Legal notice:GENERAL TERMS AND CONDITIONS
Section 1. General / Scope of application
1. Only TeraTron’s terms and conditions contained hereinafter shall apply; TeraTron shall not recognise any terms and conditions laid down by the purchaser which are contradictory to or divergent from TeraTron’s terms and conditions, except where TeraTron has provided express agreement in writing to their validity. These TeraTron sales terms shall also apply in the event that TeraTron without reservation carries out a delivery to the purchaser in the knowledge that the purchaser’s sales terms contradict or diverge from those of TeraTron.
2. All agreements between TeraTron and the purchaser shall be set down in writing.
3. TeraTron’s sales terms shall apply only to companies, in the sense of section 310 of the German Civil Code.
Section 2. Acceptance of orders
All orders for goods must be undertaken by a properly authorised representative of TeraTron in writing.
Section 3. Withdrawal from the contract / cancellation of orders
Orders accepted by TeraTron may not be unilaterally cancelled by the purchaser, but instead only following written approval / agreement by TeraTron, irrespective of the reason of cancellation or withdrawal and without qualification of TeraTron’s rights to or claims for damage compensation. The purchaser is free to prove that less damage has been caused to TeraTron. TeraTron is free to claim for greater damage.
Special orders for goods that are not usually held in storage may not be cancelled or withdrawn.
Section 4. Prices and payment conditions
1. Inasmuch as the order confirmation does not state otherwise, TeraTron’s prices apply from the legal domicile of TeraTron or from the production or storage location, excluding packaging and shipping costs; these latter will be invoiced separately.
2. Statutory valued-added tax is not included in the prices; it is listed separately on the invoice according to the statutory tax rate on the day of issue of invoice.
3. Rebates require special agreement in writing.
4. The entire gross invoice sum is due within 30 days of date of invoice without offsetting or deductions. In the event that the purchaser falls into arrears of payments, TeraTron shall be entitled to charge default interest at 8% p.a. above the base interest rate charged by the European Central Bank at that time. In the event that TeraTron is able to prove higher damages resulting from payment arrears, TeraTron shall be entitled to claim for such. The purchaser shall, this notwithstanding, be entitled to prove to TeraTron that TeraTron has suffered no damages, or significantly less damage, as a result of payment arrears.
5. Cheques shall only be accepted on condition of their clearing. In the event that a cheque fails to clear, the purchaser shall be obligated to bear all resulting fees including reasonable costs of legal representation. TeraTron can offset all cheques received from the purchaser against the purchaser’s accounts receivable from TeraTron from this or another transaction, notwithstanding any declaration that is provided on a cheque or rendered in connection to a cheque. The acceptance of part payment shall not constitute any waiver on the part of TeraTron of receipt of full payment for all unpaid sums owed by the purchaser to the vendor.
6. TeraTron may refuse to make a delivery to the purchaser on credit at any time. Deliveries made to the purchaser for payment on delivery or similar shall be subject to these terms and conditions.
7. The purchaser may only declare offsetting of payment vis-à-vis TeraTron in the event that his counterclaims are legally proved, undisputed or recognised by TeraTron.
8. Inasmuch as nothing contradictory is agreed, TeraTron shall reserve the right to unilaterally increase the sales price of goods ordered in the event that a rise in the costs for TeraTron of these goods takes effect prior to their despatch from TeraTron’s site. In the event of any increase in price by TeraTron’s supplier, the sales price specified to the purchaser shall be raised by the same percentage by which the costs incurred by TeraTron for the goods have risen.
Section 5. Delivery times and delivery
1. TeraTron shall only be obligated to deliver once all technical questions have been clarified. This presupposes the timely and proper fulfilment of all the agreed obligations and all other obligations of the purchaser.
2. In the event of default of acceptance or other breach of duty to cooperate on the part of the purchaser, TeraTron shall be entitled to claim for the resulting damage, including any extra costs arising from such. In this event the risk of accidental omission or accidental deterioration of the purchased article shall transfer to the purchaser at the point in time that default of acceptance commences.
