| 1. |
General, Scope of
Application |
| 1.1. |
Deliveries,
services and offers of the company COMM-TEC Vertriebsgesellschaft für
Communication Technology mbH (hereinafter referred to as COMM-TEC) shall
be effected solely on the basis of the present Terms and Conditions of
Business. Consequently, the said Terms and Conditions of Business shall
also apply to all future business relations, even if they are not
expressly agreed upon again, provided that the purchaser has received the
said Terms and Conditions as part of a previous order that was confirmed
by COMM-TEC. In placing the order the contracting partner declares that he
has knowledge of the Terms and Conditions of Business and that he agrees
to the said Terms and Conditions. |
| 1.2. |
Even if
COMM-TEC has knowledge of divergent, contradictory or supplementary
general terms and conditions of business and does not object to them,
these shall not become part of the contract unless their validity has been
expressly consented to in writing. |
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| 2. |
Offer and
Conclusion of the Contract |
| 2.1. |
Unless
expressly designated otherwise, COMM-TEC s offers shall be subject to
confirmation and non-binding. Unless expressly designated as binding, the
documents relating to the offer such as images, drawings and information
on weight and measurements shall be deemed merely approximate. COMM-TEC
shall reserve all property rights and copyrights to cost estimates,
drawings and other documents and these may not be made accessible to third
parties. |
| 2.2. |
In placing
the purchase order the purchaser issues a binding declaration that it
wishes to purchase the ordered goods. |
| 2.3. |
COMM-TEC
shall be entitled to accept the contract offer contained in the purchase
order within 2 weeks of receipt. Acceptance may be declared in writing or
by delivering the goods to the purchaser. Information relating to goods
and services that is provided by COMM-TEC shall only become part of the
contract if it is stated in a binding offer, a written order confirmation
or a written contract. Information and offers refer to normal standard
quality and execution. General details on quality and execution should
only be considered average values. Subsidiary agreements and amendments
shall require written confirmation by COMM-TEC. |
| 2.4. |
Discrepancies
between invoice or delivery note and the actual goods delivered must be
notified by the purchaser promptly in writing, at the latest 3 days after
receipt of the goods. |
| 2.5. |
The contract
shall be concluded subject to COMM TEC s suppliers supplying COMM-TEC with
goods correctly and on time. This shall only apply where non-delivery is
not attributable to COMM-TEC, especially where congruent cover business is
concluded with COMM-TEC s supplier. The purchaser shall be informed
promptly that performance cannot be provided. The consideration shall be
reimbursed promptly. |
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| 3.
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Prices
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| 3.1. |
Products sold
by COMM-TEC shall be sold on the basis of the price list valid on the date
on which delivery is effected. |
| 3.2. |
Prices shall
be ex warehouse, exclusive of packaging, transport, insurance and
installation. |
| 3.3. |
Dispatch
costs and the insurance costs pursuant to No. 5 of the Terms and
Conditions of Business shall be borne by the customer unless a different
arrangement is expressly agreed; any such arrangement must be agreed in
writing. |
| 3.4. |
An
administration charge of 10.00 shall be applied to orders less than ¤
100.00 (excluding spare parts and subsequent deliveries). |
| 3.5. |
All prices
are quoted exclusive of the respective applicable statutory rate of value
added tax. COMM-TEC price lists shall not constitute a contractual offer.
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| 4. |
Terms and
Conditions of Delivery and Transfer of Risk |
| 4.1. |
Binding or
non-binding delivery dates or periods must be agreed in
writing. |
| 4.2. |
The delivery
period shall commence when the order confirmation is sent, but not,
however, before the documents, permits and approvals to be provided by the
ordering customer have been received and not before any agreed advance
payment has been received. |
| 4.3. |
The agreed
delivery period shall be deemed to have been complied with if the
consignments have left the warehouse or if they are ready for dispatch
within the delivery period and the purchaser has been notified
accordingly. |
| 4.4. |
The delivery
obligation shall end if delivery becomes either wholly or partially
impossible due to force majeure or due to other unforeseeable events. This
shall also apply if such circumstances affect one of our suppliers. In
such cases COMM-TEC may choose either to withdraw from the contract or to
postpone the delivery for the duration of the hindrance plus a reasonable
start-up period. In the last instance the purchaser shall not be entitled
to withdraw orders, reject partial deliveries or assert any form of claims
for damages. COMM-TEC may only rely on the aforementioned circumstances if
it has informed the customer of such circumstances promptly. |
| 4.5. |
If the
delivery is being collected, risk shall pass to the purchaser once the
delivery has left COMM-TEC s warehouse; if it is to be dispatched, risk
shall pass to the purchaser once the delivery has been handed over to the
carrier or forwarder. This shall also apply if COMM-TEC has assumed the
dispatch costs under a special agreement or if the goods are dispatched
using COMM-TEC's vehicles. |
| 4.6. |
If dispatch
is not possible and if this is not the fault of COMM-TEC, risk shall be
transferred to the purchaser when it is notified that the goods are ready
for dispatch. |
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| 5.
