Falk Steuerungssysteme GmbH
Business conditions

© 2018 Falk Steuerungssysteme GmbH

General Terms and Conditions of Business

§ 1 Scope of application

(1) These Terms and Conditions of Business shall apply exclusively to business enterprises, legal entities under public law or special funds under public law within the meaning of §310, Paragraph 1 German Civil Code. We only acknowledge conflicting terms and conditions of the buyer or those that deviate from our Terms and Conditions of Business if we expressly agree in writing to their validity.
(2) These Terms and Conditions of Business also apply to all future transactions with the buyer if these involve legal transactions of a related kind.

§ 2 Offer and conclusion of contract

(1) If an order is to be regarded as an offer pursuant to § 145 German Civil Code, we can accept this within two weeks.
(2) For the development of software, a requirements specification document relating thereto shall be jointly drawn up by the contracting parties. This must contain all the information concerning the intended areas of application that is required by the contracting parties. It is to be signed and dated by the contracting parties on a legally binding basis. This also applies to any possible subsequent requirements specification documents to which the contracting parties have agreed in writing whilst approving amended contractual terms and conditions or whilst maintaining existing terms and conditions.
(3) The requirements specification document is drawn up by us in such a way that the requirements referred to under (2) are met. The most recent generally available knowledge about information technology that exists at the time that the order is placed constitutes the minimum standard.
(4) For delivered software and own patent rights included in delivery, we grant the buyer an exclusive, unlimited, transferable, irrevocable right of use to the object of the contract, including documentation and instructions for use. Further use such as processing, duplication and publication requires our express written approval.

§ 3 Documents and data that the buyer is allowed to use

We reserve proprietary rights and copyright to all documents and data that the buyer is allowed to use in connection with the placing of an order, for example, calculations, drawings etc. Third parties are not allowed to access these documents and data unless we issue the buyer with our express written approval. If we do not accept the buyer's offer within the period pursuant to § 2, these documents and data are to be returned to us immediately.

§ 4 Prices and payment

(1) Unless otherwise provided in writing, our prices are valid ex works exclusive of packing and VAT at the rate that applies at the time. Packing costs shall be invoiced separately.
(2) Payment of the purchase price must only be made to the account referred to overleaf. The deduction of a discount is only allowed if this is agreed to specifically and in writing.
(3) Unless otherwise stipulated, the purchase price is to be paid within 10 days following delivery. Interest on arrears is calculated at the rate of 8 % above the base lending rate per annum that applies at the time. We reserve the right to claim higher default damages.
(4) If no fixed price agreement has been entered into, we reserve the right to make reasonable price changes on account of amended wage, material and sales costs for deliveries that take place 3 months or later after the contract has been concluded.

§ 5 Offsetting and rights of retention

The buyer only has the right to offset if its counterclaims are legally established or undisputed. The buyer is only authorised to exercise a right of retention if its counterclaim is based on the same contractual relationship.

§ 6 Delivery period

(1) The start of the delivery period stated by us is dependent upon the buyer duly honouring its obligations in good time. The plea of non-performance of contract remains reserved.
(2) If the buyer delays acceptance or if it is culpably in breach of other duties to cooperate, then we are entitled to demand compensation for damage that we incur in this respect, including any possible additional expenses. We reserve the right to make further claims. If the preceding prerequisites exist, the risk of accidental loss or deterioration of the item purchased passes over to the buyer on the date on which the buyer is in default of acceptance or there is default on the part of the debtor.

§ 7 Passing of risk upon dispatch

If the goods are dispatched to the buyer at its request, then the risk of accidental loss or deterioration of the goods passes over to the buyer when they are dispatched to it or at the latest when they leave the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who pays the freight costs.

