§ 1 Scope, form
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers („buyer“). The GCTS shall only apply if the buyer is an entrepreneur (§ 14 of the German Civil Code BGB), a legal entity under public law or a special fund under public law.
(2) The GTCS shall in particular apply to contracts for the sale and licensing of the Clampbooster including integrated operating software and documentation and/or the delivery of other movable goods (together also referred to as „goods“), regardless of whether the goods are manufactured by ourselves or whether they are purchased from suppliers (§§ 433, 650 of the German Civil Code BGB. Unless otherwise agreed, the GTCS in the version valid at the time of the buyer’s order or, in any case, in the version last notified to the buyer in text form shall also apply as a framework agreement for similar future contracts without having to refer to them again in each individual case.
(3) Our General Terms of Conditions and Sale shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, even if the buyer refers to his GTC within the scope of the order and we do not expressly object to this.
(4) Individual agreements (e.g.: framework supply agreements, quality assurance agreements) and details in our order confirmation will prevail over the GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTCS includes the written and the text form (e.g. letter, e-mail, fax). Legal formal regulations and further proof, in particular in case of doubts about the legitimacy of the person making the declaration, shall remain unaffected. Legal formal regulations and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of legal provisions only have a clarifying significance. Even without such clarification, the legal provisions therefore apply unless they are directly amended or expressly excluded in the GTCS.
§ 2 Conclusion of contract
(1) Unless otherwise indicated, our offers are subject to change and non-binding. This shall also apply if we have handed over catalogs, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – also in electronic form – to the buyer, to whom we reserve property rights and copyrights.
(2) The acceptance of a contract offer of the buyer is usually made by an order confirmation issued by us, but can also be declared by delivery of the goods to the buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period is to be agreed on an individual basis or stated by us upon acceptance of the order. Agreed delivery periods or delivery periods stated in the order confirmation are based on estimates. They shall only be regarded as bindingly agreed if we confirm in text form that this is a binding delivery date.
(2) If we are not able to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the purchaser immediately and at the same time indicate the expected new delivery period. If the service is not available even within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the buyer. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obliged to provide procurement in the individual case.
(3) The date of delay of our delivery is determined according to legal regulations. In any case, however, a reminder by the buyer is required.
(4) The buyer´s rights according to § 8 of these GTCS and our legal rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
§ 4 Delivery, transfer of risk, assembly and commissioning
(1) Delivery is made from our registered office; this is also the place of performance for the delivery and any subsequent performance. The goods are shipped to another destination at the buyer’s request and expense (sale by dispatch, FCA place of origin, Incoterms 2023). Unless otherwise agreed, in this case we are entitled to determine the type of shipment ourselves (in particular the shipping company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the time of delivery at the latest. In case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes already to the forwarding agent, the carrier or the person or institution otherwise determined to carry out the dispatch upon delivery of the goods.
(3) The customer is responsible for the assembly and commissioning of the delivered goods with the aid of the documentation supplied. If the place of delivery is located in a non-German-speaking country and only documentation in English is enclosed with the goods, the customer acknowledges this to be in accordance with the contract.
§ 5 Licensing of the integrated operating software
(1) An essential component of the Clampbooster is the integrated operating software. We grant the customer a restricted, unlimited, non-exclusive, generally non-transferable and non-sublicensable software use license with respect to this operating software, which entitles the customer to use the software exclusively in connection with the delivered product. The unlimited granting of rights is also subject to the condition of full payment of the purchase price. Until full payment has been received, the customer only receives a temporary license to use the software, which does not allow more than 500 accesses to the software. For this purpose, we have programmed the operating software with a „NodeLock“. The software is activated by means of an individual license key for the only use in conjunction with a defined hardware component – usually this is the Clampbooster supplied in each case.
(2) The customer only has the rights of use expressly stated in this agreement. In particular, the customer shall not obtain any rights with respect to the software source code to the operating software and he may neither reverse engineer, decompile nor otherwise attempt to derive, modify or otherwise create programs derived from the software source code.
