General Terms and Conditions of the HJW Elektronik GmbH & Co. KG

§ 1 General – Scope of application

  1. Our deliveries, performances and offers are all subject to the following terms and conditions. We herewith oppose any divergent, conflicting or complementary general terms and conditions on part of the customer unless we have given prior written approval.
  2. Our General Terms and Conditions still apply, even if we execute any order despite being aware of conflicting or divergent conditions by the customer.
  3. Our General Terms and Conditions apply in connection with companies in the sense of § 310 section 1 German Civil Code (BGB).

§ 2 Conclusion of contract and contents

  1. Our offers are subject to confirmation and not binding in view of prices, amounts, delivery times and delivery options.
  2. Any orders shall be deemed accepted when the object of the delivery is being dispatched, or through written confirmation.
  3. Any modifications or amendments of the contractual relationship require written form and our written confirmation.

§ 3 Prices and terms of payment

  1. Unless otherwise stated in the order confirmation, our prices are net ex works including normal packaging plus delivery costs. Extra charges incur if special packaging is necessary or requested by the customer. Any additional deliveries or performances, especially assembly, will be charged separately. All prices exclude statutory VAT; it will be added as effective on the day of billing and shall be indicated separately on the invoice.
  2. Our invoices are payable in € within 30 days after date of invoice without any deductions. The statutory rules and regulations in regard to delay in payment and the consequences apply.
  3. We are entitled to pass on any increase in prices or materials to the customer to their full extent if the object of the delivery has not been called within three months after notification of its completion.
  4. Excess or short deliveries in the range of 10% are admissible if this is necessary as a result of the nature of the object of the delivery or the respective delivery unit. The actual delivery amounts are decisive for the calculation of the price.
  5. We are entitled to part deliveries and performances at any time within the delivery time as agreed in the contract.
  6. The customer has the right to offset any charges if the respective claim is undisputed, legally determined or approved in writing. The customer can execute the right of retention only if the counterclaim is based on the same contractual relationship.

§ 4 Delivery

  1. The delivery time as indicated starts when a binding order has been given and all technical issues have been addressed.
  2. Delivery times are only binding if we expressively confirm them as such. Otherwise all delivery times and dates in our offers and order confirmations are non-binding.
  3. The compliance with delivery times and conditions presuppose that the customer fulfils all obligations arising from the contractual relationship in a timely and orderly way. We reserve the right to object to any non-fulfilment of a contract.
  4. If the customer is in default of acceptance or violates intentional or negligent any other obligation of participation we are entitled to claim compensation for any damages incurred, including potential additional costs. We reserve the right to any further claims. If the above-mentioned conditions apply, the risk of loss or deterioration of the object of delivery is transferred to the customer responsible for such default.
  5. Despite a binding agreed delivery date or period any delays in delivery or performance resulting from an act of God or due to events that make a delivery impossible or more difficult for more than a short period of time (strike, lock-out, statutory orders, catastrophes, etc.) including those occurring with one of our suppliers or the suppliers of our suppliers are not our responsibility. We are entitled to prolong the agreed delivery or performance for the time of hindrance plus an appropriate set-up time or to withdraw from the contract in part or in full.

§ 5 Transfer of risk and dispatch

  1. Unless otherwise stated, deliveries are agreed „ex works“ and the mode of dispatch lies within our discretion. If the customer requests a special mode of dispatch, any additional costs incurred in connection therewith will be invoiced.
  2. Any risks in connection with loss or deterioration of the object of delivery are transferred to the customer once the object of delivery is being dispatched.
  3. Any default in acceptance does not affect such transfer of risk.
  4. We gladly take out transport insurance upon request at the customer’s expenses.

§ 6 Warranty

  1. The customer must notify us in writing regarding any open faults and claims within three days upon receipt of the delivery, otherwise a claim for warranty cannot be accepted. The goods must be returned unused without delay. Any hidden faults must be notified immediately after they have been discovered.
  2. If an object of delivery is faulty, we will remedy the situation at our discretion through subsequent improvement or replacement. In case of subsequent improvement, we have the right to at least two attempts. We bear the costs of any such improvements unless the costs are not increased by the fact that the object of delivery has to be sent to another place than the place of performance.
  3. In case the attempt regarding subsequent improvement fails, the customer can chose to reduce the purchase price or withdraw from the contract.
  4. In case of minor immaterial faults of the object of delivery, the customer does not have any right to claim. Further, we cannot accept warranty claims for normal wear and tear. Warranty claims are also excluded if
    a) the goods have been used inappropriately or have been overstrained;
    b) faults are a result of incorrect technical information on part of the customer when the goods were ordered;
    c) faults occur as a result of any action by the customer, such as fitting, modifying or changing the object of delivery in any way;
    d) the customer was aware of the fault at the time of order or the customer was not aware of the fault due to gross negligence unless we have not disclosed such fault with the intention to deceit or given a warranty for the characteristics of the object of delivery.
  5. The customer must proof that faults are not a result of any of the above-detailed circumstances.
  6. Warranty period is one year upon transfer of risk in regard to the object of delivery. This does not apply if the customer has not given timely notification of such fault. (Section 1 of these provisions).

