AGB
General Terms and Conditions of Acondistec GmbH
1. scope
1.1 The deliveries and services of Acondistec GmbH (hereinafter referred to as "Acondistec" ) are provided exclusively under the following General Terms and Conditions (hereinafter referred to as "GTC" ), unless otherwise agreed in writing. Additional reference is made to the manufacturer's license conditions enclosed with the contractual products.
1.2 These GTC apply to all business transactions between Acondistec and our customers (hereinafter referred to as the " Customer" ) if they are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law. They also apply if they are not mentioned in subsequent contracts.
1.3 Any other, additional or conflicting terms and conditions of the customer shall only be effective if confirmed in writing by Acondistec. The same applies to amendments and supplements to these General Terms and Conditions.
1.4 Oral promises and ancillary agreements require written confirmation by Acondistec.
1.5 The contract languages are German and English. The German wording shall have priority. This shall also apply if the contractual partners use another additional language.
2. contract
2.1 The offers are subject to change. A contract shall only be concluded upon written confirmation of the order and shall be governed exclusively by these Terms and Conditions, which shall be accepted by the Purchaser by way of order or acceptance.
2.2 The customer is bound by its order. Acondistec is entitled to accept or reject the order within 30 working days by means of a separate order confirmation, delivery or execution of the ordered service or invoicing.
2.3 Acondistec may electronically store and process the data required for the performance of the contract. The data will also be used for further maintenance of the business relationship for direct advertising, unless the orderer objects to this.
2.4 The conclusion and performance of the contract are subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law or embargos or other sanctions. The Purchaser itself shall be responsible for compliance with export control regulations. In particular, the Purchaser shall provide all information, permits and documents required for the export, transfer or import. The Purchaser undertakes not to export the goods to a country to which export is prohibited. The refusal of an export or import permit shall not entitle the Purchaser to withdraw from the contract or to claim damages.
2.5 Acondistec may discontinue the distribution of individual products at any time for justified reasons without the purchaser being able to derive any rights or claims against Acondistec therefrom.
3. scope, partial delivery and call orders
3.1 The written order confirmation together with the respective manufacturer's data sheet shall be authoritative for the type and scope of delivery as well as the use of the goods.
3.2 Documents belonging to the offer, such as illustrations, drawings and weight specifications, are only approximate unless they are expressly designated as binding. Acondistec is entitled to deliver contractual products that deviate from the order if the change does not impair the technical performance and functional capability and - if a specific design was agreed - the external appearance of the contractual products (hereinafter also referred to as "goods" ) is not affected.
3.3 All information in catalogs and brochures is intended to provide an overview of the goods and services. Without express inclusion, these do not become the subject of the contract and in particular do not constitute a quality guarantee or agreement.
3.4 The right to make partial deliveries and to invoice them shall remain reserved, unless otherwise agreed in writing or the Purchaser proves that the partial delivery is of no interest to it.
3.5 Call orders, where the Purchaser orders a certain quantity of goods to be delivered in several partial deliveries over a certain period of time, are only possible with a separate agreement and a fixed schedule for the individual deliveries. Unless otherwise agreed, the call-off order may not exceed a term of 12 months. Remaining stocks shall be due for delivery at the end of the term and shall be accepted by the Purchaser.
3.5 The specification of measured values is understood to be without the effect of any interference or other disturbances from the environment.
4. prices
4.1 Unless otherwise agreed in writing, the prices stated in Acondistec's order confirmation shall apply. All prices are ex works Acondistec (Incoterms ® 2020 EXW) and only for the scope of performance or scope of delivery specified in the order confirmation , unless otherwise agreed in writing. Prices for equipment include the cost of customary packaging. If the customer requires a special type of packaging, the additional costs shall be borne by the customer. The packaging costs for the delivery of spare parts, accessories and consumables shall be invoiced separately.
4.2 All customs duties, fees, import and export duties, turnover tax, public charges, etc. shall be borne by the Purchaser.
