Status: September 1st, 2016
1. Scope of application, offers and conclusion of contract
1.1 The following General Terms and Conditions apply to persons who, when concluding a contract with Sensatec GmbH, act in the exercise of their commercial or independent professional activity (entrepreneurs) and to legal entities under public law or a special fund under public law. All deliveries and services of Sensatec GmbH are exclusively subject to the following terms and conditions. They shall be deemed accepted at the latest upon receipt of the order confirmation by the customer. We do not accept any terms and conditions of the customer which are contrary to 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 also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from our General Terms and Conditions of Delivery and Payment. The General Terms and Conditions of Delivery and Payment of Sensatec GmbH shall also apply to all future business transactions with the principal. Our offers are always subject to change. If the order is to be qualified as an offer according to § 145 BGB, we can accept it within 4 weeks. Claims for damages due to the rejection of an order are excluded.
1.2 Illustrations, drawings, technical data, specifications of weight, performance, dimensions and other information are only approximate. They only contain assurances – as in the case of a sample and/or trial – if they have been expressly designated and assured as such in writing by Sensatec GmbH. Sensatec GmbH reserves the right to make technical changes. These do not require the consent of the customer. Sensatec gives technical advice to the best of its knowledge based on its knowledge and experience. However, all data and information on suitability and application of the products and products of Sensatec GmbH are non-binding and do not release the customer from his own tests and trials. The customer is responsible for compliance with legal and official regulations when using the products and products of Sensatec GmbH.
1.3 Insofar as illustrations, drawings, calculations, programs stored on data carriers etc. are provided, Sensatec GmbH reserves all property rights and copyrights. These documents and/or data carriers as well as the data stored thereon may not be made accessible to third parties. This applies in particular to such documents and/or data carriers which are designated as confidential. Before passing them on to third parties, the ordering party requires the express written consent of Sensatec GmbH.
1.4 All orders to Sensatec GmbH are binding only after written confirmation by Sensatec GmbH. Similarly, all other agreements not made in writing (verbally, by telephone, by telegraph, by telex or by data line or by mailbox) require written confirmation by Sensatec GmbH.en Thanks for your message!
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2.1 Unless otherwise agreed, the prices quoted by Sensatec GmbH are ex works (Kiel or Berlin) and exclusive of statutory value added tax, freight, packaging, customs 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 performance of the order, the contracting parties have the right to demand negotiations on the adjustment of the price.
2.3 The goods shall be shipped for the account and at the risk of the Purchaser. In the case of transport with the Supplier’s own vehicles and personnel, the Supplier shall only be liable for gross negligence on the part of its employees.
3. Methods of Payment
3.1 Invoices of Sensatec GmbH are due within 14 days – calculated from the date of invoice – without deduction. If the payment deadline is exceeded, we are entitled to charge interest from the due date at a rate of 8 percentage points above the base interest rate. Insofar as Sensatec GmbH can prove a higher damage caused by delay, Sensatec GmbH is entitled to claim such damage.
3.2 Checks and bills of exchange, the acceptance of which is reserved in any case, i.e. even after a longer period of corresponding payment practice, are only accepted on account of payment and are only considered as payment after they have been honored. Any discount and bank interest shall be borne by the customer. No liability shall be assumed for timely presentation and protest.
3.3 In the event of default in payment on the part of the Customer, all claims shall become due immediately, even if they have been deferred and/or bills of exchange have been accepted. If this or other circumstances (dishonor of bills of exchange or checks, suspension of payments, bankruptcy petition, etc.) indicate to Sensatec GmbH that the creditworthiness of the principal is in question, Sensatec GmbH is furthermore entitled to make further deliveries or services dependent on advance payments or securities. If the ordering party does not comply with a request for performance step by step or is not prepared to provide security, Sensatec GmbH may refuse further performance of the contract, demand damages for non-performance or withdraw from the contracts insofar as deliveries or services have not yet taken place.
3.4 Soweit die Sensatec GmbH mit dem Auftraggeber die Zahlung der Kaufpreisschuld auf Grund des Scheck-Wechselverfahrens vereinbaren, erstreckt sich ein Eigentumsvorbehalt auch auf die Einlösung des von der Sensatec GmbH akzeptierten Wechsels durch den Auftraggeber und erlischt nicht durch Gutschrift des erhaltenen Schecks bei der Sensatec GmbH.
