General terms and conditions of sale, delivery and payment of aentronGmbH
I. General Scope of Application
All deliveries and services rendered by aentron GmbH (hereinafter referred to as “aentron GmbH” or “we”) shall be undertaken exclusively upon the basis of these general terms and conditions. Any deviating provisions, particularly general terms and conditions of the Customer, shall only apply if we have expressly confirmed them in writing before the contract was concluded. In particular, we shall not be obligated to object to contractual forms or general terms and conditions of the Customer, not even if their applicability has been laid down in such general terms and conditions as an explicit condition for the conclusion of the business deal. Our terms and conditions shall also apply if we, while being aware of opposing or deviating general terms and conditions of the Customer, unconditionally render our delivery or service.
These general terms and conditions for sale, delivery and payment shall be valid for all our deliveries and services, as well as for all obligations resulting from a contractual relationship with the Customer. Our general terms and conditions shall also be applicable for all future business relationships with entrepreneurs or legal persons under public law.
II. Offer and Conclusion of Contracts
All our offers / tenders shall be considered to be non-binding insofar as we have not expressly designated them in writing to be binding. Declarations of acceptance and any orders shall require our written confirmation in order to be legally valid. The same shall apply to modifications or amendments to an order.
aentron GmbH reserves all ownership rights and copyrights to illustrations, drawings, calculations, other documents and data; they may not be made available to third parties. Any dissemination to third parties shall require the prior express written consent of aentron GmbH.
Contracts shall only be considered to be concluded through our written order confirmation or through the outgoing delivery of the goods. In the latter case, the invoice shall also be considered to be the order confirmation. Any documents that we have generated in automated fashion shall also be valid in this regard without a signature.
Any information about services of aentron GmbH that is contained in catalogues, price lists and advertising media shall constitute neither an offer nor a description of the purchase object or service and shall not obligate us to make delivery. The purchase object shall provide only that level of security that may be expected based upon the licensing requirements, operational, assembly and servicing manuals, directives from aentron GmbH regarding the handling and use of the purchase object and other instructions that have been provided.
Verbal statements, amendments and ancillary agreements shall require the written confirmation of both contracting parties in order to be valid. If the Any customer change requests after confirmation of contract, they shall in case of doubt only become binding if they have been submitted by the Customer in text form (including email or facsimile transmission) and confirmed by aentron GmbH in text form.
aentron GmbH reserves the right to make design-related changes at any time; however, it shall not be obliged to make such changes to products which have already been delivered.
III. Implementation of the Contract
Insofar as nothing to the contrary has been expressly agreed, the delivery or service object must only have the features, technical data, etc. which have been expressly agreed by contract; they shall only constitute guarantee acceptances if we have expressly declared that we wish to accept such liability regardless of fault or if we have expressly referred to them as being such; declarations of guarantee must be lodged in writing. We reserve the right to make technical and design deviations from the descriptions and data in our brochures, catalogues or similar sales documents and to replace components for technically-equivalent or better components without the Customer being able to derive any rights against us from so doing. Such descriptions and data as well as advertising statements shall contain no guarantee declarations. Insofar as nothing to the contrary is stated in the statutory provisions, we must provide consulting only insofar as we have assumed responsibility for this as a main contractual obligation.
The Customer shall fully inform us about all facts which are relevant for the implementation of our delivery and/or service. We shall not be obligated to check the data, information or other services provided by the Customer for their completeness and correctness insofar as, taking into account the respective circumstances in the individual case, no reason exists to do so or the obligation to make such checks has not been expressly assumed as a contractual obligation.
If we work outside of our operational premises, the Customer shall be responsible for undertaking all measures required for the fulfilment of the duty to implement safety precautions insofar as nothing to the contrary emerges from the nature of the matter or an agreement with the Customer. We shall be entitled to refuse to implement our delivery and/or service as long as the required measures have not been undertaken.
aentron GmbH shall invoice the prices which are valid on the day of delivery plus the VAT in the respective statutory amount. The stated prices shall be understood to be “ex works” without any packaging, shipping and/or customs duties which shall be separately billed. The following shall also be separately billed: The supplemental costs which are incurred through the required packaging and shipping as Hazardous Goods Class 9 (reference to Clause VI. 8 hereof).
The data about weights, measurements, price, performance and the like which are contained in catalogues, brochures, circulars, advertisements, depictions, price lists, etc. or derived from models shall be binding only if express reference is made to them in the offer and/or on the order confirmation.
