Terms and Conditions

1. General: The following terms and conditions apply for all orders from customers who act as entrepreneurs while exercising their commercial or self-employed professional work. After they are incorporated for the first time, they shall also apply in the future without any explicit reference for all agreements, deliveries and other performances, including advisory services, insofar as they are not amended or excluded with our explicit consent.
These terms have exclusive validity. Any deviating terms of the customer's which we do not explicitly recognize are not binding for us, even if we do not explicitly object to them.
Amendments and supplements must be effected by the management. Oral agreements and declarations of other individuals who are not specifically authorized by us to make these are only effective if they are confirmed by our management.

2. Offer and conclusion of agreement: Offers are without engagement. The documents forming part of the offer such as catalogues or brochures and illustrations, drawings and specifications are only approximate descriptions unless agreed otherwise. Optical and technical changes by the manufacturer and printing errors or writing errors are reserved
Insofar as members of the sales staff or commercial agents make side agreements or warrantees that deviate from these terms and go beyond the normal properties of the delivery items, these always require written confirmation from our management.
The customer's oral order or order in writing or in text form which we receive is a binding offer for the conclusion of a purchase agreement. The supply agreement shall not be deemed concluded until the order that was placed is confirmed by us in writing or immediately dispatched. Our written order confirmation is decisive for the delivery.

3. Contract documents and tools: We retain ownership of any cost estimates, drawings and other documents which we have made available to the orderer. Our copyrights continue to be valid. Such documents may not be made available to third parties. They shall be returned to us immediately without prompting if the order is not placed.
We retain ownership of tools and devices for which we charge proportionate tool costs. We undertake to use these exclusively for the orderer's orders. If no follow-up order is placed within 5 years of the last delivery and if no other agreements were made, we are entitled to dispose otherwise of the tools or devices or destroy them.

4. Risk of procurement, security deposit, contemporaneous performance: We do not assume any risk of procurement. We are entitled to withdraw from the agreement, insofar as we do not receive the delivery item despite the prior conclusion of a corresponding purchase agreement on our part; this shall not affect the responsibility for intention or negligence. We will inform the customer immediately if the delivery item is not available in time and, if we wish to withdraw, we will exercise the right of withdrawal immediately; in the event of withdrawal, we will immediately reimburse the customer for the counter performance that was received.
After the conclusion of the agreement and prior to delivery of the goods, we are entitled to demand contemporaneous performance or an appropriate security deposit at our discretion if we find out subsequently that there was already doubt as to the customer's creditworthiness at the time of the conclusion of the agreement and if such doubt continues to persist. If the customer refuses contemporaneous performance or the security deposit as demanded, we are entitled to withdraw from the agreement in full or in part. This shall also apply for a statutory assumption of liabilities if there is doubt as to the creditworthiness of the new debtor.

5. Scope of delivery: Partial deliveries are permissible within measure. We reserve any excess deliveries or short deliveries of up to 10% of the order quantity for special productions, insofar as the change is such that the orderer can reasonably be expected to accept it or an amount tolerance that is customary in commercial practice.

6. Periods of delivery: Any periods of delivery that are stated shall always be deemed to be merely approximate and without engagement. Binding delivery dates can only be declared orally if they are stated by our management or another agent that has been authorized in writing by the management. Binding delivery dates in text format must contain the explicit addition, "binding". Call orders must be placed in text format. Delivery dates that are agreed bindingly begin at the earliest when all of the documents to be furnished by the customer have been received and when all of the required duties to cooperate have been complied with.
If we default in delivery, the customer can only withdraw from the agreement for this reason if it set us a reasonable grace period that was not met. A period of 4 weeks is generally reasonable.
Delivery dates which are binding or have been set with legal effectiveness and grace periods are automatically extended by a reasonable period in cases of force majeure and all unforeseen obstacles occurring after the conclusion of the agreement, for which we are not responsible and insofar as such obstacles are proven to have a significant influence on the delivery of the sold items. This also applies if these circumstances occur at our suppliers' and their subsuppliers'. We will notify the customer of the beginning and end of such obstacles as soon as possible.
As soon as the customer defaults in payment from this delivery or another one, we are entitled to retain every further delivery or partial delivery until all unsettled invoices from the business relationship have been paid.

7. Delivery and passing of the risk: Delivery is ex works or ex warehouse and at the customer's risk. The risk passes to the customer upon the transfer of the goods to the carrier. Deviating agreements must be recorded separately in our order confirmation or be made orally with our manager or an agent who has been authorized in writing by the manager.
We will assume packaging of the goods for the customer on its behalf. The customer shall bear the costs of packaging and disposal of the packaging.
Unless agreed otherwise, the channel and means of delivery are up to our discretion. Insurance of the goods shall be upon the customer's request and at its own cost. If delivery is delayed upon the customer's request or due to the customer's fault, the goods will be stored at the customer's cost and risk, in which case notice of readiness for delivery is equivalent to transfer to the carrier.
Deliveries to first-time customers may be made by collect on delivery.
We will invoice for costs incurred by us for consignments sent to us collect/forward, provided they are not due to a correction of defect and that we did not request to have the consignment sent collect/forward as a result.
 

