Terms & conditions
Terms and Conditions for Delivery and Payment – AVT GmbH Ilmenau in 98693 Ilmenau, hereinafter referred to as contractor:
§1 General / Area of applicability
- Our terms and conditions for shipment and payment (hereinafter T&C) apply exclusively. We do not recognize contradictory, deviating conditions of the client, unless we have agreed to their applicability in writing. Our T&C also apply if we, with knowledge of the contradictory conditions, or those client conditions that deviate from our conditions, accept the client’s order without reserve; our T&C also apply as well as for all future business with the client.
- All agreements that have been made between contractor and the client for the purpose of executing this contract must be specified in writing in said contract.
- Our T&C apply as well for merchants in the sense of § 24 of the German Law Governing Standard Business Conditions (AGBG), as well as for private persons.
- Additional special conditions apply for leasing contracts, rental contracts, and full-service contracts.
§2 Proposal / proposal documents
- All offers provided by contractor are subject to change; they are only made binding through the written order confirmation. Additional oral agreements, from which rights against the contractor could be derived, require written confirmation.
- The contractor is authorized to draw upon third parties to fulfill the order.
- Illustrations and information about the object of the agreement in catalogs valid at the time the contract is concluded, and other documents, are not to be considered as assured features. The contractor reserves the right make design and model changes to the object of the agreement during the delivery time if that the object of the agreement and its appearance thereby do not experience what the client considers to be unacceptable changes. A new model and price determination must take place in the case of cancellations and price increases through contractor’s suppliers. All quantity, dimension, color and weight information as well as stain colors, veneer structures and lacquer are to be understood on the basis of normal commercial tolerances.
- All drawings, calculations, and other documents are copyrighted by the contractor; they may not be made accessible to third parties.
- The prices are specified in Euro (EUR) plus the legal V.A.T. without packing and shipping costs. Assembly costs, if nothing to the contrary has been agreed in writing, are calculated at hourly rates.
§4 Deliverables – Shipping – Packaging
- The contractor delivers at his discretion from ex works or from the warehouse in Ilmenau. The disbursed costs will be invoiced. The contractor is authorized to insure the contract object against transport damage and loss at the expense of the client.
- Partial shipments, and partial performances by the contractor are permitted, and will be invoiced as such, and do not authorize the client to withhold payment until complete delivery.
- Risk is transferred at the latest with the shipping of the contractual object to the client, even if the contractor is handling delivery and setup.
- Delivered objects are to be accepted by the client, even if they show non-essential defects, without prejudice to his warranty rights. Cartage and delivery charges at the receiving location are charged to the client. Shipping is done at the risk of the client even in the case of returns.
- The client must insure for himself that purchased goods can be transported through stairways and doorways. Transports requiring cranes and other lifting devices are to be undertaken by the client on his own responsibility.
§5 Delivery time, acceptance delay
- Delivery time is not binding.
- Acceptance delay
If the client does not accept the object of the contract in accordance with the schedule, then the contractor is authorized to set an appropriate extension. After expiration of this extension he can dispose of the contract object as he sees fit, and can supply the client with an appropriately extended delivery time. The rights of the contractor to cancel the contract or to demand damages for non-fulfillment under the prerequisites of § 326 of German Law Governing Standard Business Conditions (AGBG) remain hereby unaffected.
§6 Payment conditions
- All invoices are immediately due and payable without discount. Payments for individual orders up to 25.00 EUR must be paid in cash upon delivery.
- Checks and bills of exchange that have been previously agreed upon only apply as payment when the money is credited. Discount costs and other bill of exchange costs are the client’s responsibility.
- The withholding of payments on the part of the client because of counterclaims arising from other contractual relationships with the contractor is excluded.
§7 Title retention
- All goods delivered by the contractor remain the property of the contractor until all claims arising from the business relationship have been paid. The client may not dispose of reserved goods, nor transfer the ownership as security, or pawn them.
In the case of third party interventions the client must immediately notify the contractor by sending him all available documentation. The client cedes the claims against the purchaser arising from the disposition of goods in its full amount with all ancillary rights, (reserved property, security property) to the contractor until complete payment of the purchase price claim.
- The enforcement of the reservation of proprietary rights as well as the pledging of the delivery object by the contractor are not considered as rescission from the contract, if the installment act does not find application.
- If the client is in arrears with his payment obligations, then the contractor can at any time demand the surrender of the goods, whereby the client allows the contractor, or a third party authorized by the contractor, to enter the client’s premises. Surrendering the goods is only done for security, if nothing to the contrary has been agreed upon in writing.
- If the client stops payment, then the contractor has the rights listed in § 46 KO (German Bankruptcy Act) to exclusion or cession of the counter performance.
