General terms and conditions of sale and delivery of CAPTRON Electronic GmbH
(Last revised: August 2015)
1 General information and scope
1.1 These general terms and conditions of sale and delivery ("T&Cs") apply to all business relations between CAPTRON Electronic GmbH, domiciled in Olching, Germany, (the "seller") and customers of the Seller ("buyers") if these buyers are entrepreneurs (as defined in Section 14 of the German Civil Code - BGB), legal entities under public law or special asset bodies subject to public law. These T&Cs apply particularly to contracts for the sale and/or delivery of movable goods (referred to below as "goods") and the provision of services by seller without consideration of whether the goods were produced by the seller or purchased from suppliers (Sections 433 and 651 BGB).
1.2 The respective version of the T&Cs also applies as a framework agreement for future contracts for the sale and delivery of goods and/or provision of services with the same buyer without the necessity of explicit reference by the seller to this in each individual case.
1.3 General terms and conditions of the buyer which differ from, conflict with or supplement these only become part of the contract if and to the extent that the seller has explicitly agreed to their application. This requirement of approval applies in each case, for example even if the seller provides delivery and/or service to the buyer without reservation and is aware of the buyer's general terms and conditions.
1.4 Material declarations and notifications to be made by the buyer to the seller after the signing the contract, particularly with regard to setting deadlines, defect notices, declaration of withdrawal or reduction, must be in written form to be valid. Text form (Section 126b BGB) is sufficient to meet the requirement of written form.
2 Quotation and conclusion of contract
2.1 All quotations from the seller are without obligation and are subject to confirmation if they are not explicitly indicated as binding or do not contain a specific deadline for acceptance.
2.2 The ordering of goods by the buyer is considered a binding offer of contract, which the seller can accept within two weeks after receiving said offer if the order contains no other deadline for acceptance. Acceptance can ensue in writing or by an order confirmation by the seller or by delivering the goods to the buyer.
2.3 The seller retains ownership and/or the copyright to all quotations and cost proposals submitted by the seller as well as to drawings, diagrams, data sheets, 3-D data, calculations, brochures, catalogues, models, tools and other documentation and resources made available to the buyer. The buyer is not permitted to allow third parties to access these items, nor to disclose them, use them directly or via a third party or reproduce them as such or with regard to their content. Upon demand of the seller, these items are to be returned in their entirety to the seller and any copies made are to be destroyed if they are no longer required by the buyer in the ordinary course of business or if negotiations do not lead to the conclusion of the contract.
3 Delivery periods and delivery default
3.1 Deadlines and schedules proposed by the seller for delivery and/or services are always considered to be only approximate, unless an explicit fixed deadline or firm schedule has been accepted or agreed. If shipment has been agreed, delivery periods and schedules referred to the time of transfer to the forwarding agent, shipping company or other third parties assigned for transport.
3.2 Irrespective of the seller's rights arising from default on the part of the buyer, the seller can demand an extension of periods for delivery and service or a rescheduling of delivery and service dates for the period of time during which the buyer does not meet the contractual obligations to the seller.
3.3 The seller is not liable for infeasibility of delivery and/or of service provision or for delays in delivery or service if these are caused by force majeure or other events for which the seller is not responsible, in particular disruptions of operations of all kinds, war, strikes, legal lockouts, measures by authorities or untimely delivery to the seller by suppliers; if the seller has concluded a congruent covering transaction, neither the seller nor the supplier is at fault or the seller is not obligated for sourcing in the individual case. The seller undertakes to inform the buyer without delay if such an event occurs. If such events significantly complicate the delivery or service for the seller or make it impossible, and the difficulty is not just temporary, the seller is entitled to withdraw from the contract, and the seller will return payments already made by the buyer without delay. In the case of temporary obstacles, the delivery periods are extended or the delivery schedule moved by the period in which the difficulty persists; the seller will inform the buyer of the expected new delivery period or new delivery schedule.
3.4 Default on the part of the seller always requires a reminder notice from the buyer. If the seller is in default with a delivery, then the buyer can demand for each completed calendar week of the default a lump sum compensation for damages caused by the delay amounting to 0.5% of the net price (delivery value) of the goods delivered late, but no more than 5% of the delivery value. The seller retains the right to document that the buyer has suffered no damages at all or significantly lesser damages than the aforementioned lump sum.