4.3 The customer shall bear the transport and insurance costs ex Acondistec's warehouse (Incoterms ® 2020 EXW). Unless otherwise agreed, Acondistec is entitled, but not obliged, to insure the goods to be shipped against transport risks of any kind at the customer's expense. This, as well as a possible assumption of the transport costs, has no influence on the transfer of risk.
4.4 The delivery and installation of the equipment as well as the instruction of operating personnel shall be at the expense of the Purchaser. The
Costs of installation are charged according to the service price list.
4.5 The price offered is based on the manufacturer's price lists valid at the time of the order, or material, energy and labor costs. if delivery of the ordered item is requested only at a time that is more than three months after the conclusion of the contract, the price shall be adjusted upwards accordingly on a percentage basis if these costs have increased in the meantime.
5. payment
5.1 Payments must be made within 14 days of the invoice date without deductions, free of postage and expenses. In the event of late payment, Acondistec is entitled to withhold further deliveries until receipt of payment.
5.2 If the bestseller defaults on a due payment, Acondistec shall be entitled to charge interest from the due date on each invoice at a rate of 9% above the respective base rate plus a flat-rate default fee of EUR 40.00, reasonable collection costs and attorney's fees, and to demand payment of all outstanding invoice amounts.
5.3 Bills of exchange shall only be accepted by special agreement and then only on account of payment and free of costs and expenses. In the case of so-called check/bill of exchange coverage, there is no fulfillment of the payment claim. Acondistec's rights under clause 9 of these GTC remain in effect until the bill of exchange claims relating to these goods have been satisfied in full.
5.3 If Acondistec becomes aware of the occurrence of provisional insolvency or insolvency or other changes in the customer's creditworthiness that are likely to jeopardize its payment only after the contract has been concluded, Acondistec may refuse performance until full payment has been made and demand immediate payment of all outstanding invoices, even if special payment terms have been agreed.
5.4 In the event of a refusal to pay despite a request to do so concurrently with performance, Acondistec shall be entitled to withdraw from the contract in whole or in part without setting a deadline and irrespective of the requirements of § 323 para. 2 BGB (German Civil Code) and to demand the return of products already delivered without prejudice to further claims for damages. If the customer defaults on its payment obligation or breaches one of the obligations arising from the agreed retention of title, the entire remaining debt shall become due immediately.
5.5 The assertion of rights of retention which do not result from the same contractual relationship and offsetting against counterclaims of the Purchaser are excluded. This shall not apply if the Purchaser's claims have been acknowledged in writing or have become res judicata. In case of defects of the goods, the counter rights of the purchaser remain unaffected.
5.6 If the Customer is in default of payment, the statutory interest plus commission and costs shall be charged. The
We reserve the right to assert further damage caused by delay.
5.7 If payment by installments has been agreed upon and if the Purchaser is in default with an installment in whole or in part for more than 14 days, the entire remaining amount shall become due immediately and further deliveries shall be stopped.
6. delivery
6.1 Acondistec shall only be liable for compliance with the shipping or delivery dates or delivery periods specified by Acondistec if these are expressly designated as binding. The specified deadlines shall commence on the date of the written declaration of acceptance and confirmation of the order, but not before the customer has provided the documents, approvals and releases to be procured by the customer or before all other necessary prerequisites have been created. Amendments to a contract shall extend the envisaged deadlines accordingly. Agreed delivery dates are deemed to have been met if the contractual product has been handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing, or if Acondistec has notified the purchaser that the goods are ready for shipment after the purchaser's default in acceptance. If the shipment of goods ready for shipment is delayed for reasons for which Acondistec is not responsible, the contractual products may be stored at the customer's expense and risk.