3.5. Der Auftraggeber kann nur mit solchen Forderungen aufrechnen, die unbestritten, rechtskräftig festgestellt oder von der Sensatec GmbH anerkannt sind. Ein Zurückbehaltungsrecht kann der Auftraggeber nur dann geltend machen, soweit dieses auf Ansprüchen aus dem Vertrag beruht.
4. Delivery Time
4.1 Compliance with the delivery obligations of Sensatec GmbH requires the timely and proper fulfillment of the obligation of the Principal. Unless expressly agreed otherwise, delivery periods and dates are only approximate. The commencement of the delivery period stated by Sensatec GmbH is subject to the clarification of all technical questions as well as the timely and proper fulfillment of the obligation of the principal, in particular the receipt of all documents to be supplied by the principal, necessary permits, releases, the timely clarification and approval of plans, compliance with the agreed terms of payment, in particular the receipt of an agreed advance payment, security deposit or any letters of credit. If these conditions are not met in time, the delivery time shall be extended accordingly.
4.2 In the event of subsequent amendments to the contract which affect the delivery period, the latter shall be extended accordingly. The same shall apply to deliveries to areas outside the Federal Republic of Germany if the procurement or provision of necessary or foreign official or non-official certificates is delayed. For delays in delivery due to force majeure, etc., clause 9 below shall apply. Correct and timely self-delivery by upstream suppliers is reserved. Partial deliveries are permissible in any case, as far as reasonable for the customer; a partial delivery is considered as an independent transaction. We reserve the right to make an excess or short delivery of max. 10% of the order quantity.
4.3 The delivery period shall be deemed to have been complied with if the delivery item has left the factory by the expiry date or the Customer has been notified that the delivery item is ready for dispatch. In case of non-compliance with delivery periods, the customer is entitled to set Sensatec GmbH a reasonable grace period in writing with the threat of refusal. After fruitless expiry of this period, the principal is entitled to withdraw from the contract. Claims for damages due to non-performance in the amount of the foreseeable damage are only due to the ordering party if the delay is due to intent or gross negligence.
5. Transfer of risk, shipping and packaging, partial deliveries
5.1 Unless otherwise stated in the order confirmation, delivery is agreed « ex works ». The risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or we have assumed other services, e.g. shipping costs or delivery and installation. Insofar as acceptance is to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the date of acceptance, alternatively after Sensatec GmbH has notified the customer that the goods are ready for acceptance. The customer may not refuse acceptance in case of a non-substantial defect. If shipment or acceptance is delayed or does not take place due to circumstances which cannot be attributed to Sensatec GmbH, the risk passes to the principal on the day of notification of readiness for shipment or acceptance. In particular, the risk passes to the ordering party if the shipment or delivery is delayed at the request of the ordering party or for reasons for which the ordering party is responsible on the day of readiness for shipment or if a shipment ready for operation has been brought to shipment or has been picked up. At the written request of the Customer, we shall take out insurance to cover the delivery or storage; the costs incurred in this respect shall be borne by the Customer.
5.2 If the Contractor requests the return of transport or outer packaging, the return shall take place at the contractual place of performance (Clause 11). The costs for the return transport and/or for the self-selected disposal shall be borne by the Principal. Reusable packaging shall only be provided to the Customer on loan. In this respect, the Customer shall be obliged to return the packaging in a proper condition at its own expense.
6. Acceptance/provision of material
6.1 If Sensatec GmbH provides a work performance, the customer is obliged to accept the work without delay. Acceptance may not be refused due to insignificant defects. We may set a reasonable deadline for the submission of the acceptance declaration, after the expiry of which the work performance shall be deemed accepted.
6.2 At the request of Sensatec GmbH, the customer is obliged to make a partial acceptance. Commissioning of the work and/or use by the customer shall always be deemed to be acceptance of the work performance, unless the performance of a trial run has been expressly agreed with the customer in an individual contract.
6.3 If the principal provides Sensatec GmbH with data, plans, drawings, drafts, production specifications, models, materials, etc. for the execution of the order, the principal warrants that he has checked these conscientiously, in particular with regard to their suitability. If the principal provides Sensatec GmbH with materials for processing, he undertakes to have checked the quality, processing and suitability of the material before handing it over to Sensatec GmbH. In particular, the principal assures that he has duly fulfilled his inspection obligations in case he has obtained the material from a third party. If the product manufactured by Sensatec GmbH is defective due to a defect in the material provided and/or if the processing fails due to a defect which is causally attributable to a defect in the material provided, we are nevertheless entitled to demand the agreed remuneration taking into account a saving in expenses.
