General Terms and Conditions of Auerswald GmbH & Co. KG
Section 1 General
- These General Terms and Conditions (hereinafter referred to as "GTC") form an integral part of all our offers and contracts for deliveries and services, including those in online trading (see separate section 10) and possible consultations. If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, these General Terms and Conditions shall apply to current and future business relations even if no express reference is made to them.
- Any additional Buyer terms and conditions that conflict with or differ from these GTC shall not become part of the contract, unless we expressly agree with their validity in writing. This shall likewise apply to the amendment of this written form requirement itself. These GTC shall also apply if we carry out a delivery or other service to the Buyer without reservation in full knowledge of the Buyer's conflicting or deviating conditions. Verbal agreements are only binding with written confirmation.
- If Incoterms® is used, the version valid at the time of order shall apply, currently that of 2010.
- Our offers and cost estimates are to be understood as an invitation to conclude a contract. A purchase agreement is only concluded upon our acceptance, by means of a written order confirmation or a short-term delivery. Order confirmations placed with the help of automated means that lack a signature and name shall be deemed written orders.
- The Buyer may assign claims from the purchase agreement only after prior written consent.
Section 2 Prices
- The conditions and price lists valid at the time of order are authoritative.
- Sales prices are only valid as fixed prices if confirmed in writing. They apply incl. loading ex works (EXW) plus the statutory value added tax and packaging costs applicable at the time of delivery (this shall only apply to business customers, end customer prices always include value added tax).
- If there are more than four months between the order confirmation and the delivery and if prices increase by more than 10% in total after this period, which cannot be influenced by us, in particular due to wage increases, increases in raw material costs, general price increases due to inflation or comparable circumstances, we are entitled to charge a correspondingly higher price. We will take into account the legitimate interests of the Buyer, in particular with regard to any obligations already entered into by the Buyer to continue to deliver the goods at a certain price. We will substantiate price-changing factors to the Buyer upon demand. If the Buyer is a consumer and finds the price increase unreasonable, the Buyer has an extraordinary right to withdraw from the contract.
Section 3 Delivery and transfer of risk
- If we dispatch the goods to a place other than the place of performance, the risk of accidental loss and accidental deterioration shall pass to the Buyer as soon as we have handed over the goods to the freight forwarder, carrier or other person commissioned with dispatch. This shall also apply if partial deliveries are made, we assume the costs of shipment or carry them out ourselves. If we carry out the transport ourselves, we shall only be liable for deterioration and loss of the goods in the event of negligence. If the goods are ready for collection, the risk shall pass upon receipt of the notification of readiness for dispatch. If the Buyer is a consumer and purchases a movable item, the provisions defined in sentences 1 - 3 shall only apply if the Buyer has commissioned the freight forwarder, the carrier or the other person designated to carry out the shipment and we have not previously referred this person to the Buyer.
- The Buyer takes over the disposal of the packaging.
- Delivery times are only considered as dates for the fixed period commercial transaction if they are expressly confirmed as such.
- Non-compliance with delivery dates and periods shall not entitle the Buyer to assert its rights until it has set us a reasonable period of grace of at least 10 working days, unless this is legally unnecessary. This shall not apply if the Buyer is a consumer and buys a movable object.
- If we are prevented from fulfilling our obligations by unforeseen circumstances which could not be avoided despite reasonable care, the delivery period shall be extended until such hindrance is eliminated. This shall also apply in the event of industrial disputes, disturbances in the own operational procedure, disturbances in the operational procedure of the subcontractors (insofar as a replacement procurement cannot be reasonably expected) including the transport companies, disturbances caused by measures of the public authorities and impediments on traffic routes
- We shall be entitled to make partial deliveries provided that this is not unreasonably to the detriment of the Buyer. In the case of custom-made products, we reserve the right to 10% up to 50 pieces and 5% over or underdelivery as of 50 pieces, insofar as this is reasonable for the Buyer.
