Terms and Conditions

As of September 1, 2016

1. Scope, Offers, and Conclusion of the Contract
1.1 The following General Terms and Conditions apply to transactions with individuals who, when entering into a contract with Sensatec GmbH, are acting in the course of their commercial or self-employed professional activities (businesses), as well as to legal entities governed by public law or special funds under public law. The following terms and conditions apply exclusively to all deliveries and services provided by Sensatec GmbH. They are deemed accepted no later than upon the customer’s receipt of the order confirmation. We do not recognize any terms and conditions of the customer that conflict with or deviate from these General Terms and Conditions of Sale, unless they are expressly confirmed in writing by Sensatec GmbH. The General Terms and Conditions of Delivery and Payment of Sensatec GmbH shall apply even if we carry out the delivery to the customer without reservation, despite being aware of terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions of Delivery and Payment. The General Terms and Conditions of Delivery and Payment of Sensatec GmbH also apply to all future transactions with the client. Our offers are always subject to change. If the order is to be classified as an offer pursuant to § 145 of the German Civil Code (BGB), we may accept it within 4 weeks. Claims for damages arising from the rejection of an order are excluded.

1.2 Illustrations, drawings, technical data, weight, performance, and dimensional specifications, and other information are provided for reference purposes only. As with samples and/or prototypes, they constitute representations only if they have been expressly designated and guaranteed as such in writing by Sensatec GmbH. Sensatec GmbH reserves the right to make technical changes. These do not require the customer’s consent. Sensatec provides application-related advice to the best of its knowledge based on its expertise and experience. However, all information and details regarding the suitability and use of Sensatec GmbH’s products and goods are non-binding and do not relieve the customer from conducting their own tests and trials. The customer is responsible for complying with legal and regulatory requirements when using Sensatec GmbH’s products and goods.

1.3 To the extent that illustrations, drawings, calculations, programs stored on data carriers, etc., are made available, Sensatec GmbH reserves all ownership and copyright rights. These documents and/or data storage media, as well as the data stored thereon, may not be made available to third parties. This applies in particular to documents and/or data storage media designated as confidential. The client must obtain the express written consent of Sensatec GmbH before disclosing them to third parties.

1.4 All orders placed with Sensatec GmbH are binding only after written confirmation by Sensatec GmbH. Likewise, all other agreements not made in writing (whether oral, by telephone, telegram, telex, data line, or voicemail) require written confirmation by Sensatec GmbH.

2. Prices
2.1 Unless otherwise agreed, the prices quoted by Sensatec GmbH are ex works (Kiel or Berlin) and exclude statutory value-added tax, freight, packaging, customs duties, and other comparable costs.

2.2 In the event of any increases in material or labor costs occurring between the conclusion of the contract and the fulfillment of the order, the contracting parties have the right to request negotiations regarding a price adjustment.

2.3 The goods are shipped at the expense and risk of the purchaser. If transportation is carried out using the supplier’s own vehicles and personnel, the supplier shall be liable only for gross negligence on the part of its employees.

3. Payment Method
3.1 Invoices issued by Sensatec GmbH are due within 14 days—calculated from the invoice date—without any deductions. If the payment deadline is exceeded, we are entitled to charge interest at a rate of 8 percentage points above the base rate, effective from the due date. If Sensatec GmbH can prove that it has incurred higher damages due to the delay, it is entitled to claim such damages.

3.2 Checks and bills of exchange, the acceptance of which is subject to reservation in all cases—i.e., even following a long-standing practice of accepting such payments—are accepted only on account of payment and are considered payment only after they have been honored. Any discount and bank interest shall be borne by the client. No liability is assumed for timely presentation or protest.