6.2 If a binding date of dispatch, performance or delivery or a binding delivery period is exceeded, the purchaser must set a grace period of one month in writing and may withdraw from the contract or claim damages for non-performance after its fruitless expiry. If the Purchaser makes a claim for damages for non-performance, such claim shall, in the case of ordinary negligence, be limited to typical, direct damage up to the amount of the order value of the goods or services not delivered or installed. Otherwise, compensation for damage caused by delay can only be claimed if Acondistec has acted with gross negligence or intent, provided that the customer proves that it has suffered damage as a result of the delay in delivery.
6.3 If Acondistec is not responsible for the non-delivery of a delivery because this is dependent on Acondistec's own delivery by an upstream supplier, and if this fails to occur for a period of time that is not merely temporary, despite the timely conclusion of the covering transaction and the exercise of all available possibilities of influence, Acondistec is entitled to withdraw from the contract without compensation. This does not apply if Acondistec is responsible for the failure.
7 Acceptance, acceptance and transfer of risk
7.1 The Purchaser shall in any case accept the delivery immediately upon request. Acceptance must be confirmed in writing. If the purchaser does not accept a delivery, it shall be in default and Acondistec shall be obligated to compensate for any damage incurred. The purchaser is obliged to inspect the goods immediately upon receipt for completeness and conformity according to the delivery bill and the order. If a complaint is not made within a period of eight days after receipt of the delivery, the goods shall be deemed to have been delivered in accordance with the contract.
7.2 If the subject matter of Acondistec's performance is an installation, Acondistec shall notify the purchaser of a reasonable deadline for acceptance after completion. Acondistec may demand partial acceptance for independent functional units. If the orderer does not accept Acondistec's performance within this period, the performance shall be deemed accepted. The customer shall notify Acondistec in writing of any reasons which, in its opinion, prevent acceptance within this period. Upon acceptance of the installation/commissioning, a written acceptance report shall be drawn up by both parties.
7.3 If the customer does not accept the delivery despite a reminder setting a deadline of 10 days, or if the purchaser cancels a binding order, Acondistec may, without prejudice to the possibility of claiming higher actual damages, claim 15% of the agreed order value for the costs incurred in processing the order and for the loss of profit. The compensation for damages shall be reduced accordingly insofar as the orderer proves that no damage at all or a lesser damage has been incurred.
7.4 If shipment is delayed at the request or instigation of the Purchaser, storage costs in the proven amount customary in the market may be charged after the expiry of one month after the agreed date of shipment.
7.5 The risk shall pass to the purchaser when Acondistec first hands over the goods to a freight carrier. If Acondistec makes its own delivery, the risk shall pass to the customer when the products are loaded onto the first transport vehicle. Special agreements, e.g. means of transport, do not affect the time of transfer of risk. If the customer is in default of acceptance, the risk shall also pass to the customer upon notification of readiness for shipment. If desired, appropriate insurances can be taken out at the expense of the purchaser.
7.6 In the case of goods returned to Acondistec for repair or replacement within the warranty period, the risk for the purchaser shall pass to the carrier or transport person selected by Acondistec from the time of the purchaser's first handover; Acondistec shall bear the transport costs. In the case of goods returned outside the warranty period, the customer shall bear the transport costs himself and may choose the carrier as well as the transport modalities himself.
8. force majeure
8.1 Liability for damages due to non-performance or delay shall be excluded for both contracting parties in the event of force majeure occurring or becoming known after conclusion of the contract. Events of force majeure include civil unrest, operational disruptions, shortages of workers, unavoidable shortages of energy or raw materials, strikes, lockouts, unforeseeable traffic disruptions, failures or restrictions of electronic data exchange caused by third parties and cyber attacks, pandemics or epidemics, official orders and all other such impediments which, when viewed objectively, have not been culpably caused by Acondistec.
8.2 Events of force majeure shall release Acondistec from its obligation to deliver for the duration of the disruptions and their effects. After normal conditions have returned, Acondistec is entitled to deliver the agreed quantity correspondingly later. After the events have lasted for three months or in case of permanent impossibility of performance, Acondistec may withdraw from the part of the contract that has not yet been fulfilled.
