Terms & Conditions
Gerneral Terms and Conditions of Sale and Delivery of 4G Systems GmbH & Co. KG
I. General provisions
- The entire business relationship, including the future business relationship, between 4G Systems GmbH & Co. KG (hereinafter referred to as the "Seller") and its customers (hereinafter referred to as the "customer"), whether they are businessmen/entrepreneurs or consumers, shall be governed exclusively by these Terms and Conditions of Sale and Delivery. Purchase and other business terms and conditions of the customer are hereby objected to. They shall not apply.
- A consumer is every natural person who does not conclude an order for a purpose which can be attributed to the person's commercial or occupational activity.
- Seller's offers are without obligation and are non-binding until a contract is concluded. Orders placed by the customer are binding on the customer (see section II below - consumers' right of return). Unless the Seller provides a written confirmation to the contrary, the invoice/delivery is deemed to be an order confirmation. The contents of orders and agreements shall be governed solely by the Seller's written confirmation. Alterations or additions to the contract shall be of no effect unless they are confirmed in writing by the Seller.
- The Customer is aware that the equipment delivered by the Seller may be subject to export monitoring by the Federal Office for Trade and Industry (Bundesamt für gewerbliche Wirtschaft). The Customer shall observe the regulations of the Federal Office for Trade and Industry in this respect on any export of the equipment deliv-ered by the Seller.
- The Seller unreservedly reserves all rights of ownership and rights of exploitation under copyright law with regard to cost estimates, offers, drawings and other docu-ments and data; these may be disclosed to third parties only after the prior written consent of the Seller.
- The Seller is entitled to store and process the information on the customer received with regard to the business relationship or in connection therewith in accordance with the provisions of the Federal Data Protection Act regardless of whether such in-formation comes from the customer or third parties.
- The Seller is entitled to alter its Terms and Conditions of Sale and Delivery to take effect for the entire future business relationship with the customer after notification to such effect. The alterations are deemed to be approved unless the customer has sent a written objection within six months after announcement of the alterations. The Seller shall draw the attention of the Customer in particular to this consequence when it notifies the Customer of the alterations.
- If one of the provisions of these Terms and Conditions of Sale and Delivery is or becomes ineffective, this shall have no effect on the validity of the remaining provi-sions in the contract. The statutory provision shall take the place of such ineffective provision. On no account shall the provision in question be replaced in these Terms and Conditions of Sale and Delivery by business conditions of the Customer. The same shall apply correspondingly in the event that there is a gap in the Terms and Conditions of Sale and Delivery.
II. Right of return for consumers
The Seller hereby informs customers who order products from it as consumers (in connection with I.2.) using means of telecommunications (e.g. fax, email, phone calls, etc.) of their statutory right of return.
A customer is entitled, within a period of two weeks after receipt of the goods, to withdraw from the contract by returning the goods. The period is deemed to be complied with if the goods are dispatched within the two-week period. The goods shall be returned to the following address:
4G Systems GmbH & Co. KG
Dom-Kontor, Unter Goldschmied 6
Telefon: +49 (0)9005 2222 13
(49 ct / min. from German landlines, prices may vary from mobile networks)
Telefax: +49 (0)40 70 38 33-700
The customer shall compensate the Seller for any deterioration caused prior to the return of the goods as a result of use of the goods for the intended pur-pose. The customer shall be under no obligation to pay such compensation if the customer merely checks that the goods are ready for use and does not thereby damage them.
- Prices are ex works plus the value added tax on which the contract was concluded. The relevant price is the price stated in the Seller's order confirmation.
- Regardless of the agreed price, the customer shall pay the price shown in the Seller's price list valid on the date of shipment plus the value added tax applicable on such date if the period between contract conclusion and shipment is more than four months. If the customer is a businessman/entrepreneur the Seller may also demand an adjustment to the prices if the period between contract conclusion and shipment is less than four months and if the Seller's production costs in such period have risen by more than 5%. The adjustment shall be in line with the increase in production costs. In such a case, the customer is entitled to withdraw from the contract if the price increase amounts to 10% or more for the customer.
- If duty-free prices are agreed on, the customer shall send the Seller the required customs documents. If the customer fails to comply with this obligation or if it later transpires for other reasons that the goods could not be exported duty-free, the customer or the issuer of the declaration of customs duty exemption shall be liable to the Seller.
