General terms of business

A. General

1. We supply goods and provide services only on the basis of our terms of sale, payment and delivery set out below even if, in the case of ongoing business relationships, no express reference is made to them. Amendments to these terms, in particular different terms of business issued by the customer, are hereby rejected. Any failure on our part not to reject different terms shall not be regarded as acceptance, even if we supply goods without reservation. By accepting our goods the customer declares that it agreed to the exclusive application of our terms of sale, payment and delivery.  

2. All quotations issued by us shall be non-binding. Purchase orders shall not be regarded as having been accepted until we have confirmed them in writing.  

3. All the agreements made for the fulfilment of this contract shall be made in writing.

B. Scope of goods and services

1. Technical changes from our order confirmation or the contract shall be permitted if they are required on the basis of statutory regulations, official orders or the state of the art in order to achieve the objective of the contract or they do not adversely affect either the guaranteed properties or the suitability of the goods for the user agreed in the contract. In this respect the documents supplied to the customer, such as illustrations, drawings, data records as well as size, weight, consumption and performance details shall only be regarded as approximate.

C. Prices and payment

1. Prices are quoted ex-works including loading at the plant but excluding packaging. Value-added tax at the relevant statutory rate shall be added to the agreed prices.  

2. Unless otherwise agreed, payments shall be made within 10 days with 2% discount or within 30 days strictly net. Default interest shall be charged after 30 days.  

3. We shall be entitled to increase the agreed prices accordingly if, after the contract has been concluded, increases in costs take place, in particular as a result of collective wage-bargaining agreements or material price rises or as a result of modifications requested by the customer.  

4. If we become aware of circumstances which jeopardise the customer's creditworthiness, all our accounts receivable shall be due for payment immediately. Our rights set out in § 321 of the German Civil Code shall not be affected.  

5. The customer shall not be entitled to claim a right of retention or setting off against our accounts receivable unless its claims are not disputed or have been fixed by a court of law.

D. Lead time

1. Meeting the deadlines for goods or services (lead times, in other words delivery dates and deadline) assumes that the customer meets its contractual duties and obligations. Lead times shall therefore not commence until the receipt of our order confirmation by the customer but not before the customer has supplied the documents, information, licences, etc. it must provide and also not before receipt of an agreed instalment, guarantee, etc. Delivery dates shall be postponed accordingly in these cases.  

Modifications or supplements to the original scope of goods or services agreed after the conclusion of the contract shall extend or postpone the original delivery dates or lead times by a reasonable period. The lead time shall be regarded as having been met if the goods have left the factory or the customer has been notified that the goods are ready for shipment before the end of it. Part consignments shall be permitted.

2. Problems with the delivery of goods or provision of services caused by forces majeures or as a result of labour disputes, official action, operational problems, material procurement or energy supply difficulties or other unforeseeable, extraordinary and non-culpable circumstances but regardless of whether these circumstances affect our company or our sub-contractors, shall extend the lead time by the duration of the problems. This shall not include cases in which we enter into a deadline undertaking despite the fact that these circumstances are foreseeable or we fail to take possible and reasonable action to prevent or avert the problems or in which the problems have been caused by us.  

In keeping with the above provisions, the listed circumstances shall not be regarded as having been caused by us even if they occur when we are already in default.  

If, as a result of these circumstances, the fulfilment of the contract because impossible or unreasonable or economically unviable for us, we may cancel the contract in full or in part. The same shall apply if, as a result of these circumstances, we are unable to forecast when we will be able to fulfil the contract. The customer shall not be entitled to claim compensation on the basis of such cancellation. If we wish to exercise our right to cancel, we must notify the customer without delay once we have identified the extent of the event, even if an extension of the lead time or a postponement of the delivery date has initially been agreed with the customer.

3. If the customer suffers damaged due to a delay for which we are responsible, the customer shall be entitled to compensation. The amount of this compensation shall be limited to 0.5% of the order value for every week or part week of the delay, subject to a maximum of 5%. This shall not affect our liability as set out in section H of these terms of sale, payment and delivery.  