3. TeraTron shall not be liable for delay in delivery or performance insofar as TeraTron is not responsible for the cause thereof. Such causes comprise without qualification force majeur, the purchaser’s actions or omissions, or those of civil and military authorities, fire, strikes, epidemics, quarantine rules, floods, earthquakes, civil unrest, war, transport delays, etc. or the impossibility of obtaining labour, material or fuel. In the event of delay of delivery, any contractually agreed delivery date shall be extended by the period of time which corresponds to this delay after which TeraTron becomes liable for compensation or contractual penalties.
4. TeraTron shall be entitled to refuse to deliver or to delay delivery in the event that the purchaser does not make due payment promptly to TeraTron, irrespective of whether this results from the same contractual relationship with TeraTron or from another.
5. TeraTron can deliver these goods to which the above condition applies at any time within the term stipulated in the respective order, or in a number of part deliveries.
6. All prices specified and goods delivered are understood as free on board from the domicile of TeraTron or from the product or storage location . This means that in particular the legal regulation of mail orders shall apply pursuant to section 447 of the German Civil Code. This means that the purchaser from this time onwards shall bear all costs and risks of loss or damage. The rights to the goods and the risk of loss, of damage and accidental destruction shall transfer to the purchaser on TeraTron handing over the goods to the shipping agent for despatching. Unless TeraTron has given approval in writing for other arrangements, the purchaser shall pay all shipping and despatch costs as well as any insurance payments for despatch of the goods. Insofar the purchaser does not give other instructions, TeraTron itself shall determine the shipping agent, the shipping method and the transport route.
Section 6. Transport insurance
Insofar the purchaser wishes, TeraTron shall take out a transport insurance policy to insure the delivery; the purchaser shall bear any costs thereby incurred.
Section 7. Warranty for defects
1. The purchaser’s warranty rights presuppose fulfilment of the inspection and complaint obligations pursuant to sections 377 and 378 of the German Commercial Code. The goods shall count as accepted by the purchaser insofar that he does not refuse acceptance within an appropriate period of time. This period of time shall comprise 10 days of receipt of goods. No claims shall arise from delay of delivery, unless such are made before receipt of goods. Acceptance shall constitute a waiver of any claim based on delay of delivery. Returned goods shall only be accepted insofar as the corresponding "Return material authorisation" has been collected from TeraTron in advance. The return of goods in their original packaging must comply with the instructions of the office that issued the aforementioned approval. The return of goods with electrostatic packaging will only be accepted insofar as the packaging has not been opened.
2. TeraTron excludes any warranty for the goods sold to the purchaser as well as for any assurances made about their suitability for special purposes. TeraTron agrees to transfer to the purchaser all transferable warranties that TeraTron has received from the producers of the goods sold to the purchaser. Work undertaken by TeraTron to create value correspond to the applicable specifications of the purchaser for such work.
3. Inasmuch as a defect in the sold article exists that is the responsibility of TeraTron, TeraTron shall be entitled to choose between eliminating the defect or replacing the article. In the event of elimination of defects, TeraTron shall be obligated to bear all costs necessary to eliminate the defects, in particular carriage, shipping, labour and material costs, insofar as these do not increase due to the transfer of the purchased object to a location other than the place of performance.
4. Insofar nothing hereafter is otherwise specified, all other claims on the purchaser’s side, whatever the legal basis, shall be excluded. TeraTron shall hereby not be liable for damage that does not affect the object of delivery itself; in particular TeraTron shall not be liable for loss of profits or other damage to the purchaser’s assets. TeraTron shall in no way be liable for collateral or consequential damage.
5. Compensation payable to the purchaser on the basis of a claim on purchaser’s part shall be limited to the purchase price paid for the goods, irrespective of whether the claim is based on the warranty or the contract.
6. The term of warranty comprises 12 months calculated from the date of transfer of risk.
Section 8. Joint liability
1. Further liability arising from damage compensation is excluded, irrespective of the legal nature of the further claims.
2. The above regulation in paragraph 1 shall not apply to claims arising from section 1 and section 4 of the German Product Liability Act. The same shall apply to initial inability to perform or impossibility to perform that is the fault of TeraTron.
