of Trade for Goods and Services Supplied by CSM Computer Systeme Messtechnik GmbH
Version dated July 1, 2010
This is a translation of the German version. In cases of doubt, the German version shall prevail.
I. Validity of these terms
- With the exception of alternative agreements concluded in individual cases, contracts with us are concluded solely on the terms given below. On placing his order, the customer declares his acceptance of our terms. We shall only be bound by alternative or contradictory terms proposed by the customer if we have expressly accepted these in writing. Our terms shall also apply in cases where we supply our goods or services without reservation despite being cognizant of alternative terms.
- These General Terms of Trade shall apply to all goods and services supplied by us and to all contractual obligations which it is our duty to fulfil. In cases where contracts are concluded with companies or legal entities under public law, our terms shall also apply to all future business transacted with those companies or public entities.
II. Conclusion of / amendments to the contract
- A contract shall only be deemed to have been concluded with us once the customer has accepted our non-binding offer without reservation, once he has received our written order confirmation or once we begin filling the order for goods or services. Should we issue a written order confirmation, this shall be authoritative as regards the content and scope of the contract insofar as no other express agreement has been made.
- Amendments, additions, ancillary agreements and any quality agreements or guarantees shall only be valid if they have been expressly agreed in writing.
III. Order execution
- Insofar as no alternative agreement has been expressly concluded, the goods to be delivered or services to be rendered are only obliged to comply with the properties, technical data etc. expressly agreed in the contract. These shall only constitute guarantees if we expressly state our intention to accept responsibility for them regardless of liability.
We reserve the right to deviate from the technical and design specifications and information provided in our brochures, catalogues and similar sales documents and to exchange products/parts for products/parts of the same or superior quality while excluding any customer entitlements arising from such amendments. This information and these specifications do not constitute warranty statements; neither do advertising messages. Insofar as statutory legislation does not dictate otherwise, we shall only be obliged to render consulting services insofar as these comprise a major contractual obligation.
- Unless expressly agreed otherwise, software updates and upgrades are not included with any software supplied.
- The customer shall give us all information necessary for the supply of our goods and/or services in writing. We are not obliged to check that the data, information or other material provided by the customer is correct and complete. Insofar as work is to be carried out on the customer’s premises, the necessary workplaces and tools shall be placed at our disposal free of charge.
- Should we be required to do any work outside our premises, the customer shall undertake to implement all measures necessary to fulfil his duty of care insofar as the nature of the matter or any alternative agreement with the customer does not dictate otherwise. We are entitled to refuse supply of our goods and/or services until the necessary precautionary measures are in place.
- Irrespective of our continuing responsibility for the fulfilment of contractually agreed services, we are unreservedly entitled to call in third parties to assist in executing the contract. Should staff whose deployment was agreed contractually be prevented from rendering their services for reasons which are outside the scope of our responsibility, we may deploy other suitable staff in their place.
IV. Customer’s duty of cooperation when receiving development, manufacturing and consulting services
- The success of development projects depends on close, regular cooperation between the customer and ourselves. The contractual parties therefore herewith agree to show mutual consideration, to provide immediate, detailed information and to issue precautionary warnings to protect themselves from disruptive influences, also from external sources.
- The customer shall undertake the major contractual obligation of ensuring that all cooperative services are rendered and supplies obtained in the necessary quality and by the deadlines agreed and/or essential for realisation of the project on our behalf without any additional expense being incurred by us. Insofar as this is essential to the success of the project, the customer shall in particular place sufficient personnel and a competent contact at our disposal for the entire duration of the project. Should the requirement specifications or any other part of the contract describe conditions to be fulfilled by external systems operated by the customer or by any third party, the customer shall guarantee that these conditions are fulfilled.
- Should any of the customer’s information or documents turn out to be erroneous, incomplete, ambiguous or objectively impracticable, he shall make the necessary amendments/additions immediately after receiving corresponding notification from us. The customer shall immediately remedy any defects or malfunctions in the components provided by him or cause them to be remedied immediately after receiving notification of the defect or malfunction from us.
V. Rights of use
- Irrespective of the scope of the rights transferred to the customer, we shall in all cases be authorised to use ideas, concepts, expertise etc. developed and acquired while executing the order for other developments and services, also for other customers.
- CSM GmbH holds unlimited copyright to all products and services.