The warranty claims of the client presuppose that the client has duly fulfilled its obligations of investigation and complaint pursuant to §§ 377, 378 HGB. The customer shall in particular check the delivered goods after receipt of the consignment at the agreed place or at the customer’s premises with regard to number, dimensions, shape, quality and integrity, etc. If defects are found, these must be listed in writing and notified in writing to Sensatec GmbH immediately, at the latest within eight days of receipt of the goods. Defects, which cannot be discovered even after careful examination, must be reported in writing immediately after their discovery. Decisive for the contractual condition of the goods is the time of leaving the factory or warehouse of Sensatec GmbH. In advance, we guarantee for material and legal defects of the delivery to the exclusion of further claims – subject to Section 8 – as follows:
7.1 All those parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the choice of the Contractor. The discovery of such defects must be reported to Sensatec GmbH immediately in writing. Replaced parts become the property of Sensatec GmbH.
7.2 Warranty obligations do not exist in the event of improper installation, commissioning or use by the customer and/or a representative thereof, furthermore in the event of non-observance of the regulations on handling, maintenance and care (e.g. operating instructions), improper alteration or repair work, installation in unsuitable rooms, influence of parts of foreign origin and other external influences. Natural wear and tear is excluded from liability for defects. We do not assume any liability for damages arising after the transfer of risk, in particular if these are due to incorrect and negligent handling during transport, storage, installation, operation and the like and/or to natural wear and tear.
7.3 In order to carry out all repairs and replacements deemed necessary by Sensatec GmbH, the customer shall, after agreement with Sensatec GmbH, give the required time and opportunity; otherwise Sensatec GmbH shall be released from liability for the resulting consequences. Only in urgent cases where operational safety is endangered or in order to prevent disproportionately large damages, whereby we are to be notified immediately, the client has the right to have the defect rectified himself or by a third party and to demand compensation of the necessary expenses from Sensatec GmbH. In the event of immediate endangerment of goods of third parties, the client is obliged to immediately inform Sensatec GmbH and to arrange the appropriate and necessary measures to avert damage for third parties. Sensatec GmbH is not liable for security obligations of the client.
7.4 Of the direct costs arising from the rectification or replacement delivery, we shall bear – insofar as the complaint proves to be justified – only the costs of the replacement item. 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 customer has a right to withdraw from the contract within the framework of the statutory provisions if we – taking into account the statutory exceptions – allow a reasonable deadline set for Sensatec GmbH for the rectification or replacement delivery due to a material defect to expire fruitlessly. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the contract price. The right to reduce the contract price shall otherwise remain excluded. Further claims shall be determined in accordance with section 8 para. 2 of these conditions.
7.6 No warranty is given in particular in the following cases: unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – unless Sensatec GmbH is responsible for them.
7.7 If the customer or a third party carries out improper repairs, we shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without our prior consent.
7.8 Defects of title: If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, we shall, at our expense, generally procure the right for the customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period of time, both contracting parties shall be entitled to withdraw from the contract.
7.9 Our obligations in Section 7.8 are final, subject to Section 8.2, in the event of intellectual property and copyright infringement. They only exist if · the client immediately informs Sensatec GmbH of asserted intellectual property or copyright infringements, · the client supports Sensatec GmbH to an appropriate extent in defending the asserted claims or Sensatec GmbH in carrying out the modification measures pursuant to Art. Section 7.8 enables Sensatec GmbH to retain all defensive measures, including extrajudicial regulations, and · the infringement was not caused by the fact that the customer changed the delivery item or used it in a manner not in accordance with the contract.
7.10 In the case of contract manufacturing orders, the following special provision applies additionally: If material becomes unusable in the course of processing without our fault, the costs incurred by Sensatec GmbH shall be reimbursed by the purchaser. If there is a culpably defective processing on the part of Sensatec GmbH, we undertake to assume the processing costs incurred up to that date and to rectify them. If the material becomes unusable due to the fault of Sensatec GmbH, we take over the reprocessing. The customer shall in turn deliver the material free of charge. All further claims of the purchaser are excluded. In particular, compensation for damages of any kind, including damages that have not occurred on the material provided by the customer or the items made from it. We do not assume any liability for infringements of the rights of third parties that occur in connection with the processing contract. The delivery of materials is the responsibility of the purchaser.