8.3 If the aforementioned circumstances occur at the Purchaser, these legal consequences shall apply accordingly to the obligations incumbent on the Purchaser.
9. retention of title
9.1 The delivered products remain the property of Acondistec until all claims arising from the business relationship with Acondistec have been satisfied in full.
9.2 The customer is obliged to store the products owned by Acondistec with due commercial care and to insure them adequately. The customer hereby assigns to Acondistec all possible future insurance claims arising from this insurance. Acondistec hereby accepts the assignment.
9.3 The purchaser is entitled to process and sell the products in the ordinary course of business. Any processing shall be carried out for Acondistec. In the event of processing with third-party goods by the orderer, Acondistec shall acquire co-ownership of the new item in the amount of the invoice value of the goods subject to retention of title. The new item resulting from the processing shall also be deemed to be reserved goods within the meaning of these terms and conditions.
9.4 Any resale of the products shall be subject to retention of title until payment by the ultimate purchaser. The customer hereby assigns its purchase price claim in full to Acondistec by way of security and shall confirm the assignment in writing upon request. If the value of the security provided exceeds Acondistec's claims against the customer by more than 20% in total, the part exceeding the security shall be returned at the customer's request.
9.5 The customer is authorized to collect the claims transferred to Acondistec, but not to dispose of these claims in any other way. This authorization may be revoked at any time. The customer shall notify Acondistec without delay of any enforcement action against Acondistec's rights. The customer shall bear any costs incurred in defending against such enforcement.
9.6 If the orderer is in default with the fulfillment of claims arising from the business relationship, Acondistec shall be entitled to rescind the contract without setting a deadline and irrespective of the requirements of § 323 para. 2 BGB (German Civil Code), to assert the rights arising from the reserved property, for which purpose the orderer shall grant the seller or a third party commissioned by the seller access to the goods subject to the reservation of title and surrender them, and to claim damages.
9.7 In the case of deliveries of goods to other jurisdictions in which the provisions on retention of title pursuant to Clause 9 (1) - (6) do not have the same security effect as in the Federal Republic of Germany, the customer shall grant Acondistec a corresponding security interest. If further declarations or actions are required for this purpose, the orderer shall make such declarations and cooperate in all measures necessary for the effectiveness and enforceability of such security interests.
10. claims for defects
10.1 The basis for claims for defects under warranty law and other bases for claims against Acondistec is primarily the agreed quality of the goods at the time of transfer of risk. The agreed quality is deemed to be the information on the specifications, durability and use of the goods in the respective manufacturer's data sheets. These, as well as supplementary information provided by Acondistec on the products and on the services, are merely statements of condition and do not constitute warranties, unless Acondistec expressly warrants or guarantees in writing specific characteristics of the product or the service.
10.2 The delivered goods are free from mechanical defects and faults in workmanship and are intended only for the purposes and uses recommended or approved by Acondistec in accordance with the manufacturer's data sheet or supplementary information ("intended use"). The same applies, if commissioned, to the proper installation of the products by Acondistec. Excluded from any liability are parts subject to wear and tear as well as damage resulting from typical wear and tear, improper installation, use or operation or repair work, maintenance activities or modifications not expressly authorized by us.
10.3 Products or parts thereof which show defects within the warranty period shall, at Acondistec's option, be repaired or replaced free of charge, provided that the customer has notified Acondistec in writing of the defects without undue delay after their discovery. The customer must set Acondistec a reasonable deadline for the rectification of the defects. To the extent that subsequent performance has failed within such period, the purchaser shall be entitled to assert the other statutory warranty claims (rescission, reduction of the purchase price, damages) to the extent that their further statutory requirements are met. Acondistec is entitled to make the supplementary performance owed dependent on the customer paying the order amount due. The customer may retain a portion of the order claim that is proportionate to the defect.