§8 Warranty, liability, auxiliary obligations, limitation
- The contractor’s warranty extends only to newly produced items, services and only to defects that make the shipment of the performance unusable, or that significantly impair its usability, as a consequence of a circumstance present prior to transfer of risk, particularly due defective workmanship, material defects or defective execution.
- The contractor is not liable for damages that are caused by improper use, incorrect operation and handling, non-compliance with the setup conditions, natural wear, neglected maintenance, unsuitable operating material, moisture, dirt, power supply fluctuations, static discharge, influence of temperature and weathering, influences of external devices, chemical, electro-chemical or electric influences, as well damages caused by unprofessional repair work carried out by the client or third parties, as well as for transport damages, environmental influences, outside replacement parts and other interventions.
- Recognizable defects are to be registered immediately after receipt of the shipment, hidden defects immediately after their discovery in writing (§ 377/378 German Commercial Code (HGB)). When receiving an already outwardly damaged shipment, the damage replacement claim must be registered with the transport company (rail, mail service, freight forwarder etc.) including the rail or postal log. If the client is not a merchant then he is only required to register apparent defects immediately.
In the case of non-timely damage registration the shipment or service is considered to be accepted. Maintenance, adjustment work, and cleaning work, as well as consulting cases during the guarantee period are excepted from the warranty claim and the client must pay the occurring costs. For replacement objects to be delivered during the warranty period, shipping costs and packaging material will be invoiced.
- The contractor is obligated in the case of defective shipment or service, including the lack of properties assured in writing, to rectify or replace the defective parts at his discretion free of charge. Replaced parts become the property of the contractor. The work executed within the framework of the warranty does not constitute an extension of the warranty period, nor does it initiate a new warranty period. The warranty period for integrated replacement parts/ assemblies ends with the warranty for the entire object/device.
Warranty performance work outside of the contractor’s normal office hours will be invoiced. To execute the rectification, the client must grant the contractor the required opportunity and support for the error resolution. Multiple rectification is permitted. The prerequisite for the claim of error resolution is that the error is reproducible and can be shown through machine generated output.
- If rectification or replacement is not possible, has failed conclusively, or if it is delayed unacceptably through the culpability of the contractor, then the client can demand after a reasonable period, a reduction of the purchase price or a cancellation of the contract. Excluded are all more extensive claims of the client against the contractor and the persons he employed in performing an obligation for whom he is vicariously liable, including damage claims for replacement (contractual and external to the contract) because of direct and indirect damages and consequential damages (for example lost profit, savings that have not materialized, a damage arising from the claims of third parties against the client and a damage to recorded data etc.) and damages from the execution of the rectification, if this is not down to gross negligence or intent of the client or third parties engaged by him.
- Correction proofs for printed materials are to be checked for layout and other errors by the client. The contractor is not liable for errors that are not found by the client. Quantities of 10% more or less than the print run are not contrary to the orderly contract execution.
- Application-technical consulting by the contractor either oral or in writing, suggestions, calculations, analyses, should only explain the best possible use of the products to the client. They do not free the client from his obligation to insure for himself the suitability of the products for his intended purpose through his own testing.
If the contract object cannot be used as prescribed in the contract because of culpable infringement of the ancillary obligations of the contractor even before the contract is concluded, for example neglected or defective consulting or instruction, then the determinations in the previous contract points apply (particularly § 8 no. 5) for the liability of the contractor, under exclusion of further claims of the client.
- The contractor offers no warranty for operating systems, program errors, operating errors, data media, data loss, data error, color tapes, rubber or plastic parts, other consumables, and parts subject to wear and tear as well as for replacement parts and accessory parts. For small parts like typewriters, computers, small computers, and monitors contractor will pay transport costs for the fulfillment of the warranty obligation, in all other cases during the warranty period travel expenses and time will be invoiced.
§9 Fulfillment location – judicial forum – applicable law
- Fulfillment location for the payments of the client as well as shipments and performances of the contractor, with the exception of repairs at the client site, is the location of the contractor if the client is a merchant.
- The laws of the Federal Republic of Germany apply. The applicability of the uniform purchasing law is excluded.
- Judicial forum – also for matters concerning bills of exchange and checks – is Ilmenau, if the client is full merchant, a legal person governed by public law, or bearer of a public portfolio, or has no general domestic judicial forum. This condition of responsibility applies also in the case that the client after concluding the contract has moved his residence or usual location outside of the territorial application of the German Code of Civil Procedure (ZPO), or if his residence or usual location is unknown at the time of the filing of an action.
- Should any provision of these general terms and conditions be ineffective, then the validity of the remaining provisions remains hereby unaffected. Should any provision be or become ineffective, the contractual participants are obligated to reach an agreement, that comes as close as possible to the determination that has become ineffective in its legal effect.
