General Terms and Conditions of Deliveries and Orders
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General terms and conditions of sale and delivery of ASM Automation Sensorik Messtechnik GmbH in business dealings with contractors Effective November 2017 1. Scope of application, General remarks 1.1 These General Terms and Conditions of Sale and Delivery (GTC) shall apply exclusively (i) to contractors within the meaning of Paragraph 14 of the German Civil Code (BGB), i.e. natural or legal persons who acquire the goods or services for commercial or professional use and in relation to persons of public law and fund assets governed by public law. 1.2 For the business relationship with our customers and for information and advice, the following conditions (GTC) apply exclusively. If our GTC are introduced into the transaction with the customer, they also apply to all further business relations between the customer and us, unless otherwise expressly agreed in writing. Deviating conditions of the buyer and/or customer - hereinafter referred to as "Customer" shall only apply if and insofar as we expressly acknowledge them in writing. Our silence with regard to such deviating terms shall in particular not be regarded as recognition or consent, nor in future contracts. Our GTC shall be valid in place of any Purchasing Conditions of the Customer, even where, pursuant to these conditions, the order acceptance is provided as an unconditional acknowledgment of the Purchasing Conditions, or we deliver or perform following reference by the Customer to the validity of its General Purchasing Conditions, unless we have expressly waived the validity of our GTC. The exclusion of the General Terms and Conditions of the Customer shall also apply where the General Terms of Business do not contain a separate regulation for individual points of regulation. By accepting our order confirmation, the Customer expressly acknowledges that it waives its legal objection deduced from the Purchasing Conditions. 1.3 Where framework contracts or other contracts with our Customers have been concluded, these have priority. They are supplemented, provided that no specific regulations are affected, by the present GTC. 1.4 To the extent that claims for damages are discussed in the following, claims for reimbursement of expenses within the meaning of Paragraph 284 of the BGB are meant in equal manner. 2. Information / Consultancy / Properties of the products and services / Act of cooperation of the customer 2.1 Information and explanations regarding our products and services given by us or our employees and vicarious agents are based solely on our previous experience. They do not represent any features or guarantees with regard to our products or services. The values given here are to be viewed as the average values of our products and/or our services. In the absence of any express agreement to the contrary, we do not assume that our products and/or services are suitable for the purpose pursued by the customer. 2.2. All information on our products and services, in particular those contained in our offers and printed materials and on the Internet, and the illustrations, drawings, dimensions, features or performance characteristics contained therein, as well as other information, particularly technical information or information on ingredients, are, in the absence of a description as an “obligatory property” of our delivery items, average values to be regarded approximately. This applies accordingly to statements made by our employees, unless otherwise agreed. Nonconforming data of our products, as provided in our internet presentation or our catalogs and/or brochures, are subject to customary and/or branch-specific deviations and changes related to production, in particular due to productional circumstances and related materials. 2.3 In so far as we give usage / application instructions, these are drafted with industry-specific diligence, but do not discharge our customers from the obligation to carefully examine the products as to their suitability for the intended purpose. Unless otherwise agreed, the Customer shall in all cases be obliged to check the usability of our products and/or services for the purpose intended by him. The same applies to instructions on import, customs and certification regulations. 2.4 We undertake a consultation obligation with regard to our products and their use expressly by virtue of a written, separate consultancy contract only. 2.5 A reference to standards, similar regulations as well as technical data, descriptions and illustrations of the delivery items in offers and brochures or on the Internet and our advertising, as well as on provided analyses or description of physical properties, are only a property specification of our products if we have explicitly declared the quality as a "property of the product", otherwise this is a non-binding, general specification of services. In the absence of any other agreement, this also applies to statements by our employees. 2.6 A guarantee in the legal sense (assumption of liability regardless of fault) shall only be accepted by us if we have termed a property and/or performance success as "legally guaranteed" in writing. 2.7 We assume no liability for the usability and/or registration and/or marketability of our products or services for the intended use by the Customer outside the legally binding liability unless we have agreed otherwise in writing with the Customer. The regulation in para. 11 shall remain unaffected. 2.8 The Customer is obligated to provide us with all information and data required for the provision of services in good time and in full before the order is executed. 3. Sample copies / ceded documents and data / samples / cost estimates 3.1 The properties of samples or sample copies will only be contractual if this has been expressly agreed with us in writing. The Customer is not entitled to use and pass on samples. If, on our part, a sale is made on the basis of a commercial sample, deviations from this are permissible for the delivered goods and do not entitle us to objections and claims against us if they are customary and any agreed specifications are adhered to by the delivered goods, unless otherwise agreed. 3.2 We reserve all proprietary rights and copyrights to the samples, illustrations, drawings, data, cost estimates and other documents on our products and services, which are disclosed or provided to the Customer. The Customer undertakes not to make the samples, data and/or documents listed in the above sentence accessible to third parties, unless we give our explicit written consent. The Customer has to give these back to us upon request, insofar as an order based on them is not given to us within 4 weeks after delivery to the Customer. The provisions of sentences 1 and 2 shall apply mutatis mutandis to documents, drawings or data of the Customer; however, we may make these accessible to third parties to whom, with the permission of the Customer, we transfer deliveries and/or services covered by the contract or whom we use as performing agents or suppliers. 4. Contract formation / Scope of delivery and performance / Procurement risk and guarantee 4.1 Our offers are non-binding unless expressly designated as binding or containing explicitly binding commitments, or have otherwise been expressly agreed upon. They are invitations to place orders. The Customer is bound by his order as a request to conclude a contract for 14 calendar days after our receipt of the order at our business address, or 5 business days in the case of electronic orders, insofar as the Customer cannot regularly expect that we would accept the order later (Sec. 147 BGB). This applies also to follow-up orders by the Customer. 4.2 Even in the case of an ongoing business relationship, a contract is only formed when we confirm the Customer’s order in writing or in text form (i.e. by fax or e-mail) by means of an order confirmation notice. This order confirmation is only valid under the condition that any outstanding payment arrears of the Customer are settled, and that a cre