General terms and conditions

General Terms of Delivery and Payment

General Terms of Delivery and Payment of Inotec electronics GmbH(hereinafter referred to as: “Inotec”) for use in business transactions with entrepreneurs.

General Provisions
1. All legal relations between Inotec and Orderer in connection with the deliveries made and / or services provided by Inotec(hereinafter referred to as“ deliveries”) are exclusively governed by the provisions hereinafter and by the delivery agreements entered into individually.Any general business terms of Orderer’ s are hereby disagreed with.Such general business terms are not even acknowledged by Inotec if Inotec fails to explicitly disagree with them after having received them.
2. Inotec’ s offers are non - binding.Any order placed by Orderer is confirmed by a written acknowledgment of the order from Inotec after it has been received and the contract will only become effective upon that written acknowledgment of the order.Agreed upon delivery periods commence to run on the day on which the acknowledgment of the order is received by Orderer.
3. Inotec is not liable to pay any damages caused by errors in offers, catalogs, acknowledgements of orders, invoices, including miscalculations and misspellings.Inotec is not liable for the accuracy of catalogs, brochures, drawings, advertising leaflets published by Inotec and the information included therein is not binding unless Inotec explicitly identifies that information as binding.
4. Inotec hereby reserves to itself any of its property interests in any cost estimates, drawings and other documents.They must not be made accessible to any third party without Inotec’ s approval.Drawings and other documents relating to offers shall be returned by Orderer to Inotec without culpable delay upon Inotec’ s request, without fail, however, if no contract is entered into.
5. Inotec retains the exclusive property interests and intangible property rights, especially the copyrights and usage privileges in the detailed drawings related to the offer or the order.Those detailed drawings shall not be passed on to any third party without Inotec’ s prior written permission.Inotec is entitled to claim damages if Orderer breaches this duty.
6. Partial deliveries are permitted to the extent Orderer can be reasonably expected to accept them.
Prices, Payment Terms
1. Unless otherwise agreed in writing, Inotec’ s prices are understood to be ex works, exclusive of packaging plus the statutory sales tax applicable in each case .
2. If Inotec undertakes to do any installation or assembly work according to the agreement and in the absence of any written agreement to the contrary, Orderer is liable to pay all necessary incidental costs such as traveling expenses, shipping charges, and accommodation allowances in addition to the compensation agreed upon.
3. Payments shall be made to Inotec’ s payment office free of any charges.
4. Orderer shall not set off any counterclaims against Inotec’ s payment claims unless such counterclaims are either acknowledged by Inotec or declared to be meritorious by a final and unappealable judicial decision.
5. The compensation is payable in full upon the delivery of the goods unless agreed otherwise in writing.
Retention of Title
1. Inotec remains the owner of the items delivered(goods subject to retention of title) until all of its claims against Orderer resulting from the business connection have been satisfied.To the extent that the value of all security interests owned by Inotec exceeds the value of all secured claims by more than 20 % , Inotec will release an equivalent portion of the security interests upon Orderer’ s request; Inotec has the right to choose between different security interests when making such a release.
2. Any treatment and processing of the delivered goods is performed on behalf of Inotec in its capacity as the maker in terms of BGB(Bürgerliches Gesetzbuch = German Civil Code) section 950. Such treatment and processing does not subject Inotec to any liability.If the goods delivered by Inotec are processed, Inotec acquires a sole or joint ownership interest in the item created by such processing equivalent to the invoice value of the goods subject to retention of title in proportion to the invoice value of the other goods used.The same applies if an attachment or mixing occurs.Orderer will keep custody of the goods owned or co - owned by Inotec at no charge.
3. Orderer is only permitted to sell the goods subject to retention of title in the ordinary course of its business and at its normal business terms and only while Orderer is not in default with any payment provided that Orderer has agreed with its contractual partner that Orderer’ s title is retained.Any claims accruing to Orderer from the resale of goods owned by Inotec are in advance assigned to Inotec.
