Sales and delivery conditions of SHUTTLE COMPUTER HANDELS GMBH
- The following sales and delivery conditions apply to the entire business relationship with our customers. The Purchaser recognises them as being binding for the agreement in question and also for all future business dealings. Any deviating agreement shall require our written confirmation. The Purchaser waives the assertion of its own purchase conditions. These shall not become part of the agreement through silence on our part or through our delivery.
- Only German law shall apply to the legal relationship with the Purchaser, however, excluding uniform sales laws (EKG and EKAG (European sales laws)). The place of performance is Elmshorn, Germany.
II. Quotations and delivery
- Our quotations are subject to confirmation with respect to quantity, price and delivery period.
- Delivery dates confirmed by us are non-binding unless they have been stated expressly as being binding.
- The right to deviations in technology and design from descriptions and information in brochures, catalogues and written documents and modifications to models, design and material in the course of technical progress is reserved without any rights against us being able to be derived from this.
- Orders shall only be binding for us when and inasmuch as we have issued confirmation of order. Amendments and supplements to the agreement require the written form.
- If we are hindered in performance of the agreement in good time through procurement, manufacturing or delivery disturbances – with us or with our suppliers – e.g. through power shortage, traffic disturbances, strike, lock-out – the delivery period shall be extended reasonably. The Purchaser can only withdraw from the agreement if it has set us a two-week grace period in writing after expiry of the extended period. Withdrawal shall take place in writing if we do not fulfil the agreement within the period of grace.
- If fulfilment of the agreement becomes fully or partly impossible for the reasons stated under paragraph 5, we shall be released from our obligation to deliver.
- We shall inform the Purchaser about the obstruction according to paragraph5 and impossibility according to paragraph6 immediately.
- Claims for damages of the Purchaser due to delay or non-performance shall be ruled out according to the stipulations of no.VIII.
- If the Purchaser is in delay with payment of a previous delivery, we shall be entitled to withhold deliveries without being obliged to compensate any damage ensuing.
- We are entitled to carry out partial deliveries and issue partial invoices. The Purchaser is obliged also to accept partial deliveries if these serve the purpose of the agreement under economic aspects.
- For deliveries on standby, standby within an agreed period shall represent a primary obligation in the terms of section 326 BGB (German Civil Code).
- Our prices are net. If no special agreement has been made, they shall apply ex store Elmshorn (Germany) or, in direct shipping, ex store of the manufacturer plus the statutory VAT applicable on the day of delivery.
- Duty has not been paid on direct deliveries from third countries or a free port. The relevant customs duty and import taxes shall be borne by the Purchaser.
- Any arrangements about bonuses and other benefits shall lose effectiveness in the case of cessation of payment on the part of the Purchaser or in the case of unsuccessful enforcement.
- Deliveries and services are provided on the basis of the sales and delivery conditions of SHUTTLE Computer Handels GmbH. All payments shall be made to SHUTTLE Computer Handels GmbH according to the agreed payment conditions with debt-discharging effect and shall, if not agreed otherwise, take place in the currency of the invoice. Any delivery takes place within the credit limit set by us.
- SHUTTLE Computer Handels GmbH reserves the right to alter the payment modalities or credit limit at any time.
- In case of delay of payment on the part of the Purchaser, we are entitled to invoice interest amounting to 3 percentage points above the current discount rate of the European Central Bank.
- Only persons with our written authority to collect payments are entitled to accept payments using our prepared receipt forms.
- The Purchaser can only assert a right of retention if this is based on the same contractual relationship. The Purchaser shall only be entitled to set-off if we have recognised the counter-demand or this has been established with legal effectiveness.
V. Retention of title
- The goods shall remain our property up to the payment of all demands, also those arising in the future, from our business connection with the Purchaser. These also include demands subject to a condition.
