I. Validity and conclusion of contract
These General Terms and Conditions of Delivery and Sale are conditions of instrAction GmbH. These terms and conditions apply to all our offers and contracts for deliveries and services.
These terms and conditions apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from these terms and conditions unless we have expressly agreed to their validity in writing. These terms and conditions shall also apply if we execute the order vis-à-vis the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from these terms and conditions.
These terms and conditions shall also apply to future contracts for deliveries and services with the same customer.
In individual cases, individual agreements made with the customer (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these terms and conditions. A written contract or our written confirmation shall be authoritative for the content of such agreements. Transmission by telefax shall be sufficient to comply with the written form requirement; otherwise, transmission by telecommunication, in particular by e-mail, shall not be sufficient.
Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract must be in writing in order to be effective.
Unless otherwise stated, all our offers are subject to change.
Our performance of the contract in respect of those deliveries covered by government
export regulations shall be subject to our being granted the necessary
Our information on the subject of the delivery or service (e.g. weights, dimensions,
) shall not be binding on us.Weights, dimensions, serviceability, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or the service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of delivery parts by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
We reserve our property rights and - insofar as copyrightability of this information or documentation is given - copyrights to all information and documents handed over (e.g. samples, drawings, documentation) - also in electronic form. They may not be made accessible to third parties without our prior written consent.
(10) The underlying contract and these terms and conditions shall apply only in relation to a
entrepreneur, a legal entity under public law or a special fund under public law pursuant to Section 310 (1) sentence 1 BGB.
II. Prices and Payment
The prices are quoted in EURO ex works plus packaging, loading, the statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
2. in the case of services within the European Union, the customer must notify us of his VAT identification number in good time before the contractually agreed delivery date in order to prove his exemption from VAT. In the event of failure to provide timely and complete notification, we reserve the right to charge the applicable value added tax.
3. in the case of services outside the European Union, we shall be entitled to charge the statutory value added tax subsequently if the customer does not send us proof of export within one month of the respective dispatch.
4. unless otherwise agreed, the customer shall make payments as follows: 40% down payment after receipt of the order confirmation, 60% after performance or notification of readiness for delivery/acceptance with regard to the main parts.
5. other services will be invoiced at the respective valid rates, which can be requested from us. Surcharges shall be levied for work outside normal working hours. Travelling times shall be considered as working time.
Invoice amounts are to be paid to one of our accounts within 10 days of receipt of the invoice without any deductions, unless otherwise agreed in writing. The date of receipt of payment by us shall be decisive for the date of payment.
7. the customer may only offset or exercise a right of retention with counterclaims that are undisputed in terms of reason and amount, ready for a decision in a pending legal proceeding or established by a final court decision.
8. the prices in the offer shall only apply if the full scope of the deliveries offered is ordered.
III Performance, Transfer of Risk, Acceptance
We are entitled to make partial deliveries and provide partial services if this is reasonable for the customer; the reasonableness is given in particular if the partial delivery/service is usable for the customer within the scope of the contractual purpose, the provision of the remaining delivery/service is ensured and the customer does not incur any significant additional expenditure or additional costs as a result (unless we agree to bear these costs).
Unless otherwise agreed, our deliveries shall be made ex works Mannheim in accordance with Incoterms 2020.
In the case of work performances, the risk shall pass to the customer upon their acceptance.
If the delivery or acceptance is delayed or does not take place as a result of circumstances which
are not attributable to us, the risk shall pass to the customer from the day of notification of readiness for delivery or acceptance. We undertake to take out insurance policies requested by the customer in writing at the customer's expense.
Notwithstanding its rights under Section VIII, the customer may not refuse acceptance of services in the event of non-substantial defects.
IV. Retention of title
The ownership of delivery items shall not pass to the customer until they have been paid for in full.
If the validity of the retention of title in the country of destination is subject to special prerequisites or special formal requirements, the customer must inform us of this in writing without delay and ensure that these are met.
The customer may not pledge, sell or assign the delivery item as security before the transfer of ownership. In the event of seizure or confiscation or other dispositions by third parties, the customer shall draw attention to our ownership and notify us immediately in writing (and verbally in advance).