4. If the shipment of the goods is delayed at the customer's request, we shall charge the customer the costs we incur through storing the goods subject to a minimum of 0.5% of the invoice total if the goods are stored at our plant (or the appropriate proportion of the invoice total in the event of part consignments) for each month, starting one month after we give notification that the goods are ready for shipment. We shall also be entitled, after setting a reasonable extended deadline which then passes without any action, to dispose of the goods elsewhere and to supply the customer with goods after a reasonable extended period.

E. Transfer of risk and acceptance

1. The risk shall be transferred to the customer at the latest at the start of the loading operation for the goods even if part consignments are being delivered and we have agreed to provide additional services such as the shipment costs or delivery and installation, etc. Shipment shall normally be made at the customer's expense and risk.  

2. If the shipment is delayed as a result of circumstances for which we are not responsible, the risk shall be transferred to the customer on the date on which the goods are ready for shipment.  

3. Delivered goods must be accepted by the customer even if they are affected by minor defects notwithstanding his rights set out in section G.

F. Reservation of title

1. The goods shall remain our property until all accounts receivable from our business relationship with the customer have been settled in full (reserved title goods).  

2. The customer must insure the reserved title goods against loss, breakage, fire, water and other damage until title to them is transferred. The customer hereby assigns all rights from insurance policies in this regard and its claims against its insurers to us. We hereby accept this assignment.  

3. The customer may not pledge or transfer title to the reserved title goods for the purposes of security. The customer must notify us without delay in the event of seizure or confiscation or other orders. If the customer breaches the contract, in particular if it is in default with payment, we shall be entitled to take back possession of the reserved title goods after giving a warning. This shall also apply if the customer is over indebted or becomes insolvent, an application is made to open insolvency proceedings against its assets or some other major deterioration of its financial situation occurs. Claiming reservation of title and the seizure of the reserved title goods by us shall not be regarded as the cancellation of the contract.

4. The customer shall be entitled to resell the reserved title goods as part of the normal course of business using its normal terms. In the event of resale, the accounts receivable by the customer from such resale are hereby assigned to us up to the amount of our invoice total (including value-added tax). We hereby accept this assignment. The customer shall be authorised to collect these accounts receivable even after this assignment. If the customer becomes in default with payment, an application is made to open insolvency proceedings, the customer is suffering from over indebtedness, insolvency or some other major deterioration in its financial situation occurs, this entitlement to resell the goods and to collect accounts receivable shall be void. In this case we may also exercise our unaffected authorisation to collect the assigned accounts receivable ourselves and demand that the customer notifies its debtors of the assignment. Notwithstanding this we may also demand at any time that the customer notifies us of the assigned accounts receivable and their debtors, provides all the information for their collection and issues the relevant documentation for this purpose.

5. Any processing or redesign of the reserved title goods carried out by the customer shall be carried out on our behalf. If the reserved title goods are processed with other goods which do not belong to us, we shall acquire joint title to the new goods proportionate to the value of the reserved title goods to the other processed goods at the time of the processing. The same shall apply to the goods created by the processing work as for other reserved title goods (see above).  

6. If the reserved title goods are connected to other goods which do not belong to us such that they become a major component of new goods, we shall acquire joint title to the new goods proportionate to the value of the reserved title goods to the other connected goods at the time of the connection. If the connection takes place such that the customer's goods may be regarded as the main goods, it is hereby agreed that the customer shall transfer joint proportionate title to the goods. The customer shall keep the joint title thus created for us. The provisions relating to connection shall apply as and where appropriate to mixing or blending. The same shall apply to the new goods produced by mixing, blending or connection as for other reserved title goods (see above).  

7. We undertake to release the securities we hold if their value exceeds the accounts receivable that they secured by more than 20%.

G. Defects

1. The customer must inspect the goods carefully immediately after delivery and notify us in writing of any complaints without delay after they have been identified.   2. In the event that the goods or services are defective, the customer shall, at our discretion, be entitled to the rectification of the defects or the delivery of perfect goods/production of new goods (refulfilment). If we refuse refulfilment, it fails, it is unreasonable for the customer or is not carried out within a reasonable deadline set by it, the customer may, at its discretion, demand a reduction in the invoice or cancel the contract or (in the event of a works contract) rectify the defects itself at our expense as set out in § 637 of the German Civil Code. Cancellation shall not be possible if the defect is minor. The customer may not carry out the rectification work itself if we have correctly refused refulfilment. Otherwise our liability shall be as set out in section H of these terms of sale, payment and delivery.