4. Orderer is authorized to collect the claims assigned to Inotec in advance.Inotec can revoke this authorization at any time.The authorization to collect the claims does not include a right for Orderer to assign the claims.If the retention of title or the assignment are invalid under the laws governing the territory in which the goods are located, the security interest available in that territory which is equivalent to the retention of title or the assignment shall be deemed agreed upon.If Orderer’ s cooperation is required to achieve that result, Orderer shall take all measures necessary to create and maintain Inotec’ s right.
5. Orderer shall not pledge or mortgage the goods subject to retention of title while the title to those goods is retained.
6. Orderer shall give Inotec immediate notice of any attachment, seizure or other disposition or intervention by any third party.
7. Whenever Orderer breaches any duty, especially when a payment is defaulted, Inotec is entitled to rescind the contract in addition to taking back the goods after Orderer has been fixed a reasonable deadline for performing its duties; the statutory provisions governing the unnecessariness of fixing a deadline remain unaffected.Orderer shall then surrender the delivery item.Inotec’ s taking back the goods or asserting the retention of title or attaching the goods subject to retention of title does not include a rescission of the contract unless Inotec explicitly makes a statement to that effect.
Time Limits for Deliveries; Default
1. Compliance with time limits for deliveries requires that all documents to be furnished by Orderer, all necessary permits and releases, especially all plans, are timely received, and that Orderer complies with the agreed upon payment terms and other duties.If those requirements are not timely complied with, the time limits are reasonably extended; this does not apply if Inotec is responsible for the delays.
2. If the time limits are not observed due to force majeure, such as mobilization, war, riot or similar occurrences, e.g., strike, lockout, the time limits are reasonably extended.The same shall apply if Inotec does not receive its supplies timely or properly.
3. If Inotec delays its performance, Orderer is entitled to claim a compensation of .5 % for each completed week of delay, the total not to exceed 5 % of the price for the portion of the deliveries which cannot be properly used due to the delay, provided that Orderer furnishes prima facie evidence showing that it has suffered a damage caused thereby.
4. No case of delayed delivery, not even after the expiration of a time limit for delivery Inotec has possibly been fixed, shall give rise to claims for damages caused by delayed performance and for damages instead of performance in excess of the limits stated under subsection 3 above.This shall not apply to the extent that Inotec’ s liability is mandatory in cases of intentional misconduct, in cases of grossly negligent misconduct or because of injuries to life, body or health.Orderer shall not be entitled to rescind the contract according to the provisions of statutory law unless Inotec is responsible for the delay of the performance.The above provisions do not result in a shift of the burden of proof to the detriment of Orderer’ s.
5. Upon Inotec’ s request, Orderer shall state within a reasonable period of time if it rescinds the contract because of the delayed delivery or if it insists on receiving the delivery.
6. If, upon Orderer’ s request, the dispatch or the delivery is delayed by more than one month after notice of readiness for dispatch has been given, Orderer may be charged storage costs for each additional begun month in the amount of .5 % of the price of the items to be delivered, the total not to exceed 5 % , however.Either party to the contract has the right to prove that the storage costs are either higher or lower.
Passing of Risk
1. In the absence of any written agreement providing otherwise, the risk shall pass to Orderer as follows, even if delivery is made free of carriage:
  a) when the delivery is dispatched or has been picked up if delivery is made without installation or assembly.Inotec will insure deliveries against the customary shipment risks upon Orderer’ s request and at Orderer’ s cost.
  b) if the delivery includes installation or assembly, on the day of acceptance at Orderer’ s own business premises or, if so agreed, after a faultless test run.
2. The risk passes to Orderer if the dispatch, the delivery, the beginning of the installation or assembly, the acceptance at Orderer’ s own business premises or the test run is delayed due to circumstances Orderer is responsible for or if Orderer delays delivery of the goods for other reasons.
Acceptance
Orderer shall not refuse the acceptance of any delivery because of insignificant defects.
