1. General Scope of Application
The following terms and conditions apply to all current and future business relationships with entrepreneurs. Entrepreneurs in this sense are natural or legal persons or partnerships with legal capacity who act in the exercise of a commercial or independent professional activity. Deviating, conflicting or supplementary general terms and conditions, even if known, shall not become part of the contract unless their validity is expressly agreed in writing. All agreements, ancillary agreements, amendments and supplements to our terms and conditions shall only be effective upon our written confirmation.
2. Offers and conclusion of contract
Our offers are subject to change. We reserve the right to make technical changes as well as changes in shape, colour and/or weight within the scope of what is reasonable. With the order, the customer bindingly declares that he wishes to purchase the ordered goods. We are entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance may be made either in writing or by delivery of the goods to the customer. In the event that the customer places an order electronically, the obligations pursuant to § 312e para. 1 sentence 1 nos. 1 to 3 as well as sentence 2 of the German Civil Code (BGB) shall be excluded. Insofar as we issue a confirmation of receipt, this does not constitute acceptance of the contract. The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery. The customer will be informed immediately of the non-availability of the service. The consideration will be refunded immediately. Partial sections are permissible. Each partial section shall be deemed to be an independent transaction and shall not affect the non-fulfilled part of the order. If the partial fulfilment of the contract is of no interest to the customer, the latter may only declare his withdrawal from the entire contract after the unsuccessful expiry of a grace period of two weeks.
Our delivery times apply ex warehouse. They are agreed individually in each case and begin on the day of the order confirmation, but not before clarification of all details. In any case, the delivery time shall be subject to the fulfilment of the contractual obligations on the part of the customer. Subsequent requests for changes or additions on the part of the customer shall extend the delivery period by a reasonable amount.
4. Place of performance, dispatch and transfer of risk
The place of performance for both parties is our place of business. The risk of accidental loss and deterioration of the goods shall pass to the customer upon notification of our readiness for dispatch, at the latest upon commencement of loading of the goods onto the means of transport. Loading and dispatch are carried out for the account and at the risk of the customer. If delivery free place of receipt is agreed, the agreed price shall always be free truck. The customer shall be responsible for unloading, carrying and setting up the goods – even in the case of carriage paid delivery. We can also insure the goods against transport damage at the customer’s expense. In the event of transport damage, the customer must immediately arrange for a statement of facts to be made at the competent office, as otherwise any claims against the transport agent and the insurance company may lapse.
The purchase price offered is binding. It is net, insofar as the applicable value added tax is not shown. The customer undertakes to pay the purchase price within 10 days of receipt of the goods. After expiry of this period, the customer shall be in default of payment. During the period of default, the customer shall pay interest on the debt at a rate of 8% above the base interest rate. We reserve the right to prove and claim higher damages caused by default. If an order is executed in several sections, we shall be entitled to invoice the individual sections separately. In the event of default in payment, we may suspend delivery until payment has been made. We accept discountable bills of exchange or cheques only on the basis of an express agreement and only on account of payment. All costs and expenses resulting from this are to be paid immediately in cash when the bill of exchange or cheque is handed over. Bills of exchange and cheques shall only be credited after unconditional receipt of the net proceeds and only in the amount of the same. We do not assume any liability for the correct and timely presentation and protesting. All our claims shall become due immediately, irrespective of any payment period, deferment or of the term of any bills of exchange or other papers accepted, if the terms of payment are not complied with by the customer despite a reasonable period of grace or if we become aware of other circumstances (e.g. protest of a bill of exchange, payment arrears) which, in our opinion, are likely to reduce the creditworthiness of the contractor. We may also demand immediate advance payments and appropriate security for any deliveries or services still outstanding from us. Similarly, we may also prohibit the resale and further processing of the goods delivered by us and, after withdrawal, demand their return to us at the customer’s expense.
6. Offsetting and retention
The customer shall only have the right of set-off if his counterclaims have been legally established or recognised by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
In the event of default of acceptance on the part of the customer, we shall be entitled to the statutory rights at our discretion. If we claim damages for non-performance, we shall be entitled to claim 15% of the value of the goods as damages after the fruitless expiry of a reasonable grace period. A grace period is not required if the customer seriously and finally refuses to fulfil the contract. The customer is entitled to prove that no damage has been incurred or that the damage is significantly lower. Our right to also assert a higher damage remains unaffected by this.
8. Retention of title
We retain title to the goods until all claims arising from an ongoing business relationship, including future claims, have been settled in full. The customer undertakes to handle the goods with care and to store them properly. If maintenance and inspection work is required, the customer shall carry this out regularly at his own expense. The customer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. The customer shall notify us without delay of any change in ownership of the goods and of any change in the customer’s own place of business. We are entitled to withdraw from the contract and to demand the return of the goods in the event of breach of contract by the customer, in particular in the event of default in payment or after breach of one of the above obligations. The customer is entitled to resell the goods in the ordinary course of business. He already now assigns to us all claims in the amount of the invoice amount which accrue to him through the resale to a third party. We accept the assignment. We shall be entitled to collect the claims ourselves after the assignment as soon as the customer does not properly fulfil his payment obligations and is in default of payment. The processing of the goods by the customer shall always be carried out in our name and on our behalf. If the goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods delivered by us to the other processed items. The same shall apply if the goods are mixed with other objects not belonging to us. The customer shall keep the co-ownership for us. If the customer resells the processed or mixed items, he hereby assigns to us the claims arising from the resale in the amount of the value of the goods delivered by us with all ancillary rights and priority over the rest. We accept the assignment. The customer is entitled to collect the claim. We reserve the right to collect the claims ourselves as soon as the customer does not properly fulfil his payment obligations and is in default of payment.
9. Defects and notices of defects
We shall initially provide warranty for defects at our discretion by rectification or replacement delivery. If the rectification of defects fails, the customer may, at his discretion, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal). However, the customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the event of only minor defects. The customer shall inspect the delivered goods immediately. He must notify us in writing of any recognisable defects within a period of two weeks from receipt of the goods, otherwise the assertion of the warranty claim is excluded. Timely dispatch shall be sufficient to meet the deadline. The customer shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery and for the timeliness of the notice of defect. If the customer chooses compensation for damages due to a material defect or defect of title after subsequent performance has failed, the goods shall remain with the customer if this is reasonable for him. Damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have fraudulently caused the breach of contract. The warranty period is one year from delivery of the goods. As a matter of principle, only the manufacturer’s production description shall be deemed agreed as the quality of the goods. Public statements, promotion or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.
In the case of slightly negligent breaches of duty, our liability shall be limited to the direct average damage which is foreseeable and typical for the contract according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations. The above limitations of liability do not affect claims of the customer arising from product liability. Furthermore, the limitations of liability do not apply in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the customer. Claims for damages by the customer due to a defect in the purchased goods shall become statute-barred one year after delivery of the goods. This does not apply if we can be accused of gross negligence or in the case of physical injury or damage to health attributable to us or in the case of loss of life of the customer.
11. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be our place of business. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown.
12. Final provisions
Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
541 Melville Ave, Palo Alto, CA 94301,