Terms of Service
§ 1. General
(1) These General Terms and Conditions of Delivery and Service apply to all of our fields of activity. These General Terms and Conditions of Delivery and Service apply both to the delivery of goods and to user training as well as for our services.
(2) These general terms and conditions of sale and service apply in our relationship exclusively with the customer. They also apply to all future transactions, as well as to all business contacts with the customer, such as the start of contract negotiations or the initiation of a contract, even if they are not expressly agreed again or if they are not expressly referred to again.
(3) If, in individual cases, obligations are also established with persons or companies who are not themselves to become a party to the contract, the limitations of liability in these General Terms and Conditions of Sale and Service shall also apply to them, insofar as these General Terms and Conditions of Sale and Service apply to third parties when the obligation is established were included. This is particularly the case if the third party has become aware of these general terms and conditions of sale and service or was already aware of them when the obligation was established.
(4) The acceptance of our services and deliveries by the customer is deemed to be acknowledgment of the validity of these general terms and conditions of sale and service.
§ 2 Conclusion of contract
(1) Unless otherwise agreed, our offers are non-binding.
(2) We are only bound to an order if it has been confirmed by us in writing with an order confirmation or we have started to execute the order. Should the customer wish to change the order after our order confirmation, this requires our express written consent.
§ 3 Delivery, scope of delivery and service, service deadlines
(1) Delivery times are given to the best of our judgement, but are generally non-binding. The beginning of the delivery period and the observance of delivery dates presupposes that the customer performs the duties of cooperation in a timely manner and properly, provides all documents to be provided and makes any agreed advance payments. Delivery dates confirmed by us always refer to the day of dispatch of the goods from the respective place of business of our company or other place of delivery.
(2) Our written offer or our order confirmation is decisive for the scope of our delivery or service. Subsidiary agreements and changes require our written confirmation. If it turns out after the conclusion of the contract that the order cannot be carried out in accordance with the information provided by the customer, we are entitled to withdraw from the contract if and to the extent that the customer is not prepared to accept the alternative solution proposed by us and, if necessary, to assume any additional costs that actually arise .
(3) We are entitled to partial performance for all deliveries and services to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations.
(4) If it has been agreed that the customer pays in advance, delivery will only take place after we have received the full purchase price.
(5) The details attached to our offers and order confirmations, such as drawings, details of weight, dimensions and capacity, are only approximate unless expressly marked as binding. We reserve all rights to drawings, drafts or similar preparatory work.
(6) In the event of force majeure or other non-culpable and extraordinary circumstances, we shall not be in default. In this case, we are also entitled to withdraw from the contract if we are already in default. In particular, we shall not default in the event of delays in delivery if these are caused by incorrect or untimely delivery by our suppliers for whom we are not responsible. In the event of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period.
§ 4 Prices and Packaging
(1) Our prices are net prices and apply "ex works" (EXW Incoterms 2010) from our place of business, unless otherwise agreed. For services, the prices refer to the performance at the agreed place of performance. When invoicing, sales tax will be added at the applicable statutory rate.
(2) Shipping costs and packaging costs will be charged to the customer.
§ 5 Terms of Payment
(1) Unless otherwise contractually agreed, our claim shall become due without any deductions 30 days after receipt of the delivery or after complete provision of our service.
(2) In the case of deliveries or services to customers based outside of Germany, the customer is obliged to pay in advance, unless otherwise agreed. The amount to be paid is due 10 days after notification of readiness for dispatch.
(3) Without an express agreement, the customer is not entitled to make any deductions.
(4) Cost estimates submitted by us remain valid for 14 days from the date of creation.
§ 6 Customer's duties to cooperate
(1) The customer must support us and our employees to a reasonable, customary extent. If we have to provide project-related work or services through our employees in the customer's company, the provision of work rooms and workstations with PC and telephone may also be part of the support at our request, the costs of which are borne by the customer.
(2) Materials, information and data that we need to provide our services must be made available to us by the customer. Data and data carriers must be technically flawless. Insofar as special statutory or operational safety regulations apply in the customer's business, the customer must inform us of this before our service is rendered.
(3) Instructions from the customer to our employees on the specific form of service provision are excluded, unless instructions are necessary in connection with safety requirements and company regulations in the customer's company. Instructions on individual questions regarding work or services to be provided by us are not to be given to the employees entrusted with the task by us, but to the contact persons we have named for the project. We always decide independently on the necessary measures within the scope of our performance obligations.