10.4 If the customer sends complaints or returns of goods to Acondistec, the customer is obligated to observe and comply with Acondistec's RMA regulations attached to these GTC as an appendix. This includes, in particular, the provision of all necessary information regarding the malfunction of the product as well as the location, time and extent of the malfunctions or failures that occurred and customer reports that are known to him and the transmission of customer complaints and reports. If the purchaser intentionally or negligently fails to comply with its duty to inform and cooperate, its warranty claim shall be suspended. Acondistec may return the goods to the orderer against payment if the orderer fails to meet its obligations after setting a deadline. Acondistec may choose to remedy acknowledged defects either at its premises, at the manufacturer's premises or at the premises of a third party, or at the customer's premises.
10.5 In the event of complaints within the warranty period, the costs of the necessary expenses for the purpose of subsequent performance, in particular transport, travel, labor and material costs excluding profit shares and overheads incurred in returning and repairing or replacing the goods, shall be borne by Acondistec. In the event of complaints outside the warranty period, the aforementioned costs shall be borne by the purchaser. Necessary expenses are those which contribute to the elimination of the defect and which a reasonable third party would have incurred. Not necessary are expenses or their part which, in relation to Acondistec's place of business, exceed the expenses customary in the market and which are increased by the fact that the customer refuses a reasonable and suitable subsequent performance offered by Aconditec or has taken the goods to a place other than the delivery address, unless the goods, according to the contract and their nature, were intended for a change of location. In particular, lost profit, business interruption costs, profit shares, business-as-usual costs and expenses that arise or increase due to the fact that the customer grants its customers rights or payments beyond the statutory claims without contractual obligation or waives or does not assert defences or objections to which it is entitled against its customers are also not required.
10.6 If the purchaser has installed the goods in its products or attached them to its products in accordance with their intended use, Acondistec shall also bear the expenses directly required for the removal and installation of the goods within the scope of subsequent performance in accordance with Clause 10.5. Otherwise, Acondistec shall not be liable for such expenses. To the extent that removal or installation of the goods is only possible at disproportionate cost, taking into account in particular the value of the goods, the significance of the defect and the extent of the goods affected, and to the extent that Acondistec is not responsible for the delivery of defective goods, Acondistec shall reimburse the necessary expenses only to the extent of twice the order value of the delivery of goods affected. Liability for damages remains unaffected by this. The purchaser's right of recourse pursuant to § 445a of the German Civil Code (BGB) is excluded unless the last contract concerning the goods in the supply chain is a purchase of consumer goods pursuant to § 474 of the German Civil Code (BGB).
10.7 Claims of the Purchaser based on defects shall be excluded if the Purchaser was aware of the defect of the goods at the time of the conclusion of the contract or at the time of the call or if the Purchaser remained unaware of the defect due to gross negligence. In addition, claims of the Purchaser for payment of removal and installation costs shall be excluded if the Purchaser is aware of the defect of the goods at the time of acceptance, resale, processing or installation or if the defect remained unknown to the Purchaser due to gross negligence. The exclusion of liability in the event of gross negligence on the part of the customer does not apply in the event of fraudulent intent or a guarantee of quality on the part of Acondistec. Gross negligence on the part of the orderer shall be deemed to exist in particular if, without knowledge of the defect, the orderer fails to carry out reasonable inspections in the ordinary course of business or fails to arrange for supplementary inspections of the goods without undue delay after an accumulation of complaints.
10.8 All claims for defects shall become statute-barred after 12 months at the latest; in the case of warranty claims after delivery or acceptance and for all other claims, including claims in tort, after knowledge or grossly negligent ignorance of the Purchaser of the circumstances giving rise to the claims and of the person of the debtor. The warranty period shall not be extended by repair or rework. In the event of a replacement delivery, the limitation period shall begin anew. If goods are used for a building in accordance with their customary use, the statutory limitation provisions shall apply. These statutory limitation provisions also apply to Acondistec's liability for damages arising from breach of a warranty or from injury to life, limb or health, as well as for malice, intent and gross negligence and under the Product Liability Act. A statement by Acondistec regarding a notice of defect or complaint does not constitute an acknowledgement or entry into negotiations, unless Acondistec expressly declares this.