I. Additional conditions for machine repairs
Work time, travel time, travel costs, and expenses as well as the integrated replacement parts will be invoiced. Each hour started will be invoiced as a full hour. Cost estimates are chargeable, and only binding in writing for the scheduled work, and are only approximate in their amount.
The contractor is not liable for the hourly charges that exceed the cost estimate if defects are determined during the repair work that previously were not defined by the client. Complaints must be communicated in writing within 8 days after the repair. The contractor assumes no warranty for data losses during the repair work. Each client is responsible for his current data backup, so that liability for data losses that can occur through the activities of the employees of the contractor or disturbances to the DP system does not rest with the contractor.
Data and programs can be lost through incompatibility of the data media. All work involved to save data, if required, will be charged. To this extent liability claims are excluded.
II. Additional conditions for offprint forms
For initial orders the client will get a sample proof for review and authorization. The contractor is not liable for errors that the client does not find when checking the sample proof. The resulting additional costs arising from desires for change are charged extra.
Quantities that vary by +/- 10% are normal and permissible. Only the delivered quantity will be charged.
III. Additional condition for the analysis of electronic data processing systems (DP)
The processing and analysis of data is done on the basis of respectively applicable user descriptions from the contractor. The client obligates himself to execute the processing of personal data only within the framework of the client’s instructions, and in this regard the relevant directives of the German Data Privacy Law (BDSG) are to be observed. Likewise the contractor warrants for the technical and organizational security measures according to § 6 and the annex to § 6 of the German Data Privacy Law. The contractor reserves the right to change the analysis programs, to extend them, or replace them with new ones as long as the type of data capture and type of data analysis remain intact.
IV. Property, copyright, confidentiality
The client acquires neither property nor copyright to the programs and processes supplied by the contractor. The client may not forward operating instructions and program descriptions to third parties.
The contractor obligates himself not to make information and data, as well as all analyses, provided by the client accessible to unauthorized persons.
V. Additional conditions for software
- Standard user software (programs)
Content and scope of standard user programs for computers and devices are determined by the program descriptions provided to the contractor by the client. Program changes and extensions require the written confirmation of the contractor and are chargeable.
- Individual user software (programs)
The objectives for working out individual user programs for computers and devices according to their performance range and their use rest on the information provided by the system analysis undertaken by the contractor and the program acceptance confirmation. The client must confirm them in writing. Subsequent changes and extensions must be agreed upon in writing and will be separately invoiced.
- Right of use, property, copyright
The contractor acquires with the program a non-exclusive and non-transferable right to use the program during the agreed upon period of use. All rights extending beyond the agreed upon use remain with the contractor. The client is not authorized to make the program, or parts of the program, accessible to third parties, or to permit third parties to use the program. However the client is allowed to provide services for third parties with the help of the program.
- Payment conditions
The following method of payment applies for the individual software created and supplied by the contractor: 1/3 when the order is given – 1/3 when the organizational description is accepted – 1/3 at program acceptance.
The client must pay the agreed upon license charge to the contractor for the use transfer of the program. The license fee can be paid as a one-time fee or as a monthly license fee as agreed.
A separate maintenance fee will be charged for the care and maintenance of the program. Data media and documentation are not contained in the license and maintenance charges; rather they will be separately invoiced at the respectively valid prices according to the price list.
- Program hand-over
The contractor hands-over the program ready-to-use in the form of computer-readable program media (data media) including program description, (customer documentation). The program is considered to be handed-over and accepted when the device provides the results specified in the program description, based on the test data. The hand-over of the program must be confirmed in writing by the client to the contractor.
Delivered programs that are used longer than 6 weeks are automatically considered to be accepted.
- Warranty and liability
The contractor is obligated to use the program according to the program description. The warranty includes no-charge resolution of program errors. No warranty is offered for operator-error or non-compliance with the program description.
The client must inform the contractor immediately in writing in case of program error, supplying the required documents and written information to determine the error, and client must provide the contractor the required time and opportunity to resolve the error.
The client is not authorized to undertake changes in the program handed-over to him. If he should, in spite of this, make changes, then the contractor’s warranty obligation is canceled.
- Return of the program and the program documents
After expiration of the agreed upon use period, the client must destroy or delete the program provided by the contractor and all program documents, including duplicates or copies made by the client, and client must confirm the destruction or deleting of the said program to the contractor. The contractor is authorized to retain a program description as verification for testing and revision purposes.
VI. Additional conditions for other services
The hourly rates that are agreed in the order, will be charged for other services (for example training, consulting, care, etc.). If, during the period of services, significant cost factors change for the calculation of compensation (wages etc), then the contractor is authorized to make an appropriate price adjustment. The new prices apply after notice of the change is given. Independently of the above said, the provisions of § 3 are applicable.
Travel time, travel costs and expenses will be invoiced separately.