General Terms & Conditions
Joint General Terms and Conditions of Aesku.Diagnostics GmbH & Co. KG and Aesku.Systems GmbH & Co. KG
(as of 09/2018)
§ 1 GENERAL
(1) All deliveries and services by either Aesku.Diagnostics GmbH & Co. KG or Aesku.Systems GmbH & Co. KG (each or collectively hereinafter referred to as "AESKU") shall be made and rendered exclusively on the following terms of delivery and payment. These terms also apply to making software available for use.
(2) Deviating terms and conditions of the buyer are explicitly opposed hereby. Such terms and conditions shall be binding upon AESKU only if AESKU has accepted them in writing. This requirement of consent shall apply in any case, for example also in the case that AESKU effects delivery to the buyer without reservation, having full knowledge of the buyer's terms and conditions.
(3) By placing the order and accepting the goods delivered by AESKU, the buyer confirms its agreement with AESKU's terms and conditions.
(4) Legally relevant statements and notifications which the buyer is obliged to give to AESKU subsequent to entering into the contract (e. g. setting a time limit, notification of defects, statement of rescission or reduction [Minderung]) shall be made in writing in order to be valid.
§ 2 OFFER AND DELIVERY
(1) All offers made by AESKU shall always be without obligation and non-binding, unless they are explicitly described as binding or include a specific time limit for acceptance; AESKU's written confirmation of an order shall constitute the basis of the contract and determine the scope of the delivery. This shall also apply in such case that the buyer has requested a specific offer.
(2) Orders placed by the buyer shall be binding upon it. Acceptance may be stated either in writing (e.g. by confirmation of the order) or by delivering the goods to the buyer.
(3) Obvious errors, mistakes in printing, calculation, spelling and miscalculations shall not be binding upon AESKU and shall not entitle the buyer to any claims for damages.
(4) Delivery shall take place
- for Aesku.Diagnostics GmbH & Co. KG: EXW Mikroforum Ring 2, 55234 Wendelsheim, Germany, Incoterms 2010. In case of a chain transaction in accordance with sec 3 subsection 6 sentence 5 of the German Value Added Tax Act [Umsatzsteuergesetz] delivery shall take place FCA Mikroforum Ring 2, 55234 Wendelsheim, Germany, Incoterms 2010.
- for Aesku.Systems GmbH & Co. KG: EXW Mikroforum Ring 3, 55234 Wendelsheim, Germany, Incoterms 2010. In case of a chain transaction in accordance with sec 3 subsection 6 sentence 5 of the German Value Added Tax Act [Umsatzsteuergesetz] delivery shall take place FCA Mikroforum Ring 3, 55234 Wendelsheim, Germany, Incoterms 2010.
§ 3 Export restrictions, sanctions
(1) Deliveries and services shall be under the condition that fulfilment is not restricted by any national or international regulation, particularly export control regulations and embargoes or any other sanction. The buyer is required to provide all information and documentation needed for export. Delays caused by export licensing procedures shall suspend any deadline or delivery time and shall not result in any default.
(2) If any required license will not be granted, the contract shall be considered void with respect to the relevant items. Claims for damages including consequential damages and loss of profit resulting therefrom and/or due to delays or the exceeding of deadlines in connection with licence procedures are excluded, except in case of gross negligence and/or wilful misconduct.
§ 4 Prices and payment
(1) Unless otherwise agreed, all quoted prices are given in EUROS ex works plus packaging, the statutory value-added tax in effect at the time of delivery, customs duties in case of export deliveries as well as fees and other public levies.
(2) In the case of a sales shipment (§ 6 subsection 1), the buyer shall bear the shipping charges ex warehouse and the expenses of transport insurance which the buyer may have requested. Transport and any other packaging materials in accordance with the German Regulation on Packaging [Verpackungsverordnung] shall not be taken back by AESKU, they shall become the property of the buyer; pallets shall be excluded.
(3) Unless otherwise agreed, the purchase price shall be due and payable within 14 days from invoice date and delivery or acceptance of goods respectively.
§ 5 Time of delivery, delay in delivery
(1) The delivery period shall be stipulated individually or specified by AESKU upon acceptance of the order respectively.
(2) If AESKU is unable to adhere to binding delivery periods for reasons which AESKU is not responsible for (non-availability of performance), AESKU shall, without delay, inform the buyer hereof and, at the same time, of the expected new delivery period. Should the performance be unavailable within the new delivery period either, then AESKU shall be entitled to withdraw from the contract in whole or in part; a consideration already made by the buyer shall be reimbursed by AESKU without delay. As used here, a case of non-availability of performance shall in particular be AESKU's delayed receipt of supplies from its own subcontractors if AESKU has concluded a matching cover transaction and no fault can be attributed to either AESKU or its subcontractors, or in case AESKU is under no obligation for the procurement in a particular case.
(3) The occurrence of AESKU's delayed delivery is governed by sec 286 of the German Civil Code [Bürgerliches Gesetzbuch, “BGB”]. In each case, however, a reminder by the buyer shall be mandatory. If AESKU is delayed with its delivery, the buyer may claim a flat-rate compensation for its damage caused by the delay. For each completed calendar week of the delay, the flat-rate compensation for damage shall be 0.5 % of the net price (declared value of goods), altogether, however, not exceed 5 % of the declared value of the goods delivered with delay. AESKU shall reserve the right to evidence that the buyer has not incurred a loss at all or only a loss substantially less significant than the above-mentioned lump sum amount.
(4) The rights of the buyer pursuant to § 10 and the statutory rights of AESKU, in particular in the case that the obligation to perform a contract is excluded (e.g. based on impossibility or hardship of performance and/or supplementary performance), shall remain unaffected.
§ 6 Delivery, passing of risk
(1) Delivery shall be effected ex warehouse, which also constitutes the place of performance. Upon request and at the buyer’s expense, the goods shall be delivered to a different destination (sales shipment). In such case, AESKU itself shall determine the type of shipment (in particular carrier, shipping route, and packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer no later than at the time of handing over. In the case of a sales shipment, the risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay shall pass already at the time of delivering the goods to the forwarding agent, carrier, or the person otherwise designated to effect shipment. This shall also apply if AESKU assumes the shipping charges in individual cases. Insofar as an acceptance has been agreed upon, such shall then be decisive for the passing of risk. Furthermore, the statutory regulations of sec 640 of the BGB shall apply to agreed acceptances, respectively. The buyer's default of acceptance shall be considered equivalent to the delivery of goods or acceptance respectively.
§ 7 Retention of title
(1) Until all of AESKU's present and future receivables arising out of the sales contract and current business relations (secured receivables) have been paid in full, AESKU shall retain title to the goods sold.
(2) Goods delivered under retention of title may neither be pledged to third parties nor assigned by way of security prior to the full payment of the secured receivables. The buyer shall inform, without delay, AESKU in writing if and to the extent to which third parties have access to goods owned by AESKU.
(3) In the case of the buyer's breach of contract, in particular by non-payment of the purchase price due, AESKU shall have, pursuant to sec 323 of the BGB, the right to rescind the contract and, based on the retention of title and rescission, to demand the return of the goods. If the buyer does not pay the purchase price due, AESKU may assert these rights only if AESKU has previously unsuccessfully given the buyer a reasonable time limit for payment, or if setting of such a time limit is dispensable under the applicable statutory provisions.
(4) The buyer shall be entitled to resell and/or process the goods delivered under retention of title in the proper course of business. In this case, the following provisions shall additionally apply.
(a) The retention of title shall cover the products that result from processing, mixing or combining the goods from AESKU at their full value, with AESKU being considered the manufacturer. If upon processing, mixing or combining goods of a third party the latter's ownership continues to exist, then AESKU shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Besides, the same conditions as for the goods delivered under retention of title shall apply for the resulting product.
(b) Claims against third parties arising out of the resale of the goods or the product shall hereby be assigned as security by the buyer to AESKU, in total or in the amount of AESKU's possible co-owner's share respectively, pursuant to the above-mentioned subsection. AESKU hereby accepts the assignment. The obligations of the buyer set out in subsection 2 shall apply with regard to the assigned claims, as well.