10.9 The purchaser's rights with respect to defects require that the purchaser inspects the delivered goods immediately upon receipt and that Acondistec has notified Acondistec in writing of obvious defects and defects that were readily recognizable during such inspection immediately upon receipt of the goods, stating the specific complaints and defect symptoms as well as the place, time and extent of their occurrence. Similarly, the customer must notify Acondistec in writing of any hidden defects in the goods immediately after their discovery. Such notification shall be deemed to have been made without undue delay if it is made within 8 working days, whereby the dispatch of the notification or complaint shall suffice to meet the deadline. If the customer fails to immediately inspect the goods and/or notify Acondistec of defects in accordance with this provision, Acondistec's liability for defects shall be excluded for the defect not notified, not notified properly or not notified immediately.
10.10 The liability for defects shall not apply if the delivered items or rendered services are modified, improperly handled, treated or processed. Proper handling includes, among other things, the required compliance with the installation, operation and maintenance instructions, which must be proven by the Purchaser.
11. compensation
11.1 If Acondistec culpably breaches an obligation towards the customer, the customer may claim damages.
11.2 Acondistec shall have unlimited liability if damage is attributable to an intentional or grossly negligent breach of duty or to the culpable breach of a contractual cardinal obligation. Acondistec's liability for damages resulting from culpable injury to life, limb or health is likewise unlimited. The same applies to damages that fall within the scope of protection of a guarantee (warranty) issued by Acondistec. For ordinary negligence Acondistec shall be liable for damages only in the event of a breach of a material contractual obligation arising from the nature of the contract, the performance of which is a prerequisite for the proper execution of the contract and on which the customer may regularly rely.
11.3 In the event of a simple negligent breach of material contractual obligations, Acondistec's liability shall be limited to the foreseeable, typically occurring damage up to a maximum of EUR 100,000.00 per case of damage. In the event of default and impossibility, liability is limited to a maximum of EUR 10,000.00 per case.
11.4 Further or other claims of the purchaser other than the foregoing, irrespective of the legal grounds, in particular for compensation for damage that has not occurred to the delivery item itself or to legal assets of the purchaser, such as loss of profit and other financial losses, are excluded, unless Acondistec has acted with intent or gross negligence or has fraudulently concealed the defect causing the damage or has assumed a guarantee for the quality of the goods or has assumed liability in accordance with mandatory liability law.Insofar as Acondistec's liability is excluded or limited in accordance with the above provisions, this also applies to the personal liability of Acondistec's legal representatives, executives, employees and vicarious agents.
11.5 The purchaser is aware that extensive data losses can be avoided by making data backups at least once a day and that Acondistec is not liable under any circumstances for data losses resulting from failure to make data backups.
11.6 The provisions of Sections 10.7 - 10.10 shall apply accordingly.
12. product liability
12.1 The orderer shall not modify the goods, and in particular shall not modify or remove any existing warnings about dangers arising from improper use of the goods. In the event of a breach of this obligation, the orderer shall indemnify Acondistec internally against product liability claims of third parties to the extent that the orderer is responsible for the defect giving rise to the liability.
12.2 If Acondistec is prompted to issue a product recall or warning due to a product defect in the goods, the purchaser shall support Acondistec and take all reasonable measures ordered by Acondistec. For this purpose, the purchaser shall provide Acondistec with all documents relating to the production, delivery and complaint of the goods. The purchaser is obligated to bear the costs of the product recall or warning insofar as the purchaser is responsible for the product defect and the damage that has occurred. Further claims of Acondistec remain unaffected.
12.3 The purchaser shall immediately inform Acondistec in writing of any risks in the use of the goods of which it becomes aware and of any possible product defects or product failures in each individual case.