3.3 In the event of a delay in payment by the customer, all claims—including those for which payment has been deferred and/or bills of exchange have been accepted—shall become due immediately. If this or other circumstances (non-payment of bills of exchange or checks, suspension of payments, filing for bankruptcy, etc.) that Sensatec GmbH has reason to doubt the Client’s creditworthiness, Sensatec GmbH is further entitled to make further deliveries or services contingent upon advance payments or the provision of security. If, despite being requested to do so, the client fails to fulfill a performance obligation on a concurrent basis or is unwilling to provide security, Sensatec GmbH may refuse to continue fulfilling the contract, claim damages for non-performance, or rescind the contracts to the extent that deliveries or services have not yet been rendered.

3.4 To the extent that Sensatec GmbH and the Client agree to settle the purchase price obligation through the check-and-bill-of-exchange procedure, the retention of title shall also extend to the Client’s cashing of the bill of exchange accepted by Sensatec GmbH and shall not be extinguished by the crediting of the received check to Sensatec GmbH’s account.

3.5. The Client may set off only those claims that are undisputed, have been legally established, or have been acknowledged by Sensatec GmbH. The Client may assert a right of retention only to the extent that it is based on claims arising from the contract.

4. Delivery Time
4.1 Sensatec GmbH’s compliance with its delivery obligations is contingent upon the customer’s timely and proper fulfillment of its obligations. Unless expressly agreed otherwise, delivery periods and dates are approximate only. The start of the delivery period specified by Sensatec GmbH is contingent upon the clarification of all technical issues as well as the timely and proper fulfillment of the client’s obligations, in particular the receipt of all documents to be provided by the client, necessary permits, approvals, the timely clarification and approval of the plans, compliance with the agreed-upon terms of payment—in particular, receipt of an agreed-upon down payment, security deposit, or any letters of credit. If these conditions are not met in a timely manner, the delivery period shall be extended accordingly.

4.2 In the event of subsequent amendments to the contract that affect the delivery time, the delivery time shall be extended accordingly. The same applies to deliveries to areas outside the Federal Republic of Germany if there is a delay in obtaining the necessary or foreign official or non-official certificates. For delivery delays resulting from force majeure, etc., Section 9 below applies. We reserve the right to rely on correct and timely delivery from our suppliers. Partial deliveries are permitted in all cases, provided they are reasonable for the customer; a partial delivery shall be deemed a separate transaction. We reserve the right to deliver up to 10% more or less than the order quantity.

4.3 The delivery deadline is deemed to have been met if, by the time it expires, the goods have left the factory or the Client has been notified that the goods are ready for shipment. In the event of failure to meet delivery deadlines, the Client is entitled to set Sensatec GmbH a reasonable grace period in writing, with a threat of rejection. Upon the fruitless expiration of this period, the Client is entitled to withdraw from the contract. The Client is entitled to claims for damages due to non-performance in the amount of the foreseeable damage only if the delay is due to willful misconduct or gross negligence.

5. Transfer of Risk, Shipping and Packaging, Partial Deliveries
5.1 Unless otherwise specified in the order confirmation, delivery is agreed upon “ex works.” Risk passes to the customer when the goods have left the factory, even if partial deliveries are made or we have assumed other obligations, such as shipping costs or delivery and installation. To the extent that acceptance is required, it shall determine the transfer of risk. Acceptance must be carried out immediately on the acceptance date or, alternatively, upon notification by Sensatec GmbH that the goods are ready for acceptance. The customer may not refuse acceptance in the event of a non-material defect. If shipment or acceptance is delayed or fails to occur due to circumstances not attributable to Sensatec GmbH, the risk shall pass to the customer on the day notification of readiness for shipment or acceptance is given. In particular, the risk shall pass to the client if shipment or delivery is delayed at the client’s request or for reasons attributable to the client on the date the goods are ready for shipment, or if a shipment ready for operation has been dispatched or picked up. Upon written request by the client, we will insure the shipment or stored goods; the client shall bear the costs incurred in this regard.

