General terms and conditions of trade
Note: An English translation is provided herein for mutual convenience. In the case of any dispute or discrepancy between the German and English texts, the German version shall be taken as most recent and correct.
1.1 The following conditions are exclusively valid for all deliveries and services. Changes or other conditions of the customer are only valid if we have agreed to them in writing. Different conditions drawn up by the customer or conditions which deviate from these Terms and conditions are not acknowledged.
1.2 Our Terms and Conditions of Trade also apply to all future business transaction with our customer.
1.3 The person placing the order agrees to the recording and storing of his/her data (§26 BDSG). We explicitly reserve the right to take out an insurance policy for any business deals agreed to with customers and in this connection to provide the insurance company with necessary information.
2.0 Offers and Conclusion of a Contract
2.1 Our quotations are not binding and are to be understood merely as an invitation to place an order.
2.2 Documents relating to quotations (illustrations, drawings, on the Internet, in brochures, catalogues, circulars, advertisements and price lists as well as other media), dimensions, colours and other specifications shall represent approximate information only and shall not be binding unless expressly otherwise confirmed in the quotation. ACS-Control-System GmbH does not guarantee the suitability of the goods for any particular purpose (especially in technical applications).
2.3 We reserve the right to make improvements and changes which may deviate from the descriptions contained in offers or brochures as long as they do not affect the contractual or customary utilisation and as long as the modifications are reasonable for the buyer.
2.4 A contract shall only be concluded through our written order confirmation or by the execution of the order, whichever takes place first.
3.1 Orders, for which no fixed prices are agreed, shall be charged at the actual prices according to the current price list on the date of the performance.
3.2 Unless agreed upon otherwise, our prices are ex works, plus the turnover tax applicable in the Federal Republic of Germany at the respective time. Unless agreed upon otherwise, all other costs are to be born by the customer, for example costs for packagings, transport, insurance, customs etc.
4.0 Payment, Default in Payment and Prohibition of Charging
4.1 Cheques and bills of exchange shall only be accepted on account of performance. Payments by cheque or draft shall only be deemed as performance if the bill of exchange has been honoured by the drawee. Any respite based on the acceptance of bills of exchange is only be binding if this is expressly agreed in writing. All interest rates, taxes, charges and other fees will be at the expense of the buyer.
4.2 Any discounts or rebates granted only apply, if we have agreed to them in writing. If a discount has been agreed, any deduction of such discount shall only be admissible if, apart from complying with the contractually agreed discount conditions, our justified and undisputed claim is fully paid within the discount term.
4.3 In the event of non-compliance with the conditions, especially in the event of delay in payment by the purchaser, we are entitled to demand reminder fees and past-due interest of 5% p.a. above the respective discount rate of the German Central Bank, but at least 6 % p.a. The purchaser reserves the evidence that no fee damage occurred or lower fee damage occurred. This shall not affect any entitlement on our part to claim compensation for any fee damages.
4.4 Any set-off or retention of payments shall be admissible only in the case of counter-claims recognised by us or established by non-appealable judgement. Any deduction or withholding according to § 273 excluded; any deduction or withholding because of defects or because of an objection o an unfulfilled contract is only valid, if we approved the defect or the damage etc. and there is no possibilty for rectification of defects.
4.5 If we acquire knowledge after conclusion of contract that our pecuniary claim is endangered by the purchaser‘s inability to pay we will be entitled to refuse performance.
5.0 Terms of Delivery, Default and Non-Performance
5.1 The delivery time shall be extended accordingly in case of industrial disputes, in particular strikes and lockouts, as well as in cases of force majeure or unforeseeable obstacles that are beyond our will, as far as such obstacles have a provable material influence on the delivery objects‘ completion or delivery. This shall also apply if these circumstances occur with suppliers or sub-suppliers. Late deliveries from our suppliers entitle us also to extend the delivery period by the length of the disturbance.
5.2 If our operations are so influenced by the circumstances cited in clause 5.1 that we cannot reasonably be expected to carry out the order then we shall be entitled to withdraw from the contract.
