I. General – Scope of application
The following General Terms and Conditions apply to the entire business relationship of ADASYS GmbH (hereinafter referred to as “ADASYS” or “we”), even if they are no longer referred to in subsequent transactions. Our General Terms and Conditions shall also apply if the customer refers to other terms and conditions in his order or in a letter of confirmation, unless we have agreed to these in writing. Collateral agreements, amendments and supplements require written confirmation by ADASYS in order to be effective.
Insofar as the written form is required in the General Terms and Conditions (see Sections I, II, III, IV, V, VIII), the written form shall also be deemed to have been complied with by electronic communication (e-mail).
II Conclusion of contract
Our offers are subject to change. Contracts only come into effect with our written order confirmation. This is solely decisive for the content of the contract. Collateral agreements, the assurance of properties and contract amendments are not agreed until we have confirmed them in writing. Descriptions and illustrations of the delivery items are only approximate. We reserve the right to make technical and design changes (in particular to shape, color, weight) until delivery. However, this must not unreasonably impair the interests of the customer. For certain items, we reserve the right to deliver up to 10% more or less than the quantity ordered. Partial deliveries are deemed to be an independent transaction. The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with our supplier. The customer shall be informed immediately of the non-availability of the service. The consideration will be refunded immediately. Larger quantities of goods can be ordered with a blanket order. This must be confirmed by ADASYS in writing and countersigned by the customer. Acceptance must take place within 6 months, unless otherwise confirmed in writing by ADASYS. In the event of non-acceptance within the agreed period, ADASYS reserves the right to withdraw from the contract and, even in the event of no withdrawal, to demand a contractual penalty of 0.5% of the order value per week or part thereof, up to a maximum of 5% of the order value. We reserve the right to assert further claims for damages. The same shall apply in the event of non-acceptance or default of acceptance by the customer within the scope of an individual order. In this case, we are entitled to demand a contractual penalty of 0.5% of the order value per week or part thereof, up to a maximum of 10% of the order value. We reserve the right to assert further claims for damages.
III Prices, shipping, packaging and insurance
Unless otherwise agreed in writing, our prices are in Euro net ex our warehouse in Kornwestheim excluding VAT, transport costs, packaging, expenses and transport insurance. These costs shall be borne by the customer. Unless otherwise agreed in writing, we shall determine the means of transportation at our discretion without guaranteeing the cheapest or fastest means of transportation. In all cases, the risk shall pass to the customer as soon as the delivery item leaves our warehouse. We shall insure the shipment against transport damage at the customer’s expense. This insurance shall only be omitted if the customer prohibits this in writing. In the event of significant cost changes (e.g. significant exchange rate changes of more than 10%) and if the term of a call-off order is exceeded for customer-related reasons, we reserve the right to adjust the price after consultation with the customer.
IV. Delivery dates and deadlines
Delivery dates and deadlines are specified in the order confirmation. They are only binding if they have been confirmed as binding in writing. The delivery period shall commence on the date of the order confirmation, but not before receipt of an agreed down payment or other agreed acts of cooperation by the customer. The delivery date shall be deemed to have been met if the delivery item has left the warehouse by its expiry or – if delivery has not taken place for reasons for which the customer is responsible – readiness for dispatch has been notified. If a delivery date is exceeded, the customer may withdraw from the contract after he has set us a grace period of at least 8 weeks in writing and this has expired without result. Claims for damages by the customer due to delayed delivery are excluded, unless we are responsible for the delay in delivery due to intent or gross negligence. In this case too, the customer’s claims for damages shall be limited for each full week of delay to a maximum amount of 0.5%, but no more than a total of 5% of the value of that part of the delivery which cannot be used on time or for its intended purpose as a result of our delay in delivery. Further claims for damages, in particular for loss of profit or loss of use of other devices of the customer, are expressly excluded.
V. Terms of payment
Deliveries to new customers are made up to 1,000 euros value of goods by cash on delivery, direct debit authorization or prepayment / cash on delivery. Deliveries with a value of more than 1,000 euros are only made against prepayment. Agreements deviating from this require written confirmation. For deliveries on account, we grant a maximum payment term of 14 days. A cash discount – in particular for direct debit authorizations – shall only be granted if this was expressly granted when the invoice was issued. If the customer is in default of payment, we shall be entitled to the statutory claims, in particular default interest of 8% above the prime rate of the European Central Bank if the customer is an entrepreneur, 5% above the prime rate of the European Central Bank if the customer is a consumer.