3.5 The rights of the buyer as detailed in Section 10 of these T&Cs and the statutory rights of the seller, in particular in the case of an exclusion of the duty to perform (for example due to the impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
4 Delivery, place of fulfilment, shipping, transfer of risk and acceptance
4.1 Deliveries take place ex works at the seller's location in 82140 Olching, Germany, which is also the place of fulfilment. The goods can also be sent to another destination (sales involving shipment) at the request of the buyer and at the buyer's cost. If not otherwise explicitly agreed, the seller is entitled to determine the type of shipment (in particular transportation companies, route and packaging).
4.2 The seller is entitled to make partial deliveries if the partial delivery is usable by the buyer as part of the contractually intended use, the delivery of the remaining goods ordered is ensured, and the buyer incurs no considerable additional expense or additional costs as a result.
4.3 The buyer bears the risk of accidental loss and accidental deterioration of the goods until the handover. With sales involving shipment, the risk of accidental loss and accidental deterioration of the goods and the risk of delay is transferred upon delivery of the goods to the forwarding agent, shipping company or other third party designated to carry out the shipment. If an acceptance has been agreed, it is decisive for the transfer of risk. Moreover, the statutory provisions of the law on con-tracts for work and services apply accordingly to an agreed acceptance. If the shipment or the transfer of the goods is delayed due to a circumstance, the cause of which lies with the buyer, the risk transfers to the buyer as of the day on which the goods are ready for shipment and the seller has notified the buyer of the readiness to ship.
4.4 If the buyer is in default of acceptance or the delivery is delayed by the seller for other reasons for which the buyer is responsible, then the seller is entitled to claim compensation of the resultant damages, including additional expenses (such as warehousing costs). For this the seller is entitled to charge a lump sum compensation amounting to 0.50% of the net price (delivery value) for each completed calendar week of the delay, but no more than 5% of the delivery value of the goods affected by the delay, beginning with the delivery period or the notification of readiness to ship for the goods. The right of the seller to document higher damages remains unaffected; however, the lump sum is to be credited against further monetary claims. The buyer retains the right to document that the seller has suffered no damages at all or significantly lesser damages than the aforementioned lump sum.
5 Prices and terms of payment
5.1 If no other agreement has been made in the individual case, the seller's current prices at the time the contract is concluded apply. These prices are ex works and do not include packaging and statutory VAT.
5.2 For sales involving shipment, the buyer bears the cost of transportation ex works, the costs of any transportation insurance desired by the buyer and any incidental customs, fees, taxes and other public charges.
5.3 The purchase price is due and payable without discount within 30 days of invoicing and delivery or acceptance of the goods or performance of the service if there is no other agreement in the individual case. The buyer is in default if payment is not made by the date on which it is due. During the period of default, the purchase price due is subject to interest at the applicable statutory interest rate in each case; the enforcement of further damages for default by the seller remains unaffected.
5.4 The buyer is entitled to offsetting and retention rights only to the extent that the buyer's claim is established as legally enforceable or is undisputed.
5.5 If after the signing of the contract with the buyer it becomes apparent that the claim of the seller to payment of unsettled accounts from the respective contractual relationship (including from other individual orders for which the same general agreement applies) is endangered by insufficient capacity to perform on the part of the buyer, then the seller is entitled to make outstanding deliveries only upon the condition of prepayment or collateral security or (after previously specifying a deadline as required) to withdraw from the contract according to the statutory provisions for defence of uncertainty (Section 321 BGB).
6 Retention of ownership
6.1 The goods delivered to the buyer by the seller remain the property of the seller until complete payment of all current and future receivables of the seller arising from the underlying contract and any ongoing business relationship ("secured receivables"). The goods and the goods covered in their place by the retention of ownership according to the following provisions are referred to hereinafter as "goods subject to the reservation of ownership".
6.2 The buyer is entitled to process and sell the goods subject to the reservation of ownership in the proper course of business subject to the following provisions.
6.2.1 Processing of the goods subject to the reservation of ownership by the buyer always takes place in the name of and for the account of the seller as the producer. The seller acquires ownership directly or – if the processing takes place with materials from multiple owners or the value of the processed item is higher than the value of the goods subject to the reservation of ownership – co-ownership (a fractional share) of the newly created item in proportion to the value of the goods subject to the reservation of ownership compared to the value of the newly created item. In the case that no such acquisition of ownership should occur with the seller, the buyer herewith assigns the buyer's future ownership or co-ownership of the newly created item referred to in Sentence 2 to the seller as collateral. If the goods subject to the reservation of ownership are associated with other items to form a unified item or are inseparably mixed and one of the other items is to be considered the primary item, then the seller, to the extent the primary item belongs to the seller, assigns to the buyer the proportional co-owned share of the unified item in the proportion stated in Sentence 2.