13. software/consulting services, intellectual property
13.1 In the case of contracts that (also) include software or consulting services, a specification shall be agreed upon by both parties as the basis for the services then to be provided prior to the provision of these services, but no later than in the final service phase. This shall apply accordingly in the case of amendments or supplements to such contracts. In the case of series and standard software, Acondistec's delivery specification shall be deemed to be the performance specification within the meaning of this provision.
13.2 If the scope of delivery includes software or intellectual property, the Customer shall be granted a non-exclusive right to use the delivered software or intellectual property including the documentation within the scope of the intended use of the goods. Use of the software or intellectual property on more than one system is prohibited.
13.3 The Purchaser shall only be entitled to receive the program documentation of the User Software if it has been specially developed for it, it has paid the full project planning, programming and data acquisition costs and nothing to the contrary has been expressly agreed. The Purchaser may only reproduce, transfer, translate or convert the software or the intellectual property from the object code into the source code to the extent permitted by law (§§ 69 a et seq. of the German Copyright Act). The purchaser undertakes not to remove manufacturer's information - in particular copyright notices - or to modify such information without the express consent of Acondistec or the upstream supplier.
13.4 The parties are aware that it is not possible according to the state of the art to exclude errors of the software under all applications.
13.5 Acondistec does not warrant that the program functions will meet the customer's requirements or will work together in the selection made by the customer.
13.6 Acondistec shall keep the working documents and data provided to Acondistec in safe custody with due care, without prejudice to the obligation of the orderer to also keep data provided to Acondistec on its premises for the purpose of reconstructing them. Acondistec retains title and copyright to all documents made available to the purchaser by Acondistec before or after conclusion of the contract; they may only be made available to third parties with Acondistec's express consent. All drawings and documents must be returned to Acondistec without request and without delay if the contract is not concluded or is dissolved again.
14. property rights and confidentiality
14.1 If a third party asserts against the orderer an infringement of industrial property rights with respect to the delivered products, the orderer shall be obligated to notify Acondistec immediately. Acondistec is entitled, if necessary with the support of the orderer, but at its own expense, to conduct all negotiations concerning the settlement or any resulting lawsuit.
14.2 If the delivered products have been built according to designs or instructions of the purchaser, the purchaser shall indemnify Acondistec against all claims, liabilities, charges and costs raised by third parties due to infringements of patents, trademarks or utility models. Any legal costs shall be advanced to Acondistec in an appropriate manner.
14.3 Acondistec undertakes to use all knowledge of trade secrets and of information to be designated as confidential obtained in the course of the contractual relationship only for the performance of this contract. Both parties shall treat all documents and information obtained during and in the performance of a contract as confidential for as long as they have not become generally known.
14.4 These obligations shall remain in force even after termination of a contract and shall also be imposed on third parties in the event of permissible disclosure of documents and information to third parties.
15. services
15.1 For the performance of services such as the installation of equipment, maintenance, general overhaul and repair, Customer shall make all arrangements necessary for an unimpeded start and expeditious performance of the services. It shall be the sole responsibility of the Purchaser to arrange for any necessary official permits.
15.2 The prices for the services shall be determined in accordance with Acondistec's offer conditions as applicable from time to time.
15.3 Otherwise, the services, in particular warranty and limitation of liability, shall be governed by the same. Liability for consequential harm caused by defects resulting from services is excluded.
16. export and import licenses, customs duties, disposal
16.1 Products and technical know-how delivered by Acondistec are intended for use and to remain in the country of delivery agreed upon with the purchaser. The re-export of contractual products - individually or in system-integrated form - is not permitted for the
The delivery of the goods to the Purchaser may require approval and is subject to the foreign trade regulations of the Federal Republic of Germany or the other country of delivery agreed with the Purchaser. The Purchaser must independently inquire about these regulations according to German regulations at the Federal Office of Economics, 65760 Eschborn/Taunus. Irrespective of whether the Purchaser specifies the final destination of the contractual products delivered, it shall be the Purchaser's own responsibility to obtain any necessary approval from the respective competent foreign trade authorities before exporting such products.