IV. Payment terms/set-off/right of retention
- The Seller's invoices shall be due and payable in cash or by bank transfer, all charges paid, to the Seller's account in advance without deduction, unless otherwise agreed. The relevant date is the date on which payment is received by the Seller. In case of default, customers who are businessmen/entrepreneurs shall owe the Seller default interest of 10% p.a. over the base rate applicable from time to time. Customers who are consumers shall owe the statutory default interest.
More extensive loss caused by default shall remain unaffected by the claims for default interest.
- Payment instructions and cheques and - after special agreement - bills of exchange shall be accepted only by way of payment and all collection and financing charges shall be charged. Passing on or renewal is not deemed to be fulfilment. Credit notes on bills or cheques are always subject to receipt of funds. Their value date is the date on which the Seller is able to draw on the proceeds.
- The customer may not offset counterclaims and has no right of retention unless the customer's claims are undisputed or final and absolute. This also applies to the assertion of claims for defects.
- Delivery dates and periods are approximate. For customers who are business-men/entrepreneurs delivery dates are deemed to be met on notification that the goods are ready for shipment.
- The Seller is entitled to make partial deliveries.
- The customer shall check and receipt the delivery note. The Seller shall be informed of objections if any in writing without delay. Otherwise the receipted amount delivered is deemed to be accepted.
- Delays in delivery caused by business interruptions, official action or force majeure lead to a reasonable extension to the delivery period. There is also deemed to be force majeure in the case of industrial action, including strikes and lawful lockouts, in the Seller's business or at the Seller's suppliers. In such cases, claims for damages on the part of the customer are excluded within the limits of Section VIII (liability).
- In the event of delayed delivery, the customer may withdraw from the contract if he has set a reasonable additional period for delivery and delivery has still not be effected within such additional period. More extensive claims relating to delayed delivery, in particular claims for damages, are excluded in accordance with the provisions in Section VIII (liability).
- If the customer is in default in accepting delivery of the goods, the Seller is entitled to withdraw from the contract and demand damages for non-performance. The Seller may elect either to demand compensation for the loss actually incurred or lump-sum compensation amounting to 25% of the gross purchase price. The customer is free to prove that the Seller has suffered no loss at all or loss less than the 25% lump sum.
- In the case of customers who are businessmen/entrepreneurs, the risk of accidental loss or accidental destruction passes to the customer on transfer of the goods to the forwarder, carrier or collector - at the latest when the goods leave the plant or place of storage. If the transfer or shipment is delayed for reasons for which the customer is responsible, risk passes as of the original date on which the goods are ready to be handed over to the customer. At the request of the customer, the Seller is willing to arrange for appropriate insurance cover. The provisions in this clause 7 do not apply to customers who are consumers.
- Dispatch type sequence and means of transport are at the choice of the Seller unless the parties have agreed otherwise. The Seller is not liable for the dispatch type sequence ore the means of transport.
VI. Retention of title
- Until full payment of the purchase price, the Seller shall retain title in the delivered goods. The Seller shall also retain title in the goods until such time as all the Seller's claims arising from the business relationship with the customer and existing at the date of the conclusion of the contract in question have been paid. If the customer is a businessman/entrepreneur, the Seller's retention of title also covers the Seller's claims arising in the future against the customer, including claims to balances. If the Customer is a businessman/entrepreneur the Seller's retention of title also covers all claims of the Seller against companies the Customer has directly or indirectly stake in.
- If the customer is a businessman/entrepreneur, the following shall apply for the duration of retention of title. The risk of loss, wear and tear and damage to the pur-chased item shall be borne by the customer. During the period in which title is re-tained, the purchased item shall be insured at reinstatement value, including all transport risk, on a fully comprehensive basis and against third party risks, subject to the condition that the Seller shall be entitled to the rights under the insurance con-tract. All claims on the part of the customer under the insurance contract are hereby assigned to the Seller. Benefits shall be used entirely to reinstate the purchased item. In the case of total loss, the benefits shall be used to repay the Seller's resid-ual claims. The customer shall be entitled to any additional amount.