§ 7 Liability

  1. Claims for damages are excluded, irrespective of the type of default, including tortuous act, unless intended or a result of gross negligence.
  2. In case of violation of material contractual obligations, we are liable for property damages and financial losses including in cases of carelessness, but only in the scope of damages typically arising from such carelessness.
  3. Any claims for damage on part of the customer in connection with consequential damages or losses, expenses or lost profits are excluded unless a characteristic guaranteed by us was for the purpose of preventing the customer from such damages.
  4. The limitation of liability and exclusions as per section 1-3 do not apply for claims arising from malicious conduct on our part, liability in connection with guaranteed characteristics or claims in connection with the Product Liability Act and for any damages resulting for the customer from injury of life, body or health.
  5. Insofar that property damage or financial loss is covered by a liability insurance taken out by the customer we are only responsible for any disadvantages arising through such insurance claim. If the insurance does not cover those damages or losses we will be responsible thereof.
  6. Insofar the liability regarding claims for damages is excluded or limited the aforementioned also applies to personal liability regarding claims for damages in view of our employees, workers, staff, representatives and agents.

§ 8 Reservation of title

  1. We reserve all rights regarding the ownership of the ordered goods until all payments in connection with the order have been made. In case of violation of the contract on part of the customer, especially in case of delays in payment, we have the right to have the object of delivery returned to us. The acceptance of the returned object of delivery does not constitute withdrawal from the contract unless expressively stated otherwise in writing. However, seizure of the object of delivery through us always indicates withdrawal from the contract. After an object of delivery has been returned to us we have the right to dispose thereof as we see fit, the purchase price minus appropriate administration fee will be set off against the claims against the customer.
  2. The customer is obliged to exercise proper care in regard to the object of delivery, especially it must be sufficiently insured (purchase price) against damages arising from fire, water and theft at the customers cost.
  3. In case of seizure or other actions on part of a third party the customer must notify us immediately in order to enable us to make a claim pursuant to § 771 German Code of Civil Procedure (ZPO). Insofar the third party is not in the position to reimburse us for any costs arising in and out of court in connection with such claim pursuant to § 771 ZPO, the customer is liable for such expenses.
  4. The customer is entitled to sell on the object of delivery subject to reservation of title in an orderly business transaction; however, we will have the right to claim any proceeds resulting from such sale to a third party to the amount of our total amount as per invoice including VAT, irrespective whether the object of delivery has been sold on unprocessed or processed. The customer retains the right to claim the purchase proceeds from such third party. This does not affect our right to claim the monies directly from such third party. However, we agree not to take any steps as long as the customer meets his obligation to pay in regard to the purchase proceeds, does not delay payments and especially no request for insolvency proceedings have been made or payments have been suspended. If this is the case, we have the right to disclosure in view of the assigned claim including all necessary information and the customer will hand over all related documentation and notify the third party of our claim.
  5. The processing or modification of the object of delivery on part of the customer will be effected for us. If the object of delivery is connected to other objects not in our ownership we have the right to co-ownership in the new object in relation to the value of our object of delivery (invoice amount including VAT) and the other processed objects at the time of processing. The aforementioned reservation of title applies to the new object in the same way.
  6. If the object of delivery is irreversibly blended with other objects not in our ownership we have the right to co-ownership in the new object in relation to the value of our object of delivery (invoice amount including VAT) and the other blended objects at the time of blending. If the blending is effected in a way that the object of the customer must be deemed the main object it is agreed that the customer grants us pro rata co-ownership. The customer holds in custody such ownership or co-ownership on our behalf.
  7. We undertake to decontrol any securities pertaining to us upon request of the customer to the extent that the realistic value of our securities exceeds the claims to be secured by more than 10%; we chose the securities to be decontrolled.

§ 9 Intellectual property

  1. Unless otherwise agreed all systems and processes, samples, models, drawings and other objects or intellectual performances invented or proposed by us constitute our property and we reserve all rights regarding usage and exploitation thereof.
  2. Insofar requested in writing by the customer and upon our written confirmation the exclusive usage for orders of the customer is guaranteed, otherwise we have the right to usage as we see fit.
  3. We are not obliged to store objects or retain rights for subsequent orders or to document such objects or rights, neither are we obliged to accept any subsequent orders; prices may vary from previous orders.

§ 10 Data protection

The necessary data of the customer for the business transactions and the execution of orders will be stored. In accordance with the provisions of the Federal Data Protection Act and the Telecommunications Data Act such data will not be used or processed for any other purpose than the aforementioned or passed on to other persons or enterprises.

§ 11 Final provision

  1. The laws and regulations of the Federal Republic of Germany apply. The provisions of the UN Purchase Law are excluded. The customer undertakes to reimburse any damages arising from the violation of statutory export regulations.
  2. Our office is place of performance and Munich has exclusive jurisdiction for all disputes arising from this contract, this includes claims in connection with cheques and L/Es.
  3. The burden of proof in connection with oral agreements is on the customer.
  4. In case individual provisions of the contract including these General Terms and Conditions are invalid in part or in full or have loopholes of any kind, statutory rules apply. The validity of the remaining provisions remains unaffected.
Stand: 01.12.2010