General Terms & Conditions
as of February 2010
The following terms of business shall apply to all business relations with our customers. The ordering party recognizes them to be binding for the present contract as well as for all future business transactions. Any different agreement must be approved by us in writing.
Our offers are not binding.
Technical data, figures, drawings, descriptions and prices contained in our documentation are not binding unless we have expressly described them as being binding in particular cases.
We reserve the proprietary right and copyright to estimates of cost, figures, drawings and other documents; it is not permitted to reproduce them or to make them accessible to third parties without our express consent in writing.
Verbal agreements or statement shall not be legally binding unless they have been confirmed by us in writing.
§2 CONFIRMATION OF CONTRACT
The ordering party shall be responsible for the correctness, accuracy and completeness of the order documents and specification, particularly in drawings, as well as for technical data and samples. Verbal information - including changes and additions to the documents and data made available - must be confirmed in writing. If an order is not confirmed by us in writing or executed within a month after receipt - in particular cases (e.g. special productions) within 3 months - during which period the ordering party shall be bound to his order, the ordering party is entitled to cancel his order. The ordering party cannot claim damages from us.
The contract will be effective after the receipt of a written declaration (acceptance of order) which shall be decisive for the scope to the order. The delivery substitutes a written acceptance of order.
Our prices are EUR prices (EUROs of the European Central Bank). They are valid ex works - plus the respective value-added tax in case of domestic business transactions - and do not include installation, integration, assembly costs, packing and freight charges and postage and insurance fees. Prices have been calculated on the basis of wage, material and other costs which were valid on the day the offer was submitted.
Should these cost factors alter, we shall reserve the right to adjust the prices of our quotations until the conclusion of a binding contract of sale. Insofar as the ordering party specifies nothing to the contrary, the goods shall be transported by a forwarding company selected by Botest Systems GmbH. The ordering party shall always bear the risk of transportation.
§4 TERMS OF PAYMENT
Payments have to be effected net cash within 30 days from the date of invoice - also in case of partial shipments - free payments office of the supplier. If the net value of the goods exceeds 25,000 EUR, we reserve the right to modify these terms (in particular cases).
Should payment deadlines be exceeded, we shall be entitled to charge annual interest amounting to at least 2% above the respective base rate of the European Central Bank following the first payment reminder and reserving the right to assert additional damage claims upon default of the customer.
For deliveries abroad we may require an irrevocable and confirmed L/C to be opened, payable at a bank indicated by us, or other equivalent securities.
In case of stoppage of payment or excessive indebtedness of the ordering party as well as the case of noncompliance with agreed dates of payment, the purchase price becomes due immediately.
The retention of payments or the offset of possible counterclaims of the ordering party contested by us shall not be allowed.
§5 RESERVATIONS OF PROPRIETARY RIGHTS
The property of the goods supplied is retained by us until all our present and future claims against the ordering party have been satisfied (opening of L/C is not regarded as payment).
If our goods are combined by the ordering party with other goods not belonging to us in such a way that it acquires the exclusive proprietary title to this new product, the ordering party shall assign the co-ownership of it to us in the relation of the values of the combined goods at the time of their combination. The conclusion of the contract concerning the goods with our ordering party is regarded as an agreement to the transfer of ownership. The concession of joint possession to us by the ordering party is substituted by the fact that he preserves the new product for us.
In the event of the goods being sold to third parties by the ordering party, the latter shall assign its purchase price claim vis-à-vis the respective third party which is equal to the amount outstanding to Botest Systems GmbH. Botest Systems GmbH hereby accepts the assignment. In the event of the ordering party defaulting on payment to Botest Systems GmbH, Botest Systems GmbH shall be entitled to assert its claim directly against any possible third party.
Until such times as the goods have been paid in full, the ordering party shall not be entitled to integrate the goods in a different system with the result that the goods can no longer or cannot without difficulty be separated from said system.
Until such times as the goods have been paid in full, the buyer shall undertake to keep Botest Systems GmbH informed at all times of the location of the goods.
Our term of delivery begins at the date of our acceptance of order provided that we have received all documents, required approvals and releases to be supplied by the ordering party, that the plans have been clarified and approved, that the terms of payment agreed upon as well as other obligations have been observed and that all technical questions have been settled which were outstanding when the parties concluded the contract. If the preceding requirements are not satisfied in time, the term of delivery will be extended accordingly.
Operation troubles, strikes, lockout or failure of important production facilities/ machines, delays in the delivery of essential raw and building materials, delays in transport as well as all cases of force majeure will result in a reasonable extension of the term of delivery even if such circumstances occur during an already existing default of delivery.
Damage claims of any type as a result of default on delivery, also including damage claims resulting from positive violation of contractual duty and fault upon conclusion of contract shall be precluded insofar as the customer is unable to provide evidence of fault on the part of Botest Systems GmbH.
If acceptance of the delivery is requested, the conditions of such acceptance have to be stipulated at the latest upon entering into the contract. The acceptance has to be performed at our factory immediately after we have informed the ordering party that the goods are ready for acceptance. The acceptance costs shall be chargeable to the ordering party.
Partial shipments are permitted.
§7 TRANSFER OF RISK
All deliveries including possible returns - also of supplied parts - shall be at the risk of the ordering party.
The risk is transferred to the ordering party when the goods are handed over to him or to his authorized representative at our factory (even if it has been stipulated that the goods will be dispatched carriage paid); otherwise, when the delivery leaves our factory irrespective of route and (own or foreign) transport means.