VI. Dates and deadlines
- Information concerning delivery dates or project milestones reached while rendering development services is provided purely for orientation purposes. Dates shall only be binding if they are expressly agreed as such in writing. We shall only be deemed to be in default of performance if the customer previously set a suitable delivery deadline and did not receive his goods or services by that time. In all cases, delivery periods shall only commence once the customer has fulfilled his duty of cooperation and once any agreed down-payment has been received. Subsequent requests for amendment or delays in fulfilling cooperative obligations on the customer’s part shall extend the delivery periods accordingly.
- If the delivery due from us is delayed by unforeseeable circumstances for which we are not responsible (e.g. labour disputes, operational disruptions, transport hindrances, shortage of raw materials, official measures – also affecting our primary suppliers), we shall be entitled to rescind the contract in part or in full or to extend the delivery period for the duration of the hindrance as we choose. Any compensation claims made by the customer shall be excluded in such cases.
- Should the customer fail to meet part or all of his cooperative or supply obligations, any performance deadlines thus affected shall cease to be valid; we shall not be deemed to be in default in such cases. Should the customer fail to fulfil his obligations after receiving a reminder, we shall be entitled to claim compensation to cover damages and any extra expense incurred by us. In such a case, the risk of accidental destruction or deterioration of the item to be delivered shall pass to the customer at the time at which he defaults on acceptance. Should the customer fail to fulfil these obligations within the deadline set in a second reminder, we shall also be entitled to rescind the contract without notice. In such a case, we shall be entitled to claim compensation and remuneration to at least the amount inferable from § 645 German Civil Code (BGB); this shall not affect any other claims to which we are entitled. We shall also be entitled to assert these rights in the event of the delay rendering us unable to complete the project within an appropriate period or without incurring significantly greater expense, e.g. because of obligations towards other customers.
- Should a delay arise for reasons for which we are responsible, or should it become impossible for us to fulfil our duty of performance pursuant to § 275 par. 1 BGB for reasons for which we are responsible, or should we refuse performance pursuant to § 275 par. 2 and 3 BGB, we shall only be held liable as regulated by law, subject to the liability limitations defined in section XI of these terms, which shall remain unaffected hereby.
- We shall not accept order cancellations relating to customer-specific products (e.g. equipment, components, software consulting) or products procured or manufactured by us solely on the customer’s behalf. The customer shall in any case undertake to compensate us for our effort and/or reimburse any expenses incurred by us. Cancellations relating to orders of standard products in our warehouse inventory must be accepted by us in writing. In any case, we reserve the right to charge the customer a cancellation fee. The execution of orders of warehouse goods is subject to prior sale.
- Postponements made by the customer within the context of general orders comprising agreed sub-quantities available on call shall only be accepted within the maximum term agreed, usually 12 months from receipt of order. Once this period has expired, we shall be unreservedly entitled to deliver all remaining quantities.
- Partial deliveries to customers are only admissible in to a reasonable extent.
VII. Transfer of risk
- The risk of accidental destruction or deterioration of the item to be delivered shall pass to the customer at the time of dispatch even if we are paying delivery charges or other services or if a partial delivery is being made. Please refer to section VI.3. sentence 3 of these Terms.
- The customer is obliged to accept our deliveries in cases where acceptance is necessary. Minor defects which do not seriously affect the suitability of the goods for their contractually agreed purpose shall not entitle the customer to refuse acceptance, notwithstanding his right to assert statutory claims for damages.
- The goods shall be deemed to have been accepted if
- the customer refuses to declare acceptance in contravention of paragraph 1 above or refuses to participate in a joint acceptance inspection despite having been requested to do so in due time, or
- the customer fails to provide a written declaration of acceptance immediately after the joint acceptance inspection despite being requested to do so by us within seven working days, insofar as the customer does not specify the defects causing him to refuse acceptance within this deadline.
- In cases of self-contained partial deliveries, we shall be entitled to partial acceptances.
- Intellectual services shall be deemed to have been accepted insofar as the customer does not expressly state his objections within 14 days of the services being rendered, hereby providing concrete examples. We shall examine our services in the case of such objections being made. Should such an objection turn out to be unjustified, the customer shall bear the costs incurred.
IX. Prices and payment
- The prices given by us are definitive and exclude statutory value added tax where this is due. Insofar as no alternative agreement has been made, we are also entitled to reimbursement of our expenses along with payment of the remuneration agreed.