8.1 Sensatec GmbH shall be liable without limitation for damages resulting from injury to life, body or health as well as for other damages based on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Sensatec GmbH.
8.2 In the event of negligent breach of a material contractual obligation, the obligation to pay compensation shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. Material contractual obligations are obligations the fulfillment of which makes the contract possible in the first place, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the contractual partner regularly relies on. For the present contract, the parties limit the foreseeable, contract-typical damage to the maximum amount of EUR 2,500,000 per damage event.
8.3 Furthermore, any liability of Sensatec GmbH is excluded.
8.4 The ordering party must immediately notify SENSATEC in writing of any damage for which Sensatec GmbH is liable.
8.5 Insofar as claims for damages against Sensatec GmbH are excluded, this also applies with regard to the personal liability of SENSATEC employees.
8.6 Claims for damages pursuant to § 10 number 1 shall become statute-barred in accordance with the statutory provisions. Claims for damages according to § 10 clause 2 shall become time-barred one year after the statutory commencement of the limitation period.
8.7 We do not assume any procurement risk. Therefore, if it turns out after conclusion of the contract that the delivery item cannot be manufactured or can only be procured under conditions that are actually or financially unreasonable, the Customer’s rights shall be limited to withdrawal from the contract to the exclusion of other and further claims. Furthermore, the conclusion of the contract is subject to our own supply. We have the right to withdraw from the order in the event of unreasonable price increases in the procurement area, the inability of the upstream supplier to deliver, or if the upstream supplier files for insolvency.
8.8 Consulting activities: The supplier is only liable to the customer for technical advice in the context of concept elaboration, project planning work etc. in the event that the technical advice has been expressly commissioned by the customer to the supplier in writing. In the case of a written request for technical advice, the provisions of Sections 7 and 8.2 shall apply mutatis mutandis.
9. Rights of Use
9.1 If results that are subject to copyright (e.g. expert reports, test results, calculations) arise during the execution of the order, Sensatec GmbH grants the client a simple, non-exclusive, non-transferable and non-sublicensable right of use to the extent necessary for the purpose of the contract.
9.2 The client may only use the result in its entirety, not in part, and only for the contractually agreed purpose.
10. Force majeure, strike, lockout
10.1 If we are prevented from fulfilling our obligation by the occurrence of unforeseeable, exceptional circumstances which we could not avert despite reasonable care according to the circumstances – regardless of whether they occurred with us or with a subcontractor – e.g. general shortage of labour, strike, lock-out, business disruption, transport difficulties, shortage of essential raw materials, mobilization, war, riot, etc., we shall be entitled – even within a delay in delivery to extend the delivery periods accordingly. We will notify the client of the beginning and end of such obstacles as soon as possible.
11. Retention of title
11.1 We reserve ownership of the goods delivered by us to Sensatec GmbH until receipt of all payments from the business relationship with the customer. In the case of a current invoice, the reserved title shall be regarded as security for our balance claim. The reservation refers to the recognised balance and applies even if the client makes payment for specially designated receivables. In the event of non-contractual behaviour of the customer, in particular in the event of late payment, we are entitled to take back the goods. The withdrawal of the goods by Sensatec GmbH does not constitute a withdrawal from the contract, unless we have expressly stated this in writing. The seizure of the goods by us always constitutes a withdrawal from the contract. After taking back the goods, we are entitled to use them, the proceeds from the use shall be set off against the customer’s liabilities less reasonable processing costs.
11.2 The customer is obliged to treat the purchased item with care, in particular he is obliged to insure it at his own expense against fire, water and theft damage sufficiently at the new value. Where maintenance and inspection work is necessary, the Contractor shall carry it out in good time at his own expense and expense.
11.3 In the event of seizures or other interventions by third parties, the client must immediately notify Sensatec GmbH in writing so that we can file a complaint pursuant to Art. § 771 ZPO. As soon as the third party is unable to reimburse Sensatec GmbH for the legal and out-of-court costs of a lawsuit pursuant to § 771 ZPO, the client is liable for the loss of Sensatec GmbH.