- Processing of the goods subject to retention of title shall be at no cost to the Seller. In other words, legally the Seller is the producer of the new item within the meaning of Sec. 950 of the German Civil Code (BGB). The customer shall hold the item cre-ated by the processing in safe custody at no cost.
- Pledging or transferring by way of security of the goods subject to retention of title to third parties and the assignment or pledging of expected rights in the goods subject to retention of title by the customer are excluded.
- Customers who are businessmen/entrepreneurs are entitled to resell the delivered item or the item created from processing on a revocable basis in the normal course of their business. The customer now assigns to the Seller all his claims arising out of the resale and the business relationship with his customers in connection with the resale, including any current account balance claims together will all ancillary rights. The Seller hereby accepts such assignment. The customer is entitled and obliged to collect the claims assigned to the Seller as long as the Seller has not revoked such authorization. The authorization to collect the receivables shall also lapse without express revocation if the customer stops making payments. On the termination of the authorization the customer shall, at the request of the Seller, state in writing without delay to whom he has sold the purchased item and what claims he is enti-tled to from the resale. The funds received by the customer after the termination of the right to collect the claims assigned to the Seller shall be accepted on a fiduciary basis up to the amount of all secured claims and shall be paid to the Seller without delay.
Customers who are consumers are not entitled to resell the purchased item. If they nevertheless sell the item, the above provisions in clause 5 shall apply correspond-ingly.
- The customer shall inform the Seller without delay of all impairments to the rights in the purchased item in the ownership of the Seller. The customer shall bear the costs of all action taken to release the item transferred to the Seller by way of transfer from third-party rights.
- If the value of the claims assigned to the Seller exceeds the Seller's claims against the customer by more than 10% the Seller shall, at the request of the customer, re-assign such claims to such an extent.
- In the event that the customer is in default in payment, the goods subject to retention of title shall be handed over without delay on request without any need on the part of the Seller to withdraw from the contract. The same shall apply corre-spondingly in the event that the customer's financial position deteriorates signifi-cantly. Demand for return of the goods and taking back of the goods are not deemed to be withdrawal from the contract.
VII. Defects (defects of quality and title)
- Performance descriptions and other details on the quality of the delivered item are for specification purposes. They therefore do not constitute warranties on characteristics which are the subject of a guarantee. Public advertising statements/product information from third parties or from the Seller are not the subject of the contractual product specification unless the Seller makes an agreement to that effect with the customer.
- The customer shall at his expense properly examine the delivered goods without delay after receipt and notify the Seller without delay in writing of any defects or incorrect deliveries or reduced quantities. Notification is deemed to have been given without delay if it is received by the Seller within eight days after receipt of the item. If the customer is a businessman/entrepreneur, the Seller shall be informed without delay in writing of hidden defects after discovery of the same. Customers who are consumers must inform the Seller of hidden defects without delay after discovery of the same and at the latest before the end of the statutory limitation period for defects of quality and title.
- If the customer is a businessman/entrepreneur, the following shall apply to his defect-related claims for subsequent performance, reduction in the price and withdrawal. The claims for defects are generally restricted to a claim to rectification or substitute delivery. The Seller is entitled to choose between rectification or substitute delivery. The Seller is entitled to carry out a reasonable number of attempts - at least three in any event - to rectify the defect or make substitute deliveries. If rectification or substitute delivery is unsuccessful, the customer may elect either to rescind the contract or to reduce payment. This right is limited to the delivery in question unless the customer cannot be expected to accept such a limitation in view of the nature of the matter. If specified performance quantities are not reached, the customer may only claim reasonable reduction in the price after efforts to rectify defects have failed. This shall not apply if the performance parameters are expressly warranted or it is unreasonable to expect the customer to accept the delivered item under the given circumstances.
- There shall be no claims for defects in the case of insignificant deviations from the agreed quality or serviceability.
- If the customer is a businessman/entrepreneur, the following shall apply to the limitation in time of claims for defects. Claims for defects in respect of new items shall become time-barred one year after delivery. This shall not apply insofar as the law prescribes mandatory longer periods or in the case of a wilful or grossly negligent breach of duty on the past of the Seller or fraudulent concealment of a defect or in cases of injury to life, body or health. The statutory rules on the suspension of the running of the limitation period, suspension or the restart of the periods shall remain unaffected. If the Seller's order confirmation provides for a longer warranty period, claims for defects shall become time-barred at the end of the stated warranty period. So-called "guarantee periods" are warranty periods. Claims for defects for rectifications of defects or substitute deliveries shall become time-barred three months after completion of the rectification or substitute delivery but not before the end of the original period.