- If the Buyer does not accept or keep the goods without justification, we may demand a lump sum of 20% of the order value as compensation instead of performance. The Buyer is at liberty to prove that no damage or only minor damage has occurred. The assertion of further damages remains unaffected by this.
Section 4 Payment
- An invoice will be issued separately for each delivery under the date of dispatch. This shall also apply to partial deliveries. Advance payments made shall be credited pro rata to the individual partial deliveries. A partial payment shall first be credited against any costs, then against any interest and then proportionately against the principal claims
- The invoice amount is due immediately, but no later than 5 working days after receipt of the invoice.
- Invoice settlement by cheque/bill of exchange is made in lieu of performance. Discount, exchange charges/costs shall be borne by the Buyer.
- If the Buyer is an entrepreneur, it may, in the event of a justified complaint about defective goods, temporarily retain only that part of the purchase price which corresponds to the invoice amount of the contested goods.
- In the event of default on payment, interest on arrears, cheque or bill protest or significant deterioration of the Buyer's financial situation after conclusion of the contract, we may demand advance payment, immediate payment of all outstanding invoice amounts, and demand cash payment or provision of security against the return of accepted bills of exchange.
- For default interest, Sec. 288 BGB (German Civil Code) shall apply.
- For the second and each further reminder we charge 5 Euro. The costs of legal proceedings shall be borne by the Buyer. The fact that a smaller damage has actually occurred can still be proven my means of contrary evidence.
- The offsetting of counterclaims is only permissible in the case of undisputed or legally established claims.
Section 5 Quality, defects
- Only the order confirmation as defined in Sec. 1 No. 4 p. 2 of these General Terms and Conditions shall be decisive for determining the quality of the goods. Product-related representations of performance features of the devices are understood to be, also without further notice under the reservation of use, exclusively components manufactured by us as well as devices and a professional installation in particular of pre-installations, e.g. exchange lines or already existing telephone systems. The suitability of the goods for the purposes intended by the Buyer, in particular with regard to facility availability, is not the subject of the condition of the goods, unless we make an agreement with the customer related thereto. Commercially customary and minor technically unavoidable deviations, use of other, but technically equivalent components than those specified in the product description, as well as wear and tear due to the nature of the nature of the goods do not constitute a defect.
- Any liability for material defects shall cease to exist in the event of modifications to the goods that go beyond installation in line with the state of the art and the installation instructions.
- The Buyer undertakes to check the consistency of the specifications defined in the order confirmation with regard to the intended purpose of use.
- If the buyer is a merchant, the following shall apply:
a) The warranty rights of Buyer are subject to the condition that the Buyer has met its statutory inspection and rejection duties (Sec. 377, 381 HGB), that Buyer has, in particular, immediately inspected the goods delivered and promptly informed us in writing of any obvious defects and defects that were found during such an inspection. The Buyer must report to us any hidden defects promptly after they are uncovered. The notification, within the meaning of Sentence 1, is considered prompt if it is made within eight workdays. The date on which the notification is received by us is authoritative for the compliance with the notification deadline. If the Buyer fails to duly inspect the goods and/or report defects, we are not liable for the defect. The Buyer must describe the defects in writing in its notification sent to us.
b) If a notice of defect is made without justification, we are entitled to demand from the Buyer reimbursement of the expenses that were incurred unless the Buyer can show that it is not at fault for the unjustified notice of defect.
c) The supplementary performance claims do not pertain to minor deviations and which the Buyer must tolerate.
d) In the event of defects of the goods, we shall be entitled, at our discretion, to supplementary performance by remedying the defect or by demanding the delivery of defect-free goods.
e) If the goods are not at the place of delivery, the Buyer will bear all additional costs incurred by us in the remediation of defects due to this fact, unless the relocation to another place corresponds to contractual use.
f) Rights arising from defects shall not exist
‒ in the case of defects which arise after the transfer of risk as a result of improper handling (e.g. deviating from the operating instructions), improper storage, care or excessive strain or use;
‒ in the case of defects which arise due to force majeure, special external influences which are not assumed under the contract, or due to the use of the goods outside the use assumed under the contract or normal use
We shall not be liable for defects which are based on the fact that the Buyer demands processing or choice of material which deviates from our specifications.
g) Within the scope of the claim for supplementary performance, the Seller may, at its discretion, repair or replace the goods within 10 days of receipt. The right of the Buyer to reduce the purchase price or to withdraw from the contract after the failure of supplementary performance shall remain unaffected by this
- Warranty claims shall become statute-barred in accordance with the statutory provisions.
