General Terms and Conditions
§ 1 General / Scope of application
1. The General Terms and Conditions of TeraTron shall apply exclusively; TeraTron shall not recognise any terms and conditions of the Buyer which conflict with or deviate from TeraTron’s Terms and Conditions of Sale, unless TeraTron has expressly confirmed their validity in writing. TeraTron’s Terms and Conditions of Sale also apply if TeraTron effects delivery to the Buyer without reservation whilst being aware of the Buyer’s terms and conditions that conflict with or differ from its Terms and Conditions of Sale.
2. All agreements which are made between TeraTron and the Buyer are to be set down in writing.
3. TeraTron’s Terms and Conditions of Sale shall only apply for companies within the meaning of section 310 BGB (German Civil Code).
§ 2 Acceptance of orders
All orders for goods must be made in writing by a properly authorised representative of TeraTron.
§ 3 Withdrawal from the agreement / cancellation of orders
Orders accepted by TeraTron cannot be cancelled unilaterally by the Buyer, but rather only with the written approval/consent of TeraTron, regardless of the reason for cancellation or withdrawal, and without restriction of the rights or claims to compensation due to TeraTron. It is up to the Buyer to establish that TeraTron incurred lower damages, and it is up to TeraTron to assert higher damages. Special orders of goods that are not usually in stock cannot be cancelled or reversed.
§ 4 Prices and terms of payment
1. Unless otherwise agreed in the order confirmation, TeraTron’s prices shall apply from TeraTron’s registered office or from the manufacturing or storage site, excluding packaging and transport, which shall be charged separately.
2. Statutory VAT is not included in the prices; it shall be shown separately in the invoice in the statutory amount applicable on the date of invoicing.
3. A special written agreement is required to deduct discounts.
4. The entire gross amount of the invoice is due for payment without offsetting or deductions within 30 days from the invoice date. If the Buyer falls into default of payment, TeraTron is entitled to claim default interest of 8% p.a. above the respective basic interest rate of the European Central Bank. If TeraTron is in a position to prove higher damages caused by the default, TeraTron is entitled to assert a claim for these. However, the Buyer is entitled to prove to TeraTron that no or only very minor damage occurred as a result of the delay in payment.
5. Cheques shall only be accepted subject to their credit entry. In the event of a return debit, the Buyer is obliged to bear all resulting fees including reasonable legal fees. TeraTron can offset all cheques received from the Buyer against debts of the Buyer to TeraTron from this or another transaction, regardless of any declaration on a cheque or which is provided regarding a cheque. Acceptance of a partial payment does not constitute TeraTron’s waiver of total payment of all outstanding amounts by the Buyer to the Seller.
6. TeraTron can decline a delivery to the Buyer on credit at any time. Deliveries that are made to the Buyer against payment on delivery or similar are subject to these Terms and Conditions of Sale.
7. The Buyer can only claim offsetting with respect to TeraTron if its counterclaims have been determined without further legal recourse, are undisputed or have been acknowledged by TeraTron.
8. Unless otherwise agreed to the contrary, TeraTron reserves the right to increase the sales price unilaterally for goods ordered from TeraTron, if there is an increase in TeraTron’s costs for these goods from its supplier and they have not yet been dispatched from TeraTron’s registered office. In the event of a price increase by the supplier, the sales price stated to the Buyer shall be increased by the same percentage by which TeraTron’s costs for the goods have risen because of the supplier’s increase.
§ 5 Lead time and delivery
1. TeraTron is only obliged to deliver after clarification of all technical questions. This is subject to the timely, proper fulfilment of all agreed and other obligations of the Buyer.
2. If the Buyer delays acceptance or violates other duties of cooperation, TeraTron is entitled to claim the resulting damages due to TeraTron, including any possible additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item also transfers to the Buyer on the date it falls into default of acceptance.
3. TeraTron is not responsible for default in delivery or performance if the reasons for this are beyond its control. These reasons include, but are not limited to, force majeure, action or omission by the Buyer, by civil or military authorities, fire, strike, epidemics, quarantine regulations, floods, earthquakes, riots, war, transport delays etc. or impossibility of obtaining labour, materials or operating supplies. In the event of a delay, the contractually agreed lead time shall be extended if necessary by a period corresponding to the loss of time of such a delay through which damages or contractual penalties arise for TeraTron.
4. TeraTron is entitled to withhold or delay the delivery if the Buyer does not make due payments to TeraTron immediately, regardless of whether these result from the same contractual relationship with TeraTron or another.
5. TeraTron can deliver the goods subject to these provisions within the time period specified in the corresponding order at any time or in several partial deliveries.
6. All prices stated and goods dispatched are considered “free on board” from TeraTron’s registered office or from the manufacturing or storage site. This means that the statutory regulation on sales shipment in accordance with section 447 BGB shall apply in particular. The Buyer must therefore bear all costs and risk of loss or damage from this point in time. The right to the goods and the risk of loss, damage and accidental destruction shall transfer to the Buyer upon TeraTron handing over the goods to the carrier for dispatch. The Buyer shall pay all freight and shipping costs as well as any insurance premiums for the dispatch of goods unless written approval to the contrary has been given by TeraTron. If the Buyer does not give any alternative instruction, TeraTron can specify the carrier, shipping method and mode of transport route itself.