- If the item delivered is later taken to a place other than the agreed place of delivery and if, as a result, the expenses required for the purposes of subsequent performance - in particular transport, tolls, material and labour costs - increase, these shall not be borne by the Seller. This restriction shall not apply if the taking of the delivered item is in accordance with its intended and contractually agreed use.
- Damage caused by external influence, improper treatment, defective operation, normal wear and corrosion are excluded from liability for defects.
- If the Seller delivers third-party products to the customer, the Seller now already assigns to the customer its claims in respect of defects against the supplier. The customer hereby accepts such assignment. The customer shall first proceed against the supplier in respect of the assigned claims. If such claims against the supplier cannot be enforced, the customer shall provide evidence to this effect to the Seller. The Seller shall then act in accordance with its liability for defects.
- All liability on the part of the Seller is excluded in the case of defective or improper maintenance of the purchased item by persons not instructed by the Seller.
- If the customer is a businessman/entrepreneur, the following shall apply in addition. In connection with recourse pursuant to Sect. 478 of the German Civil Code (BGB) the customer shall inform the Seller of complaints made by the customer's own buyers and shall give the Seller the opportunity to settle such buyers' claims relating to defects directly with the buyers. If the Seller does not make use of such opportunity, the Seller shall be liable to the customer only insofar as the customer has granted his buyers no rights exceeding the statutory claims for defects.
- Section VIII (liability) shall also apply to claims for damages.
- Defect-related claims on the part of the customer against the Seller that are more extensive than or different to those dealt with in this Section VII. are excluded.
- The Seller shall assume no liability for loss or damage of whatever kind. Such exclusion shall not apply
- to loss or damage which the Seller has brought about intentionally or by gross negligence;
- in cases of slight negligence for damage based on injury to life, body or health and for damage based on a breach of fundamental contractual obliga-tions by the Seller.
- In cases of negligent breach of fundamental contractual obligations, the Seller's liability is - with exception to damage to life, body or health - limited to contract-typical loss or damage which is foreseeable for the Seller on conclusion of the con-tract or at the time of the breach of the obligation.
- If the customer is a businessman/entrepreneur, claims for damages in respect of slight negligence on the part of the Seller pursuant to VIII.1 and VIII.2 are excluded unless they are asserted in the courts within a period of three months after notice of rejection of the claims in which reference to the said three-month period is made by the Seller or Seller's insurer.
- The above liability exclusions and restrictions in VIII.1 to VIII.3 also apply to the Seller's liability for its organs, employees and vicarious agents as well as the personal liabil-ity of the Seller's organs, employees and vicarious agents.
- The above exclusions and restrictions on liability in Sections VIII 1. to VIII 4. shall not apply insofar as there is liability for damage to persons or property according to mandatory provisions of the applicable product liability law.
IX. Place of performance, place of jurisdiction, applicable law
- Place of performance for deliveries and payments is Cologne.
- In the case of buyers who are businessmen, legal persons under public law or special funds under public law, it is agreed that Cologne shall be the place of juris-diction. The Seller is however entitled to take legal action against the customer at the court having jurisdiction over the customer. Cologne shall also be the place of jurisdiction in the event that the buyer is not a businessman and has no general place of jurisdiction in Germany or has moved his residence or ordinary place of residence out of Germany after conclusion of the contract or if the residence or ordinary place of residence is not known to the Seller at the date on which legal pro-ceedings are started.
- The contract shall be governed solely by German law. The UN Convention on the International Sale of Goods (CISG) and international private law shall not apply.
The customer undertakes to observe strict secrecy in respect of information on the Seller's technical and commercial knowledge which the customer becomes aware of in the course of the business relations and to use the same only for the contractu-ally intended purpose. This obligation shall apply for the duration of the business re-lationship. It shall also apply for a two-year period after the termination of the busi-ness relationship. It does not relate to knowledge in the public domain which has been known without any breach of this duty of confidentiality.