General Terms and Conditions of Sensatec GmbH
Version: 1 September 2016
1. Scope of application, offers and conclusion of contract
1.1 These general terms and conditions apply to the use towards persons who upon conclusion of a contract with Sensatec GmbH act in the exercise of their commercial or self-employed professional activity (entrepreneur) and towards corporate bodies under public law or a special fund under public law. For all deliveries and services by Sensatec GmbH solely these terms and conditions prevail. They shall be deemed as acknowledged at the latest upon receipt of the order confirmation by the customer. We shall not allow contradictory conditions or conditions deviating from these general terms of sale unless they are expressly confirmed in writing by Sensatec GmbH. The general terms of delivery and payment of Sensatec GmbH shall also apply if we execute the delivery to the principal without reserve knowing of the principal’s contradictory conditions or conditions deviating from our general terms of delivery and payment. The general terms of delivery and payment of Sensatec GmbH shall also apply to all future transactions with
the principal. Our offers shall always remain subject to confirmation. If the order shall be qualified as offer in accordance with section 145 BGB (German civil code), we may accept the offer within 4 weeks. Damage claims due to the refusal of an order shall be excluded.
1.2 Figures, drawings, technical data, weight/performance/dimensional details and other information prevail solely by approximation. They shall include warranties only if they are expressly stated as such in writing and have been warranted by Sensatec GmbH, just as in case of sampling and/or a specimen. Technical alterations shall be reserved by Sensatec GmbH. Such alterations shall not be subject to approval of the principal. Sensatec shall provide technical application advice to the best of our knowledge based on skills and experience. All information and disclosures on the suitability and application of the products and manufactures of Sensatec GmbH shall be deemed non-binding and shall not absolve the customer from their own examination and tests. The responsibility for the observance of legal and official provisions regarding the use of the products and manufactures of Sensatec GmbH resides with the customer.
1.3 As far as figures, drawings, calculations, programs saved on data carriers etc. are provided, Sensatec GmbH reserve all property rights and copyrights. These documents and/or data carriers as well as the data saved thereon must not be made available to any third party. This applies in particular to such documents and/or data carriers that are marked confidential. Prior to the disclosure of such documents to a third party, the principal shall obtain Sensatec GmbH’s express consent in writing.
1.4 All orders to Sensatec GmbH only become binding upon written confirmation by Sensatec GmbH.
All other, non-written agreements (oral, telephonic, telegraphic, by telex or via data line or e-mail) also require the written confirmation by Sensatec GmbH.
2.1 The stated prices of Sensatec GmbH apply ex works (Kiel or Berlin) unless otherwise agreed upon and exclude the legal VAT, carriage charges, packaging, tariffs and other comparable costs.
2.2 Regarding all increases of material or labour costs occurring after the conclusion of the contract and until the fulfilment of the order, the parties to the contract shall be entitled to request negotiations on the adjustment of the price.
2.3 The dispatch of the goods is made on account and at the risk of the orderer. In case of transport via their own vehicles and their own staff the provider only assume liability for gross negligence of their staff.
3. Mode of Payment
3.1 The invoices issued by Sensatec GmbH are payable within 14 days calculated from date of invoice and without dedication. In case of exceedance of the payment date, we shall be entitled claim interests in the amount of 8 percent points above the base interest rate starting from the time for payment. Should Sensatec GmbH be able to prove higher damage caused by delay, they shall be entitled to claim such damage.
3.2 Cheques and bills of exchanges the acceptance of which in any case i.e. also after prolonged corresponding payment practice remain reserved, will only be accepted in lieu of payment and shall be deemed as payment only after discharge. Any discount and bank interests shall be borne by the principal. No liability is assumed for timely submission and protesting.
3.3 In the event of default in payment by the principal all outstanding accounts become immediately due even if these have been deferred and/or exchanges have been accepted. If this or other circumstances (non-discharge of bills of exchange or cheques, cessation of payment, petition for bankruptcy) entail for Sensatec GmbH that the principal’s credit worthiness is challenged, Sensatec GmbH shall in addition be entitled to condition further deliveries or services on payments in advance or securities. In the event that the principal despite such request do not concurrently fulfil their obligation or are not willing to provide securities, Sensatec GmbH may refuse the further fulfilment of the contract, claim default damages due to non-fulfilment or, as far as deliveries or services have not been executed, withdraw from the contracts.