3. Where TeraTron’s liability is excluded or restricted, this shall also apply to the personal liability of TeraTron’s employees, workers, staff, representatives and vicarious agents.
Section 9. Retention of title
1. TeraTron shall retain the property title of the purchased item pending receipt of all payments arising from the delivery contract. In the event of breach of contract on the part of the purchaser, in particular in the event of payment arrears, TeraTron shall be entitled to take back the purchased item. TeraTron’s taking back of the purchased article shall not constitute a withdrawal from the contract, except where TeraTron declares such in writing. Any seizure by TeraTron of the purchased article always constitutes a withdrawal from the contract. TeraTron shall be authorised to sell the purchased object following its seizure, and the revenue from the sale shall be offset against the accounts payable by the purchaser, reduced by reasonable costs of sale.
2. The purchaser shall be obligated to take all due care of the purchased article pending full payment.
3. In the event of seizure or other intervention by third parties, the purchaser shall notify TeraTron in writing so that TeraTron can file a lawsuit pursuant to section 771 of the German Code of Civil Procedure (ZPO). Insofar the third party is not able to reimburse TeraTron for the court and non-court expenses of a lawsuit pursuant to section 771 of the ZPO, the purchaser shall be liable for the amount of the resulting shortfall.
4. The purchaser shall be entitled to resell the purchased article in the course of normal business; he shall, however, cede to TeraTron all claims up to the amount of the total invoice sum (including value added tax) that he receives from the resale from the recipient or third parties, irrespective of whether the purchased article has been resold with or without further processing. The purchaser shall remain entitled to collect this claim even after assigning the claim to TeraTron. This shall not affect the right of TeraTron to collect the claim itself. TeraTron shall however undertake not to collect the claim while the purchaser still fulfils his payment obligations according to the terms agreed, is not in arrears of payment and in particular has not filed for bankruptcy or insolvency or ceased payment. Should, however, this be the case, TeraTron may demand that the purchaser makes known to TeraTron the claims assigned and the principals, provides all necessary details for collection, issues TeraTron the relevant documents and notifies the principals (third parties) of the assignment of claim.
5. The processing or remodelling of the purchased article by the purchaser shall always be done for the benefit of TeraTron. If the purchased article is processed together with other objects not belonging to TeraTron, TeraTron shall receive a share in the co-ownership of the new object equivalent to the proportion of the value of the purchased article to the value of the other processed objects at the point that it is processed. Otherwise the same terms apply to the object created through processing as to the purchased article delivered under retention of title.
6. Where the purchased article is irreversibly mixed with other objects not belonging to TeraTron, TeraTron shall obtain a share in the co-ownership of the new object equivalent to the proportion of the value at the point the mixing takes place of the purchased article to the other mixed objects. If the mixing takes place such that the purchaser’s article can be regarded as the main article, then it shall be agreed that the purchaser shall assign to TeraTron a proportional share in the co-ownership. The purchaser thereby retains the resulting sole ownership or co-ownership for TeraTron.
Section 10. Patents, breaches
TeraTron makes no sort of assurance that goods sold to the purchaser are free of legally enforceable third-party claims on the basis of an infringement or breach of a patent or trademark or similar, and it rejects any warranty in the event of such a breach in connection with the goods. The purchaser agrees in the event of a claim based on such a breach to apply only to the producer or licensor of the goods. In addition, the purchaser agrees to protect, defend and indemnify TeraTron against sums, costs, expenses and lawyers’ fees, which arise, or which TeraTron must pay to the supplier, as a result of a claim, a cause of action or verdict, which result from the use, modification or improvement of the goods that the purchaser has acquired, except where such a use, modification or improvement was approved in writing by the producer or licensor of the goods.
Section 11. Assembly and installation
The purchaser is solely responsible for the assembly and installation as well as operation of the goods sold herein, including without qualification the collection of all approvals, licenses or certificates necessary for the assembly and installation as well as the operation of these goods.
