1. General – Scope of Application

These General Terms and Conditions apply to all present and future development services of accensors GmbH as well as purchases made by the ordering party from pheal GmbH (hereinafter referred to as “we”). Deviating, conflicting or supplementary general terms and conditions of the purchaser, even if known, shall not become part of the contract, unless their validity is expressly agreed to in writing. These General Terms and Conditions shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB). If individual provisions of these General Terms and Conditions should be invalid in whole or in part, the remaining provisions shall remain in full force and effect.

2. conclusion of contract

The order of the customer is a binding offer. It can be accepted by us either by sending an order confirmation as a binding declaration of acceptance or by sending the ordered service and/or goods. An offer from us can be accepted within 4 weeks in writing or in electronic form (e-mail or fax), unless otherwise specified in the offer. After this period the offer expires.

3. prices

ur prices shall apply, plus the statutory value added tax, using the transport method EXWS (Ex Works)) based on INCOTERMS 2010. In the event that the development is not successful, the services rendered must nevertheless be reimbursed by the Client. The prices valid on the day of delivery or service shall always apply for invoicing, unless a fixed price agreement has been confirmed by us in writing. If the scope of the respective order performance is changed by mutual agreement during the execution of the order, in particular if it is extended, we shall be entitled to demand a corresponding adjustment of the agreed prices and remunerations, in particular an increase thereof. We are entitled to temporarily suspend the execution of the order services until agreement has been reached on a corresponding adjustment of the prices and remunerations, if we have notified the customer of this in writing in advance. Any delays resulting from this shall not be borne by us. A unilateral change of the order performance by the client is excluded.

4. payment

Payments are to be made within 30 days from the date of invoice without any deductions free our payment office. If the payment deadline is exceeded, we will charge interest at a rate of 8% above the prime rate, subject to the assertion of further damages. The submission of bills of exchange requires our consent. The customer shall bear the risk for timely presentation and protest. Unless otherwise agreed, we shall be entitled, at our reasonable discretion, to demand an appropriate and to issue partial invoices in sections for work already performed or depending on the progress of the work. In the event of default in payment and justified doubts about the solvency or creditworthiness of the customer, we shall be entitled – without prejudice to our other rights – to demand securities or advance payments for outstanding deliveries and services or to make deliveries and services only against cash on delivery or cash in advance and to make all claims arising from the business relationship due immediately. Only undisputed or legally established claims shall entitle the OP to set-off or retention. The customer may not assign claims against us. The customer’s terms and conditions of purchase shall not be taken into account.

5. delivery and performance time

Delivery and performance deadlines are only binding for us if they are expressly agreed in writing. Other time specifications regarding deadlines are non-binding and may be exceeded to a reasonable extent (approx. 4 weeks). The date on which the delivery leaves our works shall be decisive for compliance with agreed delivery periods. The delivery and performance period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles which are beyond our control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item or service. This shall also apply if the circumstances occur at our suppliers. If agreed deadlines are exceeded or non-binding deadlines are exceeded by the above-mentioned period (approx. 4 weeks), the OP may set a grace period of at least 3 weeks and withdraw from the contract after the fruitless expiry of this grace period. Clause 10 shall apply to claims for damages.

6. transfer of risk

The risk shall pass to the OP at the latest upon dispatch of the delivery parts, even if partial deliveries are made or we have assumed other services. If the shipment is delayed due to circumstances for which the OP is responsible, the risk shall pass to the OP from the day of readiness for shipment.

7. property reservation

Until full payment of our claims arising from the business relationship with the OP, the goods sold shall remain our property. The retention of title shall also extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of these processed goods. The OP is authorized to dispose of the purchased goods in the ordinary course of business as long as he is not in default of payment to us. Pledging and transfer by way of security of the goods subject to retention of title are not permitted. The Customer hereby assigns to us by way of security all claims against third parties arising from the resale in total or in the amount of our possible co-ownership share. He is authorized to collect them for our account until revocation or cessation of his payments to us. The Customer shall notify us immediately in writing of any access by third parties to the goods and claims belonging to us. In the event of a breach of contract by the OP – in particular in the event of default in payment – we shall be entitled to take back the goods subject to retention of title at the OP’s expense. For this purpose, the OP hereby assigns to us his claims for return against third parties. The exercise of the retention of title does not mean the withdrawal from the contract. Insofar as the value of the securities existing for us exceeds our claims by more than 10% in total, we shall release securities of our choice at the request of the OP.

8. warranty

The warranty does not cover consumables such as sterile measuring adapters, printer paper, or parts subject to wear (batteries, accumulators, electronic measuring cells) as well as wear and tear of the measuring probe due to contact with the medium to be measured. Claims for defects on the part of the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). In the event of justified complaints, we shall, at our discretion, remedy the defects or deliver defect-free goods. If the subsequent performance fails, the OP shall be entitled to demand rescission or reduction at his discretion. Insignificant deviations from the agreed quality or insignificant impairments of the usability shall not constitute defects of the delivered goods. The customer shall give us the opportunity to remedy the defect complained of; as long as he refuses to do so, we shall be released from the warranty obligation. If the customer has not observed the instructions for use when using the goods and/or has interfered with, modified or repaired the goods, he shall be obliged to prove that the defect is not due to this.

9. compensation for damages

We shall be liable in accordance with the statutory provisions insofar as the Customer asserts claims for damages based on intent or gross negligence on our part. In cases of simple negligence, our liability shall be limited to the foreseeable damage typical for the contract. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act. Unless otherwise stipulated above, liability shall be excluded.

10. final regulations

The latest version of the General Terms and Conditions of Delivery and Service for Products and Services of the Electrical Industry recommended by the German Electrical and Electronic Manufacturers’ Association (Zentralverband der Elektrotechnischen Industrie e.V.) shall apply in addition, insofar as they do not conflict with the above provisions. A copy of these General Terms and Conditions of Delivery and Service can be requested from us at any time. The legal relationship between the parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of jurisdiction is Espelkamp. 49074 Osnabrück, May 23th 2019
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