General Terms and Conditions of TDT AG
The following General Terms and Conditions (GTC) of TDT AG, headquartered in D-84051 Essenbach, apply to all our business relations with our customers who are entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law. Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the customer's order or, in any case, in the version most recently communicated to him in text form as a framework agreement, shall also apply to similar future contracts without us having to refer to them again in each individual case. Our AGB apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we carry out the delivery to the customer without reservation in the knowledge of the customer's terms and conditions. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
I. Offer and order
Our offers are subject to change without notice. Orders and subsidiary agreements require written confirmation.
Our brochures, illustrations, data and the like are generally only approximate. Reasonable changes are permissible, unless the usability for the contractually intended purpose requires exact conformity or such conformity is expressly agreed.
Subject matter of the contract is, depending on the agreement, the delivery of telecommunication components/services as well as their maintenance up to the complete network service. With regard to the scope and type of the initial installation and commissioning at the customer's location, the respective order confirmation/agreement is decisive. Extensions or adaptations of the standard firmware in our devices after the date of the order confirmation, which are caused by system functions at the customer's site or by changes in the regulations for the use of public data networks, are not subject of the service and require a special agreement on a case-by-case basis.
All prices are net ex works Essenbach/Altheim. In the case of a repeat order, the price of the pre-order shall only apply if this has been expressly agreed. If there is a period of more than 3 months between order confirmation and delivery date, we are entitled to make an appropriate price adjustment in the event of significant changes to the basis of calculation. In the case of repair orders, if no repair order is placed, the work involved in determining defects shall be remunerated. If the order is not placed within one month after a cost estimate has been prepared, the device will be returned to the customer in an unrepaired, disassembled condition and the work involved will be invoiced.
Our cost estimates, drawings, samples, drafts and other documents may neither be used for other purposes nor made available to third parties. Orders based on drawings, sketches and other information provided will be executed at the customer's risk with regard to third party property rights. Any interference with third party rights shall be at the expense of the customer, who shall indemnify us against any claims in this respect.
II Delivery and transfer of risk
Specified delivery dates are not binding unless otherwise agreed. Partial deliveries by us are permissible if the partial delivery does not unreasonably affect the interests of the customer; in the event of an unforeseen event which makes it impossible or unreasonable for us to supply all customers, we may divide the existing stock between several customers.
Delivery is ex works Essenbach/Altheim, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the customer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging, insurance) ourselves.
The risk shall pass to the customer upon dispatch of the goods, even if we have assumed other services, such as delivery and/or installation. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day the goods are ready for dispatch. Any safekeeping of the customer's goods is at the customer's risk. If the goods are stored with us for more than 2 weeks after notification of readiness for dispatch, we are entitled to store the goods externally at the customer's expense or to charge storage fees.
The terms of payment shall be based on the conditions set out in offers, order confirmations and written agreements. For new customers, payment is generally made by cash in advance or cash on delivery at the customer's option. Customers with whom a business relationship already exists will be supplied on account, creditworthiness assumed, whereby the due date for payment will in any case only occur after or when our service is provided. However, we reserve the right at all times to make deliveries only against advance payment or cash on delivery, in particular if the customer is in default with a claim from us or if there are objectively justified doubts about the customer's creditworthiness.
The customer may only offset undisputed or legally established claims against our claims. Similarly, the customer shall only be entitled to a right to refuse performance or to withdraw from the contract on the basis of undisputed or legally established claims which must result from the same legal relationship from which our claim arises. In the event of defects in the delivery, the customer's counter rights, in particular in accordance with § 20 sentence 3 of these General Terms and Conditions, shall remain unaffected.
If bills of exchange or cheques are accepted on account of payment, we are entitled to charge the costs incurred. We do not assume any liability for timely presentation, protest, notification and return of a bill of exchange in case of dishonour.
If the customer defaults on a payment, we shall be entitled, without prejudice to further rights, to refuse to fulfil our obligations arising from the entire business relationship with the customer until the default is remedied or to withdraw from the contract after granting a reasonable period of grace. In the event of default, we are entitled to charge interest at 9 percentage points above the respective base rate.
III. retention of title
We reserve title to the delivered or installed items until all claims have been met in full.
We are entitled to insure the reserved goods at the customer's expense against theft, breakage, water and other damage, unless the customer himself has demonstrably taken out appropriate insurance.
The customer is entitled to process and resell the goods subject to retention of title, provided this is done in the ordinary course of business. He is not permitted to pledge or assign the reserved goods as security. The customer must inform us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the reserved goods belonging to us (e.g. seizures).
The customer hereby assigns to us all claims to which he is entitled in connection with the resale as security (extended reservation of title). Irrespective of this, the customer is entitled and obliged to collect the receivables from the resale as long as we do not revoke this authorisation. The customer undertakes to inform us on first demand against whom he has claims from the resale of the
has reserved goods. The customer undertakes to hand over to us all documents necessary for asserting the claim assigned to us.
