General Terms and Conditions
- General – Oral Additional Agreements – Offers
- Delivery – Date of Delivery – Extension of the Delivery Period – Part Performance
- Force Majeure – Cancellation – Failure of Supplier
- Retention of Title
- Passing of Risk – Incoterms – Transport Insurance
- Warranty Claims – Complaint Obligations
- Industrial Property Rights and Copyrights – Defects of Title
- Prices – Price Increases
- Payment Terms – Set-off – Securities – Assignment
- Obligations in case of resale
- Return of Electronic Devices – Return of Packaging
- Place of Fulfilment – Place of Jurisdiction – Applicable Law
- Rights of Use
- Passing of Risk
- Additional Obligations to Cooperate and Liability
- Warranty Claims
- Industrial Property Rights and Copyrights – Defects of Title
I. General – Oral Additional Agreements – Offers
1. Any of our deliveries and services (hereinafter referred to as „Service(s)“) are subject to the followingGeneral Terms and Conditions (hereinafter referred to as „Terms and Conditions“) exclusively. We donot accept conflicting, differing and/or terms and conditions not contained in our Terms and Conditionsunless expressly agreed upon their application in writing. This also applies in case we unreservedlyperform deliveries of products and services with knowledge of conflicting, differing conditions orconditions not contained in our Terms and Conditions or if you refer in your request, your order or inany other context when performing the contract to the application of its terms and conditions.
2. Our Terms and Conditions shall only apply to entrepreneurs as defined in § 14 German Civil Code(hereinafter referred to as „BGB“).
3. Our sales personnel are not authorized to make oral additional agreements.
4. Unless otherwise expressly agreed upon, our offers for price and performance are not binding.The order does not become binding for us until we confirm it in writing or tacitly accept it by performanceor issuance of an invoice.
5. All contracts concluded with you are under the condition precedent that the necessary export licenseswill be granted resp. there are not conflicting any obstacles due to our position as exporter resp. thereare not conflicting any export regulations which must be observed by our suppliers.
6. Unless otherwise expressly agreed upon, illustrations, drawings, calculations and other product-,application- or project-related documents which contain valuable know-how or valuable informationremain our sole property and are subject to our copyright even if handed over to you; they may not bereproduced or made available to third parties without our prior written consent.
II. Delivery – Date of Delivery – Extension of the Delivery Period – Part Performance
1. Unless otherwise expressly agreed upon, the agreed dates for performance are not fixed deadlines(§ 323 Para.2 No. 2 BGB, § 376 German Commercial Code (hereinafter referred to as „HGB“).
2. The delivery period respectively the period for service does not commence until all details are clarifiedand both parties have agreed on all the conditions of business. The prerequisites for adherence todelivery periods respectively to periods for service are:– All documents which are to be provided by you have reached us on time;– All approvals and releases which are to be provided by you have been issued on time;– Your contractual obligations, particularly your payment obligations, have been met in full an on time.
3. Unless otherwise expressly agreed upon, the delivery period is considered to have been met if theoperational shipment has left our plant within the agreed delivery period.
4. The delivery period shall be reasonably extended if– the failure to comply with the delivery period is due to force majeure, i.e. an unforeseen event onwhich we have no influence and which we are not responsible for (e.g. official actions and orders(irrespective if they are valid or invalid), fires, floods, storms, explosions or other natural disasters).This shall also apply if force majeure occurs during an undue delay in delivery and if a supplier of usis affected by force majeure;– necessary approvals or documentation from third parties which are to be provided by you are notpresented in time;– the necessary specifications are not made known by you in time.
5. Deliveries and services may be made in instalments insofar as you can be reasonably expected toaccept this. In such a case we are also entitled to invoice such instalments separately.
6. In case the delivery is delayed at your request or due to circumstances for which you are responsible,we are upon demonstration of readiness to ship entitled to charge you the costs resulting from storagebut not less than 0.5 % of the invoice amount for each week commenced, but in maximum 10 %of the invoice amount. Both parties may prove that greater, lower or no storage costs have resulted.The statutory rights to withdraw from the contract and to claim damages remain unaffected thereby.
III. Force Majeure – Cancellation – Failure of Supplier
1. If it is impossible for us to fulfil the performance within an appropriate period of time due to forcemajeure (cf. Section II.4), both parties are entitled to withdraw in full or in part from the contract. Thesame applies to subsequent impossibility of performance of contract which we are not responsible for.No damages may be claimed for such a withdrawal. If one party intends to withdraw from the contractdue to the aforementioned reasons it must inform the other party without delay.
2. We are released from our delivery obligation if we ourselves are not supplied in time with the correctgoods needed to fulfil the contract without any fault on our part.