6.2.2 In the case of resale of the goods subject to the reservation of ownership, the buyer herewith as-signs to the seller for purposes of collateral the receivable resulting herefrom and payable by the party acquiring the goods from the buyer, and with co-ownership of the goods subject to the reservation of ownership by the seller proportionally according to the co-owned share. The same applies to other receivables in lieu of the goods subject to the reservation of ownership or which otherwise arise with regard to the goods subject to the reservation of ownership, in particular insurance claims or claims from prohibited action upon loss or destruction.
6.2.3 The seller revocably authorises the buyer to collect the receivables assigned to the seller in the buyer's own name. The seller is only permitted to revoke this collection authorisation if the buyer has not met the buyer's payment obligations to the seller, is in default of payment, an application for opening insolvency proceedings for the assets of the buyer has been made, or there is another deficiency with regard to the buyer's capacity to perform. If this is the case, the seller can revoke the collec-tion authorisation and demand that the buyer disclose the claims assigned to the seller and the par-ties from which they are due, provide all information required to collect the debts, hand over the associated documentation and inform the (third) parties obligated to pay of the assignment.
6.3 The goods subject to the reservation of ownership are not permitted to be pledged to third parties nor given as collateral before complete payment of the secured receivables. If third parties take possession of the goods subject to the reservation of ownership, particularly by seizure, the buyer will notify these parties without delay of the ownership of the seller and inform the seller regarding this to facilitate the assertion of the seller's rights of ownership.
6.4 The seller will release the goods subject to the reservation of ownership as well as items or receivables in their place if their value exceeds the amount of the secured receivables by more than 20%. The seller has the choice of the items to be released in this regard.
7 Warranty and material defects
7.1 The buyer must inspect the goods delivered without delay after these have been delivered by the seller. Apparent defects of the goods, including incorrect and short delivery and other defects which would be recognizable upon careful inspection, must be reported in writing by the buyer to the seller within seven working days after delivery. The sending of notification during this period is sufficient for compliance with the deadline. Other defects of the goods must be reported in writing by the buyer to the seller within seven working days after the defects of the goods were apparent, with the sending of notification during this period again being sufficient for compliance with the deadline. If the buyer fails to inspect the goods properly and/or give timely notice of defects, then the goods are considered approved with regard to the defect. Liability of the seller is excluded to this extent.
7.2 If the goods delivered and/or service provided by the seller are defective, the seller is entitled to subsequent performance by correcting the defect or delivering an item without defects or performing the service once again within an appropriate period according to the choice of the seller.
7.3 The buyer is obligated to give the seller the necessary time and opportunity to carry out the subsequent performance due, in particular to hand over or send back to the seller the goods subject to complaint upon the request of the seller. The subsequent performance does not include removal or reinstallation of the goods subject to complaint if the seller was not originally obligated to perform installation.
7.4 The expenses required for the purposes of testing and subsequent performance, in particular the costs of transportation, travel, work and materials, are borne by the seller if in fact the goods are defective. Exceptions to this are the costs of any removal and re-installation if the seller was not originally obligated for installation. If a demand on the part of the buyer for the correction of defects proves to be unjustified, the seller can demand compensation from the buyer for the resultant costs.
7.5 If the subsequent performance by the seller is unsuccessful or the seller allows a suitable grace period to be set by the buyer for subsequent performance pass without success, the buyer can with-draw from the contract or reduce the purchase price appropriately. There is no right of withdrawal on account of an insignificant defect of the goods.
7.6 In the case of defective components from other manufacturers which the seller cannot correct due to license restrictions or factual reasons, the seller has the choice to enforce the seller's warranty claims against the manufacturers on behalf of the buyer or to assign these to the buyer. There are only warranty claims against the seller for such defects under the other preconditions and according to the measure of these T&Cs if the legal enforcement of the aforementioned claims against the manufacturer has been unsuccessful or appears to have no prospect of success, for example due to insolvency. The limitation of time for the relevant warranty claims of the buyer against the seller is suspended during the period of the legal dispute.
7.7 There are no claims on the part of the buyer based on defects of the delivered goods if the buyer modifies the delivered goods without the agreement of the seller or allows these to be modified by third parties and this makes the correction of defects impossible or unreasonably difficult. In this case the buyer must bear the additional costs for the correction of defects arising from the modification.