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Insurance
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| 5.1. |
Subject to
special instructions by the customer, COMM-TEC shall at the customer s
expense insure all deliveries against loss, theft or other damages during
transport. |
| 5.2. |
The customer
shall be obliged to take the necessary measures required under local law
in order to enable settlement of damages arising during
transport. |
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| 6.
|
Payment |
| 6.1. |
COMM-TEC
invoices shall be payable net cash within 30 days. In order for the cash
discount to apply the purchaser must not be in default with any other
payments. This shall not include invoices for services such as repairs,
programming, training, commissioning, etc. Those invoices shall be payable
net cash within 8 days. |
| 6.2. |
If it is
necessary to issue demands for payment after expiry of the payment period
any resulting costs shall be charged to the customer. |
| 6.3. |
From the date
on which payment becomes due COMM-TEC shall be entitled to charge default
interest at 8% above the respective valid discount rate of the European
Central Bank; for consumers it shall be entitled to charge default
interest at 5% above the respective valid discount rate of the European
Central Bank. |
| 6.4. |
In the event
of default in payment of an invoice, all other outstanding invoices shall
become payable immediately, regardless of their respective due
dates. |
| 6.5. |
Even where
the purchaser has conflicting provisions, COMM-TEC shall first be entitled
to allocate payments to older debts of the purchaser. If interest and
costs have already arisen, COMM-TEC shall be entitled to allocate payment
firstly to settlement of the costs, then to settlement of the interest and
finally to settlement of the principal performance. COMM-TEC shall inform
the contracting partner of how the payment has been allocated.
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| 6.6. |
COMM-TEC
shall be entitled to demand advance payment or the provision of collateral
for all other contracts where the customer fails to fulfill its payment
obligations and in particular where it fails to honor a check or bill and
suspends payments or COMM-TEC subsequently becomes aware of unfavorable
circumstances regarding the financial position or credit-worthiness of the
contracting partner. If, in such case, the purchaser fails to pay the
purchase price or collateral within two weeks of a corresponding request
by COMM-TEC, then COMM-TEC shall be entitled to withdraw from the
contract. COMM-TEC shall then be entitled to compensation amounting to 25%
of the agreed purchase price. The customer shall be entitled to prove
lesser damage. |
| 6.7. |
The purchaser
shall only be entitled to offset amounts if its counter-claims are
undisputed or have been established by a court of law. The purchaser may
only exert a right of retention if its counterclaim is based on the same
contractual relationship and if the counterclaim is undisputed or has been
established by a court of law. |
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| 7. |
Reservation of ownership |
| 7.1. |
The goods
supplied by COMM-TEC shall remain the property of COMM-TEC until payment
of the entire debt under the contractual relationship, and in particular
until settlement of any open account balance and in the case of payment by
check or bill until such check or bill has been honored in full.
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| 7.2. |
Where the
purchaser acts in breach of the contract, including in particular if it
defaults on payments, COMM-TEC shall be entitled to take back the item
delivered and the purchaser shall be obliged to hand the item back. Unless
provisions of the Consumer Credit Act [Verbraucherkreditgesetz] apply, in
cases where COMM-TEC takes back an item that has been delivered this shall
not constitute a withdrawal from the contract unless COMM-TEC has
expressly stated this in writing. In cases where goods have been treated
or processed by the purchaser or have been combined or mixed with other
objects, COMM-TEC's reservation of ownership shall also extend to these
new objects or to the resulting debts. To this extent, COMM-TEC shall be
deemed the manufacturer and shall acquire ownership of such objects in
accordance with §§ 947, 948, 950 of the German Civil Code [BGB]. If the
item that has been delivered is processed with other objects that do not
belong to COMM-TEC then COMM-TEC shall acquire proportionate co-ownership
of the new object based on the ratio between the final invoice amount for
the goods subject to reservation of ownership and the other items that
have been processed; such calculation shall be based on the respective
values at the time the processing was carried out. |
| 7.3. |
Until full
payment of all debts the goods may not be pledged, transferred by way of
collateral or otherwise encumbered with third-party rights. COMM-TEC must
be informed promptly by registered letter of any such attachments by third
parties. |
| 7.4. |
Irrespective
of whether they are unprocessed or have been processed or combined with
other items, the purchaser may only re-sell delivered goods in the
ordinary course of its business provided it is not in default.