11.4 The customer is entitled to resell the goods in the ordinary course of business; however, he already assigns to Sensatec GmbH all receivables in the amount of the final invoice amount (including VAT) which accrue to him from the resale against his customers or third parties, regardless of whether the goods have been resold without processing or after processing. The client remains authorised to collect this claim even after the assignment. This does not affect our power to collect the claim ourselves. However, we undertake not to collect the claim as long as the client fulfils its payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of bankruptcy or settlement proceedings or has ceased payment. However, if this is the case, we may demand that the client inform Sensatec GmbH of the assigned receivables and their debtors, provide all information required for collection, hand over the related documents and notify the debtor (third party) of the assignment.
11.5 Processing or transformation of the goods by the customer is always carried out for us. If the goods are processed with other items that do not belong to Sensatec GmbH, we acquire co-ownership of the new item in proportion to the value of the goods to the other processed items at the time of processing. For the rest, the same applies to the goods resulting from processing as for the goods delivered under reservation.
11.6 If the goods are inseparably mixed with other items not belonging to Sensatec GmbH, we acquire co-ownership of the new item in proportion to the value of the goods to the other mixed items at the time of mixing. If the mixing takes place in such a way that the object of the client is to be regarded as the main object, it shall be deemed agreed that the client transfers proportionate co-ownership to Sensatec GmbH. The client shall keep the resulting sole or co-ownership for Sensatec GmbH.
11.7 The customer also assigns to Sensatec GmbH the claims to secure our claims against him, which arise from the connection of the goods with a piece of land against a third party. Without requiring any further special explanation, the client hereby assigns to Sensatec GmbH all security rights to which it is entitled against its customers in proportion to the value of the claim and rights assigned to Sensatec GmbH in the context of the extended retention of title; if this is not possible, the client participates pro rata in the internal relationship. This applies in particular to rights of the client against its client to be allowed to demand the granting of a security mortgage on a building plot.
11.8 We undertake to release the securities to which we are entitled at the request of the client to the extent that the value of our securities exceeds the secured claims by more than 20%. The selection of securities to be released is the responsibility of Sensatec GmbH.
11.9 Payments made against sending a bill of exchange issued by Sensatec GmbH and accepted by the customer shall only be deemed to have been made if the bill of exchange has been redeemed by the customer and we are thus exempt from the bill of exchange liability, so that the agreed retention of title as well as the other retention rights remain in our favour at least until the bill of exchange has been redeemed.
12. Confidentiality, data use/protection
12.1 SENSATEC shall not disclose, exploit or pass on expert opinions or other facts and documents which become known during the performance of the contractual service and which relate to the client and the subject of the contract. This does not apply to: · anonymised processing of statistical data by SENSATEC; · publication obligations; · disclosure for the protection of legitimate interests; · legal, court-ordered or official disclosure obligations.
12.2 SENSATEC may make copies for its own documents of the written documents which have been made available to SENSATEC for inspection or for the execution of the order.
13. Place of performance, jurisdiction, applicable law
13.1 Place of performance is Kiel.
13.2 For all disputes arising from the respective contract and the business relationship – incl. Bills of exchange and cheque lawsuits are the exclusive jurisdiction of the district court Kiel or the district court Schleswig. The same place of jurisdiction shall apply if the principal does not have a general place of jurisdiction in the country, moves his domicile or habitual residence from the country after the conclusion of the contract, or his domicile or habitual residence is unknown at the time the action is brought.
13.3 For all legal relationships with the client is excluded. the law of the Federal Republic of Germany is applicable – without any possible referral there to another legal system. In the case of multilingual contract texts and documents, the German version shall be binding in the event of any doubt as to their interpretation.
13.4 The Uniform Laws of 17 July 1973 on the International Sale of Goods and on the Conclusion of Contracts for the International Sale of Goods and the UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (UNKaufrecht BGBl. 1989 II, p. 588) and any successor agreements thereto are excluded from application.
14. Partial invalidity/scope
14.1 The total or partial ineffectiveness of any of the above provisions shall not affect the validity of the General Terms and Conditions as well as the contracts concluded on the basis thereof. For the settlement of already concluded contracts, a legally permissible arrangement is deemed to have been agreed with which the economic purpose pursued by the invalid provision is achieved as far as possible.
14.2 Should individual provisions of this Agreement be or become invalid or contain a gap, the remaining provisions shall remain unaffected.
14.3 Previous General Terms and Conditions of Sale are hereby invalidated.