Terms and Conditions
1. Applicability The following General Terms and Conditions of Business (T&Cs) of Technagon GmbH, Brunnwiesen 38, D-94481 Grafenau apply to the entire present and future business relationship between us and the customer, even if express reference is not made thereto. The Customer’s deviating terms and conditions of business are not effective unless their effectiveness has been expressly agreed in the individual contract. We hereby expressly reject conflicting confirmations that deviate from our General Terms and Conditions of Business. Auxiliary agreements are only binding for us if confirmed by us in writing. Our terms of delivery and payment, to which our Customer agrees on placing an order, apply exclusively, including to future business, even if express reference is not made thereto, but the Customer has received them together with our confirmation of an order. If the order is placed contrary to our terms of delivery and payment, then our terms of delivery and payment also apply even if we do not raise an objection. Deviations therefore apply only if expressly accepted by us in writing. Agreements apply subject to proven mathematical or grammatical errors. 2. Conclusion of contract, cancellation of orders Unless stated otherwise, our offers are without obligation and non-binding. We expressly retain ownership and copyright to development documents, drawings and other documents. They may not be disclosed to third parties and in particular must be returned to us without request if the order for which these documents were intended is not placed with us. A contract is concluded only with our written confirmation of order. If, in confirming, we describe the object, scope, price or other conditions of our deliveries and services in greater detail, this description alone is binding. The customer is bound to his confirmed order. The impermissible revocation of a order that has already been placed and confirmed entitles us to demand from the customer the agreed remuneration minus the expenditure saved, but at least 15% of the net order sum as compensation for damages. The Customer shall have the right to prove that we suffered lesser damages. 3. Delivery, performance, transfer of risk Delivery deadlines are fundamentally non-binding, unless agreed otherwise in writing. All agreed delivery dates presuppose the complete clarification of all technical details of the order. The Client must carry out his preparatory work in a timely and correct manner. We shall have the right to make partial deliveries if and to the extent that the contractual item is separable or can be manufactured in parts. Any shipment requested by the Customer shall be at the Customer’s risk and expense. In the absence of special instructions, we as the Customer’s agent shall determine the type of transport and route. We shall insure the shipment only if instructed to do so by the Customer and at the Customer’s expense. The risk is transferred to the Customer as soon as the shipment has been handed over to the person carrying out the transport or the Customer accepts the contractual item at our premises. 4. Disruptions of deliveries and performances, default of acceptance Disruptions of deliveries and performances for which we are not responsible free us from agreed delivery dates or deadlines. They also entitle us to postpone the performance for the duration of the disruption plus an appropriate start-up time. This applies in particular in the case of state intervention, if subcontractors or suppliers are wholly or partly released from their duty to deliver, or if normal procurement or transport options are no longer available. In case of default of delivery, the Customer shall be entitled to compensation for damages only in the case of downtimes caused deliberately or through gross negligence on our part or the part of our vicarious agents or assistants. In addition, compensation for damages is limited in extent to the damages that are normally to be expected. The highest compensation limit is the net value of the order or wage. If the Customer is in default of acceptance of the goods or services, then we shall have the right to withdraw from the contract and/or to demand compensation for damages due to non-fulfilment. Goods returns are only possible with prior written agreement. Goods that have not been accepted shall be stored at the Customer’s risk and expense. 5. Customer’s obligation to cooperate If on-site work is necessary for the rendering of the performances, the Customer shall grant Technagon GmbH the space and time to carry out the work. The Customer shall provide Technagon GmbH with all necessary and reasonable assistance during the preparation and execution of the performances. Beyond that the Customer shall guarantee that all occupational health and safety regulations are adhered to. Before work is carried out on the Customer’s devices and/or programs, the Customer shall independently back up all programs and data and save them on external data carriers. The Customer shall make available all facilities necessary for the performance of work on site at its own expense. The Customer shall be responsible for the necessary and prompt cooperation of the companies commissioned by or affiliated with the Customer. This concerns above all the provision of all necessary performance prerequisites and information or data as well as the necessary support personnel. To that extent Technagon GmbH bears no responsibility, in particular in the case of delays or performance disruptions due to lack of cooperation on the part of the Customer. The Customer shall provide for and/or make available all necessary system requirements. The Customer shall provide the usage rights (licences) in the case that copyright-protected works of third parties are to be used and/or further processed or adapted. The Customer shall at its own expense make available all licences that are to remain with the Customer after completion of the work. 6. Acceptance If no formal acceptance has been agreed, a work to be manufactured by Technagon GmbH shall be deemed to have been accepted on the day after commencement of its use, but at the latest 8 days after its delivery. The day on which usage commences is regarded as a test day. Any causes for complaint determined on the test day are to be notified in writing. The same also applies to the acceptance of subsystems, if these are completed in parts. 