- In cases where an hourly or daily pay rate has been agreed, the price list valid at the time the services were rendered shall apply subject to any other agreement reached in individual cases.
- Our invoices shall be paid without cash discount or deduction of expenses according to the payment plan agreed; in other cases, they shall be paid within 30 working days of the invoice date. In individual cases where payment by cheque has been expressly agreed, cheques shall only be accepted on account of payment and likewise without cash discount. Any discounting expenses shall be borne by the customer. In cases of payment by cheque, payment shall only be deemed to be complete once the respective amounts have been booked to our account without reservation. We reserve the right to request payment in instalments or in advance as appropriate.
- Should several receivables be due to us from the customer, we shall determine which receivable shall be offset by the payment made. The customer shall only be entitled to offset payments if his counterclaims are undisputed, established by force of law or recognised by us in writing. The same shall apply to the assertion of retention rights.
- Should we become cognizant of circumstances after the contract has been concluded which may endanger our claims due from the customer as a result of insufficient performance capacity, we shall be entitled to make outstanding deliveries against advance payment or security only. Should any deadline for such a payment expire without result, we shall be entitled to withdraw from the contract; section VI 3. of these Terms shall apply as appropriate.
- In the event of default on payment, the customer shall be required to pay default interest at the statutory rate insofar as we do not prove that the damage suffered is greater.
- If the net value of the goods is less than EUR 300, we reserve the right to charge a minimum quantity surcharge.
- Pro rata delivery costs including carriage and packaging shall be charged to the customer.
- We reserve the right to set a credit limit or to supply the goods COD or against advance payment at our discretion.
X. Claims for defects
- Should the goods or services supplied by us be defective, the customer shall allow us to render subsequent performance within an appropriate deadline except for specific cases in which the customer may not be reasonably expected to accept subsequent performance or if special circumstances exist which when taking the interests of both parties into account justify immediate withdrawal from the contract. We are entitled to choose whether to remedy the defect or replace the defective item in all cases.
- In the case of standard products from external suppliers for which we merely facilitated the conclusion of a contract with the external suppler (section V.1. sentence 4 of these Terms), the customer’s claims for defects shall be directed solely to the external supplier; this shall also apply if the external supplier breaches third-party protection rights.
- The customer shall undertake to inspect the item delivered for obvious defects which the average customer would immediately notice. The customer shall notify us of obvious defects such as missing components or documentation and instantly recognisable damage in writing within one week of receipt of the goods. The customer must notify us in writing of defects which are detected later but before the expiry of the claim limitation period within one week of discovery. If the customer fails to carry out his duty of inspection and notification, the item delivered shall be deemed to have been accepted in consideration of the defect in question.
- Claims for defects must be lodged by the customer in writing; the claim shall list all recognized defects as well as describing the circumstances in which these were discovered. Any defect described by the customer is deemed not to exist if it cannot be reproduced. Should the customer have made changes to any components, hardware and software supplied, he shall only be entitled to assert claims for defects if he can prove that the defect was not caused by these changes.
- Should it turn out that a defect described by the customer does not exist, in particular if it cannot be reproduced, we shall be entitled to charge a suitable fee as compensation for our efforts.
- Should our subsequent performance be unsuccessful, if it is refused by us or if the customer cannot be reasonably be expected to accept it, he shall be entitled to assert other statutory claims (withdrawal, reduction, rectification on his own account, compensation or reimbursement of expenses incurred in vain). Compensation claims may only be asserted in compliance with section XI of these Terms.
- Should the defect deviate only slightly from an agreed property, the customer shall only be entitled to subsequent performance or an appropriate price reduction at our discretion. Should no such property have been agreed, the same shall apply in cases where only a minor influence is exerted on the item’s suitability for the purpose predefined in the contract and which is otherwise customary for goods of the same nature and which the customer can expect from the nature of the goods.
- In the case of repairs or complaints, the customer shall have the products returned to us at his own expense.
- Every product return will be treated like a repair request insofar as the delivery documents do not specifically prescribe otherwise. If the measures to be performed are not covered by the warranty, the customer shall bear the cost of the services rendered. These shall also include the expense incurred by checking and logging the goods on receipt and by processing the respective complaint, particularly if it is not based on a product defect.