- In the event of unfounded claims by the Buyer against the Seller for warranty rights for which the Buyer is responsible, whether there is no defect or the defect does not give rise to any claims, the Buyer shall reimburse all costs incurred by us as a result thereof, e.g. for inspecting the contested goods.
- Claims arising from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product. In all other respects, the Buyer's supplier recourse, if it exists on the merits, shall be limited to reimbursement of actual expenses incurred up to an amount of 500 euros against provision of evidence. It is at the Buyers discretion to provide evidence for higher damages.
- The shares issued by Auerswald GmbH & Co. KG are exclusively intended for distribution within the EU. Deliveries to countries outside the EU may only be made after prior written approval by Auerswald GmbH & Co. KG.
Section 6 Reservation of title
- The delivered goods shall remain our property until the purchase price has been paid in full, including any ancillary claims arising from the purchase contract. This applies to merchants until full payment of all claims resulting from the business relationship (current account reservation) are made. For the duration of the retention of title, the Buyer is required to treat the goods subject to a retention of title with due care. If the buyer is a merchant, the following shall further apply:
a) The Buyer undertakes to insure the goods at sufficient reinstatement value at its own expense against damages caused by fire, water, and theft.
b) The Buyer hereby assigns to us all indemnification claims from this insurance. We hereby accept the assignment. Should an assignment not be permitted, the Buyer hereby irrevocably instructs its insurer to make any payments to us only. Any further claims of ours may have remain unaffected. Upon request, the Buyer must furnish proof to us that an insurance contract was concluded.
- If, in connection with the payment of the purchase price by the Buyer, a bill of exchange liability is established at our expense, the retention of title shall not expire before the payment of the bill of exchange by the Buyer as drawee.
- The withdrawal from the contract according to Sec. 449 Abs. 2 BGB (German Civil Code) is deemed as declared if we demand the return of the goods delivered under retention of title.
- The Buyer is forbidden to pledge the reserved goods or to assign them as security. In addition, the Buyer shall be obliged to notify us immediately in writing if third parties wish to access the reserved goods. If the buyer is a consumer, a text message is sufficient. The Buyer must provide the Seller with all necessary documents, in particular a copy of the seizure report for an intervention.
- The Buyer shall be liable to the Seller for all damages resulting from such access, in particular for all judicial and extrajudicial costs of an enforcement counterclaim, insofar as the third party cannot compensate these costs.
- The Buyer is entitled to combine or process the reserved goods with goods of third parties within the framework of normal business transactions. In this case we shall acquire co-ownership of the new goods in the amount of the proportional value of the reserved goods and the combined or newly manufactured goods.
- As long as the Buyer is not in default of payment, it is entitled to resell the reserved goods delivered by the Seller. In this case, the Buyer immediately assigns all claims (including VAT) arising from its contractual relationship with its client or third parties to the Seller. We hereby accept the assignment. In the event of the sale of combined or newly manufactured goods, the Buyer hereby assigns to the Seller the claims arising from its contractual relationship with its client or third parties in a co-ownership relationship. We hereby accept the assignment.
- The Buyer remains authorised to collect the claim in trust, but the Seller's authority to collect the claim itself remains unaffected. However, we will not make use of our right to collect as long as the Buyer complies with the contract. In the event of a breach of contract, the Buyer must immediately provide the information required for collection of the claim; in particular, it must name its debtors and make the relevant documents available and notify its debtors of the assignment.
- If the goods subject to retention of title are sold, we shall first deduct the costs and interest incurred from the proceeds obtained and then offset them against the purchase price. Any surplus is returned to the Buyer.