5.2 If the Contractor requests the return of transport or outer packaging, such return shall take place at the contractual place of performance (Section 11). The costs for return transport and/or for disposal arranged by the Client shall be borne by the Client. Reusable packaging is provided to the Client solely on a loan basis. The Client is therefore obligated to return it at its own expense in proper condition.

6. Acceptance/Provision of Materials
6.1 If Sensatec GmbH performs a specific-task contract, the client is obligated to accept the work immediately. Acceptance may not be refused on the grounds of minor defects. We may set a reasonable deadline for the submission of the acceptance declaration; upon the expiration of this deadline, the work shall be deemed accepted.

6.2 At the request of Sensatec GmbH, the Client is obligated to conduct a partial acceptance. The commissioning of the work and/or its use by the Client shall always be deemed acceptance of the work, unless a trial operation has been expressly agreed upon with the Client in a separate contract.

6.3 If the client provides Sensatec GmbH with data, plans, drawings, designs, manufacturing specifications, models, materials, etc., for the performance of the order, the client warrants that it has carefully reviewed these, in particular with regard to their suitability. If the client provides Sensatec GmbH with materials for processing, the client agrees to have checked the quality, workmanship, and suitability of such materials prior to handing them over to Sensatec GmbH. In particular, the client warrants that, in the event the material was obtained from a third party, it has duly fulfilled its obligations to inspect the material. If the product manufactured by Sensatec GmbH is defective due to a defect in the materials provided and/or if the processing fails due to a defect that can be attributed to a fault in the materials provided, we are nevertheless entitled to demand the agreed-upon compensation, taking into account any savings in expenses.

7. Claims for Defects
The Client’s warranty claims are contingent upon the Client having duly fulfilled its obligations to inspect and give notice of defects as required by Sections 377 and 378 of the German Commercial Code (HGB). In particular, the customer must inspect the delivered goods upon receipt of the shipment at the agreed-upon location or at the customer’s premises with regard to quantity, dimensions, shape, condition, and integrity, etc. If defects are found, they must be listed in writing and reported to Sensatec GmbH in writing without delay, no later than eight days after receipt of the goods. Defects that cannot be detected even upon careful inspection must be reported in writing immediately upon their discovery. The condition of the goods as required by the contract is determined by their condition at the time they leave the Sensatec GmbH plant or warehouse. Subject to the foregoing, we provide the following warranty for material defects and defects of title in the delivery, to the exclusion of any further claims—subject to Section 8:

7.1 Any parts that prove to be defective as a result of circumstances occurring prior to the transfer of risk shall be repaired or replaced free of charge, at the Contractor’s discretion. Sensatec GmbH must be notified immediately in writing of any such defects. Replaced parts become the property of Sensatec GmbH.

7.2 Warranty obligations do not apply in the event of improper installation, commissioning, or use by the client and/or a person authorized by the client, or in the event of failure to comply with the instructions regarding handling, maintenance, and care (e.g., operating instructions), improper modification or repair work, installation in unsuitable premises, the effects of third-party components, or other external influences. Normal wear and tear is excluded from liability for defects. We assume no warranty obligations for damage occurring after the transfer of risk, in particular if such damage is attributable to improper or negligent handling during transport, storage, installation, operation, and the like, and/or to normal wear and tear.

7.3 The Client shall, after consulting with Sensatec GmbH, provide the necessary time and opportunity for Sensatec GmbH to carry out any repairs or replacement deliveries it deems necessary; otherwise, Sensatec GmbH shall be released from liability for any resulting consequences. Only in urgent cases where operational safety is at risk or to prevent disproportionately large damages—in which case we must be notified immediately—does the Client have the right to remedy the defect itself or have it remedied by a third party and to demand reimbursement from Sensatec GmbH for the necessary expenses. In the event of an immediate threat to third-party property, the client is obligated to inform Sensatec GmbH without delay and to take the appropriate and necessary measures to prevent damage to third parties. Sensatec GmbH is not liable for the client’s safety obligations.

