§ 1 General, Scope of Application
ATGsecure Systems GmbH ("Supplier") provides all deliveries and services exclusively on the basis of its General Terms and Conditions ("GTC") and the relevant product-specific Conditions of Business and Use.
These shall also apply to all future transactions between the contracting parties.
General terms and conditions which a customer may have and which totally or partially deviate from the GTC will not be recognized unless acceptance thereto has been given in written form. Supplier GTC will be exclusively valid also in such cases when deliveries and services are brought about without restraint by the Supplier in full awareness of contrary general terms of the customer.
The Supplier has the right to which the customer agrees to alter the content of the existing contract as well as these GTC in as far as the changes incorporating the interests of the Supplier remain reasonable for the customer. Agreement to changes in the contract is then deemed accepted when the customer does not respond to a written notification of the changes within a month. The Supplier submits to inform the customer of the consequences of his failure to file a claim in the course of the notification of the changes.
§ 2 Conclusion of Contract / Deliveries
At the request of customer to conclude a contract and its content our confirmation is relevant. Offers are subject to confirmation. Our lead times begin in individual cases only after final clarification of executive, technical and commercial details. The customer is not entitled to cancel the order, if in particular circumstances of the case a appropriate delay took place. Partial deliveries are permitted.
Our deliveries are always ex warehouse or ex works and risk is taken on by the customer as soon as the wares have left the warehouse or works. Should we have freight insurance; the conditions of this insurance policy apply. Any wares not on call but ready for shipment may be stored or sent to the customer at his expense.
We are entitled to select the suitable packaging and type of dispatch.
Orders on demand must be completed within a six month period otherwise we shall deliver the remainder automatically.
Should we agree to the cancellation of an order for reasons of goodwill this takes effect only with our written agreement.
Wares ordered to special customer specifications cannot be given a waiver for reasons of goodwill.
In the event that we agree to the cancellation of an order a charge of 25% of the value of the wares will apply. The purchaser expressly retains the right to provide evidence that damages were lower than charged.
Strikes, delays in transport and delivery, bans imposed by the authorities, events over which we have no influence interrupt the deadlines and extend them by a reasonable period of time.
§ 3 Reservation of Title
We retain possession of delivered items until all payments have been submitted as per supply contract. Until that time the customer shall hold the wares free of charge. The customer stores the items separately that they may be readily identified. In the instance of the customer not living up to the contract, particularly by not submitting payments on time, we have the right to repossess the delivered items; the customer must surrender them.
The act of repossessing the delivered item by us does not constitute a cancellation of the contract, unless we have expressly declared this to be the case in written form. In the event of a lien being placed on the item this always signified the cancellation of the contract. In the event of any lien or other such actions of a third party it is the customer’s responsibility to notify us immediately and in writing that we may sue according to §771 ZPO. In as far as the third party is unable to repay us for legal and out-of-court costs according to §771 ZPO the buyer is liable for paying us compensation for resulting damages.
The buyer has the right to sell the item in the normal course of business; he will assign a claim in the order of the total amount of the final invoice value (including VAT at the current rate) which he will receive from the sale to his buyers or any third party independently of whether the item was sold with or without modification. The customer has the right to receive such a payment after having accepted the assignment. Our right to foreclose remains. However, we submit to desist from foreclosing the assigned claim as long as the customer pays on time and is without arrears. Should that be the case we can demand that the customer informs us of the assigned claims and their debtors and submits all information to enable the collection of the assigned claims, hands over the associated documents und notifies the debtors (third party) of the assignment.
Modifications and changes to the delivered item performed by the customer are always done for us. Should the processing or modification be done in combination with other items not supplied by us we gain the co-ownership of the new item in the relationship of the value of the item delivered to the other items at the time of the processing. The same process applies to the new item that applies to the wares subject to retention.
If the delivered goods are intermingled with other goods not belonging to us, we shall acquire joint ownership of the new object in proportion to the value of the goods delivered with respect to the other processed items at the time of processing. For conditional goods the same applies as for objects created by processing. If the mixing is such that the part of the buyer is considered the main item, a pro rata co-ownership is agreed on with the customer. The client keeps the sole or joint ownership for us.
In order to secure our claims against him the customer shall also assign any property claims against third parties to us which may arise through the delivery of the goods. We agree to release the securities, to which we are entitled, the goods remaining unpaid, at the request of the customer should their value exceed the secured claims by more than 10%.
§ 4 Property Rights
The customer ensures he shall not infringe on any third party property rights (patents, licenses, trademarks, etc.) in the course of further processing or sale.
§ 5 Quantity / Quality
Obvious defects must be reported within 5 days of receipt (preclusive period).
Particulars as stated in our lists, brochures and other publications provide no assurance as to characteristics of properties in the sense of § 463, 480 BGB.