3. A guarantee of a property in the goods or the result of our work in the sense of § 442 of the German Civil Code must be expressly accepted by us. A guarantee of this nature shall in particular not be deemed to have been given if such properties are merely mentioned, such as is the case in suitability, weight, consumption and performance details. This shall also apply to the use of the word "guaranteed".  

4. Claims for defects shall in particular not be accepted in the following cases: Unsuitable or incorrect use, defective assembly or installation by the customer or third parties, natural wear and tear, incorrect or negligent treatment (in particular excessive stressing), unsuitable media, substitute materials, chemical, electro-chemical or electrical influences if we are not responsible for the. If the scope of the goods or services is changed at the request of the customer after the conclusion of the contract and this results in the properties or suitability of the goods or the work produced by us being adversely affected in the sense §§ 434 and 633 of the German Civil Code, claims for defects by the customer shall not be possible if the adverse effects are the result of the changes requested by the customer.  

5. The customer's claims for defects shall become statute-barred one year after the delivery of the goods to the customer or after the acceptance of the work by the customer. This shall not apply to work whose success consists of the provision of planning or monitoring services.

6. We may refuse refulfilment if the customer is in default with its duties. This shall not affect any right of retention due to any defects up to three times the value of the defect rectification costs.  

7. The customer undertakes to provide services for the refulfilment process at the same level as for the main order. Replaced parts must be returned to us.

H. Liability

1. Claims by the customer for compensation on the basis of breaches of duty from the contractual relationship and for illegal actions shall be excluded - particular in relation to consequential damages (including loss of profit). The same shall apply to claims for the reimbursement of costs as set out in § 284 of the German Civil Code.  

2. This shall not affect our liability for damages as a result of death, physical injury and harm to the health, for claims under product liability law, for warranties (apart from consequential damages not covered by warranties) and for all foreseeable damages where we are not guilty of malice or gross negligence. We shall accept liability for property damage caused by simple negligence as long as we are able to obtain cover under our existing public liability insurance policy.  

3. We shall accept liability for the culpable breach of major contract duties in the sense of § 307 Section 2 No. 2 of the German Civil Code even for simple negligence but only for foreseeable damages and only up to the sum of EUR 2,000,000.00, only up to EUR 600,000.00 for small orders with a delivery value of up to EUR 50,000.00 (net excluding value-added tax) but subject to a maximum of 12 times the delivery value of the actual goods delivered.

I. Contract documents, intellectual property rights

1. We reserve title and copyright to all contract documents such as designs, drawings, calculations, data records and estimates. These may not be copied or disclosed to third parties without our consent. Any rights to patents, design patents, etc. shall be exclusively ours, even if no application has yet been made for them. The reproduction of our products shall only be possible out written consent.  

2. If our goods and services include software, the customer shall have a non-exclusive right to use the software including its documentation but only on one system and the goods defined for the purpose. Copyright notes must not be removed or amended, sub-licences must not be granted.

K. Place of fulfilment, place of jurisdiction and applicable law

1. The exclusive place of fulfilment for both parties to the contract shall be our registered office at D-75389 Neuweiler. If our customers are businessman, legal entities under public law or public law special funds or do not have a general place of jurisdiction within the Federal Republic of Germany, the courts with jurisdiction for D-75389 Neuweiler or D-70182 Stuttgart shall be agreed as the place of jurisdiction. However, we shall also be entitled to lodge claims in any other place of jurisdiction.  

2. Our legal relationships with our customers shall be based exclusively on the laws of the Federal Republic of Germany. The applicability of the UN Convention for Contracts for the International Sale of Goods shall be excluded.

L. Burden of proof, amendments, invalidity clause  

1. Any burden of proof rules in favour of the customer shall not be affected by these terms of sale, payment and delivery.  

2. Amendments to these terms of sale, payment and delivery or other contractual agreements must be made in writing.  

3. If individual parts of these terms of sale, payment and delivery are voided by the law or individual contracts, this shall not affect the validity of the other provisions.

© 1984 - 2012 by MOS Electronic GmbH