7.4 Of the direct costs incurred as a result of the repair or replacement—provided the complaint is found to be justified—we shall bear only the cost of the replacement part. For third-party products, our liability is limited to the assignment of the liability claims to which Sensatec GmbH is entitled against the supplier of the third-party product.

7.5 The Client has the right to rescind the contract within the scope of statutory provisions if we—taking into account the statutory exceptions—allow a reasonable deadline set for Sensatec GmbH to remedy a defect or provide a replacement to expire without result. If the defect is only minor, the Client is entitled only to a reduction in the contract price. Otherwise, the right to a reduction in the contract price is excluded. Further claims are governed by Section 8(2) of these Terms and Conditions.

7.6 No warranty is provided, in particular, in the following cases: unsuitable or improper use; faulty installation or commissioning by the purchaser or third parties; natural wear and tear; improper or negligent handling, failure to perform proper maintenance, unsuitable operating materials, defective construction work, unsuitable building site conditions, and chemical, electrochemical, or electrical influences—provided that Sensatec GmbH is not responsible for them.

7.7 If the customer or a third party performs improper repairs, we shall not be liable for any resulting consequences. The same applies to any modifications made to the delivered item without our prior consent.

7.8 Legal Defects: If the use of the delivered item results in an infringement of industrial property rights or copyrights within Germany, we shall, at our expense, generally secure for the customer the right to continue using the item or modify the item in a manner reasonable for the customer such that the infringement no longer exists. If this is not possible under economically reasonable terms or within a reasonable period of time, both contracting parties are entitled to withdraw from the contract.

7.9 Subject to Section 8.2, our obligations set forth in Section 7.8 are exhaustive in the event of an infringement of intellectual property rights or copyrights. They apply only if: · the client immediately notifies Sensatec GmbH of any alleged infringement of intellectual property rights or copyrights; · the client provides Sensatec GmbH with reasonable assistance in defending against the alleged claims or enables Sensatec GmbH to implement the modification measures in accordance with Section 7.8, · Sensatec GmbH reserves the right to take all defensive measures, including out-of-court settlements, and · the infringement was not caused by the Client’s unauthorized modification of the delivered item or its use in a manner not in accordance with the contract.

7.10 The following special provision applies in addition to standard terms for contract manufacturing orders: If, during processing, material becomes unusable through no fault of our own, the customer shall reimburse Sensatec GmbH for the costs incurred. If Sensatec GmbH is at fault for defective processing, we undertake to cover the processing costs incurred up to that point and to perform corrective work. If the material becomes unusable due to fault on the part of Sensatec GmbH, we will undertake the reprocessing. The customer must, in turn, deliver the material free of charge. All further claims by the customer are excluded. This specifically excludes claims for compensation for damages of any kind, including damages that did not occur to the material provided by the customer or to the items manufactured from it. We assume no liability for infringements of third-party rights arising in connection with the processing contract. The provision of materials is the responsibility of the customer.

8. Liability
8.1 Sensatec GmbH shall have unlimited liability for damages resulting from injury to life, body, or health, as well as for other damages arising from a willful or grossly negligent breach of duty by a legal representative or agent of Sensatec GmbH.

8.2 In the event of a negligent breach of an essential contractual obligation, liability for damages is limited to the damages typical of the contract and foreseeable at the time the contract was concluded. Obligations are considered essential to the contract if their fulfillment is a prerequisite for the contract to exist at all, if their breach jeopardizes the achievement of the contract’s purpose, and if the contracting party regularly relies on their fulfillment. For this contract, the parties limit the foreseeable damages typical for this type of contract to a maximum of EUR 2,500,000 per claim.

8.3 Furthermore, Sensatec GmbH shall not be liable under any circumstances.

8.4 The Client must immediately notify SENSATEC in writing of any damages for which Sensatec GmbH is liable.

8.5 To the extent that claims for damages against Sensatec GmbH are excluded, this also applies with respect to the personal liability of SENSATEC employees.