IV. Retention of Title
1. We reserve title to all the purchased goods until complete payment of all claims to us which result fromthe business connection. This also applies in case the payment for certain performances indicated byyou has been made. If the retention of title is linked to special prerequisites or forms in your countryyou are required to notify us accordingly and to ensure fulfilment at your expense.
2. Linkage, blending or processing of the goods shall take place on behalf of us as the manufacturer,but without any obligation for us. If (joint) title is terminated due to linkage, blending or processing,it is already now agreed that we shall acquire joint title to the new item in proportion to the value of theitem supplied by us compared with the other goods at the time of linkage, blending or processing. Youhave to store the items of which we have (joint) title for us at no charge to ourselves.
3. Resellers are permitted resale of the goods in the course of ordinary business unless revoked. Wemay revoke this right of resale if
(a) you stop payment,
(b) you are in delay of payment, or
(c) if thereare indications for deterioration of property or other facts after conclusion of contract are given thatcorroborate the belief that our claim is endangered due to a lack of performance. For goods in whichwe have (joint) title, you hereby assign to us by way of security all claims arising from resale of theitems delivered to third parties or from any other cause in law in the sum of the invoice value of thecorresponding item. On demand you are obliged to provide us with written declarations of assignment.You are revocable authorized to collect the assigned claims against the third party in the courseof ordinary business in your name. This collection authorization may be revoked by the same reasonsas the right of resale.
4. Pledges and transfers by way of security are not permitted. You must inform us without delay of anyattachment of property, distraint or any other disposals or interferences by third parties.
5. We undertake at our discretion to release the collateral that we hold upon your request insofar as thevalue thereof exceeds the claim to be secured by more than 20 %.
V. Passing of Risk – Incoterms – Transport Insurance
1. Unless otherwise expressly agreed upon, the delivery will take place „ex works“ (Incoterms in theirapplicable version, currently Incoterms 2010) regarding that place indicated in our offer or in ouracceptance or if in our offer or our acceptance no place is indicated „ex works“ Neuhausen, Germany.
2. Unless otherwise expressly agreed upon, the risk of accidental destruction or accidental deteriorationof the products passes on to you as soon as the products have been handed over to the personexecuting the transport, at the latest when the products leave our distribution centre. This also appliesif we have to handle with the delivery. If shipment is delayed for reasons you are responsible for, therisk of accidental destruction or accidental deterioration of the products shall pass on to you upon theinformation that the products are ready for delivery.
3. If internationally customary shipping and risk bearing clauses are used in the contract, these are tobe interpreted according to the international Rules for Interpretation of Trade Terms (Incoterms in theirapplicable version, currently Incoterms 2010).
4. We will provide transport insurance only upon agreement and at your expense.
VI. Warranty Claims – Complaint Obligations
1. Unless otherwise expressly agreed upon, quality and usability are regulated exclusively andexhaustively in the technical data sheet or in the instruction manual referring to the respective product.
2. We are in agreement that in case of a claim for supplementary performance (subsequent improvementor additional delivery) the most cost-effective alternative shall be chosen, provided that this alternativeis not to your detriment.
3. Complaints due to incomplete or incorrect delivery must be made to us in written form immediatelybut not later than within one week following delivery (apparent defects) or discovery of the defect.Otherwise the assertion of warranty claims is excluded.
4. We do not agree with any restriction of your statutory requirements regarding inspection and complaintof goods receivable (including without limitation according to § 377 HGB).
5. Warranty claims are subject to a limitation period of 24 months following transfer of risk. This shallnot apply to warranty claims pertaining to products subject to wear (e.g. photoelectric sensors, mechanicalsensors, micropulse transducers, magnetically coded position and rotary encoder systems,inductive couplers and accessories which is classified as accessory by Balluff (e.g. cable, connectors,angle brackets etc.), etc.); these warranty claims are subject to a limitation period of 12 months followingtransfer of risk. The aforementioned provisions shall not apply in cases where §§ 438 Para 1 No.2, 438 Para 3, 479 Para 1 and 634a BGB prescribe longer limitation periods and in cases of a liabilityfor damage from injury to life, body or health as well as in cases of a liability for damage arising froman intentional or grossly negligent breach of duty.
6. If a certain number of operations or switching cycles is agreed for a product this agreement is onlyvalid until the limitation periods described in Section VI.5 above are expired. If the agreed number ofoperations or switching cycles of a product is reached prior to the expiration of the limitation periodsdescribed in Section VI.5 above all performance and warranty claims resulting from such an agreementcease with immediate effect. The agreement of a certain number of operations or switchingcycles is only valid if the product is used under the environmental conditions described in the appropriatetechnical data sheet or in the appropriate instruction manual.