§ 6 Transport insurance
If the Buyer requests it, TeraTron shall cover the delivery with transport insurance; the Buyer shall bear the costs incurred in this respect.
§ 7 Guarantee for defects
1. The Buyer’s guarantee rights assume that the Buyer has properly complied with its inspection and complaint obligations owed under sections 377, 378 HGB (German Commercial Code). The goods shall be considered approved by the Buyer if it has not refused their acceptance within a reasonable period. This period amounts to 10 days from receipt of goods. Claims from default in delivery are excluded unless they are made before receipt of the goods. Acceptance constitutes a waiver of any claim based on a default in delivery. Returns shall only be accepted if appropriate approval “return material authorisation” has been obtained from TeraTron beforehand. Goods must be returned in their original packaging in accordance with the instructions of the authority which has issued the above-mentioned approval. The return of goods in electrostatic packaging shall only be accepted if this packaging has not been opened.
2. TeraTron excludes any guarantee for the goods sold to the Buyer as well as the warranty concerning its suitability for specific purposes. TeraTron agrees to transfer to the Buyer all transferable guarantees which TeraTron has received from the manufacturer for the goods sold to the Buyer. Value-added works undertaken by TeraTron shall correspond to the applicable specifications of the Buyer for works of this kind.
3. If there is a defect of the purchased item for which TeraTron is responsible, TeraTron is entitled at its discretion to correct the defect or to make a replacement delivery. When correcting defects, TeraTron is obliged to bear all costs necessary for remedying the defect, particularly transport, road, labour and material costs, provided these do not increase due to the fact that the purchased item has been transferred to a place other than the place of performance.
4. If not otherwise stipulated below, any further claims by the Buyer, irrespective of the legal grounds, are excluded. TeraTron is therefore not liable for damages to the delivered item not caused by TeraTron; in particular, TeraTron is not liable for loss of profit or other financial losses sustained by the Buyer. TeraTron is in no way liable for indirect incidental or consequential damages.
5. Compensation of the Buyer due to a claim on its part shall be limited to the sales price paid by it for the goods, regardless of the type of claim either due to a guarantee or from the Agreement.
6. The guarantee period shall run for 12 months from the date of the transfer of risk.
§ 8 Total liability
1. Further liability resulting from compensation for damages is excluded regardless of the legal nature of the asserted claim.
2. The provision under paragraph 1 shall not apply for claims pursuant to sections 1, 4 Product Liability Act. The same applies in case of initial incapacity or impossibility for which it is responsible.
3. If a liability of TeraTron is excluded or restricted, this shall also apply to the personal liability of the salaried employees, workers, associates, representatives and vicarious agents of TeraTron.
§ 9 Retention of title
1. TeraTron shall reserve title to the purchased item until receipt of all payments from the Delivery Agreement. If the Buyer behaves contrary to the Agreement, particularly in the case of default of payment, TeraTron is entitled to take back the purchased item. The removal of the purchased item by TeraTron does not constitute withdrawal from the Agreement, unless TeraTron has expressly declared this in writing. Seizure of the purchased item by TeraTron always constitutes withdrawal from the Agreement. TeraTron is authorised to sell the purchased item after taking it back; the proceeds of sales are to be credited to the Buyer’s debts, minus reasonable costs of sale.
2. The Buyer is obliged to handle the purchased item carefully until full payment has been made.
3. In case of seizure or another form of intervention by third parties, the Buyer must immediately notify TeraTron in writing so that TeraTron can file for court action under section 771 ZPO (Code of Civil Procedure). If the third party is not in a position to reimburse TeraTron for the legal and extrajudicial costs of court action under section 771 ZPO, the Buyer is liable for the loss incurred by TeraTron.
4. The Buyer is entitled to resell the purchased item in the ordinary course of business; it relinquishes to TeraTron all claims to the value of the final invoice amount (including VAT) that it has acquired against its customers or third parties as a result of the resale, and regardless of whether the purchased item has been resold without processing or after processing. The Buyer also remains authorised to collect this debt after assignment. TeraTron’s authority to collect the debt itself remains unaffected by this. However, TeraTron undertakes not to collect the debt if the Buyer fulfils its payment obligations according to the terms agreed, is not in default of payment, and particularly whilst there is no application for opening insolvency proceedings or a settlement procedure, or there is a cessation of payment. However, if this is the case, TeraTron can request that the Buyer disclose the debts assigned and the debtor in question, provide all information required for collection, surrender the relevant documents, and notify the debtor (third party) of the assignment.
5. Processing or transformation of the purchased item by the Buyer is always carried out for TeraTron. If the purchased item is processed alongside other items not belonging to TeraTron, TeraTron shall acquire joint ownership of the new items as a proportion of the value of the purchased item to the other processed items at the time of processing. Items resulting from processing are subject to the same conditions as the purchased item delivered under retention of title.