5.3 In the event of delay in delivery the Purchaser may assert the following rights:
a. The Purchaser can assert the verified damage due to delay. The compensation claim in case of slight negligence is limited to 0,5% of the purchasing price but must not exceed a total of at most 5% of the aforementioned value. All other claims are barred.
b. The orderer can set an adequate period of grace for us beforehand with a warning to refuse the goods and the delivery is not made within said period of grace. The Purchaser shall be entitled to rescind the contract after this additional period of time has expired without results. The customer is entitled to compensation claims due to non-performance in the amount of the foreseeable damage only if the said delay is based on malice aforethought or gross negligence for the rest, the liability for damage is limited to 50 % of the damage that occurred.
5.4 Partial deliveries are permissible.
6.0 On-call orders and customised items
6.1 In the case of off-the-shelf orders we shall be entitled to procure the materials required to carry out the total order and to manufacture the entire quantity ordered immediately, unless otherwise agreed upon.
6.2 In the case of call orders, the ordering party must call the goods within 12 months, to the extent that nothing else was arranged.
6.3 If purchases deviate from our standard products and versions we are entitled to supply a quantity diverging by 10% from the quantity ordered.
7.0 Dispatch and transfer of risk
7.1 Unless otherwise expressly agreed in writing, the choice of shipping route, the type of carriage as well as of the carrying agent is our responsibility with no liability for the cheapest transport.
7.2 The risk will be pass to the purchaser according to the terms of the shipping contract.
7.3 In case the ordering party falls into arrears with the acceptance of the service or if he does not fetch the goods within a time limit, the risk of loss or damages passes to the purchaser. In this case on the day when the goods are readied with an appropriate advice note the risk passes over to the contractural partner for this. By default of acceptance and in other cases, in which we are made to store the delivery itself or put it in storage due to the behavior of the purchaser, is the invoice payable within 14 days after occurrence of default.
8.1 We guarantee faultlessness (in accordance with the current state-of-the-art) of construction, production and material as well as manufacture of our products pursuant to the technical rules and norms in the Federal Republic of Germany.
8.2 Assured qualities are defined as only those for which we have expressly certified in writing that we are willing to assume a guarantee.
9.0 Defect complaint
9.1 Furthermore, the Customer has to examine the goods for damages immediately after receipt and record any damage in writing to us within 10 days. With omission of a written notice of defects the goods shall be deemed approved.
9.2 If the purchaser is a merchant, he is also required to give written notice of non-apparent deficiencies immediately after their discovery as otherwise the goods will be regarded as accepted.
10.0 Warranty rights
10.1 In the case of defects or the lack of assured properties we are entitled and obligated to rectificate. At the same time we may also choose to make a new delivery, but the purchaser is not entitled to demand a new delivery. If the remedial performance or replacement deliveries do not solve the problem, the buyer may insist on a reduction in the price or withdraw from the contract. The replacement delivery shall be within an appropriate time according to the interests of both parties.
10.2 To the extent not stated differently, the buyer is not entitled to any further claims irrespective of their legal grounds. Therefore, we are not liable for damages, which have no connection to the article of sale itself; in particular, we are not liable for lost profits or other financial losses of the ordering party.
10.3 The aforementioned exclusion of liability shall not apply if the cause underlying the damage was attributable to wrongful intent or gross negligence. Furthermore, it will not apply if there was a quality warranty including the risk of consequential loss and the damage incurred is subject to its absence according to §§ 463, 480 Abs. 2 BGB .
10.4 As far as we are negligently in breach of any obligation material to the contract, our liability for material and personal damage is limited to the reimbursement amount of our product liability insurance. We are ready to grant the orderer on demand view of our policy.
10.5 The warranty period is 6 months from the passing of the risk. This period is a statutory period of limitation, and also applies to claims for compensation relating to damage consequent on the defect, unless claims deriving from prohibited actions are enforced.
11.1 Any further liability for damages other than set forth in Item 10.2 to 10.4 – without consideration of the legal nature of the asserted claim – is hereby excluded.
11.2 This regulation (11.1) does not apply for claims which are lodged against us according to § 1 and § 4 of the law concerning liability for defective products. The same applies to initial incapability or justifiable impossibility.
11.3 To the extent that our liability is excluded or limited, this applies equally to the personal liability of our employees, workers, personnel, legal representatives and vicarious agents.
12.0 Reservation of ownership
12.1 We reserve the ownership of the object of sale until all payments arising from the supply contract have come in. The same shall apply to objects of sale to be paid by means of a partial amortisation, in which case we reserve the ownership until the contracted condition takes effect (e.g. buying the minimum order volumes within the life of the contract).
12.2 The customer is entitled to resell the retention goods in normal business transactions; a pledge or assignment of the goods as security is however only allowed with our approval. In the case of mortgaging or transfer of the proprietary rights as security in expectation of the goods becoming the property of the purchaser is obliged to inform us. In re-selling the goods under lien on credit, the purchaser is further obliged to secure our rights and in particular to pass on the lien on the proprietary rights.
12.3 The accounts receivable by the customer based on the resale of the merchandise subject to reservation shall now already be transferred to us in the amount of the invoice; we hereby accept this assignment. If an assignment of claims is not possible due to the terms of the re-sale agreement, then the purchaser will only be entitled to re-sell with express written agreement. This also applys if the claim from the resale shall be included in a current invoice. Independent of whether or not in this case the re-sale is transacted illegally or with our consent, the purchaser‘s rights to receive payment are considered as already to us up to the extent of the invoiced amount.
12.4 Irrespective of the assignment and our right to collection, the Customer is entitled to collect claims as long as it meets its obligations towards us and does not suffer deterioration of assets. If the financial standing of the orderer declines significantly right to retraction terminates. A substantial deterioration in the financial situation is presumed for the last days before cessation of payments or before an application for opening insolvency proceedings. On our request the Client shall provide the Contractor with the information about the assigned claim necessary for the seizure and inform the debtors of the assignment. On our request the purchaser hast to hand out a signed third-party debtor of the assignment even if he is entitled to demand claim.
12.5 The buyer makes a possible machining and processing of the goods subject to retention of title for us without resulting in obligations for us. If reserved goods in an unprocessed state or following processing or commingling with other goods which are the sole property of the purchaser are sold, then as of now the purchaser assigns to us the full amount of the claims resulting from the onward sale. If the purchaser sells reserved goods – following processing/commingling – together with goods which are not the property of the purchaser, then as of now the purchaser assigns to us all claims resulting from the onward sale in the amount of the value of the reserved goods with all ancillary rights and precedence before the remainder. If the purchaser acquires sole ownership of the new product, the parties to the contract are in agreement that the purchaser grants us co-ownership of the new product in the ratio of the value of the processed and/or connected, commingled or mixed reserved goods and stores these for us without charge.
12.6 If the retained goods are resold together with other goods and namely even if without or after processing, combination or blending, the above agreed assignment in advance is valid only for the amount of the invoice value, which is resold together with the other goods.
12.7 In particular he is obliged to insure the goods for the new price and at his own expense against theft, fire and water damage.
12.8 If the value of the securities given to us exceeds our claims by more than 20%, then at the request of the purchaser or of a third party affected by this excessive security we are obliged to return or release such securities according to our choice.
13.0 Delivery of samples
13.1 Sample deliveries are clearly indicated as such.
13.2 Sample deliveries are not clearly intended to remain permanently by the purchaser, but have to be despatched within 4 at the latest from the delivery date stated in the contract. We are entitled to refuse the return of the sample delivieries, which are contrary to those requirements.
13.3 In the case of justified refusal of return or if the purchaser wants to keep the sample deliveries, we are entitled to charge the the actual prices according to the current price list on the date of the performance.
14.0 Place of fulfilment, legal jurisdiction
14.1 If the buyer is a merchant, a legal person under public law or a public law special fund, it is agreed that place of performance and jurisdiction for any and all liabilities and claims arising from this contract shall rest in the city Eggenfelden, in which our company is registered.
14.2 All legal disputes shall be settled by the court in whose jurisdiction we lie, in so far as the purchaser is a merchant or a legal person in public law.
14.3 The mutual legal relationships shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of international sales laws.