7. Warranty claims are excluded among other things in cases of:
– failure of inspection and complaint of goods receivable as described in Section VI.3 and VI.4 above;
– subsequent, unauthorized modification to the product unless there is evidence that the defect wasnot a result of such a modification.
– defects which occur due to normal wear, improper usage or improper storage.
8. Compensation for damages may only be required from us in accordance with Section VIII.
VII. Industrial Property Rights and Copyrights – Defects of Title
1. Unless otherwise expressly agreed upon, we are obliged to fulfil the performances free of IndustrialProperty Rights (hereinafter referred to as „Industrial Property Rights“) only in the countries where thegoods are produced or where delivery of the goods is made. „Industrial Property Rights“ in terms ofthese Terms and Conditions are patents, utility models, design patents, trademarks, including theirapplications, as well as copyrights. Insofar as a third party raises any justified claims against you dueto infringement of Industrial Property Rights through performances supplied by us and used in conformitywith the contract, we shall be liable to you within the period defined in Section VI.5 as follows:
2. We will at our discretion and at our expense (a) either acquire the rights of use for the performancesin question, (b) alter them in such a manner that Industrial Property Rights are not infringed, or (c)exchange them. Should this not be possible for us at suitable conditions, you are entitled to withdrawfrom the contract or obtain a reduction in the price as provided for by law. Compensation for damagesmay only be required in accordance with Section VIII.
3. The above-mentioned obligations exist only if and insofar as you inform us in writing immediately concerningthe third party claims asserted, do not recognize any infringement and all defensive measuresand settlement proceedings remain reserved to us.
4. Your claims are excluded insofar as you are solely responsible for the infringement of the IndustrialProperty Rights.
5. Your claims are also excluded insofar as the infringement of Industrial Property Rights is due to yourspecial instructions or due to any use not to be foreseen by us or has been caused by the goods beingaltered by you without authorization.
6. Claims against us or our vicarious agents due to deficiencies in title over and above or other thanthose governed in this Section VII are excluded.
7. In the case that in connection with the fulfilment of the contractual obligations a result will be generatedthat will able as Industrial Property Right all Industrial Property Rights regarding this result willbelong solely to us unless you were significantly involved in the generation of the result. In such a caseor in all other cases a result able as Industrial Property Right will be generated conclusively we agreethat we will receive at least a royalty-free, non-exclusive, right to use the result, unrestricted in termsof time, location and content.
1. We are only liable for any damage claims and reimbursement of needless expenditures - in accordancewith § 284 BGB - (hereinafter referred to as „damages“) made by you caused by defects ofthe Services or caused by violation of other contractual or non-contractual obligations, in particularcaused by tort, due to wilful intent or gross negligence. Excluded from this limitation shall be thosedamages that are based on injury to life, limb or health, on the assumption of a guarantee (accordingto § 443 BGB) or of a procurement risk, the violation of material contractual obligations as well as onliability according to the Produkthaftungsgesetz (German Product Liability Law).
2. Damages caused by the violation of material contractual obligations are limited to such damagestypical for the contract that must have been foreseeable by us at the time of conclusion of contractprovided that the liability is not due to wilful intent or gross negligence and not based on injury tolife, limb or health, on the assumption of a guarantee or of a procurement risk as well as on liabilityaccording to the Produkthaftungsgesetz (German Product Liability Law).
3. Foreseeable Damages typical for the contract in the meaning of Section VIII.2 are:a) in each case: in maximum damages in the amount of the net purchase price of the contract affectedb) per calendar year: in maximum damages in the amount of the net turnover you have purchasedproducts from us in the preceding calendar year. In the first contract year in maximum damages in theamount of the net turnover you have purchased products from us until the occurrence of the eventof damage. In any case foreseeable Damages typical for the contract in the meaning of Section VIII.2are not any indirect damages (e.g. recovery for loss of profit, damages resulting from interruption ofbusiness).
4. Irrespective of Section VIII.3 the amount of damages to be paid by us to you shall be determined byhaving, adequately in favour of us, due regard to our economic situation, nature, scope, and durationof the business relationship, possible causative or responsible contributions by you according to§ 254 BGB and a particularly disadvantageous situation of installation of the part supplied. Especiallydamages, cost and expenditures which shall be paid by us to you have to be in an appropriate relationshipto the value of the products being delivered.
5. All limitations of liability shall apply to the same extent to vicarious agents.
6. A change in the burden of proof to your disadvantage is not associated with the provisions in thisSection VIII.
7. Material contractual obligations pursuant to Section VIII.1 and VIII.2 are all obligations whose fulfilmentthe proper performance of the contract makes possible in the first place and on whose complianceyou regularly may trust.