6. If the purchased item is inseparably mixed with other items not belonging to TeraTron, TeraTron shall acquire joint ownership of the new items as a proportion of the value of the purchased item to the other items mixed at the time of mixing. If the mixing takes place such that the Buyer’s item is to be seen as the main item, it is agreed that the Buyer shall transfer proportionate joint ownership to TeraTron. The Buyer shall hold the resulting sole ownership or joint ownership for TeraTron.
§ 10 Patents, violations
TeraTron offers no guarantee that goods sold to the Buyer are free from legal claims of third parties due to a breach or violation of a patent or trademark or similar and it declines any guarantee in the event of a violation related to the goods. The Buyer agrees only to contact the manufacturer or licensor of the goods in the event of a claim due to a violation. Moreover, the Buyer agrees to protect, defend and indemnify TeraTron against amounts, costs, expenses and legal fees which arise to TeraTron as the Seller as a result of a claim, a plea in law or judgement, or which it must pay, or which result from use, changes or improvement of the goods that the Buyer has bought unless such use, change or improvement was approved in writing by the manufacturer or licensor of the goods.
§ 11 Assembly and installation
The Buyer is responsible for the assembly and installation as well as operation of the goods sold herein, including and unlimited to obtaining all permits, licences or certificates necessary for the assembly and installation as well as operation of these goods.
§ 12 Technical advice and data
Any technical advice that is offered or provided in connection with use of the goods is a free courtesy to the Buyer and TeraTron has no responsibility or undertakes no liability for the content or application of such advice. The Buyer may only use, duplicate or disclose technical data that TeraTron has provided or disclosed to it after prior written permission from the Seller. This does not include assembly and installation, operation and maintenance of the goods purchased by the Buyer.
§ 13 Software
The computer software that is to be delivered to the Buyer by TeraTron is supplied in accordance with a separate licence agreement or other regulations by the owner of the software or by third parties directly to the Buyer under licence. The Buyer shall confirm the receipt of a separate agreement in which the licence is granted for the software delivered to the Buyer. The Buyer acknowledges that TeraTron does not constitute a party for such a licence concerning the provision of software. The Buyer agrees to contact the licensor directly in the event of claims owing to maintenance or support or from violations or guarantees in connection with software that was provided to it in accordance with these provisions.
§ 14 Rights of the Seller
1. In the event of a default in payment on the part of the Buyer, the Buyer shall pay all costs that are incurred by TeraTron in collecting amounts that are owed to it by the Buyer. This includes reasonable legal fees and collection fees.
2. If TeraTron waives its rights in the case of a violation of these Terms and Conditions or in the event of default in payment, this shall not be considered a waiver in the event of subsequent violations or defaults.
§ 15 Agreement and addition/extension of the Agreement
This Agreement represents the entire and only agreement between the parties concerning the object of the agreement and it replaces all earlier or simultaneous written or verbal agreements between them on this matter. Earlier business conducted between the parties or business practices are not relevant for the interpretation of or addition to a provision of this Agreement. Acceptance or tolerance in the event of service provision under the terms of this Agreement is not relevant for determining the meaning of this Agreement, even if the accepting or tolerating party had knowledge of the type of service or had occasion to object. Any later amendment to this Agreement is only binding for TeraTron if it is made in writing and is signed both by the Buyer and by TeraTron. Assignments of this Agreement or of the rights resulting from it by the Buyer are only valid with the written consent of TeraTron.
§ 16 Terms and conditions of the Buyer
1. TeraTron shall endeavour to serve its customers promptly and efficiently. Accordingly, TeraTron shall deliver its goods or perform its services exclusively according to the Terms and Conditions specified here.
2. Fulfilment of the contract by TeraTron depends exclusively on the consent of the Buyer to TeraTron’s Terms and Conditions of Sale, unless TeraTron expressly agrees to a deviating provision. In the absence of such an agreement, the service and/or delivery shall only begin through goodwill to the Buyer, and as a result, no acceptance of one or all of the terms and conditions of the Buyer is established or is not construed as such.
3. If an agreement has not been concluded in writing beforehand by mutual understanding, the acceptance of the goods or services shall be considered as acceptance of the Terms and Conditions mentioned here.
§ 17 General
1. The laws of the Federal Republic of Germany apply for this Agreement and the service to be delivered by the parties. 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 international sales agreements concerning moveable items / Uniform Law on the International Sale of Goods (ULIS). All terms, conditions and agreements contained herein shall apply bindingly for all legal successors of the Buyer.
2. If a provision or a part of this Agreement is or becomes invalid, illegal, unethical or unenforceable, the remaining provisions or parts thereof remain unaffected.
3. The individual headings used here serve only to categorise the services for the parties. The interpretation of the provision is not affected by this.
4. These Terms and Conditions were drawn up in German and translated afterwards into English. In principle the English version of these Terms and Conditions serves as a working basis for the parties, but with the proviso that in the event of a dispute between the parties over the interpretation of a provision, the German version shall be decisive.
§ 18 Place of jurisdiction / place of performance
1. If the Buyer is a registered trader, our registered office shall be the place of jurisdiction; TeraTron is, however, also entitled to bring action against the Buyer in the court at its place of residence.
2. Unless otherwise stated on the order confirmation, TeraTron’s registered office is the place of performance.