lie beyond our control. Events such as those mentioned shall suspend production and/or delivery deadlines for the duration of the situation concerned. This also applies if such circumstances affect our suppliers or subcontractors. We will notify the customer immediately if such a situation arises. Successful outcome is subject to correct and timely delivery on the part of our suppliers and subcontractors. This stipulation also applies to delivery deadlines. If either of the parties can no longer continue with the agreement, it shall be entitled to withdraw accordingly.

3. If delivery is delayed on grounds attributable to the supplier, the buyer can only withdraw from the agreement, or claim for loss or damage due to delay, if the buyer can establish that delay is caused by wilful or gross negligence, subject to the buyer first establishing in writing an additional period of at least six weeks under notice of cancellation and that this notice period has expired. If the buyer claims for loss or damage in these circumstances, the claim amount shall be limited to the costs foreseeable at the time of entering into the agreement.

4. If the buyer suffers loss or damage due to delay in delivery resulting from wilful or gross negligence on the part of the supplier, the buyer shall be entitled to claim accordingly.

5. If a delay occurs on grounds attributable to us, the customer may, after expiry of a reasonable extension to the deadline (normally 14 days), withdraw from the agreement if the shipment has still not been sent. Damage claims arising from delay and/or failure to fulfil the agreement are governed by section VIII of these terms and conditions.

6. If despatch is delayed at the customer’s request, storage costs will become chargeable once a period of one month has passed from the date of notification of readiness for delivery.

V. Completion of delivery

1. All risk is transferred to the customer (including for deliveries made free or carriage paid) at the moment in which the goods are handed over to the carrier or freight forwarder, and in any case no later than the moment in which the shipment leaves our warehouse (or despatch department in the case of handling by third parties).

2. We shall be entitled to make partial deliveries in reasonably-sized shipments. In the case of items destined for further processing, quantities of up to 10% above or below the agreed quantity shall be permissible.

3. We shall be entitled to manufacture, or subcontract the manufacture of, all items without possibility of changes once an order has been confirmed. Modification requests cannot be accepted once an order has been confirmed, unless otherwise agreed to in advance. Unless there is agreement to the contrary, blanket deadlines and quantities can only be fulfilled in accordance with our delivery and production capacities.

4. The routes and methods of shipping are, unless otherwise agreed, subject to our discretion. Despatch will be made from our warehouse with shipping costs calculated to the best of our ability. Goods are despatched without insurance. The supplier undertakes to arrange for insurance at the customer’s request. The supplier is also entitled, but not obliged, to take out insurance if such action seems reasonable.

VI. Reservation of title

1. All items supplied remain our property (subject to reservation of title) until all claims arising from the commercial relationship have been fulfilled, on whatever legal grounds, including claims that might arise in the future, e.g. due to acceptor’s bills.

2. The further processing and reprocessing of items subject to reservation of title is carried out for us as the manufacturer under the terms of article 950 of the German Civil Code (BGB), without obligation on our part. If the items subject to reservation of title are processed, combined or mixed with other items by the customer, we shall retain title over the resulting product on a basis proportional to the amount of the material subject to title being present in the final product. If our right to title is cancelled out by such combination or mixing, the customer is to transfer to us shared title to the resulting product or item in proportion to the billed amount. The resulting joint ownership is regarded as an item subject to reservation of title under the terms of sect. VI. 1.

3. The customer may only dispose of the items subject to retention of title in the normal course of business, subject to its normal terms and conditions and provided it is not in arrears, provided that the claims arising from resale under the terms of sections VI. 4 and VI. 5 are transferred to us. The customer has no further right to items that are subject to retention of title.

4. The customer’s claims arising from the resale of items subject to retention of title are transferred to us from the outset, and perform the same guarantee function as the actual items subject to retention of title. If the customer disposes of the items subject to retention of title in combination with other items not supplied by us, the value of claims to resold items corresponds only to the proportion of resold goods that remains subject to retention of title. In the case of resale of goods subject to joint title under the terms of section VI. 2, the transfer of claims corresponds to the jointly-owned proportion.

5. The customer is entitled to collect on claims arising from resale until cancellation on our part, which can take place at any time. We shall exercise our right to cancel only in the circumstances cited in section III. 4. The customer is obliged, at our request, immediately to inform its own customers of the transfer to us – unless we ourselves do so – and to supply us with the information and documents required for collection.

6. The customer is to notify us immediately of any pledge or other third-party claim affecting our rights.

7. If the value of existing guarantees made to us exceeds the guaranteed claim amounts by more than 29% overall (20% value of part payment, 9% flat liquidation-cost amount in the event of customer insolvency), we are obliged to release guarantees, at the customer’s request, to this extent. If we are liable for value-added tax under the terms of the corresponding law (§ § 170 II, 171 II S. 3 InsO or local equivalent), this limit is increased to 45%.