Particular technical requirements and uses must be laid down conclusively in written form when the order is submitted and must be confirmed by us in writing in which case we would then insist on goods being accepted.
Customer undertakes to check the goods / service received immediately on receipt according to all reasonable methods of examination, also with his customers, in any case prior to further processing. Should defects become noticeable after beginning of further processing, it must be stopped immediately.
In all cases we must be informed immediately in writing. We must receive the opportunity to review, to inspection, conduct test runs and access to documentation.
Quality defects must be reported immediately in a sufficiently specified and conclusive manner.
If delivered goods are defective, the claim for rectification exists. Should this be impossible, have failed or be delayed unreasonably, customer can call for a reduced remuneration (reduction) or a cancellation of the contract (annulment).
All refunds for customs duties paid go to the supplier (provider), and the customer agrees to make such documents available to the supplier (provider) as are necessary for him to obtain such reimbursements and to help him.
§ 6 Damage in Transit
Only those shortages found immediately on receipt and of which we are informed in writing and which are reported to the freight forwarder can be taken into consideration. In as far as the transaction is between traders the stricter rules of the Commercial Code (§ § 377 ff HGB) apply.
Externally visible damage to the consignments is to be noted immediately by the deliverer of the goods (railways, post office, freight forwarder, etc.) on the bill of lading by a suitable ascertainment of fact finding or in any other appropriate manner and certifying this. The freight forwarders are obliged to comply.
In the case of concealed damage, defects or weight reductions of the content that are found, further unpacking must cease immediately. The delivering carrier must be made liable immediately and in writing and prompted to ascertain and assess the damage, namely:
- mail (Post Office), immediately on the date of delivery
- the railway freight or express check-in, immediately on the day of delivery
- for delivery trucks or carrier companies, immediately on the day of delivery following the delivery of the goods
In all cases, goods and packaging are to remain in the condition in which the damage was discovered until a representative of the freight forwarding company has had an opportunity to record the facts.
§ 7 Warranty / Costs / Rectification
In case of claims, the customer is obliged to pay the anticipated shipping costs. Should the claim turn out to be unjustified, the customer definitely bears the costs. We reserve the right to claim a lump sum for these costs whereas the customer retains the liberty to provide evidence of damages being less and costs lower.
If the manufacturer provides a repair possibility for a product in available reach, the customer can be pointed out that the repair can be carried out there (our right to identify the fault and rectify). The statutory warranty rights of the customer towards us are not affected i.e. he retains the right of rescission (cancellation of purchase contract) or reduction (reduction of the purchase price or a partial refund should payment have been made).
§ 8 Liability
Claims beyond the statutory warranty can be made by the customer against us only when we can be charged with deliberate or gross negligence behavior.
§ 9 Prices / Payment
At the time of the order the general current list prices are valid, unless there is expressly agreed otherwise in writing. In the country of destination for the business payable taxes, etc. we do not assume. Tariff increases etc. after conclusion of contract shall be borne by the customer. Changes of information out of the prospectus are expressly reserved.
Our services and deliveries are always payable in advance after acceptance of the order and for existing contracts payable monthly, 14 days in advance. Payments such e.g. net cash immediately after the invoice date, we may agree in writing in individual cases with the customer. We reserve the right to deliver generally by COD. Checks, drafts or other forms of payment are accepted only as conditional payment and do not to change the maturity, whereby the expenses are to be paid by the customers.
Payments are always settled against the oldest debt. Should payments not be made to meet the agreed deadline, we have the following rights:
- Calculating the usual bank charges as well as costs for unsecured loans
- Refusing further deliveries or cash on delivery irrespective of any previous arrangements
- Exercising of all rights pertaining to ownership of title
- Immediate enforcement of all claims, regardless of prior agreements
The delayed payment is equal to application for insolvency or composition proceedings, suspension of payment or other significant change in the assets and earnings previously adopted.
Offsetting is only permitted with undisputed or legally established claims.
§ 10 Privacy
The customer is aware that the stored content on the server from technical perspective of the provider can be viewed at any time. Moreover, it is theoretically possible that the customer's data are viewed by unauthorized third parties during data transmission via the Internet.
§ 11 Final Clause
Place of performance is Hanover.
Place of jurisdiction for all claims from the contractual relationships for all disputes arising between the parties is Hanover, in particular about the conclusion, execution or termination - insofar the customer is a merchant, legal entity under public law or public special assets. The provider optionally can also sue the customer at its general jurisdiction.
For concluded contracts of the provider, based on these terms and conditions, and for following claims arising out of this, will be governed only by the law of the Federal Republic of Germany, excluding the provisions of the Single CISG on the sale of goods (CISG).
Should provisions of these Conditions and / or the contract be or become invalid, it shall not affect the validity of the remaining provisions. The Parties commit themselves to take place of an invalid provision a valid agreement, whose economic success of the invalid provision comes as close as possible.
ATGsecure Systems GmbH