8.6 Claims for damages under Section 10(1) are subject to the statute of limitations as provided by law. Claims for damages under Section 10(2) are subject to a one-year statute of limitations, which begins to run from the statutory starting date.

8.7 We do not assume any procurement risk. Therefore, if it becomes apparent after the conclusion of the contract that the delivery item cannot be manufactured or can only be procured under conditions that are not reasonable from a practical or financial standpoint, the Client’s rights are limited to withdrawal from the contract, to the exclusion of any other or further claims. Furthermore, the conclusion of the contract is subject to our own supply. We have the right to withdraw from the order if there are unreasonable price increases in the procurement process, if our suppliers are unable to deliver, or if a supplier files for bankruptcy.

8.8 Consulting Services The Supplier shall be obligated to provide the Customer with technical consulting services in connection with the development of concepts, project planning, etc., only if the Customer has expressly commissioned such technical consulting services from the Supplier in writing. In the event that technical consulting services have been commissioned in writing, the provisions of Sections 7 and 8.2 shall apply mutatis mutandis.

9. Rights of Use
9.1 If, in the course of performing the contract, results are produced that are subject to copyright (e.g., expert opinions, test results, calculations), Sensatec GmbH grants the Client, to the extent necessary for the purpose of the contract, a simple, non-exclusive, non-transferable, and non-sublicensable right of use.

9.2 The Client may use the results only in their entirety, not in part, and only for the contractually agreed-upon purpose.

10. Force Majeure, Strikes, Lockouts
10.1 If we are prevented from fulfilling our obligations due to the occurrence of unforeseeable, extraordinary circumstances that we were unable to avert despite exercising all reasonable care under the circumstances—regardless of whether they occurred at our facility or at a supplier’s facility—e.g., a general labor shortage, strike, lockout, operational disruption, transportation difficulties, a shortage of essential raw materials, mobilization, war, civil unrest, etc.—we shall be entitled—even in the event of a delay in delivery—to extend the delivery deadlines appropriately. We will notify the client of the start and end of such impediments as soon as possible.

11. Retention of Title
11.1 We reserve title to the goods delivered by us in favor of Sensatec GmbH until all payments arising from the business relationship with the Client have been received. In the case of an open account, the reserved title serves as security for our claim for the outstanding balance. The retention of title applies to the acknowledged balance and remains in effect even if the customer makes payments toward specifically designated claims. If the customer acts in breach of contract, particularly in the event of late payment, we are entitled to take back the goods. Sensatec GmbH’s repossession of the goods does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. Our seizure of the goods always constitutes a withdrawal from the contract. After taking back the goods, we are authorized to sell them; the proceeds from the sale shall be applied toward the customer’s liabilities, less reasonable costs of sale.

11.2 The Client is obligated to treat the purchased item with care; in particular, the Client is obligated to insure it at its own expense against fire, water damage, and theft at a coverage level sufficient to cover its replacement value. If maintenance and inspection work is required, the contractor must perform it in a timely manner at its own expense and on its own account.

11.3 In the event of attachments or other interventions by third parties, the Client must notify Sensatec GmbH immediately in writing so that we may file a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse Sensatec GmbH for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO), the client shall be liable for the loss incurred by Sensatec GmbH.

11.4 The Customer is entitled to resell the goods in the ordinary course of business; however, the Customer hereby assigns to Sensatec GmbH all claims in the amount of the final invoice amount (including value-added tax) that arise from the resale against its customers or third parties, regardless of whether the goods were resold as is or after processing. The Customer remains authorized to collect this receivable even after the assignment. Our authority to collect the receivable ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the Client meets its payment obligations from the proceeds received, is not in default of payment, and, in particular, no petition for bankruptcy or composition proceedings has been filed and no suspension of payments has occurred. If, however, this is the case, we may demand that the client disclose the assigned claims and their debtors to Sensatec GmbH, provide all information necessary for collection, hand over the relevant documents, and notify the debtor (third party) of the assignment.