Section 12. Technical consulting and data
Any technical consulting offered or provided in connection with use of the goods is a free favour performed towards the purchaser and TeraTron shall hold no responsibility and assumes no liability for the contents or application of such consulting. The purchaser may only use, duplicate or reveal technical data provided or revealed by TeraTron after receiving written approval in advance from the vendor. This excludes assembly and installation, operation and maintenance of goods obtained by he purchaser.
Section 13. Software
Any computer software that is to be delivered to the purchaser by TeraTron shall be provided directly to the purchaser by the owner of the software according to a separate licence agreement or other provisions, or by third parties in the framework of a licence. The purchaser confirms receipt of a separate contract in which the licence is awarded for the software delivered to the purchaser. The purchaser recognises that TeraTron does not constitute a party to such a licence about the provision of software. The purchaser thus agrees to apply directly to the licensor in the event of claims on the basis of maintenance or support, or of injury or warranties, in connection with the software provided to him according to these terms.
Section 14. Vendor’s rights
1. In the event of arrears of payment on the part of the purchaser, the purchaser shall pay all costs incurred by TeraTron in collecting the payments owed by the purchaser. Such shall include reasonable lawyers’ fees and collection charges.
2. Insofar TeraTron waives its rights in the event of a breach of these terms and conditions or of arrears of payment, this shall not constitute a waiver in the event of subsequent breaches and omissions.
Section 15 Agreement and additions to / extension of the agreement
This agreement constitutes the sole and entire agreement between the contracting parties about the subject of the contract and it shall replace all previous or simultaneous written or oral agreements between the parties about this subject. Previous business transactions between the parties or procedures typical for the sector shall not be held decisive for the interpretation or expansion of any provision in this agreement. Acceptance or forbearance in the event of performance of service in the framework of this contract shall not be decisive in determining the meaning of this agreement, even where the accepting or forbearing party knew about the type of service or had the opportunity to object. Any later change to this agreement shall only be binding for TeraTron inasmuch as it is made in writing and signed both by the purchaser and by TeraTron. Transfer of this agreement or of the rights arising therefrom on the part of the purchaser shall only be valid with written agreement from TeraTron.
Section 16. The purchaser’s terms and conditions
1. TeraTron endeavours to serve its customers promptly and efficiently. Correspondingly, TeraTron supplies its goods and performs its services solely according to the terms and conditions set down herein.
2. Fulfilment of contract by TeraTron depends exclusively on agreement on the part of the purchaser to the TeraTron sales conditions, except where TeraTron expressly consents in writing to a different regulation. If such agreement is absent, service and / or delivery shall commence only in the sense of a gesture of goodwill towards the purchaser and such shall not serve as acceptance by TeraTron of one or all of the purchaser’s terms and conditions and shall not be interpreted as such.
3. Where no contract was closed mutually in writing, acceptance of the goods and services shall constitute acceptance of the terms and conditions set down herein.
Section 17. General conditions
1. Applicable law for this agreement and the services to be performed by the parties is the law of the Federal Republic of Germany. The parties hereby expressly exclude the application of the UN Convention on Contracts for the International Sale of Goods and the Hague Convention on the law applicable to the international sale of goods / Uniform Law on the International Sale of Goods. All terms, conditions and agreements shall apply to all legal successors of the purchaser and shall be binding for them.
2. If one provision or a part of this agreement is or becomes invalid, illegal or immoral, or is or becomes impossible to perform, the remaining terms or parts thereof shall remain unaffected thereby.
3. The section headers used herein serve the parties only for the purpose of ordering the services. They do not affect the interpretation of the terms.
4. These terms and conditions were drawn up in German and then translated into English. The English version of these terms and conditions shall serve in principle as the working basis for the parties, but with the proviso that in the event of any dispute between the parties about the interpretation of any term, the German version shall be decisive.
Section 18 Jurisdiction / place of performance
1. Inasmuch as the purchaser is a registered trader, our legal domicile shall determine the jurisdiction; TeraTron is, this notwithstanding, entitled to sue the purchaser at the court of his residential address.
2. Inasmuch as order confirmation does not state otherwise, the legal domicile of TeraTron shall be the place of performance.