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| 7.5. |
By way of
security the purchaser here and now assigns to COMM-TEC any claims
(including all claims relating to balances under open account
relationships) to which it is entitled as a result of the goods being
resold or based on any other legal grounds. If in such case the purchaser
fails to fulfill its payment obligation COMM-TEC shall be entitled to
inform the purchaser s customer of this and demand that payment be made to
COMM-TEC. In such case the purchaser shall be obliged to give COMM-TEC
prompt access to all evidence, documents and information required to
assert such claims. |
| 7.6. |
COMM-TEC
revocably authorizes the purchaser to collect any claims in respect of its
invoices that have been assigned to COMM-TEC and to collect these in its
own name. This collection authority may only be revoked if the purchaser
fails properly to fulfill its payment obligations. |
| 7.7. |
However, the
consent in respect of resale shall not extend to the sale of goods to a
third party that makes the assignment of debts owed by it subject to its
approval. |
| 7.8. |
COMM-TEC
undertakes that, at the purchaser s request, it will release collateral
provided to it where such collateral is no longer required on either a
temporary or a general basis for securing the purchaser s debts and in
particular where, on a long-term basis, such collateral exceeds the debts
to be secured by more than 20%. |
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| 8. |
Warranty |
| 8.1. |
COMM-TEC
shall not assume any warranty for insignificant, manufacturing-based
deviations that impair neither external appearance nor
functioning. |
| 8.2. |
COMM-TEC
warrants that the goods delivered are free of significant manufacturing or
material defects. |
| 8.3. |
The warranty
shall be limited to subsequent improvement or substitute performance, as
chosen by COMM-TEC. If subsequent improvement or substitute performance
fails, the purchaser shall be entitled to demand a reduction in the
purchase price (reduction) or revocation of the contract (cancellation).
However, the purchaser shall not be entitled to withdraw from the contract
in the event of a minor breach of contract, especially where the defects
are only minor. Any parts that are replaced shall become the property of
COMM-TEC. |
| 8.4. |
The purchaser
shall be obliged to notify COMM-TEC in writing of any obvious defects
within 10 days of receiving the goods, or if the defect is only
discernible at a later date, within 10 days of discovering the defect;
otherwise, the assertion of any warranty claims shall be ruled out. The
period for asserting such claims shall be deemed to have been complied
with if the notice of defects is sent on time. The full burden of proving
all claim requirements shall lie with the purchaser, especially as regards
the defect itself, the time at which the defect was identified and timely
notification of the complaint. |
| 8.5. |
In the event
of a defect in title or defect in quality, if subsequent performance fails
and the purchaser chooses to withdraw from the contract, then the
purchaser shall not be entitled to claim any further compensation in
respect of the defect. If subsequent performance fails and the purchaser
elects to receive compensation, then the goods shall remain with the
purchaser provided this can be reasonably expected of the latter.
Compensation shall be limited to the difference between the purchase price
and the value of the defective item. This shall not apply if COMM-TEC has
malevolently caused the breach of contract. |
| 8.6. |
The warranty period shall
amount to one year from the date on which risk for the goods is
transferred. No warranty shall be given on batteries, lamps and
second-hand products.The warranty period for services shall amount to one
year from date of hand over. |
| 8.7. |
With regard
to the properties of the goods, it is agreed that in principle only the
manufacturer s product description shall be authoritative. Additional
public statements, sales talk or advertising by the manufacturer shall not
constitute any contractual properties for the goods. If the purchaser
receives erroneous assembly instructions COMM-TEC shall only be obliged to
supply assembly instructions that are free of errors and this shall only
apply if the error in the assembly instructions prevents proper
assembly. |
| 8.8. |
No warranty
shall be assumed for damages arising for the following reasons: Unsuitable
or incorrect use, incorrect assembly and/or commissioning by the purchaser
or third parties, natural wear and tear, incorrect or negligent handling,
unsuitable operating resources, replacement materials, defective
processing, unsuitable foundations, chemical, electrochemical or
electrical influences, provided they are not attributable to fault on the
part of COMM-TEC. |
| 8.9. |
After
consultation with COMM-TEC, the purchaser must allow COMM-TEC the
necessary time and opportunity to carry out all subsequent improvements
and substitute performances that COMM-TEC, in its reasonable judgment,
considers necessary. If this is not the case, COMM-TEC shall be exempt
from any liability in respect of defects. The purchaser may only rectify
the defect itself or have the defect rectified by third parties and demand
reimbursement of the necessary costs from COMM-TEC in urgent cases where
operating safety is jeopardized and in order to avoid disproportionately
high damages (in which case COMM-TEC must be notified immediately) or if
COMM-TEC defaults on rectification of the defect. |
| 8.10. |
Modification
or repair work that is carried out by the
purchase |