- In the case of a connection or processing of the reserved goods in the terms of sections 947 and 950 BGB (German Civil Code) with other items which do not belong to us, we shall be entitled to a co-ownership share in the new item. The co-ownership share shall be determined according to the ratio of the invoice value including turnover tax of the item delivered by us to the value of the other associated items or those processed with it. The Purchaser shall keep custody of the items for us at no cost. The Purchaser may sell the reserved goods within correct business operations against immediate payment or with retention of title but is not entitled to dispose over them in any other way, in particular not to transfer them by way of security. The Purchaser assigns now its demands from resale of the reserved goods (resale price including turnover tax) including the corresponding demands from bills with all ancillary rights to us. The same shall apply to its demands from the resale of goods in which the co-ownership rights are due to us in accordance with paragraph 2. This assignment shall extend in this case to that part of the resale price of the goods concerned including turnover tax which corresponds to our co-ownership share in accordance with paragraph 2. In case the reserved goods are sold by the Purchaser together with other goods which do not belong to us at a total price, the assignment shall be made only to the amount at which we have invoiced the Purchaser for the reserved goods sold including the turnover tax. In case the demands of the Purchaser from resale are taken up in a current account, the Purchaser shall also assign its demands hereby towards its customers from the current account. The assignment shall take place at the amount of the resale price of the reserved goods including turnover tax.
- The Purchaser is entitled to collect the demands assigned to us until revoked. Assignment or pledge of these demands is only permissible with our written approval. If the party ordering defaults or does not meet its obligations resulting from the agreement concerning the retention of title, the party ordering shall, at our request, inform the debtor about the assignment in writing, provide us with all information, present and send us documents and transfer bills. To this end, the Purchaser shall grant us, if necessary, access to its relevant documents in this respect.
- In the case of the circumstances stated in paragraph 6 sentence 3, the Purchaser shall grant us access to the reserved goods in its possession, send us an exact list of the goods, sort them out and surrender them to us.
- If the value of this security exceeds the amount of our demands by more than 20%, we shall release the security at our discretion upon the Purchaser’s request.
- The Purchaser shall notify us of any attachment of third parties on the reserved goods or the demands assigned to us immediately and in writing, and support us in every way possible in intervention.
- The costs for the fulfilment of the aforementioned co-operation obligation in the pursuance of all rights from retention of title and all intercessions made for the purpose of the maintenance and storage of the goods shall be borne by the Purchaser.
VI. Packaging and shipping
- Packaging shall take place according to specialised and customary trade aspects. Special packaging and replacement packaging, e.g. for repaired goods delivered unpackaged, shall be calculated at self-cost. For certain articles sensitive to transport, special packaging shall be invoiced and fully or partly credited on immediate freight-free return.
- All deliveries shall take place, if nothing else has been agreed, carriage forward to the place of destination.
- As far as the Purchaser desires a special type of shipping, we reserve the right to invoice the Purchaser for any additional costs arising for us.
VII. Transfer of risk
- On transfer of the goods to the haulage operator, carrier or other – also the own – conveyance persons, the risk of loss or deterioration shall be transferred to the Purchaser. This applies also for deliveries carriage paid. All shipments, including any return shipments, shall travel at the risk of the Purchaser.
- If shipping is delayed as a result of circumstances for which we are not responsible, risk of loss or deterioration shall be transferred to the Purchaser on notice of readiness for shipping.
- Inasmuch as our deliveries have been agreed ex German border or ex German import port, further shipping shall take place at our discretion and the expense and risk of the Purchaser.
- All goods shall be insured by SHUTTLE Computer Handels GmbH against transport damage at the expense of the Purchaser. Conclusion of transport insurance by SHUTTLE Computer Handels GmbH shall only be waived against the written confirmation of a transport insurance taken out by the Purchaser.
VIII. Liability for defects and damages
- All claims for damages – no matter for which legal reason – which are based on slight or medium negligence on the part of our staff are ruled out unless this exclusion of liability restricts significant rights or obligations arising from the nature of the agreement to such an extent that achievement of the contractual purpose is endangered.
- Also ruled out are claims for damages – no matter for which legal reason – which are based on slight or medium negligence on the part of our staff, unless it concerns senior executives or such exclusion of liability restricts significant rights or obligations arising from the nature of the agreement to such an extent that achievement of the contractual purpose is endangered.