§ 8 Reservation of title

(1) We reserve title to the goods delivered pending payment in full of all amounts owed under the supply contract. This also applies to all future deliveries even if we do not always expressly refer to this. We are entitled to take back the purchased item if the buyer is in breach of the contract.
(2) If ownership has not yet passed over to the buyer, the buyer is obliged to handle the purchased item with care. The buyer is obliged in particular to adequately insure this item against theft, fire and water damages at its own expense. Insurance must cover the item's value when new. If maintenance and inspection work needs to be carried out, the buyer must carry this out at its own expense and in good time. If ownership has not yet passed over to the buyer, the buyer must inform us immediately and in writing in the event of seizure of the delivered item or other third-party interventions. If the third party is unable to refund us with the court and out-of-court costs of a lawsuit pursuant to § 771 Rules of Civil Procedure, the buyer is liable for the loss incurred by us.
(3) The buyer is entitled to resell the reserved goods in the ordinary course of business. The buyer assigns to us as of now the accounts receivable as a result of reselling the reserved goods for an amount equivalent to the final invoiced amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item has been resold without having been processed or following processing. The buyer remains authorised to collect the debt even after assignment thereof. Our entitlement to collect the debt ourselves remains unaffected by this. However we will not collect the debt as long as the buyer fulfils its payment obligations ensuing from the collected revenue, is not in default of payment and in particular has not suspended payments or filed a petition in bankruptcy.
(4) The processing or transformation of the purchased item by the buyer is always done on behalf of ourselves. In this case the expectant right of the buyer to the transformed purchased item continues. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the proportion of the objective value of our purchased item to the other processed items at the time of processing. The same applies in the event of mixing. If the mixing is done in such a way that the buyer's item is to be regarded as the main item, it is deemed to be agreed that the buyer assigns co-ownership to us on a pro-rata basis and keeps safe for us the ensuing sole ownership or co-ownership. In order to provide security for the amounts owed to us by the buyer, the buyer also assigns those receivables to us that are created against a third party by the combination of the reserved goods with real property; we hereby accept this assignment.
(5) We undertake to release the collateral to which we are entitled following the buyer's request if its value exceeds the receivables that are to be collateralized by more than 20 %.

§ 9 Warranty and notice of defect as well as recourse/manufacturer's recourse

(1) Warranty rights of the buyer require that the buyer has duly fulfilled its inspection and notice of defect obligations that are incumbent upon the buyer pursuant to § 377 German Commercial Code.
(2) Warranty claims become statute-barred for our buyer or its customers 12 months after delivery of the goods supplied by us. Our approval must be obtained before goods are returned to us.
(3) If, despite having taken great care, the delivered goods have a defect that was already present at the time that the risk passed over to the buyer, we will opt to either remedy the defect or supply replacement goods subject to notice of defect within the period stipulated. An opportunity for supplementary performance shall always be given to us within a reasonable period of time. Claims under a right of recourse remain unaffected by the aforementioned provision without reservation.
(4) Should the supplementary performance fail, the buyer can withdraw from the contract or reduce the payment irrespective of possible claims for damages.
(5) Warranty claims do not exist for minor deviations from the agreed quality, for minor impairment of usability, for natural wear and tear or wearout or for damages as a result of incorrect or negligent handling, excessive stress, unsuitable machines and equipment, defective building work, unsuitable building land or due to specific external influences after the passing over of risk, which are not provided for under the contract. Should inappropriate repair work or modifications be carried out by the buyer or third parties, warranty claims for these and the outcome which ensues therefrom shall also not exist.
(6) Claims by the buyer on account of expenditure required for the purpose of supplementary performance, in particular costs for transportation, labour and materials, are excluded if expenditure is increased because the goods delivered by us have been subsequently transferred to a location that is not the buyer's place of business, unless the transfer is appropriate for their intended use.
(7) Claims against us under a right of recourse only exist insofar as the buyer has not entered into agreements with its customer which exceed the warranty claims mandatory by law. Furthermore, Subsection 6 shall apply accordingly to the extent of the buyer's claim against the supplier under a right of recourse.

§ 10 Miscellaneous

(1) This contract and all legal relations between the contracting parties are subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction for all disputes ensuing from this contract is our place of business unless otherwise specified in the order confirmation.
(3) All agreements that are entered into by the contracting parties for the purpose of executing this contract are set down in writing in this contract.
(4) If individual provisions contained in this contract are or become invalid or contain a loophole, this will not affect the validity of the remaining provisions. In place of the invalid regulation, the contracting parties undertake to adopt a legal regulation that comes closest to the economic purpose of the invalid regulation and/or which closes this loophole.