IX. Prices – Price Increases
1. Our prices are net prices. They are “ex works” (Incoterms in their applicable version, currently Incoterms2010). Packing, shipping and insurance shall be billed separately unless otherwise expresslyagreed.
2. In case of orders up to a net merchandise value of 75.00 € we are entitled to claim a surcharge of25.00 € net.
X. Payment Terms – Set-off – Securities – Assignment
1. Unless otherwise expressly agreed, payment terms are 30 days net as of the invoice date – but notbefore the goods are received.
2. You may only set off your claims to the extent that your claims are admitted by us, are undisputed,have been finally legally determined or if they are in a close mutual proportion to our claims. The sameapplies for rights for retention; besides you may exercise a right for retention only if its counterclaim isbased on the same contractual relationship.
3. If there are actual facts that your financial situation deteriorates after conclusion of the contract or ifwe become aware of other facts after conclusion of the contract resp. other facts are given after conclusionof the contract which justify the presumption that our claim against you is jeopardised by theinability to perform by you, we may demand corresponding adequate securities for our services and/or revoke any payment terms granted, even for other obligations. If you do not present the adequatesecurities requested by us within a reasonable time, we may withdraw from the contract. Already existingclaims from services provided or due to default remain unaffected as well as our rights resultingfrom § 321 BGB.
4. The assignment of claims from this contractual relationship is permitted only with our prior writtenconsent. There exists no claim for granting of such approval. § 354a HGB remains unaffected.
XI. Obligations in case of resale
In case of a resale of the objects of delivery you are obliged to observe the regulations of (a) theGerman Außenwirtschaftsgesetz (AWG), (b) the German Außenwirtschaftsverordnung (AWV), (c) theEU-Dual-Use-Directive (Directive (EU) Nr. 428/2009) and of (d) the US Export Administration Regulations(EAR) – in their current valid version – and to obligate your customers accordingly.You shall reimburse us for all damages and costs which result of the non-compliance of the regulationsof this Section XI and you shall indemnify us from any third party claims raised against us inconnection therewith.
XII. Return of Electronic Devices – Return of Packaging
1. If we are obligated in accordance with statutory law (e.g. according to the German Elektrogesetz) wewill return on your demand the products after termination of use and we will properly dispose them of.You have to bear the cost for the return and the disposal.
2. If we are obligated in accordance with statutory law we will return on your demand the transportpackaging. You have to bear the cost for the return transport of the transport packaging.
XIII. Place of Fulfilment – Place of Jurisdiction – Applicable Law
1. Place of fulfilment for all duties resulting from the contractual relationship is Neuhausen a.d.F.,Germany.
2. It is agreed that (a) place of jurisdiction for legal actions falling within the jurisdiction as regards thesubject matter of the Amtsgerichte (local courts) shall be the Amtsgericht Stuttgart, Germany and (b)place of jurisdiction for legal actions falling within the jurisdiction as regards the subject matter of theLandgerichte (regional courts) shall be the Landgericht Stuttgart, Germany. We are also entitled tostart a legal action at your domicile.
3. German law shall apply exclusively without giving effect to its conflict of laws principles.
Additional Conditions regarding Software
When we provide you as a part of or in connection with our deliveries and services with software(hereinafter referred to as “Software”) for usage – against payment or without charge – the followingconditions will apply additionally. In the event that the conditions above and the following conditionsshould contradict themselves regarding Software the following condition shall prevail.
XIV. Rights of Use
1. We grant you the non-exclusive right of intended use of the Software. The intended use is describedin the technical data sheet or in the instruction manual referring to the respective Software. The rightof use is limited to the agreed period of time; in the absence of such an agreement the right of useshall be unlimited in time.
2. You may use the Software solely on the hardware referred to in the technical data sheet or in theinstruction manual, in the absence of such reference, the use shall be limited to the respective hardwaresupplied together with the Software. The use of the Software on any other device requires ourprior written consent; in case of a culpable infringement of this obligation we are entitled to claim anappropriate additional remuneration. Further claims remain unaffected hereby.
3. Where the technical data sheet or the instruction manual refers to more devices you may use theSoftware simultaneously only on one of those devices (Single License), to the extent that we have notagreed exceptionally on a Multiple License (cf. Section XIV.11). Where more than one workplace existsfor a specific device where the Software can be used independently, the Single License shall apply toonly one workplace.
4. The Software will exclusively be provided in machine readable format (object code).
5. You are entitled to make only one copy of the Software solely for back-up purposes (back-up copy).Any other duplication is allowed only subject to a Multiple License agreed exceptionally.