3.4 As far as Sensatec GmbH and the principal agree upon the payment of the purchase price owed based on the cheque exchange procedure, a retention of title also applies to the principal’s discharge of the bill of exchange accepted by Sensatec GmbH and shall not expire through crediting the cheque received to Sensatec GmbH.
3.5 The principal may only charge up against such claims that are undisputed, determined without further legal recourse or acknowledged by Sensatec GmbH. A right of retention may only be claimed by the principal as far as this is based on claims from the contract.
4. Delivery time
4.1 The observance of the delivery obligation of Sensatec GmbH requires the timely and proper fulfilment of the principal’s obligation. Delivery deadlines and dates apply, as far as not otherwise expressly agreed, only approximately. The start of the delivery time stated by Sensatec GmbH requires the clarification of all technical issues and the timely and proper fulfilment of the principal’s obligation, in particular the reception of all documents, required authorisations, approvals, the timely clarification and authorisation of plans, observance of agreed payment terms, in particular
the receipt of an agreed down payment, security or any letters of credit. If these requirements are not met in a timely manner, the delivery time will be extended accordingly.
4.2 If the contract is modified at a later point in time in a way that the delivery time is affected, the delivery time will be extended appropriately. The same applies to deliveries to regions outside the Federal Republic of Germany if the provision or procurement of required or foreign official or nongovernmental certificates is delayed. Regarding delivery delays due to force majeure etc. the below section 9 applies. Correct and timely self-delivery by sub-deliverers is reserved. Partial deliveries are admissible in any case as far as reasonable for the principal; a partial delivery shall
be deemed an independent transaction. We reserve the right to an excess or short delivery of a maximum of 10 % of the order quantity.
4.3 The delivery deadline is observed if the delivery item has left the works by the end of the deadline or the principal has been notified of the readiness for dispatch. In case of non-observance of delivery deadlines, the principal shall be entitled to set an appropriate final deadline for Sensatec GmbH in writing. Upon fruitless expiry of this deadline the principal shall be entitled to withdraw from the contract. The principal shall only be entitled to damage claims due to non-fulfilment in the amount of the foreseeable damage if the default was based on intent or gross negligence.
5. Transfer of risk, dispatch and packaging, partial deliveries
5.1 As far as not otherwise implied in the order confirmation, the delivery shall be deemed as agreed “ex works”. The risk is transferred to the principal if the delivery item has left the works and this also applies to partial deliveries or if we have taken on other services such as dispatch costs or
the delivery and installation. As far as an acceptance must take place the acceptance is decisive for the transfer of risk. It must take place without delay at the date of acceptance, alternatively upon notification of Sensatec GmbH regarding the readiness for acceptance. The principal shall
not be entitled to refuse the acceptance due to the presence of an immaterial defect. If the dispatch or the acceptance is delayed or fails due to circumstances that cannot be attributed to Sensatec GmbH, the risk is transferred to the principal starting from the day of notification of the readiness for dispatch/acceptance. The risk is transferred to the principal in particular if the dispatch or delivery is delayed upon such request by the principal or due to reasons for which the principal is responsible at the day of readiness for dispatch of if an operational delivery has been dispatched or collected. Upon written request by the principal we will have the delivery or storage covered by an insurance; the costs incurred shall be borne by the principal.
5.2 As far as the principal wishes to return transport or outer packaging it is possible to do so at the contractual place of fulfilment (item 11). The costs for the return transport and/or the selfchosen disposal shall be borne by the principal. Reusable packaging is provided to the principal only by way of loan. Insofar the principal shall be obliged to return the packaging in good condition at their charge.
6. Acceptance/provision of material
6.1 If Sensatec GmbH provides a work service, the principal shall be obliged to immediate acceptance. The acceptance may not be refused due to immaterial defects. We shall be entitled to set a reasonable date for the issue of acceptance certificate after the expiry of which the work service shall be deemed accepted.
6.2 Upon such request by Sensatec GmbH the principal shall be obliged to provide a partial acceptance. The commissioning of a work and/or the use by the principal shall always be deemed as acceptance of the work service unless test operation has been expressly agreed upon in an individual contract with the principal.
6.3 As far as the principal cede data, plans, drawings, drafts, production specifications, models, materials etc. to Sensatec GmbH for the fulfilment of the order, the principal shall assure to have verified these with caution in particular for their suitability. Should the principal provide Sensatec GmbH with materials for processing, they shall be obliged to have verified the quality, processing and suitability of the material prior to its handing over to Sensatec GmbH: The principal shall in particular assure that in case that they obtained the material form a third party, they have properly executed their obligation of examination. Should the product produced by Sensatec GmbH be faulty due to a defect of the provided material and or should the processing fail due to a defect that can be attributed to a fault in the provided material, we shall be entitled nonetheless to demand the agreed remuneration taking into consideration savings of expenses.