§ 6 Prices and terms of payment
(1) Unless otherwise agreed our current prices will apply, ex warehouse, plus statutory value-added tax at the time of conclusion of the contract.
(2) In case of delivery ex warehouse (EXW) as well as in case of sale by dispatch (or „FCA place of origin“), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer, as well as any customs duties, fees, taxes and other public charges.
(3) Before delivery of the software the customer must make a down payment on the agreed purchase price, the amount of which is determined in the individual contract. The customer thus receives the Clampbooster with a usage license limited to 500 accesses with regard to the operating software. Unless otherwise agreed, the remaining purchase price is due within 14 days after invoicing. An unlimited, i.e., over 500 accesses exceeding activation is only possible with full payment of the purchase price as this is a condition for the unlimited granting of rights. In justified cases, in particular in the case of delivery abroad, we are, however, entitled (within the framework of an ongoing business relationship) to carry out delivery only against full prepayment. We declare a corresponding provision with the order confirmation at the latest.
(4) The buyer will be in default upon expiry of the aforementioned payment deadline. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default.
(5) The buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in delivery, the buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 paragraph 6 sentence 2 of the GTCS.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the buyer’s inability to pay, we shall be entitled to refuse performance in accordance with legal provisions and – if necessary after setting a deadline – to withdraw from the contract.
§ 7 Retention of title
(1) Until full payment of all our present and future claims arising from the purchase contract and from an ongoing business relationship (secured claims), we retain title to the goods sold.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The purchaser must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) take hold of the goods belonging to us.
(3) In case of breach of contract by the purchaser, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory provisions or/and to demand the return of the goods on the basis of the retention of title or to deactivate the operating software. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the legal provisions.
(4) Until revoked in accordance with (c) below, the buyer is authorized to resell the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in view of the assigned claims.
(b) The purchaser shall remain authorized to collect the claim in addition to us. We are obliged not to collect the claim as long as the buyer meets his payment obligations, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we may demand that the buyer notifies us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the purchaser’s authorization to further sell and process the goods subject to retention of title.
(c) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our own choice at the buyer’s request.
§ 8 Product description, claims for defects and obligations of the buyer
(1) The legal provisions apply to the rights of the purchaser in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions) unless otherwise stipulated below. In all cases, the legal provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the buyer from separately issued guarantees, in particular on the part of the manufacturer, remain unaffected.
(2) We warrant that the Clampbooster with integrated operating software will function in substantial compliance with its documentation and the product description handed over to the purchaser upon delivery if used by the customer in accordance with the regulations and documentation. We do, however, not guarantee that it will meet all of the customer’s requirements or that there will be no interruptions or errors in its use. In particular, the customer is responsible for checking whether the Clampbooster can be used in his production environment and the technical requirements. Moreover, we would like to stress that if the Clampbooster is to be used in system-critical or time-critical areas, we highly recommend to keep a spare Clampbooster on hand at the customer’s site in order to avoid or minimize any production downtimes or other downtimes in the event of upcoming maintenance or repair work.
(3) In case of goods with digital elements or other digital content, we only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement pursuant to paragraph 2.
(4) As a matter of principle, we shall not be liable for defects of which the purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 of the German Civil Code BGB). Furthermore, the purchaser’s claims for defects presuppose that he has fulfilled his statutory duties of examination and notification (§§ 377 German Commercial Code HGB). If a defect becomes apparent during delivery, inspection or at any later time, we must be notified in writing without delay. As a rule, obvious defects must be reported accordingly within 5 working days from delivery and defects not recognizable during inspection within the same period from discovery. If the purchaser fails to properly inspect the goods and/or notify us of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. This also applies to any installation / removal costs if the defect only became apparent after installation as a result of a breach of one of these obligations. The customer is also obliged, as far as possible and reasonable, to submit a reproducible test case to us as proof of a warranty case.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by removing the defect (rectification) or by delivering an item free of defects (replacement). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, the buyer may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular he shall hand over the goods in question for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; the seller, however, is not obliged to take back the item. Subsequent fulfillment neither includes the dismantling, removal or disassembly of the defective item nor the installation, attachment or assembly of a defect-free item if we were not originally obliged to perform these services; claims of the buyer for reimbursement of corresponding costs („dismantling and assembly costs“) remain unaffected.