Insofar as no fixed price agreements have been concluded, we reserve the right to reasonably alter the prices for deliveries which are made three months or later after the conclusion of the contract if cost increases – particularly changes owing to collective bargaining agreements or changes to materials prices – occur after the conclusion of the contract. Upon request, these cost increases shall be documented to the Customer.
Delivery timeframes and delivery deadlines shall be non-binding unless they have been expressly designated in writing as being binding. They shall not begin to run before the definitive clarification of all technical order details. We shall be entitled to make partial deliveries. The delivery timeframe shall be considered to have been met if we have issued the shipping order or notified the Customer of the readiness for shipping by its lapsing. Any subsequent requests for changes and supplements upon the part of the Customer shall appropriately extend the delivery timeframe.
In the event that a delay in delivery occurs, the Customer must grant us an appropriate extension period of at least two weeks before the assertion of damage compensation claims or the rescission of the contract.
To damage compensation claims of the Customer due to default or impossibility of performance for which we are responsible, Clause VIII shall be applicable.
If the delivery we owe is delayed as the result of unforeseeable circumstances for which we are not responsible (e.g. industrial disputes, operational disruptions, transport hindrances, raw materials shortages, government measures – including all such cases affecting our own suppliers – as well as non-timely self-delivery), we shall be entitled to, in whole or in part, withdraw from the contract or, as we so choose, suspend the delivery for the duration of the hindrance. The Customer shall be promptly notified of the non-availability of the products and/or services. In the event of our rescission, we shall also reimburse the counter-performance provided by the Customer. Any damage compensation claims upon the part of the Customer shall be excluded.
If the Customer fails to fulfil, in whole or in part, its obligations to cooperate, participate or provide supplies, the affected delivery deadlines shall no longer be binding; in particular, we shall not be in delivery default. After two warning letters has been issued which proves fruitless, we shall be entitled to demand compensation for the damages which we have incurred including any additional expenditure. In this case, the risk of the accidental destruction or accidental deterioration of the delivery object shall be transferred to the Customer at the point in time in which the Customer falls into delivery acceptance default. If the Customer fails to fulfil its obligations to cooperate, participate or provide supplies – even within another appropriate extension period which commences after an additional warning letter has been issued, we shall moreover also be entitled to terminate the contract without notice. In this case, we shall be entitled to assert claims for damage compensation and fees of at least the amount specified in Section 645 of the German Civil Code (BGB); the assertion of any more extensive claims upon our part shall remain unaffected.
With regards to the delivery of the ordered goods, aentron GmbH shall deliver to each address worldwide per parcel shipping, goods with an energy pack as hazardous goods per parcel shipment or shipping company. Delivery timeframes shall begin to run upon the conclusion of the contract. If subsequent contractual changes are agreed, then the delivery timeframes shall be extended by the same period of time which elapsed between the conclusion of the contract and the contractual change unless anything to the contrary has been agreed.
The place of performance for deliveries and payments shall be in principle the Customer’s address which was specified when the contract was concluded. If the place of performance is supposed to be another location, then this must be expressly agreed. If, upon the Customer’s request, the goods are shipped to another location than the agreed location, any additional transport costs shall be charged to the Customer.
VI. Shipping; Hazardous Goods
The shipment shall be made “ex works” at the expense and risk of the Customer unless another shipping method has expressly been agreed. This shall also be valid for partial deliveries. The shipping costs shall be assumed by the Customer if the parties have not agreed to the contrary.
Insofar as nothing to the contrary has been stipulated, the transport shall be undertaken by a shipper/carrier of our choice without obligation for the cheapest shipping. The selection of the shipper/carrier by us shall not affect the transfer of risk in accordance with the aforementioned Clause 1. If the shipment is delayed in the event of the agreed pick-up by the Customer through no fault of our own, the risk shall be transferred to the Customer on the day on which the goods must be supplied as agreed by contract.
Shipments which, upon arrival, show traces of (attempted) unauthorised opening by third parties or other damage may be accepted only with reservations. An official determination from the shipper/carrier, railway company or post office must be immediately requested by the Customer. Until then, the shipment must remain packaged.
If we take back the goods, this shall be considered to be only a rescission of the contract if we have expressly confirmed this in writing. Conversely, if the goods are attached for us, this shall always constitute the rescission of the contract.
For a freight paid return shipment, the invoiced outer packaging shall be credited at two-thirds of the invoiced value insofar as it arrives in good condition and can be reused in its respective type.
Return shipments of contractually compliant goods by the contractual partner may be undertaken only with our approval. Even if such an approval has been granted, we shall be entitled to demand a lump-sum amount for expenditures of 10% of the value of the goods for the required inspection and repackaging of the goods for the next customer.