In case of delivery is delayed due to the circumstances beyond our responsibility, the risk shall be transferred to the ordering party on the day when the goods are ready for delivery.
Even in case of foreign transactions, we are not obliged to affect transport insurance. If the goods are damaged or lost during transport, the purchaser must immediately cause the forwarding agent to make a statement of facts.
The preceding regulation shall also apply to partial shipments.
§8 LIABILITY FOR FAULTS, WARRANTY
For faults including missing features which have expressly been guaranteed, we shall be liable as follows, further claims being excluded: Our liability refers to constructional, material and factory defects arising in the delivered product. Our liability does not include faults caused by bad installation, wrong incorporation, bad maintenance, faulty or careless treatment or storage, improper repairs not performed by us, changes without our written approval, normal wear and tear, overstress, unsuitable conditions of application and utilities as well as chemical, electrochemical or electrical influence beyond our responsibility and weather factors or other natural influence. We do not assume a liability for parts which are subject to premature wear due to the quality of material or kind of use.
As far as foreign products and/or materials are concerned, our liability is limited to the assignment of our claims against our subcontractors.
In case of parts used for completion, reconditioning or conversion, which are sent to us by the ordering party, we do not assume a liability for their condition during treatment. If the material is damaged, we have to be reimbursed for the costs already incurred during the treatment.
Specified notices of defects must immediately be made in writing. The respective parts must be sent to us on demand.
The period of warranty - beginning on the day of transfer of risk - is valid for 12 months. At the expiration of this term, all claims of the ordering party which have not been admitted by us or asserted legally against us before expiry will lapse.
Defects for which we are liable can be removed at our option by repair or compensation delivery. By this, the period of guarantee will not be extended. Claims for depreciation of cancellation of sales contract are excluded unless we shall not duly remove the defect despite a reasonable extension.
Claims for damages of any kind, including those for consequential damages, shall be excluded.
§9 RIGHT OF RESCISSION
Should it subsequently prove impossible to perform the contract, the statutory provisions shall apply under the proviso that we are only responsible for gross negligence and wilful intent and that the damage claims of the customer are restricted to the value of the parts of the delivery which cannot be put into operation because of this.
The ordering party shall only be entitled to claim damages for gross negligence of one of our subcontractors if we have neglected the ordinary diligence in supervising the subcontractor.
§10 CLAIMS FOR DAMAGES
Damage claims against Botest Systems GmbH shall be precluded insofar as Botest Systems GmbH has not acted with gross negligence or willful intent.
Damage claims shall furthermore be precluded insofar as the party asserting the claim cannot provide evidence of fault on the part of Botest Systems GmbH.
Liability towards the customer shall be restricted to the value of the goods affected.
Scrutiny and liability with respect to any protective rights of third parties shall be a matter for the customer exclusively in the case of customized orders. He shall be completely responsible in this respect and shall release us from any damage claims of third parties which may arise.
§11 EXPORT REGULATIONS
If the products shall be exported, the ordering party will observe the German and foreign export regulations and point out to Botest Systems GmbH that German and/or foreign export regulations will apply in case of export.
§12 CUSTOMS CLEARANCE
If, by request of the ordering party, deliveries are exported duty unpaid, the ordering party shall be liable to Botest Systems GmbH for possible subsequent demands made by the customs administration.
The ordering party is granted a non-exclusive and non-transferable right of use to Botest Systems GmbH software, external software (software developed by a software supplier who is independent of Botest Systems GmbH) and the corresponding documentation and later supplements for internal application with those products for which the software is being supplied (all other rights to the software and documentation including copies and later supplements shall be reserved by Botest Systems GmbH and/ or the software supplier). The ordering party has to assure that this software and documentation will not be accessible to third parties without prior written consent from Botest Systems GmbH.
In principle, reproductions are only allowed for archive purposes, replacement of fault location. The transfer of source programs must be stipulated in a separate written agreement. If the originals refer to copyright, the ordering party must also apply this reference to the reproductions. Unless otherwise agreed upon, the right of use is regarded as being granted with the respective confirmation of order and delivery of the software, documentation and later supplements.
§14 PROPERTY RIGHTS
Examination and liability in view of possible property rights of third parties are exclusively the ordering party’s concern. It takes full responsibility for us and discharges us from possible damages claimed by third parties.
Technical documents, drawings, service and operating manuals as well as all information about function and structure of the goods given during the contract negotiations are subject to secrecy. The ordering party agrees to refuse unauthorized persons access to the corresponding information.
§15 FINAL CLAUSES
Würzburg, Germany shall be the exclusive place of jurisdiction for all types of legal disputes arising directly or indirectly hereunder - including actions on checks or bills of exchange. We are also entitled to sue the ordering party within his own jurisdiction.
Without our written consent, the ordering party is not allowed to transfer the contractual rights and obligations to third parties.
The preceding terms of business shall be the basis for business transactions with our ordering partys. Different conditions of the ordering party shall only be binding for us when they have been stipulated in a separate written agreement; otherwise, our silence shall in any case be regarded as rejection. The ordering party recognizes our terms of business by accepting our delivery.
A possible ineffectiveness of individual terms of business does not affect the validity of the stipulated agreement.
The application of foreign law shall be excluded in any case.
These general terms of business are subject to technical amendments.