7. Deficiency claims
The warranty claims of the principal shall require that they properly fulfilled their obligations owed in accordance with sections 377 and 378 HGB. The principal shall be obliged to inspect in particular the delivered goods upon reception of the delivery at the agreed location or at the place of the principal concerning number, dimensions, form, quality and freedom from damages. Should defects be found, these shall be listed in writing and notified to Sensatec GmbH without delay, at the latest eight days after reception of the goods in writing. Defects that cannot be discovered even upon thorough examination shall be notified of in writing immediately after their discovery. Decisive for the contractual state of the goods is the point of time of leaving the works or the warehouse of Sensatec GmbH.
Having said this reserving, we shall grant warranty for material and legal defects of the delivery excluding any further claims reserving section 8:
7.1 All those parts shall be bettered or replaced without defect upon discretion of the principal that prove to be faulty as consequence of a circumstances occurring prior to the transfer of risk. The discovery of such defects shall be notified of to Sensatec GmbH without delay. Replaced parts become the property of Sensatec GmbH.
7.2 Warranty obligations do not apply in case of improper installation, commissioning or use by the principal and/or a commissioner, furthermore in case of non-observance of provisions regarding the treatment, maintenances and care (e.g. operating instruction), improper change or servicing work, placement in unsuitable rooms, impact of parts of foreign origin as well as other exterior influences. Natural wear is excluded from defect liability. We shall not assume any warranty obligations for damages occurring after the transfer of risk, in particular if these are attributable to incorrect and negligent treatment during transport, storage, installation, operation and the like and/or to natural wear.
7.3 To perform all improvements and replacement deliveries that seem necessary to Sensatec GmbH the principal shall give the required time and occasion after consultation with Sensatec GmbH; otherwise Sensatec GmbH shall be liberated from the liability for the resulting consequences. Only in urgent cases of endangerment of operational security or for the prevention of disproportionately serious damage wherein we shall be immediately informed, the principal shall have the right, to remove the defect themselves or have it removed by a third party and to demand the required expenses from Sensatec GmbH. In case of immediate endangerment of goods of thirdparti es the principal shall be obliged to immediately inform Sensatec GmbH and to arrange for the appropriate and necessary measures for a prevention of damages for third parties. Sensatec GmbH will not assume any liability for securing obligations of the principal.
7.4 Of the immediate costs resulting from the improvement or replacement delivery We will bear only the costs of the replaced part as far as they prove to be justified. For foreign products our liability shall be limited to the assignment of liability claims that Sensatec GmbH are entitled to
against the deliverer of the foreign product.
7.5 The principal shall have a right to withdrawal from the contract in the frame guaranteed by legal provisions if we taking into consideration legal exceptions an appropriate deadline for the improvement or replacement delivery due to a material defect only a right for the reduction of the contractual price. The right to reduction of the contractual price otherwise remains unaffected.
Further claims shall be determined in accordance with para. 8 number 2 of these terms and conditions.
7.6 No warranty will be granted in particular in the following cases: unsuitable or improper use, faulty installation or commissioning by the orderer or a third party, natural wear, incorrect or negligent treatment, improper maintenance, unsuitable operating means, deficient works, unsuitable construction ground, chemical, electrochemical or electrical influences as far as they are not the responsibility of Sensatec GmbH.
7.7 If the principal or a third party make improper improvements, we will not assume any liability for resulting consequences. The same applies to changes made to the delivery item without our prior written consent.
7.8 Defects of title: If the use of the delivery item results in the violation of commercial protective rights or property rights in the country, we will provide the principal at our charge with the general right to further use or modify the delivery item in a way that is reasonable to the orderer that the protective right violation will no longer pertain. Should this not be possible under economically appropriate conditions or with an appropriate deadline, both parties to the contract shall be entitled to withdraw from the contract.
7.9 Our obligations stated in paragraph 7.8 shall be final reserving paragraph 8.2 in case of violation of protective or property rights.
The shall only pertain if
- The principal notifies Sensatec GmbH immediately of claimed protective or property rights violations,
- The principal supports Sensatec GmbH to an appropriate extent in the prevention of claimed damages or enables Sensatec GmbH to perform the modification measures in accordance with paragraph 7.8,
- Sensatec GmbH reserves all prevention measures including extra-judicial regulations and
- The legal violation was not caused by the fact that the principal changed the delivery item unauthorized or used it in a way that does not correspond to the contractual purpose.