Customer-specific products cannot be taken back.
Our products must be classified legally as hazardous goods (currently Hazardous Goods Class 9 in accordance with the UN Guidelines for the Transport of Hazardous Goods). From this follow binding requirements for transport and packaging which we shall fulfil if we undertake and/or organise the transport. As of receipt of the goods, solely the Customer shall be responsible for ensuring, in consultation with its Hazardous Goods Officer, that the regulations in its domain regarding receipt, warehousing as well as handling with and shipping of hazardous goods are observed. For any required return transport to aentron GmbH which becomes necessary, we recommend the use of our original protective packaging and the commissioning of a shipper/carrier which we have officially authorised; otherwise, the continued transport/return transport shall be made at the Customer’s own risk.
VII. Exporting; “dual use“
The goods which we have delivered may be exported to other countries than those in the European Union only with our express written consent to do so. It is forbidden in all cases to export to the USA. In the event of a violation, in addition to the damage compensation claim, we shall also be entitled to cancel the current orders.
For each exporting by the Customer of the goods that have been sold, the Customer itself shall be obliged to pay for the required export and customs authorisations and the like at its own expense. If we do not make the cross-border delivery, aentron GmbH shall not be liable for the permissibility of the export and for the compliance of the goods we have delivered with the legal and technical provisions of the import country; we shall also not be liable for ensuring that they fulfil the technical status in the import country.
We point out that our products, as so-called “dual use” goods, may be subject to special export controls which must be followed by the Customer.
VIII. Warranty and Liability
If the delivery is made in the course of business dealings between entrepreneurs, the Customer shall be obligated to promptly inspect the assumed goods and rendered services regarding their freedom from defects and, in this regard, report any discovered defects and quantity deviations promptly, but by no later than three days after their receipt, in writing while stating the invoice number and delivery note number.
If nothing to the contrary has been expressly stipulated by law and the Customer is an entrepreneur, its claims for defects shall become statute-barred after one year.
In the event that a justified and prompt notification of defects is made, we shall decide whether we shall eliminate the defect on our own or have it eliminated by third parties or replace the defective goods. In the event of the definitive failure of the subsequent performance, the Customer may, as it so chooses, reduce the purchase price or withdraw from the contract, but may not assert any more extensive claims.
The warranty obligation shall be valid only for defects which arise subject to adherence to the prescribed operational conditions and during normal usage. We shall not be liable for damages which are attributable to improper usage, flawed servicing and handling, incorrect specifications and information provided by the Customer, natural wear-and-tear, maintenance that is left undone, unsuitable operational resources, chemical, electrochemical or electrical influences, etc. In this context, we expressly point out that, for the warehousing and transport of our products, special requirements for exercising due care apply (among others, with regard to the packaging and fulfilling of temperature requirements).
Our liability for consequential damages–particularly for lost profits–vis-à-vis the contractual partner shall be excluded.
Data in the catalogues, specifications and other product descriptions shall only be considered to be quality or expiration date guarantees if they have been expressly designated in writing as such in the individual case.
If aentron GmbH has caused damages based upon simple negligence, a damage compensation claim only exists in the event of the violation of essential contractual obligations, i.e. such obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and upon whose fulfilment the contractual partner regularly relies and may rely. Such a damage compensation claim shall be limited to contractually-typical damages. This restriction shall also be valid for all claims from tortious actions (Sections 823 et seqq. of the German Civil Code (BGB)), but not for the loss of life, physical injury or damage to health. Any and all claims in accordance with the German product liability law shall remain unaffected.
If, in accordance with the aforementioned provisions, our liability for damage compensation is excluded or limited, this shall also extend to the personal liability of our bodies, workers, and other employees, representatives and vicarious agents.
IX. Reservation of Ownership
Any and all supplied goods shall remain our sole property until the fulfilment of the purchase price payment claim and – in the case of entrepreneurs –until the fulfilment of all claims from the business relationship. A pledging, assignment by way of security or any other disposal is forbidden unless the purchase was done precisely for the purpose of resale. In this case, the Customer shall be revocably entitled to resell the reserved goods within the parameters of proper business operations in its own name as long as it is not in default with its payment obligations owed to us and no assignment prohibition is agreed between the Customer and its clients.
In the case of combining or mixing of the goods, we shall acquire co-ownership whereby our portion shall be determined based upon the invoiced value (our delivery price including VAT without any discounts); insofar as the Customer acquires sole ownership in accordance with the law, it shall assign us corresponding proportional co-ownership and safeguard the item(s) for us. Any processing shall be done for us as the manufacturer.