VI Retention of title
The goods shall remain our property until full payment of all our claims arising from the current business relationship with the customer. The customer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. We shall be entitled to withdraw from the contract and demand the return of the goods at the customer’s expense in the event of breach of contract by the customer, in particular in the event of default in payment or breach of an obligation pursuant to paragraph 2 above. The purchaser is entitled to resell the goods in the ordinary course of business. As long as the retention of title exists, the customer is not entitled to pledge the goods or assign them as security. The customer hereby assigns to us all claims in the amount of the invoice amount which accrue to him against a third party for the resale. We accept the assignment. Even after the assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not properly meet his payment obligations and is in default of payment; in this case, the customer is obliged to inform us of the name of his customer. The handling and processing of the goods by the customer shall always be carried out in our name and on our behalf. If the goods subject to retention of title are inseparably combined or mixed with other items, we shall become co-owner of the new item in the ratio of the value of the goods delivered by us to the other combined or mixed items. The Seller undertakes, at the Buyer’s request, to release the securities to which he is entitled in accordance with the above conditions at his discretion, insofar as the realizable value of the securities exceeds the claims to be secured by more than ten percent.
VII Transfer of risk
The risk of loss, destruction or damage to the goods shall pass to the customer when the goods are handed over to the forwarding agent or carrier. This shall also apply in the event of an agreement to return the goods after rectification of defects or repair. If the customer is in default of acceptance, this shall be deemed equivalent to handover.
VIII. Warranty, repairs
For defects in our deliveries and services, which also include the absence of warranted characteristics, we only warrant that they have the characteristics specified in our relevant documents. Samples are not decisive for the scope of our warranty. Changes due to changes in technical regulations are permissible. If the customer is an entrepreneur, we shall provide a warranty for defects in the goods at our discretion, initially by repair or replacement. If the subsequent performance (rectification or replacement delivery) fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract. We charge a processing fee for goods returned as a gesture of goodwill. It is the responsibility of the customer to inspect the goods immediately upon receipt and to report any defects without delay. If the purchaser is an entrepreneur, warranty claims are excluded if quantity deviations and obviously recognizable defects are not reported to ADASYS in writing within a period of 8 days from receipt of the goods; the same applies to hidden defects which are not reported to ADASYS in writing within 8 days of discovery. The mere return of the goods shall not be deemed a notice of defects. If the customer is an entrepreneur, he shall bear the burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. If the customer is an entrepreneur, the warranty period is 1 year from delivery of the goods. A longer warranty period shall only apply to individual products if this has been agreed in writing, in particular in the order confirmation or invoice. If devices with magnetically or electronically stored data are provided, it is the customer’s responsibility to back up his data externally. Claims for damages by the purchaser against ADASYS, its employees, vicarious agents and assistants – irrespective of the legal grounds – are limited to intent and gross negligence and are excluded to the extent permitted by law. If the customer wishes a binding price quotation for chargeable repairs, a written cost estimate is required. Cost estimates are subject to a charge, unless otherwise agreed in writing. If an order is placed on the basis of the cost estimate, any costs for the cost estimate shall be offset against the order invoice. The warranty is also void if the serial number, type designation or similar markings have been removed or made illegible or if the purchaser has carried out improper repairs to the devices or repairs not agreed with ADASYS. Devices for repair must be returned to us free of charge.
IX. Place of jurisdiction, applicable law
If the purchaser is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is the court responsible for the registered office of ADASYS. However, we are entitled to appeal to any legally competent court, in particular the court at the customer’s place of business. The law of the Federal Republic of Germany shall apply exclusively. In particular, the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not apply.
X. Other agreements
We are entitled to store personal and company-related data as part of the business relationship and to use it within our company. If the customer defaults on payment, we are entitled to forward this information to the lawyer and credit insurer. Software, manuals and data sheets supplied by us may only be reproduced with our express prior written consent. If individual provisions of these General Terms and Conditions are invalid or cannot be implemented, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a legally permissible new agreement that comes closest to the invalid or unenforceable provision in its economic result.