16.2 Any onward delivery of contractual products by the orderer to third parties, with or without Acondistec's knowledge, shall simultaneously require the transfer of the export license conditions. The orderer shall be liable to Acondistec for the proper observance of these conditions.
16.3 If Acondistec has to pay new, additional or changed customs duties, levies or comparable costs directly in relation to the customer or in relation to the customer's goods vis-à-vis its supplier, which were not foreseeable by Acondistec in the price calculation in connection with the goods purchased under these GTC when the order was confirmed to the customer and therefore were not taken into account accordingly, Acondistec may, at its option:
(i) adjust the price stated in the order confirmation vis-à-vis the Purchaser by an amount equal to the change for customs duties, levies or comparable costs without charging any additional profit. If the increase is more than 10% compared to the purchase price originally agreed with the Purchaser, the Purchaser may withdraw from the concluded contract.
(ii) in the event of an increase or reimposition of duties, charges or similar costs that is unreasonable for Acondistec, refund any amounts already paid by Customer in connection with an affected Purchase Order and cancel the Purchase Order, without any liability arising to Acondistec from such cancellation, subject to Section 11.2.
16.4 To the extent required by law, the Customer shall be obliged to dispose of goods covered by ElektroG, BatterieG or VerpackungsVO on its own responsibility in accordance with all statutory provisions. The Purchaser shall assume all related payment and notification obligations to the extent legally possible and shall impose the above obligations on its customers accordingly.
17. data protection
17.1 Acondistec will only collect, store, process and use personal data from the customer if, to the extent and for as long as this is necessary for the establishment, performance or termination of a contract. Any further collection, storage, processing and use of personal data will only take place if required or permitted by law or if the person concerned has consented to it. The legal basis for the aforementioned data processing is Art. 6 para. 1 p. 1 lit. b) DSGVO.
17.2 Acondistec is entitled to transfer the personal data to third parties if and to the extent that this is necessary for the performance of pre-contractual measures and the fulfillment of a contract (e.g. for shipping, invoicing) pursuant to Art. 6 para. 1 p. 1 lit. b) DSGVO or for the fulfillment of a legal obligation pursuant to Art. 6 para. 1 p. 1 lit. c) DSGVO.
17.3 For further information on the processing of personal data, in particular in connection with visits to the Acondistec corporate website, please refer to the privacy policy at www.acondistec.de acondistec.
18. final provisions
18.1 The customer may assign claims against Acondistec only with the express written consent of Acondistec.
18.2 The place of performance for the services of the parties is the registered office of Acondistec.
18.3 The place of jurisdiction for all disputes arising from the contractual relationship is Acondistec's registered office. Acondistec is also entitled to bring an action at the registered office of the purchaser as well as at any other permissible place of jurisdiction. Furthermore, Acondistec has the right to call upon the arbitration court at the Mannheim Chamber of Industry and Commerce (IHK) as plaintiff. In this case, the arbitration court shall finally decide the legal dispute in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS), excluding the ordinary course of law. The initiation of legal dunning proceedings by Acondistec does not yet constitute an exercise of the above right of choice and is permissible in any case.
18.4 The contractual relationship between Acondistec and the purchaser shall be governed exclusively by German law. The Uniform Law on the Sale of Goods (EKG), the Uniform Law on the Formation of Contracts (EAG) and the Vienna UN Convention on the International Sale of Goods (UNCITRAL) are excluded.
18.5 The invalidity of individual points of these terms and conditions shall not affect the validity of the remaining provisions. An invalid provision shall be replaced in the first instance by the special provisions for commercial transactions and any commercial customs.
Acondistec GmbH
St. Leon-Rot, June 2020