7. Warranty Technagon GmbH passes on any manufacturer warranties to the Customer. Software of any kind is always delivered to the exclusion of any warranty. The Customer is obligated to check goods delivered or services rendered for defects immediately upon receipt or rendering respectively. Obvious technical defects, incorrect deliveries and/or quantity discrepancies are to be notified in writing within a time limit of 8 calendar days following handover or delivery of the goods. If no notification of defects is received within the time limit, or if the goods are used by the Customer, put into operation or resold, then the assertion of warranty claims is excluded. The Customer alone shall bear the burden of proof for all prerequisites for making claims, in particular for the defect, for the existence of the defect at the time of handover or delivery, for the time of determining the defect and for the promptness of the notification of the defect. If Technagon GmbH carries out measures to reduce the damage, these shall not be deemed to be an acknowledgment of a defect. Technagon GmbH shall have the right to choose between subsequent improvement and the delivery of defect-free goods. The warranty is limited to a “bring in” warranty. The costs for the return or external carrying out of warranty work shall be borne by the Client. A supplementary performance is only deemed to have failed after the second unsuccessful attempt, if nothing else arises in particular from the type of item or defect or from the other circumstances. If the supplementary performance fails, the Customer shall have the right to reduce the price of the defective goods or to withdraw from the purchase contract. The Customer’s warranty claims lapse after 6 months, beginning with the transfer of risk. 8. Liability Technagon GmbH shall be liable only for damage, regardless of the legal grounds, caused by Technagon GmbH, its legal representatives or one of its vicarious agents acting deliberately or with gross negligence. The above liability limitation applies to both contractual and non-contractual claims. This does not affect liability according to product liability laws. Furthermore, the liability limitations do not apply to physical injuries, damage to health or loss of life caused by Technagon GmbH. Technagon GmbH accepts no liability for damages and disadvantages arising from having to switch off one of the Customer’s systems or a part thereof in the Customer’s productive time during the processing of the order, or from it not being available for some other reason. However, the Customer can expressly demand on its own responsibility that the work to be done is not carried out at certain times. Extra costs resulting therefrom shall be borne by the Customer. The Customer is obligated to make backup copies of its data at appropriate intervals, but at least once per day. Insofar as we are obligated to compensate for damages, the compensation to be paid shall be limited – as far as is legally permitted – to the damages that are usually to be expected. The highest compensation limit is the net value of the order or wage. 9. Payments, terms of payment Unless agreed otherwise, payments are to be made by the Customer without deduction according to the progress of the work as well as the scope of delivery and performance at the latest within eight days of the invoice date. Payments shall only be deemed to have been made on the day on which we can dispose of the entire invoice sum. Cheques will only be accepted on account of payment. The Customer shall bear all expenses of cashing the cheque. We are entitled to render appropriate advance payment invoices in consideration of the activities to be carried out. The retention of due payments on account of any counter-claims or the offsetting against counter-claims by the Customer is excluded as long as such claims on the part of the Customer have not been acknowledged in writing or legally established. If the Customer is in default of payment of an invoice or does not honour a cheque, we shall have the right – notwithstanding the assertion of further claims for default damages – to charge interest at the statutory rate. In the case of default of payment, all our other claims against the Customer shall be due for payment immediately with the forfeiture of all payment targets previously granted. In this case we shall have the right to demand payment in advance from the Customer for our deliveries that are still outstanding or to withdraw from the contract. We are entitled to assign the claims from our business connections. If the Buyer is in default of any payment obligations towards us, then all existing claims shall be due for payment immediately. If the claims should have been assigned, then payments with discharging effect are to be made exclusively to the bank account of Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Mainz, to whom we have assigned our present and future claims from our business connection. We have also assigned our retention of title to this institute. 