- The right to resell, use or install the reserved goods and the authorisation to collect the assigned claims shall lapse upon cessation of payments, application for or opening of insolvency proceedings; the authorisation to collect shall also lapse in the event of a cheque or bill protest.
- If the value of the securities exceeds the claim to be settled by the Buyer by more than 20 %, we shall release the securities exceeding this amount at the Buyer's request.
Section 7 Liability
- Auerswald products are not designed for this and should therefore not be used for life support systems and/or applications within nuclear facilities. The use of our products for such applications must be preceded by a written consent / declaration of Auerswald customized to the individual case.
- If the buyer is a company, the following shall apply
a) We are fully liable, regardless on what legal grounds, in the event of a breach of a warranty or an injury to life, body or health. The same applies to intent and gross negligence by governing bodies and executives. The liability for simple ancillary agents (Sec. 278 BGB) is excluded to the extent permitted by law.
b) Subject to section 2. a), we are only liable for slight negligence if cardinal duties were breached. Cardinal duties are those without which a proper performance of the contract would not be possible and the fulfilment of which the contracting party regularly relies and may rely on.
c) Regarding the non-adherence to a period of delivery, our liability is, subject to section 2. a), limited to 5% of the net price that was agreed on regarding damages that the Buyer incurred due to the delay. The contracting parties have the right to assert further damages and to show lower damages.
- Otherwise, we shall be liable for damages not caused by injury to life, body or health only for negligence and the negligence of our legal representatives or vicarious agents.
- According to the state of the art, it is not possible to develop software in such a way that it is free of errors for all application conditions. Auerswald or its suppliers are therefore not liable for the complete absence of errors in the software. In such a case, liability and warranty shall only extend to the fact that the software is basically usable in the sense of the enclosed program description and in compliance with the prescribed operating conditions. The conditions of the licenses contained in the software, which referenced before installation and the use of which must be agreed with prior to the installation and use of the software, continue to apply. Further liability exists only within the scope of Sec. 7 No. 1 - 3 of these General Terms and Conditions. We also assume no warranty or liability for software if it is modified or in non-compliance with the license terms.
Section 8 Model protection, software
- TheBuyer may not reproduce our goods or have them reproduced and may not sell such reproductions.
- In the event of infringement, we shall be entitled to a contractual penalty in the amount of our prices per item for the corresponding article; the price list applicable at the time of infringement shall be decisive. Our right to compensation remains unaffected.
Section 9 Cost Estimates, Drawings, Technical Documents
- Cost estimates, drawings and technical documents shall be treated confidentially by us and by third parties and disclosed upon request.
- The transfer does not constitute the granting of copyright exploitation rights. For each case of infringement, an appropriate contractual penalty of up to 50,000 euros shall be forfeited without plea of continuation. The Buyer reserves the right to prove that the actual damage is lower.
Section 10 Online contracts
- The Buyer can select products from the offered assortment and collect them via the button "Add to shopping cart" in a so-called shopping cart. By placing the products in the online store, we make a binding offer to conclude a contract for the articles available in the online store. The Buyer may initially place these products in the shopping cart without obligation and change and view its data at any time before sending its binding acceptance of the provider's offer. The contract is concluded when the Buyer accepts the offer for the goods contained in the shopping cart (the order) by clicking on the button "order with payment obligation". However, the order can only be placed and transmitted if the Buyer has accepted these terms and conditions by ticking the box "I have read the terms and conditions of your store and agree with their validity" and thereby based its order on the GTC.
- Immediately after sending the order, the Buyer receives an automatic confirmation of receipt by e-mail from the Seller, containing the Buyer's order details. The buyer can print this e-mail using the "Print" function. In this e-mail or in a separate e-mail, but at the latest upon delivery of the goods, the contract text (consisting of order and GTC) will be sent to the Buyer by the seller on a durable data carrier (e-mail or paper printout) (confirmation of receipt). The contract text is stored in compliance with data protection regulations./li>
- Consumers have a legal right of cancellation when concluding a distant selling transaction, about which we inform in the following link to the online store: shop.auerswald.de/shop/widerrufsbelehrung, in accordance with legal regulations. The following remain precluded from the right of cancellation: contracts for the delivery of sound or video recordings or computer software in a sealed package if the seal has been removed after delivery. A sample cancellation form can be found in the online shop at https://shop.auerswald.de/shop/widerrufsbelehrung.