7.10 In case of wage production orders the following special provision shall apply in supplementation: If in the course of processing the material without our fault becomes unusable, the costs incurred to Sensatec GmbH shall be refunded by the orderer. If a processing by Sensatec GmbH is at hand, we shall be obliged to take on the costs incurred until this point in time for handling and improvement. If the material becomes unusable due to a fault of Sensatec GmbH, we assume the new processing, the orderer in turn shall be obliged to deliver the material at no charge. Excluded are
all further claims by the orderer. In particular, for replacement of damages of any kind and also of such damages that did not results from material provided by the orderer or the items produced from this material. We do not assume any liability for violations against the rights of third parties in
connection with the processing contract. The provision of material is the responsibility of the orderer.
8.1 Sensatec GmbH shall assume unlimited liability for damages resulting from injuries to life, the body or health as well as for other damages resulting from a deliberate or grossly negligent violation of obligations of a legal representative or a subcontractor of Sensatec GmbH.
8.2 In case of negligent violation of an essential contractual obligation the obligation for replacement shall be limited to the typical damage foreseeable upon conclusion of contract. An essential contractual obligation the fulfilment of which enable the contract as such the violation of which endangers the achievement of the contractual purpose and the observance of which by the contractual partners regularly trusts in. For this contract, the parties limit the foreseeable damage typical for contracts of this kind to a maximum amount of EUR 2,500,000 per case.
8.3 In addition, any liability of Sensatec GmbH is excluded.
8.4 The principal shall notify any damages for which Sensatec GmbH is liable without delay to SENSATEC in writing.
As far as claims for damages against Sensatec GmbH are excluded, this shall also apply to the personal liability of SENSATEC staff.
8.5 As far as damage claims against Sensatec GmbH are excluded, this shall also apply regarding the personal liability of SENSATEC staff.
8.6 Claims for damages in accordance with sect. 10 number 1 lapse according to legal regulations. Claims for damages in accordance with sect. 10 number 2 shall lapse one year after the start of the legal statute of limitation.
9. Rights of use
9.1 If upon the fulfilment of the order results should occur that are subject to property rights (e.g. expert opinions, test results, calculations) Sensatec GmbH shall as far as necessary for the contractual purpose grant a simple, non-excluding, non-transferable and non-sublicensable right of
use to the principal.
9.2 The principal may only use the result only in its full extent and not in excerpts and only for the contractually agreed purpose.
10. Force majeure, strike, lock-out
10.1 Should we be hindered to fulfil our obligation due to the occurrence of extraordinary circumstances that we were not able to prevent despite reasonable caution irrespective of whether they occur with us or with the pre-deliverer e.g. general shortage of workforce, strike, lock-out, operational defaults, transport problems, deficiency of substantial raw materials, mobilization, war, insurrection etc. we shall be also within a delay of delivery entitled to extend the delivery time appropriately. Start and end of such hindrance shall be notified to the principal as soon as
11. Retention of title
11.1 Sensatec GmbH reserve the ownership of the goods delivered by us until the receipt of all payments from the commercial relationship with the principal. In case of account current the reserved ownership shall be deemed as security for our balance claims. The retention refers to the acknowledged balance and applies also if the principal pays for particularly designated claims. If the principal shows a conduct in breach of contract, in particular in case of payment default, we shall be entitled to take the goods back. The taking back of goods by Sensatec GmbH does not
correspond to a withdrawal from the contract unless we expressly declare this in writing. The attachment of goods by us always represents a withdrawal from the contract. Upon taking back the goods, we shall be entitled to utilise these; the proceeds from such utilisation shall be counted
against the accounts payable of the principal less appropriate utilisation costs.
11.2 The principal shall be obliged to treat the purchase item with care, in particular they shall be obliged to insure the purchase item at their own charge against fire, water and theft.
11.3 In the event of attachments or other interventions by third parties, the principal shall immediately notify Sensatec GmbH in writing so that we may take legal action in accordance with section 771 ZPO [code of civil procedure]. As soon as the third party is not able to reimburse the judicial and extrajudicial costs of legal action in accordance with section 771 ZPO [code of civil procedure], the principal shall assume liability for the financial loss caused for Sensatec GmbH.