10. Retention of title Simple retention of title Technagon GmbH retains ownership of the goods delivered or services rendered until full payment has been made. In case of behaviour of the Customer contrary to the contract, in particular default of payment, we shall be entitled to repossess the goods delivered or services rendered; the Customer is obligated to hand over same. In business dealings, Technagon GmbH retains ownership of the goods delivered or services rendered until all claims from the business connection with the Customer have been received. An application to open insolvency proceedings against the Customer’s assets entitles us to withdraw from the contract and to demand the immediate return of the goods delivered or services rendered. The Customer shall not be entitled to resell or to process or merge the goods delivered until it has gained full ownership of the goods. Extended retention of title in case of reselling with assignment-in-advance clause The Buyer shall be entitled to resell the conditional goods in the normal course of business only if the he assigns to the Seller here and now all claims due to him from the resale to purchasers or third parties. If conditional goods are sold without processing, or after processing or combination with objects that are exclusively the property of the Buyer, then the Buyer assigns here and now all claims due from the resale in full to the Seller. If conditional goods are sold by the Buyer after processing/combination with goods not belonging to the Seller, then the Buyer assigns here and now the claims arising from the resale to the value of the conditional goods with all ancillary rights and rank before the rest. The Seller accepts the assignment. The Buyer is entitled to collect these claims even after the assignment. The Seller’s authority to collect the claims itself is not affected by this; however, the Seller undertakes not to collect the claims as long as the Buyer complies properly with its payment obligations and other obligations. The Seller can demand that the Buyer disclose to the Seller the assigned claims and their debtors, provide all details required for collection, hand over the associated documents and inform the debtor of the assignment. Extended retention of title with processing clause The Buyer carries out any processing or adaptation of the conditional goods on behalf of the Seller, without any obligations arising therefrom for the latter. In the case of processing, connection, mixing or blending of the conditional goods with other goods not belonging to the Seller, the Seller is entitled to joint ownership of the new item thereby created in the ratio of the value of the conditional goods to the value of the other processed goods at the time of processing, connection, mixing or blending. If the Buyer acquires the sole ownership of the new item, then the Contracting Parties are agreed that the Buyer shall grant the Seller joint ownership of the new item in the ratio of the value of the processed or connected, mixed or blended conditional goods and shall keep it on the Seller’s behalf and at no cost to the latter. Cheque/bill of exchange clause If liability for a bill of exchange on the part of the Seller is established in conjunction with the payment of the purchase price by the Buyer, then the retention of title as well as the claim based thereon arising from the goods deliveries shall not expire before the cashing of the bill of exchange by the Buyer as the drawee. Over-collateralisation At the Buyer’s request we undertake to release the collateral due to us to the extent that the realisable value of our collateral exceeds the value of the claims to be secured by more than 20%. If the Buyer does not prove a lower realisable value of the conditional goods, then the Buyer’s purchase price or, in the case of processing of the conditional goods, the manufacturing costs of the security collateral or the jointly owned proportion shall be taken as the realisable value. We shall have the right to select which collateral to release. Handover of the conditional goods The Seller shall have the right at all times to demand the handover of the items belonging to the Seller, in particular to assert the rights to segregation or assignment of the claim to the service in return in insolvency proceedings, if the fulfilment of its claims by the Buyer is endangered, in particular if insolvency proceedings are opened against the Buyer’s assets or the Buyer’s financial situation worsens significantly. The assertion of the retention of title as well as the seizure of delivery items by the Seller shall not be deemed to be a withdrawal from the contract. Third-party interventions in the conditional goods In the case of seizure or confiscation of the conditional goods or other acts of disposal or interventions of third parties in the Seller’s rights, the Buyer shall inform the Seller immediately and, in consultation with the Seller, shall do everything necessary to avert the danger. If deemed necessary to protect the conditional goods, the Buyer shall assign claims to the Seller on demand by the latter. The Buyer is obligated to compensate the Seller for all damage and costs – including court and solicitor’s costs – incurred by the Seller as a result of intervention measures against third-party attachments. 11. Storage of data, data protection Technagon GmbH is entitled within the scope of the business relationship to acquire, save and process the Customer’s personal data. Data shall not be passed on to third parties. If personal data are processed within the context of the activities of Technagon GmbH, the applicable data protection laws shall be complied with. In addition, the necessary safety measures shall be taken to ensure the necessary data protection. 12. Applicable law, place of jurisdiction The contractual relationship is subject exclusively to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction is Passau or Mainz, whichever we choose. 13. Final clause If individual parts of these provisions are or become ineffective or void, this shall not affect the validity of the remaining provisions. The ineffective or void part shall be replaced by the legal regulation.