- The aforementioned exclusion of liability shall not apply in non-commercial transactions inasmuch as claims for damages are asserted due to delay or impossibility. In these cases, however, our liability shall be restricted to the direct damage and to the purchase price of the goods concerned.
- Nos. 1 to 3 shall not apply for claims for damages due to assured characteristics.
- Inasmuch as we are liable for damages, our liability shall always be limited to the replacement of the typically foreseeable damage.
- The above-mentioned provisions are not applicable with respect to claims pursuant to the product liability law.
- The goods are delivered in the design and composition as they have been offered by us.
- Our deliveries shall be checked for correctness after receipt. Claims for incomplete or incorrect deliveries or any defects can only be made in writing within 2 working days of receipt. Defects which are not obvious shall be asserted within 6 months.
- The warranty obligation shall lapse if the Purchaser does not meet our demand to return the object which is subject to complaint immediately.
- In case of justified complaint, we shall eliminate defects at our discretion through cost-free repair or replacement delivery. In case of failure of repair or replacement delivery, the Purchaser can demand reversal of the agreement.Further liability, in particular for damage which has not been incurred on the delivered goods themselves, is ruled out within the framework of no. X.
- Goods returned to us shall be packaged expertly and take place carriage paid. For processing complaints within the framework of the warranty obligation, the general service conditions of SHUTTLE Computer Handels GmbH shall apply.
- The original warranty obligations shall be neither interrupted nor extended by repair of the delivered goods.
- Repairs shall take place without guarantee if there is no defect report.
- In case of defective repair, obvious defects shall be complained of within two weeks of receipt of the goods. Defects which are not obvious shall be asserted within 6 months.
- Damages shall be recognised only in accordance with no. X.
X. Claims for damages
- Claims for damages of the Purchaser against us – no matter for which legal reason – are ruled out inasmuch as we are not guilty of intent or gross negligence, we are not compellingly liable due to missing assured characteristics or we have not culpably violated a contractual obligation which is significant for achieving the purpose of the agreement.
XI. Protection or copyright
- The Purchaser shall inform us without delay and in writing if its attention is drawn to the violation of commercial protection or copyrights through a product delivered by us. We alone are entitled and obliged to defend the Purchaser against claims of the holder of such rights and to regulate these claims at our own expense inasmuch as they are based on a direct violation by a product delivered by us. We shall always make every effort to grant the Purchaser the right to use of the product. If it is not possible for us at economically reasonable conditions, we shall alter or replace this product at our discretion in such a manner that the protective right is not violated, or withdraw the product and refund the purchase price less any amount for the possibility of use granted.
- On the other hand, the Purchaser shall defend us against or release us from all claims of the holder of such rights which arise against us in that we have followed the instructions of the Purchaser or the Purchaser has altered the product or integrated it in a system.
- Programs and associated documentation made available by us are only intended for the own use of the Purchaser within the framework of a simple, non-transferable licence exclusively on a product delivered by us. The Purchaser may not make these programs or documentation accessible to third parties without our written consent, not even on resale of our hardware. Copies may only be prepared – without the costs or liability being assumed by us – for archival purposes, as a replacement or for error search. Inasmuch as originals bear a note indicating copyright protection, this shall also be affixed by Customers to copies.
- The Purchaser is obliged in distributing our goods which bear our trademark to refrain from all action which could be regarded within the framework of currently valid laws and regulations as being unfair.
XIII. Foreign transactions
- The provisions of the Hague Treaty concerning international purchase agreements shall not be applicable. The substantive law of the Federal Republic of Germany shall apply.
- If individual provisions are ineffective, the effectiveness of the remaining provisions is not affected. The ineffective provision shall be regarded as being replaced by a provision which is suitable to realise the purpose of the ineffective provision.
XV. Place of jurisdiction
- The place of jurisdiction for all disputes resulting from the contractual relationship – even from withdrawal – is Elmshorn, Germany.
Date: October 2004