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§1 Area of application
(1) These terms of sale shall solely apply to entrepreneurs, corporate bodies under public law or public separate estate in terms of § 310 sec. 1 BGB (German Civil Code). We shall only accept opposing terms or buyers' terms which differ from our terms of sales in the event of our explicit written consent of their validity.
(2) These terms of sale shall also apply for all future business transactions with the buyer provided that they are a matter of legal transactions of the same nature.
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§2 Proposal and contract conclusion
Provided that an order is to be regarded as a proposal according to § 145 BGB (German Civil Code), we can accept it within two weeks.
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§3 Provided documents
We shall reserve the property and copyrights for all documents provided in connection with the buyer's order placement such as e.g. calculations, drawings, etc. The documents may not be made accessible to third parties unless we provide the buyer with our explicit written consent to do so. As far as we do not accept the buyer's proposal within the time limit stated in § 2, the documents shall be returned to us immediately.
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§4 Price and payment
(1) Unless otherwise stipulated in writing, our prices shall be quoted ex-works exclusive of packaging and plus value added tax at the respectively effect rate. Costs for packaging shall be invoiced separately. For orders in which a print preview is provided, we shall reserve the right to alter prices due to price fluctuations on the NAND flash memory market until the print approval has been confirmed.
(2) Unless otherwise stipulated, the purchase price shall be paid within ten days after delivery. Default interest amounting to 8 % above the repsective base rate p.a. shall be charged. We shall reserve the right to assert further claims for damages caused by default. Orders for new customers always prepayment, credit card or Giropay. The purchase price shall be paid within 7 days after contract conclusion in the event of the agreement to prepayment. We do not grant cash discount deductions. Unjustified cash discount deductions shall be claimed separately.
(3) Unless a fixed price was agreed upon, appropriate price alterations due to altered labour, material and distribution costs which are effected three months or later after contract conclusion shall be reserved.
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§5 Set-off and rights of retention
The buyer shall only be entitled to a set-off if his/her counterclaims are legally binding or undisputed. The buyer shall only be entitled to exercise a right of retention insofar as his/her counterclaim is based on the same contractual relationship.
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§6 Delivery time
(1) The beginning of the delivery time we indicated shall assume the punctual and proper fulfilment of the buyer's obligations. The defence of lack of performance of the agreement remains reserved.
(2) Should the buyer be in default of acceptance or culpably violate other duties to cooperate, we shall be entitled to demand damage compensation in this respect including possible additional expenditures. Further claims shall remain reserved. (2) Provided that aforementioned conditions exist, the risk of accidental loss or accidental damage of the object of purchase shall be passed to the buyer at the time he/she is in default of acceptance or in debtor's delay.
(3) We shall assume liability in the event of delay in delivery which we did not cause intentionally or by gross negligence for each week of delay in line with a lump sum compensation for delay amounting to 3% of the delivery value however, a maximum of not more than 15% of the delivery value.
(4) Further legal claims and rights of the buyer due to a delay in delivery shall remain unaffected.
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§7 Transfer of perils upon sending the merchandise
Should the merchandise be sent to the buyer upon his/her request, the risk of accidental loss or accidental damage of the merchandise shall be passed to the buyer with the dispatch to the buyer, at the latest when the merchandise leaves the factory/warehouse. This shall apply independent of whether the shipment of the merchandise is effected from the place of fulfilment or who bears the freight charges.
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§ 8 Title retention
(1) We shall reserve the proprietary rights on the delivered object of purchase until the complete payment of all payment requests resulting from the delivery contract has been effected. This shall also apply to all future deliveries even if we do not always explicitly refer thereto. We shall be entitled to take back the object of purchase, should the buyer act contrary to contract.
(2) The buyer shall be obligated to treat the object of purchase with care as long as it has not yet become his/her property. As long as the property has not been passed, the buyer shall immediately inform us in writing if the delivered object is distrained or is subject to other interventions by third parties. As far as the third party is not able to compensate us for the judicial and extra judicial costs of a legal action according to § 771 ZPO (Civil Process Order), the buyer shall be liable for the outfall which results for us.