§ 7 Warranty and General Liability
(1) The limitation period for claims due to defects in our deliveries and services is one year from the start of the statutory limitation period. After the end of this year, we may in particular also refuse supplementary performance without the customer having any claims against us for a price reduction, withdrawal or compensation. This shortening of the limitation period does not apply to claims for damages other than those due to subsequent performance being refused (the limitation period for other claims for damages results from Section 9, Item 6 of these General Terms and Conditions of Sale and Service) and it generally does not apply to claims in the event of fraudulent concealment of the defect.
(2) Claims by the customer for supplementary performance due to defects in the service or delivery to be provided by us exist according to the following provisions:
1. If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). The right to refuse the selected type of supplementary performance under the statutory requirements remains unaffected.
2. We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
3. The customer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
4. We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, if there is actually a defect. The customer shall bear the expenses for rectification or supplementary performance that arise from the fact that the purchased item has been taken to a place other than the customer's place of residence or commercial establishment after delivery. If a customer's request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the customer.
(3) The customer's claims for defects, in particular the claims for subsequent performance, withdrawal from the contract, price reduction and compensation for damages, presuppose that the customer has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is found during the inspection or later, the provider must be notified immediately in writing. The notification is deemed to be immediate if it is made within seven days of discovering the defect, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the customer must report obvious defects (including incorrect and short deliveries) in writing within seven days of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded. This does not apply if we have fraudulently concealed the defect. A merchant is any entrepreneur who is entered in the commercial register or who runs a commercial business and requires a business operation set up in a commercial manner.
(4) The customer can only claim damages:
1. for damage caused on
— an intentional or grossly negligent breach of duty on our part or
— on an intentional or grossly negligent breach by one of our legal representatives, executive employees or vicarious agents
are based on obligations that are not essential contractual obligations (cardinal obligations) and are not primary or secondary obligations in connection with defects in our deliveries or services.
2. for damages based on the intentional or negligent breach of contractual obligations (cardinal obligations) on our part, one of our legal representatives, executive employees or vicarious agents. Significant contractual obligations (cardinal obligations) within the meaning of the above subsections are obligations whose fulfillment is essential for the proper execution of the contract and on whose observance the customer regularly relies.
3. We are also liable for damages due to the negligent or intentional breach of obligations in connection with defects in our delivery or service (subsequent performance or secondary obligations) and
4. for damage that falls within the scope of a guarantee (assurance) expressly given by us or a guarantee of quality or durability.
(5) In the event of a simple negligent breach of a material contractual obligation, the amount of liability is limited to the damage that is typically to be expected and foreseeable for us at the time the contract was concluded if we exercised due care.
(6) Claims for damages by the customer in the event of a simple negligent breach of a contractual obligation become statute-barred one year after the start of the statutory limitation period. Excluded from this are damages resulting from injury to life, limb or health.
(7) Claims for damages against us from legally binding liability, for example under the Product Liability Act, as well as from injury to life, limb or health remain unaffected by the above regulations and exist to the legal extent within the statutory periods.
(8) If third parties are commissioned or involved in the initiation or settlement of the contractual relationship between the parties, the warranty and liability limitations described above also apply to the third parties.
(9) Rights of the customer according to paragraphs 478 and 479 BGB in the event that the customer or his other customers in a supply chain are claimed by a consumer remain unaffected.
§ 7 confidentiality
(1) During the term of the contract and five years after its termination, the customer undertakes to keep all information that is accessible to him in connection with the contract that is designated as confidential or that is recognizable as business or trade secrets due to other circumstances, especially technical information and economic information, to keep it secret and - unless expressly approved in advance in writing or required to achieve the purpose of the contract - neither to record nor to pass it on to third parties or to exploit it in any way. This confidentiality obligation remains in place for a further five years after the complete fulfillment or termination of the contract.
(2) Excluded from this is the information
— which were already known to the customer prior to the start of the contract negotiations or which third parties have notified as non-confidential, provided they do not infringe confidentiality obligations themselves;
— which are or become publicly known through no fault or fault of the customer or;
— which must be disclosed due to legal obligations or official or court orders.
— If the customer invokes one of the above exceptions, it is up to him to prove that the requirements are met.
(3) In the latter case, the customer must inform us immediately before disclosure. Further statutory confidentiality obligations remain unaffected.