In the event of conduct by the customer in breach of contract, in particular default of payment, we shall be entitled to take back the goods after issuing a reminder. The customer shall be obliged to surrender the goods. The assertion of our right of retention of title or the taking back of the object of purchase by us shall constitute a withdrawal from the contract.
An application for the opening of insolvency proceedings on the assets of the customer shall entitle us to withdraw from the contract and to demand the immediate return of the object of delivery.
If the customer has its registered office in the Federal Republic of Germany, the following shall apply in addition: a. Notwithstanding Section IV.1, we retain title to the delivery items until all our claims against the customer arising from the current business relationship have been satisfied. b. In deviation from section IV.2, the customer is entitled to resell or process delivery items subject to retention of title in the ordinary course of business under the following conditions: He shall resell the delivery items subject to retention of title if the delivery items are not immediately paid for in full by the third party purchaser. The right to resell shall lapse if the customer is in default of payment. Upon conclusion of the contract, the customer shall assign to us all claims arising from a resale or any other legal reason. In the event that co-ownership arises, the assignment shall only include the share of the claim corresponding to our co-ownership.
The customer shall remain authorised to collect the claims assigned to us even after the assignment as long as he meets his payment obligations towards us in accordance with the contract. We may at any time demand that the customer informs us of the assigned claims and their debtors. In such cases, the customer shall provide us with all information required for collection, hand over the documents required for this purpose and inform the debtor of the assignment.
The processing of goods subject to retention of title shall always be carried out by the customer on our behalf. If the reserved goods are mixed, blended, combined or processed with other items not owned by us, we shall acquire (co-)ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing. If our goods are mixed, blended, combined or processed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, it shall be deemed agreed that the customer transfers ownership to us on a pro rata basis insofar as the main object belongs to him. The customer shall keep the property or co-property for us. For the rest, the same shall apply to the object created by mixing, blending, combining or processing as to the goods subject to retention of title.
We undertake to release the securities to which we are entitled to the extent that their invoice value exceeds our outstanding (residual) claims by more than 10%, not only temporarily.
VI. Delays in performance.
If we are in default and the customer suffers damage as a result, he shall be entitled to claim a lump-sum compensation for the delay. This compensation for delay shall amount to 0.5 per cent for each full week of delay, but not more than a total of 5 per cent of the value of that part of the overall performance which cannot be used on time or in accordance with the contract as a result of the delay.
The customer shall be entitled to withdraw from the contract within the framework of the statutory provisions if - taking into account the statutory exceptions - a reasonable period of grace set for us to perform the service during our delay expires to no avail. Upon our written request, the customer shall inform us within a reasonable period of time whether it is exercising its right of withdrawal in this respect.
Further claims arising from default in delivery shall be determined exclusively in accordance with Section IX.
Our work performances shall be deemed to have been accepted 2 weeks after our notification of readiness for acceptance, unless the customer notifies us in writing within this period of any significant defects.
The customer shall only be entitled to refuse acceptance if the defect nullifies or significantly reduces the normal and/or contractually required use of the work and/or its value. If the work has defects which do not entitle the customer to refuse acceptance, acceptance shall take place subject to rectification of the defect.
Rejections of acceptance or reservations against acceptance must be made in writing without delay, stating and describing the defect complained of.
The use of the object of delivery and performance by the customer for commercial purposes shall be deemed to be acceptance.