Defective Delivery Items
Inotec’ s liability for defective delivery items is subject to the provisions hereinafter:
1. All defective parts or services shall at Inotec’ s choice be remedied, redelivered or reperformed without any charges to Orderer provided that the cause of the defect already existed at the time at which the risk had passed.
2. Claims for the cure of defective performance expire by limitation within 12 months as of the commencement of the statutory limitation; the same applies to the remedies of rescission of contract and reduction of the price.The above limitation period does not apply to the extent that statutory law prescribes longer periods pursuant to BGB sections 438 subsec.1 item 2(structures and items for structures), 479 subsec.1(right of recourse), and 634 a subsec.1 item 2(constructional defects), in cases of intentional misconduct, fraudulent concealment of any defect, and if a quality - related warranty is breached.The statutory provisions on temporary tolling of the expiration, on the temporary tolling and the resumption of the periods remain unaffected.
3. Notices of defects by Orderer shall be given in writing or by telecopy without culpable delay.
4. If notice of any defect is given, Orderer may withhold portions of payments reasonably equivalent to the existing defect.Orderer may only withhold any payment if the legitimacy of the defect notice given is beyond any doubt.Orderer shall not withhold any payment if the limitation period for its warranty claims has expired.If the defect notice is given wrongfully, Inotec is entitled to demand that Orderer compensate Inotec for the expenses incurred.
5. Inotec shall be granted an opportunity to cure any defective performance within a reasonable period.
6. If Inotec fails to cure the defective performance, Orderer may either rescind the agreement or reduce the payment without prejudice, however, to possibly existing claims for damages according to subsection 10 below.
7. Insignificant nonconformity with the agreed upon quality, insignificant usability impairments, natural wear and tear, and damages caused after the passing of the risk by faulty or careless treatment, overuse, improper operating materials or by extraordinary external factors not required by the contract and by non - reproducible software errors do not result in any warranty claims for defects.If Orderer or any third party performs modifications or repair work in a faulty manner, such modifications or repair work and the ensuing consequences do not give rise to any warranty claims for defects.
8. Expenditures required for the purpose of curing any defective performance, including without limitation costs of freight, transport, labor, and materials, do not give rise to any claims of Orderer’ s to the extent they increase because the delivery item is subsequently relocated to a location other than Orderer’ s place of business unless such a relocation is consistent with the conventional use of that item.
9. Orderer is only entitled to recourse against Inotec according to BGB section 478 (seller’ s recourse) to the extent that Orderer has not entered into any agreement with its customer beyond the limits of the statutory warranty claims for defects.Subsection 8 above applies analogously to the amount of Orderer’ s recourse claim pursuant to BGB section 478 subsec.2.
10. Orderer is not entitled to claim damages as a remedy for a defect.This shall not apply if the defect has been fraudulently concealed, if a quality warranty is breached, if any injury is caused to life, body, health or personal freedom, and if Inotec breaches any duty intentionally or in a grossly negligent manner.The above provisions do not result in a shift of the burden of proof to Orderer’ s detriment.No defect shall give rise to any claims of Orderer’ s beyond the limits specified under this Article VIII or to other claims than those specified under this Article VIII.
Intangible Property Rights; Defective Title
1. Unless otherwise agreed, Inotec’ s obligation to perform the delivery free from any intangible property rights owned by third parties(hereinafter referred to as property rights) is limited to deliveries within the territory of the Federal Republic of Germany.If a third party asserts meritorious claims against Orderer based on the infringement of property rights through deliveries made by Inotec which are used as agreed upon, Inotec’ s liability towards Orderer during the period specified under Article VII section 2 is subject to the provisions hereinafter: a) Inotec will at its choice and its cost either obtain a right to make use of the affected deliveries or modify them thus that the property right is not violated or replace them.Should Inotec not be able to do so at reasonable conditions, Orderer is entitled to the rights provided by statutory law. b) Inotec’ s obligation to pay damages is governed by Article X. c) Inotec’ s above obligations are effective only if Orderer notifies Inotec without culpable delay in writing of the claims asserted by the third party and if it does not acknowledge any obligation and if all defense measures and settlement negotiations are reserved to be performed by Inotec.If Orderer discontinues making use of the delivered items in order to mitigate damages or for other important reasons, it shall advise the third party that the discontinuance does not constitute an acknowledgment of an infringement of property rights.