11.4 The principal shall be entitled to resell the goods in the proper course of business; however, they cede already now all claims in the amount of the invoiced final sum (incl. value-added tax) arising from the resale against their purchasers or third parties and this irrespective of the fact
whether the goods have been sold without or after processing. The principal shall remain entitled to collect this claim even after cession. Our authorisation to collect the claim ourselves remains unaffected by this. However, we commit to not collect the claim as long as the principal fulfil their
payment obligations from the obtained proceeds, is not in payment default and in particular no request for the opening of insolvency proceedings or conciliation proceedings has been made or cessation of payment is at hand. If this, however, should be the case, we shall be entitled to demand that the principal discloses the ceded claims and their debtors to Sensatec GmbH, provides all information required for collection, hands over the corresponding documents and notifies the debtor (third party) of such cession.
11.5 The processing or transformation of the goods by the principal shall always be made for us. Should the goods be processed with other items not belonging to Sensatec GmbH, we shall acquire co-ownership in the new item in relation of the value of the goods to the other processed items at the time of processing. Apart from that, the same as for the goods delivered under reserve shall apply to the item arising from such processing.
11.6 If the goods are merged with other items not belonging to Sensatec GmbH so that these are inseparable, we acquire the co-ownership in the new item in relation to the value of the goods to the other merged items at the time of merging. If the merging takes place in a way that the item of
the principal shall be deemed as the major item, it shall be deemed agreed that the principal transfers partial co-ownership to Sensatec GmbH.
11.7 The principal cedes to Sensatec GmbH also those claims securing our claims against them arising from connecting the goods to a plot against a third party. At the same time and without requiring further particular statement, the principal herewith transfer all security rights that they are entitled to against their customer to Sensatec GmbH at the ratio of the value of the claim and rights ceded to Sensatec GmbH in the frame of the extended retention of title; as far as this should not be possible, the principal shall internally provide us with a part in the shares. This applies in particular to rights of the principal against their customer to being entitled to request the granting of a cautionary mortgage on a building plot.
11.8 We commit to immediately release the securities that we are entitled to upon such request by the principal as far as the value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall reside with Sensatec GmbH.
11.9 Payments that are made against consignment of a bill of exchange issued by Sensatec GmbH and accepted by the customer shall be deemed as fulfilled only when the bill of exchange is cashed by the customer and we are thus released from the exchange liability so that the agreed retention of title and other reserved rights remain in place at least until the encashment of the bill of exchange in our favour.
12. Confidentiality, use/protection of data
12.1 SENSATEC shall not disclose without authorization, utilize or forward expert opinions or other facts and documents that they gain knowledge of in the course of fulfilment of their contractual services and that refer to the principal and the contractual item. Excluded from this provision are · the anonymised processing of statistical data by SENSATEC;
- disclosure requirements;
- disclosure for the safeguarding of justified own interests;
- legal, judicially ordered or official requirements of disclosure.
12.2 SENSATEC shall be entitled to make copies for their own documentation of written documents that were provided to SENSATEC for consultation or for the fulfilment of the order.
13. Place of fulfilment, place of jurisdiction, applicable law
13.1 Place of fulfilment is Kiel.
13.2 For all disputes arising from the respective contract and business relation including bill of exchange and cheque lawsuits, solely the Local Court of Kiel or the Regional Court of Schleswig are competent. The same place of jurisdiction applies if the principal has no general place of jurisdiction within the country, relocate their place of domicile or usual place of residence from within the country or the usual place of residence is unknown at the time of the institution of proceedings.
13.3 Regarding all legal relations with the principal solely the law of the Federal Republic of Germany applies without a possible referral to another legal order taking effect. In case of multilingual contracts and documents the German version is binding in case of doubts in interpretation.
13.4 The consistent laws dated 17 July 1973 regarding the international purchase of mobile items and regarding the conclusion of international purchase contracts regarding mobile items and the UN Convention on Contracts for the International Sale of Goods dated 11 April 1980 (UN sales law BGBl [Federal Law Gazette] 1989 II, page 588) and as the case may be their follow-up agreements are excluded from application.
14. Partial invalidity/scope of application
14.1 The complete or partial invalidity of one of the above regulations leaves the validity of these General Terms and Conditions as well as the contracts concluded based upon them otherwise unaffected. For the processing of already concluded contracts a legally admissible regulation shall be deemed agreed with which the economical purpose of the void regulation is achieved as far as possible.
14.2 Should single provisions of this contract be void or become void or contain a gap, the other provisions remain unaffected.
14.3 Previous General Purchase Conditions herewith become invalid.