VII. Liability for defects

1. The customer is to examine all goods immediately on receipt. Defects that are immediately apparent must be reported within four weeks of delivery, while other defects must be reported in writing as soon as they are detected. In the event of valid immediate claims for defects we can – at our discretion in the case of commercial and/or professional use or at the customer’s discretion in the case of private use – correct the defect by either replacement or repair. If the defect remains after the chosen means of rectification has been applied, the customer may opt either to reduce the purchase price or withdraw from the agreement. The cost of repair or replacement arising from the correction of defects is to be met by us under the terms of our general liability in accordance with section VIII. Replaced items become our property.

2. There is a time limit of one year on the submission of claims for defects in the case of used items or if the customer is a commercial enterprise. In all other cases, the time limit is two years. This does not apply to claims relating to used items that have been returned to the seller.

3. Any “guarantee” that we do supply is provided, in case of doubt, only with a specific time limit, without any guarantee of specific characteristics.

4. An undertaking on our part to verify a defect does not constitute a negotiation affecting the time limit. If we do not respond in writing within three weeks of receiving a letter or personal contact from the customer, this should be regarded as refusal on our part to continue negotiations.

5. No defect claim can be accepted unless the customer supplies us on request with proof of the fault in the form of the goods in question or a representative sample thereof.

6. The buyer’s right to recourse against us only exists to the extent that the buyer and its own customer are unable to reach agreement or make ex gratia payment in accordance with the legally-established claims procedure.

7. Differences with respect to samples or earlier deliveries will be avoided where technically possible. We reserve the right to make modifications in the customer’s benefit, especially when based on technical progress and insofar as such changes do not modify to any considerable extent the items supplied.

8. We cannot accept defect claims arising from natural wear and tear, from damage not caused by us or from incorrect handling, with particular reference but not limited to incorrect storage.

9. The customer shall have no guarantee rights in the case of items sold as declassified or used material, insofar as such items are destined for commercial and/or professional use. This does not apply in the event of wilful concealment of a fault or if a particular characteristic is guaranteed. A one-year guarantee is provided for private use.

10. In the event of us accepting a return without liability on our part, we shall charge 10% of the net value of the goods to cover our costs. We do not normally accept the return of items made or acquired to special order.

VIII. General limitation of liability

1. Damage claims by the customer for whatever reason, but with particular reference to infringement of obligations arising from contractual undertakings and from unauthorised actions, are hereby excluded.

2. This exclusion does not apply to such legally enforced responsibilities as those arising from product-liability law, or in the event of misrepresentation or gross negligence, personal injury, the guarantee of a particular characteristic or the infringement of main contractual obligations. If infringement by us of main contractual obligations arises from minor negligence, claims shall be limited to the loss or damage typically foreseen in agreements of this kind and shall in any case not exceed twice the value of the items supplied.

IX. Copyright

We retain the ownership and copyright of all cost quotations, drafts, drawings, and other documents, which may not be made accessible to any third party or parties without our express permission. Drawings and other documents supplied with quotations must be returned to us on request. The customer assumes the responsibility for ensuring that no third-party rights are infringed by us supplying items based on drawings, models or samples provided by the customer. If a third party invokes copyright to prevent us in particular from manufacturing and supplying the items concerned, we shall be entitled to cease all related activity, without any obligation to check the legal validity of the claim, and seek compensation from the customer for any costs incurred. The customer furthermore undertakes to relieve us of any third party claims that might be made in this respect.

X. Installation and commissioning

1. Sale is made exclusively to commercial resellers.

2. The supplier is to ensure that the installation and commissioning of the items purchased is carried out only by suitably qualified specialist technicians.

3. The buyer undertakes to observe the regulations of the German telecoms regulator (RegTP), or local equivalent, during the initial startup phase. Buyer and seller agree that items that do not carry the required permits are for export only. Any supplier liability for loss or damage arising from the infringement of telecoms regulations, incorrect installation or commissioning is hereby excluded, unless caused by wilful or gross negligence on the part of the supplier.

XI. Data protection

We hereby confirm that all personally-identifiable data collected in the course of business with the customer itself or the third parties involved are to be handled in accordance with the German federal law on data protection (BDSG).

XII. Place of performance, legal jurisdiction and applicable law

1. The place of performance for goods and services provided by us is Göppingen (Germany) or the location of our branch responsible for supply. Legal jurisdiction corresponds to Göppingen, insofar as permitted under the terms of article 38 of the German Code of Civil Procedure (ZPO). We may also bring legal claims at the customer’s registered place of business. All legal matters arising from the contractual relationship between us and the customer are subject solely to the laws of the Federal Republic of Germany, to the exclusion of the UN convention of 11.04.1980 concerning contracts on the international purchase of goods.

2. If any individual part or parts of this agreement should prove to be illegal or inapplicable, or become so, or if there is any item found not to be covered, this shall have no affect on the agreement as a whole.


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