VIII. Claims for defects
In the event of material defects and defects of title, the customer shall have the following claims for defects: a. Claims for defects on the part of the customer presuppose that he has duly complied with his obligations to inspect and give notice of defects owed in accordance with § 377 of the German Commercial Code (HGB). b. At our discretion, we shall deliver a defect-free item or remedy defects if the delivery item was already demonstrably defective at the time of transfer of risk in accordance with Section III. The customer must give notice of defects without delay and report them in writing, stating and describing the defect complained of. c. Claims for defects do not arise as a result of causes that do not fall within our area of responsibility, such as: Natural wear and tear, excessive use, improper interventions on the part of the customer or third parties, incomplete or incorrect information by the customer, unsuitable or improper use, incorrect or negligent handling, chemical, electrochemical or electrical influences, changes made to the delivery item without our consent. d. The customer must grant us the time and opportunity required for subsequent performance. If we are not given this opportunity, we shall not be liable for the resulting consequences. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by a third party and to demand reimbursement of the necessary expenses from us. e. In the event of rectification, we shall bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the delivery item has been taken to a place other than the place of performance. f. If a reasonable deadline set for us for subsequent performance due to a defect expires fruitlessly, the customer - taking into account the statutory exceptions - shall be entitled to withdraw from the contract. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the contract price. The right to a reduction of the contract price shall otherwise remain excluded. g. If the use of the delivery item leads to an infringement of property rights or copyrights within the periods specified in Section XII., we shall in principle procure the right for the customer to continue using the delivery item or modify it in such a way that the infringement of property rights or copyrights no longer exists. h. If this is not possible under economically reasonable conditions or within a reasonable period of time, the parties shall be entitled to withdraw from the contract. Within the time limits, we shall indemnify the customer against undisputed or legally established claims of the holders of the property rights concerned. i. Our obligations set out in section VIII.1.g. are final subject to section IX. in the event of infringement of industrial property rights or copyrights. j. The customer shall only be entitled to subsequent performance due to infringement of industrial property rights or copyrights if the customer informs us immediately in writing, stating and describing the asserted infringements of industrial property rights or copyrights, the customer supports us to a reasonable extent in the defence against the asserted claims or enables us to carry out the modification measures in accordance with Section VIII.1..h, all defence measures, including out-of-court settlements, are reserved for us, the infringement of property rights or copyrights is not based on an instruction or specification of the customer, the infringement of property rights or copyrights was not caused by the fact that the customer modified the delivery item without authorisation or used it in a manner not in accordance with the contract.
All further claims for defects (in particular for compensation for damage that has not occurred to the delivery item itself) shall be determined exclusively in accordance with Sections IX.
Used delivery items are sold to the exclusion of liability for material defects. This exclusion shall not apply to claims for damages arising from liability for material defects which are based on a grossly negligent or intentional breach of obligations on our part as well as in the case of injury to life, limb and health.
(1) We shall be liable, also in the case of damages due to breach of duty during contract negotiations, irrespective of the legal grounds (in particular also for compensation for damages which have not occurred to the delivery item itself), exclusively in the case of:
- gross negligence on the part of the executive bodies or senior employees, - culpable injury to life, limb or health, - defects which we have fraudulently concealed, - breach of a guarantee of quality, - personal injury or damage to property insofar as liability is to be assumed under the Product Liability Act in respect of privately used objects. 2. In the event of culpable breach of material contractual obligations, we shall also be liable for gross negligence on the part of non-executive employees and for slight negligence on the part of executive bodies or executive employees. In the event of slight negligence, liability shall be limited to reasonably foreseeable damage typical of the contract. 3. 3. in the case of all compensation payments, in particular the amount of compensation, the economic circumstances of the contractual partners, the type, scope and duration of the business relationship as well as the value of the goods shall be taken into account appropriately. 4. any further liability - for whatever legal reasons -, in particular also for compensation for damages that have not occurred to the delivery item itself, is excluded.
All taxes, fees and duties in connection with the delivery or service outside the Federal Republic of Germany shall be borne by the customer and, if applicable, reimbursed to us.
Personal data shall be stored by us in compliance with the statutory provisions.
The customer shall, at its own expense, procure the permits and/or export and import papers required for its use of the products.
The place of performance and fulfilment for the customer's obligations towards us shall be our registered office.
XII. Applicable law, place of jurisdiction
If the customer has its registered office within the Federal Republic of Germany, the exclusive place of jurisdiction - also for actions in proceedings involving documents and bills of exchange -t if the customer is a merchant, a legal entity under public law or a special fund under public law, shall be our registered office for both contracting parties and for all present and future claims arising from the business relationship. However, we shall also be entitled, at our discretion, to bring an action at the customer's place of business.
If the customer's place of business is outside the Federal Republic of Germany, the following shall apply: All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be our place of business. The language of the arbitration proceedings shall be German.
The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG)