of NEKTON GmbH
Kieselbronnerstrasse 28b, 75177 Pforzheim
As of: March 2016
1. Scope of Validity
1.1 Our GENERAL BUSINESS TERMS AND CONDITIONS apply exclusively. If no provisions are contained therein, then the law applies. Any opposing or additional terms and conditions of the contract Partner are rejected. These apply only, if we have agreed to them or parts thereof in writing and expressly. Our GENERAL BUSINESS TERMS AND CONDITIONS even apply, if we provided our deliveries unconditionally despite knowledge of opposing or additional terms and conditions of the contract Partner.
1.2 Our GENERAL BUSINESS TERMS AND CONDITIONS apply only toward companies, legal entities under public law or special fund under public law in accordance with Section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch (BGB)).
1.3 Our GENERAL BUSINESS TERMS AND CONDITIONS also apply to future businesses with the contract Partner.
2. Contract Conclusion, Contract Content
2.1 Our offers are non-binding.
2.2 Scope and content, particularly the quality characteristics of the contract products owed are solely defined in our contract documents. Other descriptions of the contract products, public statements, promotion and advertising do not contain any contractually owed quality characteristics.
2.3 We reserve the right to undertake the following changes to the contract products, provided these are reasonable for the contract Partner:
- product changes during the ongoing product development and improvement;
- minor and insignificant deviations in colour, form, design, measurements, weight or quantities;
- customary deviations.
2.4 Any compensation for damages pursuant to Section 122 BGB presupposes our responsibility.
3. Prices, Payment Terms
3.1 Unless otherwise agreed, our prices are Ex Works/Company excluding postage, shipping, and freight. Contract Partner is responsible for any unauthorized reversal costs. The statutory value-added-tax is additionally invoiced.
3.2 Invoices are due and payable within 14 days after the date of the invoice free of any transaction fees to us. Invoices are issued as soon as the shipment leaves our Company.
3.3 If invoices are not paid within 14 days after the date of the invoice, the contract Partner is in default without requiring any further notices.
3.4 Contract Partner may only setoff any counterclaims, if these are undisputed, recognized or determined by a court of law. Contract Partner may only exercise the right to retain, if contract Partner's counterclaim is based on the same contract relationship.
4. Delivery Date, Delivery Hindrances Beyond Control, Delay in Delivery
4.1 The delivery dates are only fixed dates, if these were expressly defined as such. Contract Partner agrees to accept longer delivery periods, if the ordered goods are not on hand and if we have to accept longer delivery periods from our suppliers.
4.2 Compliance with the obligation to deliver, particularly delivery dates presupposes the timely and proper fulfilment of any cooperation duties of the contract Partner. The defence of contractual non-performance shall be unaffected thereby.
4.3 The point in time, the shipment leaves our Company, determines compliance with the delivery date.
4.4 Delays in delivery, for which we are not responsible:
4.4.1 Delays in deliveries due to the following delivery hindrances are not our responsibility – unless we assumed in an exceptional case a procurement risk or guarantee with regard to the adherence to the term or compliance with the date; the same shall apply, if these hindrances occur at our suppliers or sub-suppliers: Circumstances of force majeure as well as delivery hindrances, occurring after the contract is concluded or hindrances, of which we only become aware after the contract was concluded and about which we can provide proof that we were unable to foresee and prevent them despite the requisite care, and therefore, we are not responsible for any contributory negligence due to a lack of acceptance, precaution and prevention.
4.4.2 If delivery is delayed, damage claims of contract Partner pursuant to Item 4.4.1 are excluded.
4.4.3 In the event of a final delivery hindrance pursuant to Item 4.4.1, each contract Party is entitled to terminate the contract by rescission effective immediately in compliance with legal provisions.
4.4.4 In the event of a tentative delivery hindrance pursuant to Item 4.4.1, we are entitled to delay delivery for the duration of the hindrance plus a reasonable ramp-up time.
4.5 We are authorized to ship partial orders, to the extent this is reasonable for the contract Partner.
5. Delivery, Transfer of Risk, Culpable Breach of Cooperation Duties
5.1 In general, we do not accept the return of packaging materials with the exception of Euro pallets. Contract Partner is obliged to dispose of packaging materials at contract Partner's own expense.
5.2 The risk of accidental loss or accidental worsening transfers to contract Partner as soon as the goods are handed to the person or place responsible for delivery but no later than at the time the goods leave our Company. Worsening of the goods can be assumed specifically, if no proper original packaging is left or the original seal has been removed as is the case e.g. when opening the original package of batteries, etc.
6. Retention of Title
6.1 We retain the title on the shipment ("Retained Products") until we have received all payments due under the business relationship with contract Partner. The retention of title covers any recognized debit balance, provided we post receivables from contract Partner in the current invoice (Current Account Reservation). If contract Partner violates the contract, particularly, if contract Partner is in arrears with payments, we are entitled to take back the Retained Products. Taking back the Retained Products does not constitute a rescission of contract. After we take back the Retained Products, we are authorized to sell them. The proceeds from the sale are deducted from the contract Partner's liability toward us - minus any reasonable costs associated with the sale.
6.2 The contract Partner is authorized to resell the Retained Products during normal business operations; however, contract Partner already assigns at this time all receivables up to the final amount of our invoices (including value-added-tax), which contract Partner has to receive from his customers or third parties due to the resale. If the contract Partner includes the receivables from the resale of the Retained Products in a current account existing with its customer, then the receivable under the current account is assigned in the amount of the acknowledged balance; the same applies to the "causal" balance in the event contract Partner is insolvent. Contract partner is authorized to collect the assigned receivables even after the assignment. Our authorization to collect receivables ourselves shall remain unaffected thereby - with the exception of rules under bankruptcy laws; however, we agree not to collect these receivables as long as contract Partner does not breach contract Partner's duties under the agreement, specifically, if contract Partner pays the invoices within due time, does not get into arrears with the payments and no bankruptcy was filed or payments were suspended.
The assignment as security or pledging the products are not covered by the authority of the contract Partner to resell the products.
6.3 If our obligation pursuant to Item 6.2 to collect the receivables ourselves are no longer in place, then we are entitled - subject to the legal rules of insolvency –
- to revoke the resale authorization and to use our right to return or sell the products in accordance with the above-referenced Item 6.1 and/or
- to revoke the debit authorization and to demand, contract Partner disclose to us the assigned receivables and their debtors, to provide all information necessary for collection, to surrender the corresponding documents and to notify the debtors (third parties) about the assignment.
6.4 Contract Partner must notify us immediately in writing if the Retained Products are damaged or lost and if contract Partner changes the ownership and residence. The same applies in the event of pledges or any other third party interventions, so that we are able to file suit in accordance with Section 771 of the Code of Civil Procedure (Zivilprozessordnung (ZPO)). If pursuant to Section 771 ZPO third parties are unable to reimburse us for court and out-of-court costs of a lawsuit, then the contract Partner is liable toward us for any expenditures incurred. If the release of the Retained Products is achieved without lawsuit, then we are entitled to charge the costs incurred to the contract Partner, also the costs for the return of the pledged Retained Products.
6.5 Contract Partner always processes or reforms the Retained Products for us. If the Retained Products are inseparably mixed or combined with products that do not belong to us, then we will acquire co-ownership in the new product in the value the Retained Products (final invoice amount including the value-added-tax) have relative to the value of the other processed items at the time of processing or reforming. The item created through processing or reforming is subject to the same provisions as for the Retained Products. The Item created through processing or reforming, the contract Partner receives an expectant right in accordance with the expectant right in the Retained Products.
6.6 If the Retained Products are inseparably mixed or combined with other products, which do not belong to us, then we will acquire co-ownership in the new product in the value the Retained Products (final invoice amount including the value-added-tax) have relative to the other mixed or combined items at the time of mixing or combination. If the mixture or combination is done in a manner that the item of the contract Partner can be viewed as main item, then it is agreed that the contract Partner transfers to us the co-ownership proportionately. Contract partner keeps the sole property or co-property on behalf of us.
6.7 If our Retained Products are resold after processing or reforming, then the contract Partner hereby assigns already at this time his claims for compensation in the amount of the final amount (including value-added-tax) of our invoices. If due to processing or reforming or mixing or combining of the Retained Products with other items, not belonging to us, we only acquired a co-ownership on the items in accordance with the above-referenced Items 6.5 or 6.6, the purchase price receivable of the contract Partner is only assigned to us in advance proportionately to the final amount including value-added-tax we calculated for the Retained Product and the other items not belonging to us. Furthermore, the above-referenced Items 6.2 to 6.4 apply accordingly to the receivables assigned to us in advance.