6. Save as provided for in § 69e of the German Copyright Act (decompilation) you are not entitled tomodify, decompile, translate or isolate parts of the Software. You may not remove alphanumeric orother identifiers from the data medium and you must transfer such identifiers unchanged to any backupcopy.
7. We grant you the right – which shall be revocable for good cause – to transfer the right to use the Software to a third party. The right to use the Software may only be transferred together with thedevice you have purchased in combination with the Software from us. If the right to use is transferredto a third party you must ensure that the right to use granted to the third party does not exceed thescope of rights to use the Software granted to you under these Terms and Conditions and the relatedtechnical data sheet or the related instruction manual, and you must ensure that the third party shallbe obliged to comply with at least the same obligations as are imposed in these Terms and Conditions.When transferring the Software you may not retain any copies of the Software.
8. You are not entitled to grant sublicenses.
9. Where you provide the Software to a third party, you must ensure that any existing export requirementsare observed; in case of a culpable infringement you must hold us harmless from any dutiesand claims in this respect.
10. To the extent that Software is provided to you for which we have only derived rights to use (thirdparty software), the provisions of this Section XIV are amended and superseded by the conditions ofuse agreed between us and our licensor. To the extent that we have provided you with open sourcesoftware, the provisions of this Section XIV are amended and superseded by the conditions of useunderlying the open source software. We will point out in the technical data sheet or in the instructionmanual if third party software or open source software and pertaining conditions of use exist andmake the conditions of use available if so requested by you. Any breach of these conditions of useon the part of you shall entitle not only us, but also our licensor, to assert claims and rights arisingtherefrom in its own name.
11. The use of the Software on more than one device or simultaneously at more than one workplace byyou requires a separate agreement on the right to use. The same shall apply if the Software is usedin networks even if the Software is not copied for this purpose. With regard to the situations namedabove (hereinafter referred to as „Multiple License“) the following provisions (a) and (b) shall apply inaddition to and with priority over the provisions of Section XIV.1 to XIV.10:(a) A Multiple License requires that we expressly confirm in writing the number of admissible copiesthat you may make of the Software and the number of devices respectively workplaces where theSoftware may be used. Section XIV.7 shall be applicable to Multiple Licenses provided that they maybe transferred by you to third parties only if transferred in their totality and together with all devices onwhich the use of the Software is allowed.(b) You must observe the duplication rules provided by us together with the Multiple License. You mustkeep records on the whereabouts of all copies made and submit us them upon request.
XV. Passing of Risk
If the Software is provided via electronic communication media (e. g. via internet) the risk of accidentaldestruction or accidental deterioration shall pass when the Software leaves our sphere of influence(e. g. when making a download).
XVI. Additional Obligations to Cooperate and Liability
1. You have to take all required and reasonable measures to prevent or limit damage attributable to theSoftware. In particular, you have to make regular back-up copies of the programs and data.
2. To the extent you culpably breach this obligation, we are not be liable for any consequences arisingtherefrom; this shall apply in particular to the replacement of lost or damaged data or programs.A change in the burden of proof to your disadvantage is not associated with the provision above.
XVII. Warranty Claims
1. Warranty claims regarding Software are subject to a limitation period of 12 months following transferof risk. The aforementioned provisions shall not apply in cases where §§ 438 Para 1 No. 2,438 Para 3, 479 Para 1 and 634a BGB prescribe longer limitation periods and in cases of a liability fordamage from injury to life, body or health as well as in cases of a liability for damage arising from anintentional or grossly negligent breach of duty.
2. Software is considered to be defective only if you can prove that there are reproducible deviationsfrom the specifications regulated exclusively and exhaustively in the technical data sheet or in theinstruction manual. A defect shall not be deemed to exist if it does not manifest itself in the latestversion of the Software supplied to you, and the use thereof by you can reasonably be required.
3. Warranty claims do not exist in any of the following cases:
– damages resulting from faulty or negligent handling of the Software,
– damages resulting from particular external influences not assumed under the contract,
– modifications made by you or third parties, and any consequences resulting therefrom,
– software extensions made by you or a third party through the use of an interface provided by us,
– incompatibility of the Software with the data processing environment of you.
4. A claim of supplementary performance will be settled regarding Software by us as follows: We willprovide you with a replacement by way of an update or an upgrade of the Software if available to usor obtainable with reasonable efforts by us.
XVIV. Industrial Property Rights and Copyrights – Defects of Title
If a third party claims legitimately due to an infringement of protective rights regarding Software we are liable according to Section VII within the limitation period according to Section XV.