8. Prices and payment: The prices we quote are without engagement and apply net plus the value-added tax and shipping costs, which are charged extra, as valid on the day of invoicing. In the event of long-term delivery times of more than 4 months, we reserve the right to adjust prices in case the costs of labor and materials change between the time of order confirmation and delivery or readiness for delivery. All additional costs, particularly those for freight, insurance, etc., are charged to the customer.
Our invoices are due for payment immediately. If a term of payment is stated in the invoice, this does not extend the deadline for payment. In the case of first-time customers or if collect on delivery is agreed, the recipient of the consignment must pay the respective collect on delivery fee.
The customer can only offset with claims that are undisputed or have been determined as legally binding. In the event of defects, the customer is not entitled to a right of retention, insofar as this is not proportionate to the defects and the expected costs of subsequent fulfillment.

9. Retention of title: The goods delivered remain our property and are deemed conditional goods until all claims, which we are entitled to against the customer now or in future, have been settled, this being inclusive of all current account balance claims. The foregoing also applies if we included individual claims or all claims in one current account and the account was balanced and such balance recognized.
If important contractual duties are violated, particularly if default in payment occurs, we are entitled to redeem the goods following withdrawal and the customer is obligated to surrender possession of the conditional goods. The customer must irrevocably permit us or an agent who has been authorized by us to enter the premises where the conditional goods are stored for this purpose, and also for the purpose of safeguarding the goods. Until they are surrendered, the customer must store the conditional goods separately from other goods, label them as our property or jointly owned property, refrain from disposing of same in any way, shape or form and provide us with an index of our property or jointly owned property. After redeeming the goods, we are entitled to sell or auction off the goods by private contract without setting a deadline prior to doing so. Redemption of the conditional goods shall be at the proceeds achieved, but no higher than the agreed delivery prices. Further claims to compensation for damages, particularly lost profits, are reserved.
The customer is obligated to insure the goods against the risk of fire and theft and to provide evidence of the insurance coverage to the seller upon request. All claims against the insurance company arising from this agreement with regard to the goods delivered subject to retention of title shall be deemed assigned to us.
In the case of distraint or other interventions by third parties, the customer must notify us in writing by sending an attachment protocol and a statement in lieu of an oath regarding the identity of the attached object.
We engage to release the guarantees, which we are entitled to, upon request if their value exceeds the claims to be guaranteed by more than 20%.

10. Resale, reprocessing of the conditional goods: The customer is entitled to resell the conditional goods in the course of ordinary business transactions subject to the condition that the accounts receivable from the resale pass to us as follows:
The customer already assigns all accounts receivable including ancillary rights to us now, which accrue to the customer from the resale against the buyer or against third parties, with this applying irrespectively of whether the conditional goods are sold without processing or after processing. We accept the assignment. The customer is authorized to collect these accounts receivable after the assignment as well. We undertake to not collect the accounts receivable as long as the customer meets its payment obligations properly. Upon our request, the customer is obligated to inform its buyers about the assignment and to provide us with the information required to assert our rights against its buyers, and to also hand over the necessary documents.
If the goods are resold together with other goods that do not belong to us, the customer's claim against its buyers shall be deemed assigned to the amount of the delivery price agreed between the customer and us. Processing and finishing of the conditional goods shall be effected for as the manufacturer within the meaning of Section 950 German Civil Code, BGB, with no commitment on our part. If the conditional goods are processed with other items that don't belong to us, or mixed with same inseparably, we acquire joint ownership of the new item If the conditional goods are processed with other items that don't belong to us or mixed with same inseparably, we acquire joint ownership of the new item to an amount equal to the invoice value of the conditional goods in proportion to the invoice value of the other goods used at the time of processing or mixing. The joint property rights resulting from the foregoing are deemed conditional goods within the meaning of these terms.
If the goods we deliver are combined or mixed with other movable objects to produce a single item, and if the other item must be considered the principal item, it is deemed agreed that the customer shall assign proportionate joint property to us, insofar as it owns the principal item. Beyond this, the same as for the conditional goods under Item 7 of these General Terms and Conditions shall apply for the item resulting from processing, combining and mixing.

11. Liability for defects:  The warranty period is 12 months. The absence of a property to be agreed or the unsuitability for an expected use shall only be deemed a defect if we explicitly confirmed the presence or the suitability in writing when the agreement was concluded. Obvious defects of the object delivered, missing manuals or other documents must be reported in writing within 4 weeks after the delivery is received. After that, the product will be deemed approved in view of the defect.
Defects will be remedied by reworking or delivery of a replacement within a reasonable period of time. In the event of delivery of a replacement, the buyer must return the defective product. In the event of reworking, we are obligated to bear all of the expenses required to remedy the defect(s), in particular, costs of transport, travel, labor and materials, insofar as these do no increase because the product was taken to a place other than the place of fulfillment.
If it turns out that the complaint about a defect was unjustified, in particular, that the product complies with the specification we have selected or that the defect is due to improper use or handling by the customer, we reserve the right to charge the customer a processing fee to the amount of €75 for the expenses incurred (costs of analysis, among others).

12. Limitation of liability: In cases of harm to life or health or bodily harm and cases subject to the product liability law and if we, our vicarious agents or representatives intentionally violated a duty, we are absolutely liable in accordance with the statutory provisions. In all other cases, our liability is limited to damage which might typically occur under the agreement and foreseeable damage. Insofar as we, our vicarious agents or representatives can be accused of slightly negligent violation of duty, we are only liable for the damage which might typically occur under the agreement and foreseeable damage if significant contractual duties were violated.
Liability for damages to the customer's legal goods as a result of the delivery item, e.g. damage to other items, is fully excluded. This does not apply in cases of intention or gross negligence or in cases of liability due to harm to life or health or bodily harm.
No change in the burden of proof to the customer's disadvantage is linked to the foregoing provisions.

© 01.06.2011 maxon motor gmbh, Munich