The Customer shall already now, in the amount of the invoiced value and for security purposes, assign to us the payment claims created from the resale or any other legal reason (e.g. insurance, tortious act) with regards to the reserved goods including all balance payment claims from the current account. This shall also be valid for the case that a resale was not permissible in accordance with the aforementioned restrictions. We hereby accept such an assignment. If we are entitled only to co-ownership to the reserved goods, then the preliminary assignment shall be limited to the portion of the claim which corresponds to the proportion of our co-ownership based upon the invoiced value.
The Customer shall be revocably entitled to collect the payment claims assigned to us in its own name and for its own account. This authorisation to collect claims may be revoked if the Customer does not properly fulfil its payment obligations. In the event of a justified revocation, the Customer and/or legal successor or insolvency administrator shall, upon request, promptly disclose the assigned payment claims and their debtors in addition to their addresses, provide all data required for collection, surrender the related documents and notify the debtor of the assignment.
In the event of any action of third parties against the reserved goods, the Customer shall make reference to our ownership and notify us of this immediately. Moreover, it shall, at its own expense, promptly file a lawsuit in accordance with Section 771 of the German Code of Civil Procedures (ZPO) as the authorised filer of a lawsuit on another’s behalf [litigation in one’s own name on another’s behalf].
In the event of payment default upon the part of the Customer, we shall be entitled to withdraw from the contract in accordance with the statutory requirements and, at the same time, demand the return of the reserved goods at the Customer’s expense.
Upon the Customer’s request and as we so choose, we shall release the aforementioned securities insofar as their realisable value sustainably exceeds the secured payment claims by more than 10 %. For reserved goods, the realisable value shall be considered to be the estimated value and, for payment claims assigned by way of security, the nominal value respectively less a deduction of one-third.
X. Payment Conditions
Payments must be made within 30 days after the invoicing date without any deductions insofar as nothing to the contrary has been agreed. In the event that the payment timeframe is exceeded, the statutory default interest rate shall be applicable (Section 288 of the German Civil Code (BGB)).
Field staff workers shall be entitled to receive payments only with an express written authorisation to do so.
Bills of exchange and checks shall only be deemed payment as of encashment. Payments via bills of exchange must be agreed in advance in writing. All expenses for bills of exchange shall be paid by the contractual partner.
aentron GmbH shall be entitled to make the processing of the order contingent on a down payment and to deliver the goods only against advance payment. In particular, we shall avail ourselves of this right if the contractual partner is a new Customer, has its commercial residence outside of the EU or, after the contractual agreement is concluded, there are indications that the contractual partner does not possess sufficient creditworthiness. If the Customer does not make the down payment that is owed within two weeks after invoicing, aentron GmbH shall be entitled to withdraw from the contract. We shall be entitled to the same right if the Customer, after having made a proper down payment, refuses the continued contractual implementation, cancels its order or does not promptly pay the required remaining payment before outgoing delivery is made; in these cases, we shall also be entitled to collect the down payments received up to 30 % of the contractual price as a lump-sum damage compensation amount; we shall pay back any amounts which exceed this percentage to the Customer.
If the Customer is late with a payment, all payment claims shall become immediately payable, irrespective of the payment term that has been granted; this shall also be applicable if we have collected bills of exchange or checks. In each of these cases, we shall be entitled to refuse to make any still unimplemented deliveries that have not yet been carried out or to make them dependent on an advance payment or security payment, to set an appropriate extension period in this regard and, after its fruitless lapsing, to withdraw from the contract or demand damage compensation owing to non-fulfilment.
The withholding of payments or the offsetting with counterclaims of the contractual partner shall be excluded insofar as they have not been expressly recognised in writing by aentron GmbH or have not been established by a final decision.
XI. Legal Venue; Choice of Law
The place of performance shall be the registered office of aentron GmbH. Exclusively the law of Germany shall be applicable subject to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
The exclusive legal venue for all claims arising from the business relationship shall be Munich insofar as the Customer is an entrepreneur, a legal person under public law or a special fund under public law. However, aentron GmbH may also bring action at the domicile of the contractual partner.
Should any provision of these Terms and Conditions or any subsequent agreements be or become invalid, the validity of the contract shall otherwise remain unaffected thereby. The contractual partners shall be obligated to replace the invalid provision by a valid provision coming as close as possible to the economic intent of the invalid provision.
aentron GmbH shall be entitled to store and process the Customer’s data in order to implement the business relationship subject to the adherence to the provisions of the German Data Protection Act.
Status: 01 November 2017