If the customer processes the goods with other goods not belonging to us, we shall acquire co-ownership of the new object to the amount of the invoice amount including VAT of the reserved goods.
If the customer is in default of payment or otherwise violates his contractual obligations, we are entitled to take back the reserved goods and to suspend agreed services, even if we do not withdraw from the contract. The demand for return does not at the same time include the declaration of withdrawal. If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if this deadline is dispensable due to legal regulations.
If the realisable value of all the above security rights exceeds the amount of all secured claims by more than 10%, we shall release security rights of our choice at the customer's request.
For defects and for the absence of the contractually agreed quality of delivered items or services rendered, which are reported to us in writing by the customer immediately after their discovery and which are based on a circumstance that occurred before the transfer of risk, we only guarantee in such a way that within the scope of subsequent performance, at our discretion, we first rectify the defects in the Essenbach/Altheim plant or repair or replace defect-free items or
Spare parts can be supplied subsequently ex works Essenbach. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect. The warranty begins with the transfer of risk and ends after 24 months regardless of the operating time of the equipment. If the rectification of defects has failed or
a reasonable deadline set for the repair or replacement delivery has expired without success or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the remuneration. There is no right of withdrawal in the case of an insignificant defect. Other claims of the customer due to defects or the lack of the agreed quality, in particular claims for compensation for consequential damages, are excluded, unless otherwise provided for in §§ 23 and 24 of these General Terms and Conditions.
Our warranty obligation does not apply if the delivered goods or services rendered are changed, improperly handled, treated or processed, unless the treatment or processing is carried out in accordance with the technical guidelines specified by us. Proper handling includes the necessary compliance with the installation, operation and maintenance instructions, which must be proven by the customer. Furthermore, no warranty is assumed for damage resulting from a
natural wear and tear.
If we are obliged to provide supplementary performance and if, in the course of supplementary performance, parts of the performance are to be replaced which are not related to a defect in our product (anyhow - costs), we can make supplementary performance dependent on the customer making the corresponding additional payment. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it. The costs incurred for the purpose of testing and
We shall bear or reimburse any expenses required for subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request for rectification of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the customer.
We shall be liable for damages, regardless of the legal basis, within the scope of liability for culpability in the event of intent or gross negligence. In the case of simple negligence, we shall only be liable for damages resulting from injury to life, body or health and for damages resulting from a not insignificant breach of a material contractual obligation (obligation whose fulfilment enables the proper execution of the contract and on whose compliance the customer regularly relies and may rely). In the latter case, however, our liability shall be limited to compensation for the foreseeable, typically occurring, foreseeable damage; in the event of default, our liability shall be limited to 5% of the delivery value of goods delivered late. The above limitations of liability shall also apply in the event of breaches of duty by or in favour of persons whose fault we are responsible for according to the statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods, nor do they apply to claims of the customer under the Product Liability Act.
If the customer has contributed to the occurrence of a loss for which we are liable in accordance with § 23 by culpable conduct (e.g. by breach of his duties to cooperate or other obligations) or has failed to take necessary measures to reduce the loss, the principles of contributory negligence shall determine the extent to which we and the customer must bear the loss. Notwithstanding sentence 1, we shall be liable for the loss of data or
Damage to recorded data under the conditions and to the extent of § 23 only if and up to the amount that would have been incurred if the data had been properly and regularly backed up to restore the data.
VI. choice of law and place of jurisdiction
Das Vertragsverhältnis unterliegt in vollem Umfang deutschem Recht unter Ausschluss internationalen Einheitsrechts, insbesondere des UN-Kaufrechts (CISG).
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Essenbach, Germany. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we shall also be entitled to bring an action at the customer's general place of jurisdiction. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected. The parties to the contract hereby undertake, within the framework of reasonableness, to replace the invalid provision by a provision which comes as close as possible to the economic result of the invalid provision and which they would have agreed to if they had been aware of the invalidity beforehand.
would be. The same applies in the event of a loophole.
VII. take-back of waste equipment
The customer assumes the obligation to dispose of the delivered goods after termination of use at his own expense in accordance with the statutory provisions and to release us from any obligation to take back the goods and from any claims of third parties in connection therewith. If the customer passes on the goods to commercial third parties and does not contractually oblige them to take over the disposal and to continue the obligation, it is the responsibility of the
customer to take back the delivered goods after termination of use at his own expense and to dispose of them properly in accordance with the statutory provisions. Our claim for acceptance/release by the customer shall not become statute-barred before the expiry of two years after the final termination of use of the equipment. The two-year period of suspension of the statute of limitations shall commence at the earliest upon receipt by us of a written notification from the customer regarding the termination of use.