7.8 The buyer has claims for compensation of damages and futile expenses only as stipulated in Section 10; these are otherwise barred.
8 Defects of title and violation of commercial property rights
8.1 If not agreed otherwise in the individual case, the seller warrants only that the goods delivered by the seller are free of defects of title in the country where delivery takes place, in particular that they do not violate commercial property rights and intellectual property rights of third parties ("property rights"). If a third party asserts justified claims against the buyer due to violation of commercial property rights by the goods delivered by the seller and used by the buyer in accordance with the contract, then the seller is liable to the buyer only according to the measure of this Section 8.
8.2 If the goods delivered by the seller violate a property right, then the seller has the choice either to obtain a right of use or to modify or replace said goods at the cost of the seller in such a way that the property right is no longer violated, but the goods can continue to fulfil the contractually agreed functions. If this is not possible for the seller within a suitable period under appropriate conditions, then the buyer is entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims on the part of the buyer for compensation of damages are subject to the limitations of Section 10 of these T&Cs.
8.3 The obligations of the seller specified in Section 8.2 apply only if and to the extent that the buyer notifies the seller in writing without delay of the claims asserted by the third party, does not recognize a property right violation and the seller is given all rights to defensive measures and settlement negotiations and enabled in these. If the buyer ceases to use the goods due to the assertion of claims by third parties, the buyer must ensure that the cessation of use is not associated with a recognition of a property right violation, for example by an explicit indication of this to the third party.
8.4 Claims of the buyer due to defects of title are excluded to the extent that the buyer is responsible for the property right violation, the property right violation is caused by particular specifications of the buyer, by a use which could not be anticipated by the seller or due to the goods being modified by the buyer or third parties or being used together with goods not delivered by the seller.
9 Limitation period
9.1 The limitation period for claims of the buyer arising from material defects and defects in title comprises one year as of delivery or, if an acceptance is agreed, as of acceptance. This does not apply in cases where the law in accordance with Section 438 Paragraph 1 No. 2 BGB provides a longer limitation period for construction and items for construction. Furthermore, the special statutory provisions for bad faith on the part of the seller, non-compliance by the seller with a guarantee of condition and the limitation periods stipulated by product liability law remain unaffected.
9.2 The limitation periods specified in Section 9.1 also apply to contractual and non-contractual claims on the part of the buyer for compensation of damages to the extent that these are based on a defect of the goods. The statutory limitation periods also apply to claims on the part of the buyer for compensation of damages.
10 Liability for compensation of damages
10.1 The liability on the part of the seller for compensation of damages on any legal grounds is limited to malicious intent and gross negligence. In the case of ordinary negligence, the seller is only liable for damages
a) from injury to life, limb or health and
b) from violation of an essential contractual duty. An essential contractual duty is any duty for which fulfilment is necessary to make proper performance of the contract possible and for which the contractual partner trusts that it will be met and is entitled to do so. Liability on the part of the seller is limited in this case to foreseeable damages which may typically occur in such cases.
10.2 In the case of liability for ordinary negligence, the duty of the seller for compensation of property damage and the resultant further financial losses is limited according to the current coverage amount of (product) liability insurance for the seller to an amount of € 5 million per claim.
10.3 The limitations of this Section 10 do not apply to the extent that the seller has fraudulently concealed a defect or assumed a guarantee for the condition of the goods and with regard to claims on the part of the buyer arising from German product liability law.
11 Final provisions
11.1 Should individual provisions of these T&Cs or of the contract between the seller and buyer prove to be partially or completely void, invalid or infeasible, the effectiveness, validity and enforceability of these T&Cs shall not be affected in the remainder. To the extent legally permitted, such a void, invalid or infeasible provision is to be replaced by a valid, effective and feasible provision which most closely embodies the business sense and purpose of the void, invalid or infeasible provision. The same applies correspondingly if these T&Cs for the contract between the seller and buyer contains unintentional loopholes.
11.2 Insofar as these T&Cs require the written form for declarations of the seller or buyer, text form (Section 126b BGB) is sufficient to meet this requirement.
11.3 These T&Cs and all legal relations between the seller and the buyer are governed exclusively by the law of the Federal Republic of Germany, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict of laws provisions.
11.4 If the buyer is a registered merchant, legal entity under public law or a special asset body subject to public law, then the exclusive place of jurisdiction, even in international cases, is Munich, Germany for all disputes arising from or in conjunction with the contractual relationship between the seller and buyer, including its formation and termination. The seller is also entitled to file suit in the general place of jurisdiction for the buyer.