(4) For each case of culpable breach of this confidentiality obligation by the customer, we are entitled to claim flat-rate damages in the amount of EUR 10,000 (in words: ten thousand euros); the customer is free to prove that we have suffered no or less damage. If the proof is successful, there is only a claim for compensation for the damage actually incurred.
(5) We reserve the right to claim demonstrably higher damages instead of or in addition to the lump-sum compensation.
§ 9 Miscellaneous: Place of performance, place of jurisdiction, applicable law, data processing, contract language, severability clause
(1) The place of performance is our company headquarters in 09405 Zschopau.
(2) The place of performance for all services arising from the business relationship with us and the place of jurisdiction is our registered office if you are not a consumer but a merchant, a legal entity under public law or a special fund under public law. The same applies if you do not have a general place of jurisdiction in Germany or the EU or if your domicile or habitual abode is not known at the time the action is filed. The authority to appeal to the court at another legal place of jurisdiction remains unaffected.
(3) Contract language is German. If the parties also use another language, the German wording has priority in accordance with the agreement.
(4) Should a provision in these general terms and conditions of sale and service or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
(5) German law applies to the contractual and other legal relationships with our customers, to the exclusion of the UN Sales Convention.
B. Special Conditions for the Delivery of Goods
§ 1 Scope
The following special conditions for the delivery of goods apply in addition to the general conditions under section A. for all contracts with the customer for the delivery of goods including software.
§ 2 Scope of Services
(1) Transport insurance for goods to be shipped will only be taken out if expressly requested. The transport insurance will then be taken out in the name and for the account of the customer.
(2) The transfer of ownership and surrender of the object of purchase is owed. The assembly, installation or configuration of the object of purchase is not owed unless this is expressly agreed.
§ 3 Passing of Risk
The risk of loss or deterioration of the goods is transferred to the customer when the goods are handed over for dispatch, even if partial deliveries are made. If dispatch is delayed for reasons relating to the customer, the risk passes to the customer as soon as the notification of readiness for dispatch is given.
§ 4 Exemption from liability for non-fungible items
(1) If we produce non-fungible items on behalf of the customer, in particular custom-made products, functional models or prototypes, these items may only be used for internal research purposes without our express consent, but not commercially. Functional models are products that are used for internal testing of individual functions. A prototype is a product that represents a fully functional test, preliminary or initial sample for the respective purpose of the contract, whereby the properties of the prototype for subsequent product deliveries are not guaranteed and in particular can deviate from the properties of a later series product.
(2) If the customer undertakes commercial use without our express consent and domestic or foreign or official safety regulations or product liability rules are violated as a result, the customer must indemnify us from corresponding third-party claims. In cases of fault-based liability, however, this only applies if the customer is at fault. If the cause of the damage lies within the customer's area of responsibility, he bears the burden of proof in this respect.
§ 5 Retention of title
(1) The customer is free to process and/or sell the goods delivered by us subject to retention of title in the ordinary course of business. In this case, the following provisions also apply
(2) All delivered goods remain our property until the purchase price has been paid in full and all claims that have already arisen and will arise in the future from the delivery of goods within existing business relationships have been paid.
(3) The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(4) The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The customer's obligations as set out in Section 2.1 above also apply with regard to the assigned claims.
(5) The customer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, does not default on payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(6) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer's request.
(7) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
(8) If the customer acts in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the customer a reasonable deadline for payment or setting such a deadline is unnecessary under statutory provisions.
(9) The customer must treat the reserved goods with care. At our request, the customer must adequately insure the goods subject to retention of title at their own expense against fire, water and theft damage at replacement value. If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense.
(10) If the effectiveness of this retention of title depends on its registration, eg in public registers in the customer's country, we are entitled and authorized by the customer to effect this registration at the customer's expense. The customer is obliged to provide all cooperation services required for this registration free of charge.
Conditions for using the hotline
(1) The hotline is available by phone or email. The telephone Hotline is free.
(2) The following telephone services are provided via our hotline:
- Receiving inquiries from customers about our products.
- Advice on our products, especially in the form of application support.
Sale, acceptance of orders or other orders are generally not possible via the hotline and require a separate written or electronic order by the customer.
(3) There is no right to use the hotline. We reserve the right to close the hotline at any time.
(4) No troubleshooting via the hotline
The hotline only serves to provide services for help and telephone support for troubleshooting.