(c) Aside from AESKU, the buyer shall remain authorized to collect the receivables. AESKU undertakes not to collect the receivables, as long as the buyer meets its financial obligations owed to AESKU, does not default on payments, no application for the opening of insolvency proceedings has been made, and no other financial incapacity exists. Should this be the case, however, AESKU may then demand that the buyer discloses the assigned claims and their debtors, furnishes all information necessary for the collection, hands over the appropriate records, and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds AESKU's claims by more than 10 %, AESKU shall release, upon the buyer's request, securities of AESKU's choice.
§ 8 Use of software
For software of any type for which AESKU holds title or any other right, the buyer shall be granted against payment a non-exclusive, non-transferable right of use for an indefinite period of time on a specific hardware product, or on one to be stipulated in a particular case, respectively. The right of use shall also include the documentation appertaining to the software. AESKU shall remain the owner of the copyright as well as of all other intellectual property rights. The right to make copies shall only be granted for the purpose of data storage. Copyright notices may not be removed.
§ 9 CLAIMS BASED ON DEFECTS
(1) In the case of material defects and defects in title (including wrong and short delivery as well as improper installation or faulty installation instructions), secs 434 et seq of the BGB shall apply to the buyer's rights, unless otherwise stated below. The statutory special provisions on final delivery of goods to a consumer (supplier recourse pursuant to secs 478, 479 of the BGB) shall remain unaffected in all cases.
(2) AESKU's liability for defects is first and foremost based on the agreement reached on the quality of the goods. As agreement on the quality of the goods shall be considered the product specifications named as such (also those of the manufacturer), which were made available to the buyer before its order placement, or were included in the contract in the same way as these terms and conditions. Customary deviations and deviations which occur based on legal provisions or which represent technical improvements, as well as the replacement of components by equivalent parts shall be permissible insofar as they do not interfere with the use for the purpose intended under the contract.
(3) Analysis systems manufactured by Aesku.Systems GmbH & Co. KG are designed only for use with analysis products of Aesku.Diagnostics GmbH & Co. KG and/or DST Diagnostische Systeme & Technologien GmbH. AESKU shall not give any guarantee whatsoever for the compatibility with analysis products of third party manufacturers.
(4) If, beyond the provisions in § 9 subsection 2, the quality has not been agreed upon, the applicable statutory provisions shall determine whether or not a defect exists (sec 434 subsection 1 sentence 2 and 3 of the BGB). AESKU however shall not assume any liability for public comments by the manufacturer or other third parties (e.g. advertising statements).(5) The buyer's claims based on defects require that it has met its statutory duties to inspect the goods and to give notice of defects (§ 377 of the German Commercial Code [Handelsgesetzbuch, HGB]). If a defect is detected during inspection or subsequently, then AESKU shall be notified hereof in writing without delay. The notification shall be considered to be without delay if it is given within two weeks, in which case the timely dispatch of the notification shall suffice for meeting the deadline. Irrespective of this duty to inspect the goods and give notice of defects, the buyer shall within two weeks of delivery give notice of obvious defects (including wrong and short delivery) in writing, in which case here, too, the timely dispatch of the notification shall suffice for meeting the deadline. If the buyer omits the proper inspection and/or notice of defects, AESKU's liability for the unreported defect shall be excluded.
(5) The buyer's claims arising from defects presuppose that the buyer has met its statutory duties to inspect the goods and to give notice of defects (sec 377 of the German Commercial Code [Handelsgesetzbuch, HGB]). If a defect is detected during inspection or subsequently, then AESKU shall be notified hereof in writing without delay. The notification shall be considered to be without delay if it is given within two weeks, whereupon the timely dispatch of the notification shall suffice for meeting the deadline. Irrespective of this duty to inspect the goods and to give notice of defects, the buyer, within two weeks of delivery, shall give notice of obvious defects (including wrong and short delivery) in writing, whereupon too, the timely dispatch of the notification shall suffice for meeting the deadline. If the buyer omits the proper inspection and/or notice of a defect, AESKU's liability for the unreported defect shall be excluded.
(6) If the delivered goods are defective, the buyer may initially, at its choice, request as supplementary performance the removal of the defect (subsequent improvement) or delivery of goods free of any defect (substitute delivery). If the buyer does not state which of the two options the buyer chooses, AESKU may then set a reasonable time limit for the buyer to do so. If the buyer does not choose an option within the time limit, the option shall pass to AESKU.