Section 11 Special Conditions for Voice over IP (VoIP) Services (e.g., SIP Trunk)
- Auerswald offers various services connected with VoIP, such as setting up a SIP Trunk. These services are governed by the preceding regulations as well as the following conditions and provisions.
- The specifications Auerswald publishes will be authoritative for the characteristics of its services; a certain availability will be owed only if this is expressly mentioned in those specifications.
- Auerswald enters into contracts only when a customer places an order and Auerswald confirms it, even if that customer has previously communicated with Auerswald's distribution partners. As a continuing obligation, this contract has the contract period listed in the order and order confirmation, and can be terminated only for good cause. Good cause is constituted if the customer fails to comply with its monthly payment obligations twice in a row or in a total amount of two monthly instalments.
- During the contractual relationship, the customer shall ensure availability of (i) internet access that is suitable for using the VoIP services and (ii) any other technical requirements in accordance with Auerswald's specifications to that end. In that regard, the customer shall render a preliminary service; this means that, if the technical requirements are not provided on time or at all, Auerswald may withhold its own services.
- The customer shall take all necessary and normal security measures against any undesired use or abusive use of its connection by third parties. If the customer determines any undesired or abusive use, it shall inform Auerswald thereof without undue delay. The customer shall keep access data safe and confidential and shall not communicate them to third parties. It the customer has justifiably communicated access data to third parties (such as its employees), the customer shall inform those third parties of the duty to maintain confidentiality and safekeeping, and obligate them accordingly.
- The customer may use the communication connections provided by Auerswald as part of its services only as intended, and in accordance with the (telecommunication) laws and ordinances as amended, and shall not take any actions that contradict those regulations. Neither shall the customer use any equipment or execute any applications that might lead to changes in the physical or logical structure of the accesses and networks provided by Auerswald.
- The customer may not pass on to third parties the Auerswald services rendered for the customer, in a commercial manner, without Auerswald's consent.
- If the customer or a user the customer has authorised is guilty of misuse, and the customer fails to discontinue such misuse within a reasonable period despite being asked to do so, Auerswald may block the customer's connection, or, if applicable, delete user accounts created by the customer, at the customer's expense.
- Customers in dispute with Auerswald over the fulfilment of an obligation in Sections 43a, 45 to 46 para. 2 and 84 of the telecommunication law (Telekommunikationsgesetz - TKG), if applicable to Auerswald, may initiate arbitration proceedings by applying to the Bundesnetzagentur (Federal Network Agency). The Federal Network Agency regulated the details of the arbitration proceedings in an arbitration ordinance that it publishes. Platform of the EU Commission for Online-Dispute Resolution: https://ec.europa.eu/consumers/odr/.
Section 12 Validity of the provisions
In the event of the invalidity of individual terms and conditions, the validity of the remaining provisions shall remain unaffected.
Cremlingen, 8th July 2019
Section 12 Place of fulfilment, jurisdiction and choice of law
- If the customer is an entrepreneur, a partnership, a legal entity under public law or a special fund under public law, Cremlingen/Schandelah is agreed as the place of performance.
- The court of jurisdiction is Braunschweig. We shall also be entitled, at our discretion, to make use of the Buyer's general place of jurisdiction.
- This contract is governed by German law.
- The customer shall bear all costs for legal prosecution (fees, costs and expenditures, costs for legal advice, and enforcement costs) in and outside Germany, if and insofar as we prevail against the customer.
Section 13 Validity of the provisions
In the event of the invalidity of individual terms and conditions, the validity of the remaining provisions shall remain unaffected.
Cremlingen, 17th March 2020