- Should the customer require a quotation, he shall bear the expense incurred by the issue thereof. If after receiving the quotation the customer decides not to have the measures implemented, the seller shall not be obliged to restore the product to the condition it was in when he received it.
XI. Liability and withdrawal
- We shall only be liable to pay compensation pursuant to the following regulations:
- in cases of wilful misconduct or gross neglect
- in cases where major contractual obligations are proved to have been culpably breached
The amount of compensation which we are obliged to pay is limited to the foreseeable damage typical for this type of contract; in any case, compensation for pecuniary loss is limited to max. € 50,000 in each case or, if the item supplied is a licensed program, to the amount of the one-off license fee or fee for 12 months of use. All other liability for physical and pecuniary damage is herewith excluded. Our product liability and liability for personal injury pursuant to the currently valid statutory regulations shall not be affected by the liability regulations given above.
- Insofar as our liability for compensation is excluded or limited as per the regulations above, this shall also apply to the personal liability of our organs, employees and other personnel, representatives and auxiliaries and to all claims for culpable behaviour during contract negotiations, breaches of minor obligations and tortious acts (§§ 823 ff. BGB), not however to claims pursuant to §§ 1, 4 of the Product Liability Act (ProdHaftG).
- The customer’s right to withdraw from the contract due to a breach of obligation for which we are not responsible or due to a defective purchase or defective work is herewith excluded.
- In order to prevent damage, the customer shall undertake to provide all persons assigned to commission and use the products and services with adequate training and to ensure that they receive and understand all available information and user instructions. Should it become apparent that use of the products or services supplied has already inflicted damage or that the further use thereof could inflict damage, the customer shall immediately desist from using the item in question; all users of similar products or services shall be informed accordingly. If this instruction is not followed with due care, all liability and compensation claims shall be refused.
- Should the customer sell on our goods either in part or in full, he shall ensure that all essential information is passed on to the purchaser as described above.
XII. Warranty and limitation period
- Except for specific cases in which alternative agreements have been expressly made in writing, the products and services supplied shall be covered by warranty for a period of 12 months.
- Claims for defects lodged by the customer shall expire one year after the beginning of the statutory limitation period. This does not apply to claims asserted pursuant to §§ 438 par. 1 no. 1, 2; 634a par. 1 no. 2 BGB.
XIII. Retention of title
All items delivered shall remain our sole property until the purchase price has been paid in full, in the case of companies until all receivables associated with the business connection have been settled. The customer is forbidden to pledge the goods, assign them as security or realise them in any other way unless the acquisition was made solely for the purpose of further sale. In such a case, the customer is entitled to sell on the privileged goods in his own name as part of an orderly business transaction as long as he is not in default of payment with us and no assignment prohibition exists between the customer and his purchasers; this entitlement may be revoked. The customer shall declare our retention of title when selling on the goods to his customers as part of an orderly business transaction, or shall in turn declare his retention of the title to the goods.
XIV. Place of fulfilment and assignment prohibition
- The place of fulfilment for the supply of all goods and services is Filderstadt.
- The assignment of claims due to us from our business relationship with the customer is prohibited.
XV. Place of jurisdiction and applicable law
- The place of jurisdiction for all claims arising from business connections with traders or legal entities under public law is Stuttgart. The same shall apply to claims from cheques and to tort claims and third-party notices. However, we are also entitled to initiate legal proceedings against the customer in any other legally competent court.
- In the case of goods and service being delivered internationally, the sole place of jurisdiction for all disputes associated with the contractual relationship is Stuttgart (Article 23 of the Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters or Article 17 of the European Convention on Jurisdiction and the Enforcement of Judgments). However, we reserve the right to initiate legal proceedings against the customer at his general place of jurisdiction or to appeal to any other court deemed competent according to the EC regulations mentioned above.
- The law of the Federal Republic of Germany shall find sole application for all business and legal transactions between the customer and ourselves; the application of the United Nations Convention on Contracts for the International Sales of Goods (CISG) is herewith excluded.
XVI. Final provisions
- Should any of the terms given above be or become invalid, this shall not affect the validity of the other terms. The invalid terms shall be replaced by terms serving the commercial purpose of the contract as closely as possible while protecting the interests of both parties.
- All earlier versions of our General Terms of Trade for Goods and Services are herewith rescinded.
(This is a translation of the German version. In cases of doubt, the German version shall prevail)