2. Orderer is not entitled to any remedy to the extent it is responsible for any infringement of property rights.
3. Moreover, Orderer shall have no rights if the infringement of property rights is caused by special specifications of Orderer’ s, by a use not foreseeable for Inotec or if the infringement is caused by Orderer through modifying the delivery or through using it together with products not delivered by Inotec.
4. Other than that, the provisions under Article VII sections 4, 5, and 9 shall in each case of an infringement of property rights apply analogously to Orderer’ s rights provided under the above subsection 1 a).
5. The provisions under Article VII apply analogously whenever other rights are defective.
6. No defect of any title or right shall give rise to claims of Orderer’ s against Inotec and Inotec’ s vicarious agents exceeding the limits provided under this article VIII or to other claims against Inotec and Inotec’ s vicarious agents than the claims provided under this article VIII.
Impossibility; Adjustment of Agreement
1. If the delivery is impossible, Orderer is entitled to claim damages unless Inotec is not responsible for the impossibility.Orderer’ s claim for damages is limited, however, to 10 % of the value of that portion of the delivery which cannot be properly used due to the impossibility. This limitation does not apply to the extent that Inotec’ s liability is mandatory in cases of intentional misconduct, in cases of grossly negligent misconduct or because of injuries to life, body or health; the provisions hereunder do not result in a shift of the burden of proof detrimental to Orderer.Orderer’ s right to rescind the contract remains unaffected.
2. If unforeseeable events in terms of Article IV section 2 result in a material change of the financial importance or the contents of the delivery or if such events materially affect Inotec’ s business, the contract will be reasonably adjusted in compliance with the principle of good faith and fair dealing.Inotec has the right to rescind the agreement if such an adjustment is financially unreasonable.Inotec shall give Orderer notice of its intent to rescind the agreement without culpable delay after having become aware of the consequences of that event, and that shall even apply if an extension of the delivery period was initially agreed upon between Inotec and Orderer.
Other Damages; Statutory Limitation
1. No damages claims, regardless of their legal basis, shall accrue to Orderer, including without limitation claims based on the breach of duties resulting from contractual obligations and tort - based claims.
2. The foregoing does not apply to the extent that Inotec’ s liability is mandatory, e.g., pursuant to the Produkthaftungsgesetz(German Product Liability Code), in cases of intentional misconduct, in cases of grossly negligent misconduct or because of injuries to life, body or health, or if essential contractual duties are breached.Damages for the breach of essential contractual duties are, however, limited to the loss typically to be expected for this type of contract unless the breach is committed intentionally or through gross negligence or unless the liability results from injuries to life, body, or health.The above provisions do not result in a shift of the burden of proof to Orderer’ s detriment.
3. Claims for damages Orderer is entitled to expire by limitation upon the expiration of the limitation period applicable pursuant to Article VII subsection 2. The same applies to claims of Orderer’ s in connection with damage prevention measures(such as product recall campaigns). Claims for damages under the Produkthaftungsgesetz are governed by the statutory limitation provisions.
Place of Performance; Place of Venue and Applicable Law
1. Unless explicitly agreed otherwise, Inotec’ s domicile at Lauffen am Neckar is the place of performance for all services and work to be performed by Inotec.
2. Heilbronn is the exclusive place of venue for all disputes arising from or in connection with the contractual relationship.Notwithstanding the foregoing provision, Inotec may also file suit at the location of Orderer’ s domicile.
3. The legal relations relating to this agreement are governed by the substantive laws of Germany without giving effect to the United Nations Convention on the International Sale of Goods(CISG).
Validity of the Agreement
Even if any individual provision of the agreement is legally invalid, the remaining parts of the agreement shall remain valid and in force. The foregoing clause does not apply if adhering to the agreement would constitute an unreasonable hardship for one of the parties.