(3) The buyer shall be entitled to the resale of the merchandise which is subject to reservation of title in the usual course of business. The buyer shall assign the customer's claims from the resale of the merchandise, which is subject to reservation of title, to us in advance, amounting to the grand total of the invoice (including value added tax) agreed upon with us. This assignment shall apply independent of whether the object of purchase was resold without or after treatment. The buyer shall also remain authorised to collect the claim after the assignment. Our authorisation to collect the claim ourselves shall remain unaffected thereof. However, we shall not collect the claim as long as the buyer meets his/her payment obligation from the collected proceeds, is not in default of payment and in particular, has not filed for the opening of insolvency proceedings or suspension of payments exists.
(4) The processing and treatment or alteration of the object of purchase by the buyer shall always be effected in our name and by our order. In this event, the buyer's expectant right on the object of purchase shall be sustained for the altered object. Provided that the object of purchase is processed with other objects which we do not own, we shall acquire the co-ownership of the new object in the proportion of the objective value of our object of purchase to the other processed objects at the time of the processing. The same shall apply for the case of mixing. Provided that the mixing is effected in a manner in which the buyer's object is regarded as the principal object, it shall be deemed stipulated that the buyer shall assign us proportional co-ownership and the sole ownership or co-ownership which therefore results shall be held for us.
(5) We shall be obligated to authorise the securities which we are entitled to by request of the buyer as far as their value exceeds the claims to be secured by more than 20%.
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§9 Warranty and notice of defects as well as recourse/manufacturer recourse
(1) The buyer's warranty rights require that he/she complies with his/her due obligations of examination and making a complaint in respect of a defect immediately on receipt of the merchandise properly according to § 377 HGB (German Commercial Code).
(2) Warranty claims shall become time-barred in twelve months after the effected delivery of the merchandise we delivered to our buyer. Our approval must be obtained before the possible return of merchandise.
(3) Should the delivered merchandise indicate a defect despite all exercised diligence which had already been existent at the time of the transfer of perils, we shall then repair the merchandise or deliver replacement goods according to our choice and subject to a notice of defect in due time. An opportunity for supplementary performance shall always be given to us within an appropriate term. Recourse actions shall remain unaffected from the aforementioned provision without limitations.
(4) Should the supplementary performance fail, the buyer can withdraw from the agreement or reduce the payment irrespective of possible claims for damages.
(5) Warranty claims shall not exist for merely insignificant deviations from the stipulated quality, for merely insignificant impairment of the usability, for wear and tear or wearout as well as not for damages which result from incorrect or negligent handling after the transfer of perils which are not assumed according to the agreement. Should inappropriate repair work or modifications be carried out by the buyer or third parties, warranty claims for these and the outcome which results therefrom shall also not exist.
(6) Buyer's claims concerning necessary expenditures for the purpose of the supplementary performance, in particular costs for transport, infrastructure, labour and materials shall be excluded as far as the expenditures increase because the merchandise which we delivered has been subsequently placed in a different location than the buyer's location unless the transfer complies with its intended use.
(7) Recourse action by the buyer against us shall only exist insofar that the buyer has not made arrangements with his/her customer which exceed the warranty claims mandatory by law. Furthermore, section 6 shall apply respectively for the extent of the buyer's recourse action against us.
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§ 10 Miscellaneous
(1) This agreement and all legal relations between the contracting parties shall be subject to the laws of the Federal Republic of Germany.
(2) Place of fulfilment and sole place of jurisdiction for all disputes resulting from this agreement shall be our business location unless otherwise specified in the order confirmation.
(3) All arrangements which are agreed upon between the contracting parties for the purpose of the execution of this agreement shall be stipulated in writing in this agreement.
(4) Should individual provisions of this agreement be ineffective or contain a loophole, the remaining provisions shall be unaffected hereof. In place of the ineffective provision, the parties shall be obligated to implement such a legally valid provision which comes closest to the economic purpose of the ineffective provision respectively fills this loophole in the spirit of the agreement.