6.8 If title retention or assignment under foreign laws in the country, where our Retained Products are located, is ineffective, then title retention and assignment appropriate in the respective area of law is deemed agreed. If to create such rights, the collaboration of contract Partner is required, then on our request contract Partner is obliged to undertake any and all measures necessary to justify and retain such rights.
6.9 Contract Partner is obliged to treat the Retained Products diligently and to maintain them at his own expense; contract Partner is specifically obliged to insure the Retained Products at the replacement value against theft, robbery, burglary, fire and water damages at its own expense to our benefit. Contract Partner assigns already at this time all insurance claims with regard to the Retained Products. We hereby accept the assignment. In addition, we have the right to claim damages for fulfilment or compensation.
6.10 We hereby agree to release on contract Partner's request the collateral, to which we are entitled, to the extent that the value of our collateral that can be realized does not exceed the receivables to be guaranteed by more than 10%; we are entitled to select the collateral to be released.
7. Service Description, Liability for Defects
7.1 The characteristics described in our service specifications determine the characteristics of our deliveries comprehensively and conclusively.
7.2 Contract Partner shall not have the right to claim defects, if we deliver used goods. Contract Partner does not have any claims for defects, if the contract products were stored wrong or improperly. In addition, contract partner is obliged to obtain knowledge about the contract Products such as consulting material safety data sheets prior to using the contract product.
7.3 Any of contract Partner's right to claim damages require that contract Partner complied with the obligation to inspect and notify in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch (HGB)).
7.4 If there is a defect, we can choose the subsequent performance in form of rectification of the defect or the delivery of a new item that is free of defects. If one of these two options or both options of subsequent performance are impossible or unreasonable, then we are entitled to refuse it. Any replaced parts become our property.
7.5 If subsequent performance is impossible or fails, in the event of culpable or unreasonable delays or serious and final refusal of subsequent performance by us or the unreasonableness of subsequent performance for the contract Partner, the contract Partner can choose to reduce the purchase price accordingly (price reduction) or rescind the agreement (rescission).
7.6 Unless the contract provisions do not include any provisions or any deviating provisions on the conditions and consequences of subsequent performance, the reduction or rescission, then the legal provisions apply.
7.7 The contract Partner's claim for damages or reimbursement of expenditures in connection with defects are governed by the following provisions in Items 7.71 up to and including Item 7.8 regardless of the legal grounds of the claim -- particularly also in reference to claims for defects and breaches of obligation.
7.7.1 We shall be liable for damages in accordance with legal provisions: for intent; for gross negligence of the legal representatives or managers; in the event of violation of significant contractual obligations even for gross negligence of our other agents; for culpable injuries to life, body, health; for defects and other circumstances, which have been maliciously concealed or for defects, the absence of which we have guaranteed or if we guaranteed the quality or provided any other guarantee.
7.7.2 In accordance with the legal provisions, we shall be liable even for slightly negligent breach of significant contractual duties by our legal representatives, managers and other agents; however, this liability is limited to the damage typical under the contract and reasonably foreseeable.
7.7.3 The liability under the Product Liability Act shall remain unaffected thereby.
7.7.4 Unless otherwise agreed in above-referenced Item 7.7, additional claims are excluded.
7.8 The legal provisions on the burden of proof remain unaffected by the above-referenced provisions in Item 7.7.
8. Statute of Limitation
Any claims and rights due to defective delivery – on whatever legal grounds - shall expire within one year.
9. Contract Partner's Assignment of Receivables
Any receivables we have with regard to the deliveries we are providing may only be assigned upon our prior written consent.
10. Place of Performance, Jurisdiction, Applicable Law, Intra-Community Acquisition, Severability Clause
10.1 Unless otherwise agreed, place of performance is solely our place of business.
10.2 If the contract Partner is a businessperson in accordance with the German Commercial Code, then the jurisdiction for all obligations under and in connection with the agreement – including any bills of exchange and check matters – is our place of business or at our choice, the place of business of the contract Partner. The above-agreed jurisdiction shall also apply to contract Partners located abroad.
10.3 All rights and duties under and in connection with the agreement are solely governed and construed by the laws of the Federal Republic of Germany excluding and without regard for any conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
10.4 If a provision in these GENERAL TERMS AND CONDITIONS or a provision within the framework of other agreements between us and the contract Partner are or become ineffective, then it does not affect the effectiveness of all other provisions or agreements.