11.5 Any processing or transformation of the goods by the customer is always carried out on our behalf. If the goods are processed together with other items not belonging to Sensatec GmbH, we shall acquire co-ownership of the new item in proportion to the value of the goods relative to the other processed items at the time of processing. In all other respects, the same provisions apply to the item created through processing as to the goods delivered under retention of title.

11.6 If the goods are inseparably mixed with other items not belonging to Sensatec GmbH, we shall acquire co-ownership of the new item in proportion to the value of the goods relative to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the Client’s item is to be regarded as the principal item, it is hereby agreed that the Client shall transfer proportional co-ownership to Sensatec GmbH. The Client shall hold the resulting sole or co-ownership in trust for Sensatec GmbH.

11.7 The Customer also assigns to Sensatec GmbH any claims arising against a third party as a result of the goods being incorporated into real property, as security for our claims against the Customer. Without the need for any further specific declaration, the Customer hereby simultaneously transfers to Sensatec GmbH all security interests to which it is entitled against its customers, in proportion to the value of the claim and rights assigned to Sensatec GmbH under the extended retention of title; to the extent that this is not possible, the customer shall grant us a pro rata share in the internal relationship. This applies in particular to the customer’s rights against its customers to demand the granting of a security mortgage on a building lot.

11.8 We agree to release the security to which we are entitled at the Client’s request to the extent that the value of our security exceeds the secured claims by more than 20%. Sensatec GmbH shall determine which security is to be released.

11.9 Payments made in exchange for a promissory note issued by Sensatec GmbH and accepted by the customer shall not be deemed to have been made until the bill of exchange has been honored by the customer and we are thereby released from liability under the bill of exchange, so that the agreed retention of title and other rights of retention shall remain in effect in our favor at least until the bill of exchange is honored.

12. Confidentiality, Data Use and Protection
12.1 SENSATEC shall not, without authorization, disclose, exploit, or pass on any expert opinions or other facts and documents that become known during the performance of the contractual services and that relate to the Client and the subject matter of the contract. Exceptions to this include: · the anonymized processing of statistical data by SENSATEC; · obligations to publish; · disclosure to protect SENSATEC’s own legitimate interests; · legal, court-ordered, or regulatory obligations to disclose.

12.2 SENSATEC may make copies of the written documents provided to SENSATEC for review or handed over for the performance of the contract for its own records.

13. Place of Performance, Jurisdiction, Governing Law
13.1 The place of performance is Kiel.

13.2 The Kiel Local Court or the Schleswig Regional Court shall have exclusive jurisdiction over all disputes arising from the respective contract and the business relationship—including actions relating to promissory notes and checks. The same venue shall apply if the client does not have a general place of jurisdiction within Germany, relocates his domicile or habitual residence outside Germany after the conclusion of the contract, or if his domicile or habitual residence is unknown at the time the action is filed.

13.3 All legal relationships with the Client shall be governed exclusively by the laws of the Federal Republic of Germany—without any reference therein to another legal system having any effect. In the case of multilingual contract texts and documents, the German version shall be binding in the event of any doubt as to interpretation.

13.4 The Uniform Laws of July 17, 1973, on the International Sale of Movable Property and on the Conclusion of International Sales Contracts for Movable Property, as well as the UN Convention of April 11, 1980 on Contracts for the International Sale of Goods (UN Sales Convention, Federal Law Gazette 1989 II, p. 588) and, where applicable, their successor agreements, are excluded from application.

14. Partial Invalidity/Scope of Application
14.1 The full or partial invalidity of any of the above provisions shall not affect the validity of the General Terms and Conditions or the contracts concluded on the basis thereof. For the performance of contracts already concluded, a legally permissible provision shall be deemed agreed upon that achieves, to the greatest extent possible, the economic purpose intended by the invalid provision.

14.2 Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.

14.3 Previous General Terms and Conditions of Sale are hereby invalidated.