(7) AESKU shall be entitled to make the supplementary performance owed contingent upon the buyer paying the purchase price due. The buyer shall be entitled, however, to withhold a reasonable part of the purchase price in proportion to the defect.
(8) The buyer shall give AESKU the time and opportunity necessary for the supplementary performance owed, in particular, make the rejected goods available for the purpose of examination. In the case of a substitute delivery, the buyer shall return the defective goods to AESKU pursuant to secs 439 subsection 5, 346 to 348 of the BGB. The supplementary performance shall neither include the removal of the defective goods nor the renewed installation, if the installation originally was not AESKU's duty.
(9) The expenses necessary for the purpose of examination and supplementary performance, in particular costs of transportation, infrastructure, labor and materials (: costs of removal and installation excluded), shall be borne by AESKU if a defect does actually exist. Should the buyer's demand for the defect removal turn out to be unjustified, however, AESKU may demand that the buyer reimburses the costs resulting therefrom.
(10) In urgent cases, e.g. in the event of operational safety being jeopardized or for averting disproportionate damages, the buyer shall have the right to remove the defect itself and to request compensation from AESKU for the expenses objectively necessary for this purpose. In the case of such self-help measures, the buyer shall notify AESKU immediately, if possible prior to taking any such measures. The right of self-help shall not exist if AESKU were entitled to refuse a corresponding supplementary performance pursuant to the applicable statutory provisions.
(11) If the supplementary performance has failed, or a reasonable time limit for a supplementary performance to be set by the buyer has expired without any success, or is dispensable pursuant to applicable statutory provisions, the buyer may rescind the sales contract or reduce [mindern] the purchase price. In the case of an insignificant defect, however, the right of rescission shall not exist.
(12) The buyer's claims for damages and compensation for futile expenses respectively shall exist only in accordance with § 10 and shall be excluded in all other respects.
§ 10 LIABILITY
(1) AESKU shall be liable for damages - regardless of the legal ground - in the case of intent and gross negligence. In the case of simple negligence, AESKU shall be liable only
(a) for damages resulting from death, injury to body and health,
(b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose adherence the contracting party regularly relies on and may rely on); in this case, however, AESKU's liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(2) The limitation on liability resulting from subsection 2 shall not apply if AESKU has fraudulently concealed a defect or has guaranteed the quality of the goods. The same shall apply to claims of the buyer pursuant to the German Product Liability Act [Produkthaftungsgesetz].
(3) Due to a breach of duty that does not consist in a defect, the buyer can withdraw from or terminate the contract only if AESKU is responsible for the breach of duty. A free right of termination for the buyer is excluded. Besides, the statutory prerequisites and legal consequences shall apply.
§ 11 LIMITATION
(1) Deviating from sec 438 subsection 1 No. 3 of the BGB, the general limitation period is one year from delivery for claims based on material defects and defects in title. If an acceptance has been agreed upon, the limitation period begins upon acceptance.
(2) The above-mentioned limitation period shall also apply to those contractual and non-contractual compensation claims of the buyer based on a defect of the goods, unless, in individual cases, the application of the regular statutory limitation pursuant to secs 195, 199 of the BGB would lead to a shorter limitation period. The limitation periods of the product liability law shall remain unaffected in any case. Otherwise, to damage claims by the buyer pursuant to § 10, the limitation periods acc. to secs 195 et seq of the BGB shall apply exclusively.
§ 12 VENUE
For all disputes arising out of the contractual relationship, venue shall be Mainz if the buyer is a merchant entered as such in the Commercial Register [Vollkaufmann], a legal person under public law, a special fund under public law, or has its residence or business head office outside of the Federal Republic of Germany. AESKU shall also have the right to take legal action at the place of the buyer's business head office.
§ 13 APPLICABLE LAW
(1) The relations between AESKU and the buyer shall be exclusively governed by the law of the Federal Republic of Germany.
(2) These General Terms and Conditions are governed by and construed in accordance with German law. The legal terms in this Agreement shall have the meaning ascribed to them under German law. The legal terms in this Agreement followed by a German translation in parentheses shall have the meaning ascribed to them according to the German translation under German law.