(8) We will bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and the GTCS, if a defect is present. Otherwise, we may demand reimbursement from the purchaser of the costs incurred as a result of the unjustified request to remove the defect if the purchaser knew or could have known that there was actually no defect.
(9) If a reasonable period to be set by the purchaser for subsequent fulfilment has expired unsuccessfully or is dispensable in accordance with the legal provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price according to the legal provisions. In the case of an insignificant defect, however, there is no right of cancellation.
(10) Claims of the buyer for reimbursement of expenses according to § 445a paragraph 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 paragraph 5, 327u BGB).
(11) Claims of the purchaser for damages (in particular for consequential damage) or compensation for wasted expenses (§ 284 BGB) shall only exist according to §§ 8 and 9, even if the goods are defective.
§ 9 Other liability
(1) Unless otherwise provided for in these General Terms and Conditions of Sale including the provisions below, we shall be liable for any breach of contractual and non-conrtractual obligation in accordance with the statutory provisions.
(2) We shall be liable to pay damages for fault – regardless of the legal grounds- in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs, minor breach of duty) for the following:
a) loss resulting from injury to life, body or health,
b) loss resulting from the breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper execution of the contract and on compliance with which the other pary typically relies and is entitled to rely); in this case, however, our liability shall be limited to compensation for the typically foreseeable loss. In case of consequential damage caused by the defect to other objects of the purchaser (in particular to objects which are connected to the purchased item by means of assembly, attachment or installation), the liability shall be limited to a maximum amount of € 1 million. Generally excluded is liability for only remote consequential harm caused by a defect, e.g. loss of profit, loss of business opportunities, loss of goodwill or costs caused by a loss of production, see also § 6 paragraph 2.
(3) The limitations of liability resulting from paragraph 2 also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They do not apply where a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act
(4) Due to a breach of duty not consisting of a defect, the buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of the purchaser to terminate the contract (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Limitation
(1) Notwithstanding Section 438 paragraph 1 No. 3 of the German Civil Code BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence on acceptance.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless applying the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer under § 8 paragraph 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
§ 11 Intellectual property rights
(1) We reserve all property, copyright, trademark and other intellectual property rights to the Clampbooster and the operating software and documentation contained therein and point out that corresponding copyright, patent and trademark protection exists or is being pursued.
(2) The customer shall not remove, cover or alter any patent, trademark, copyright or other proprietary markings from the goods or documentation.
(3) We have the right to use recommendations, suggestions for improvement, further developments or other feedback from the customer, his employees or other third parties with regard to the Clampbooster free of charge for the further development of the product and to include them in future product series.
§ 12 Secrecy and information policy
(1) The customer is informed that due to the contractual relationship confidential information and materials about the business, technology and/or products of the seller will be made available to him. The customer is not permitted to use confidential information for his own or any third party’s purposes other than agreed in the contract and he shall protect such information and materials with the same care as he protects his own confidential information and materials. Information is excluded from the confidentiality obligation that (i) was already known to one party prior to disclosure by the other Party, or that (ii) is no longer protected because it has since become generally known without a breach of this agreement or other wrongful act by a Party, (iii) was lawfully received from a third party not subject to a confidentiality obligation, (iv) that we have agreed in writing to release, (v) was independently developed by a party, or (vi) that is required to be disclosed by law.
(2) The customer and we are, however, entitled to report generally on the use of the Clampbooster at the customer’s site and to mention the customer or idee-werk by name in the context of usual press releases, marketing materials, on the homepage as well as in the context of company presentations.
§ 13 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between us and the buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Munich. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation according to the GTCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.