GENERAL TERMS OF DELIVERY AND PAYMENT (“GBT”) / updated: January 2009
Transcat PLM GmbH, Am Sandfeld 11c, 76149 Karlsruhe - Germany
1. General
1.1. These GBT apply exclusively towards entrepreneurs, legal entities under public law and special funds under public law. General business terms of the customer have no validity, unless expressly acknowledged by us in writing.
1.2. Orders will not be binding until they are confirmed by us in written.
1.3. Information and illustrations contained in brochures, catalogues and descriptions and lists are, in accordance with usual trade practice, regarded as approximations unless they have been expressly described by us as binding
1.4. These GBT will apply also to all future business with the customer, as far as they are regarded as related transaction.
2. Delivery
2.1. Delivery dates and deadlines are non-binding, unless otherwise expressly agreed in written. In case of subsequent contract modifications a new delivery date is to be agreed upon. The date of delivery is to be seen as met, if the goods are brought to dispatch or have been picked up.
2.2. If a delivery date cannot be met due to force majeure (war, strike, lock out or other unforeseen interruptions or disturbances in operation, which were not caused by us and occurred or became known to us after the conclusion of the contract), the delivery time is to be extended accordingly, but no longer then the duration of the interruption. This is also valid for any event of force majeure which interferes with the business operations of our suppliers, if the disturbance was not caused by the supplier or us.
2.3. We may perform partial delivery to a reasonable extent. They will be invoiced separately.
3. Modifications
3.1. In case of modifications by the manufacturer regarding prices or configuration of goods ordered we are entitled to pass on such modifications to the customer or rescind the contract without compensation.
3.2. We are not obliged to meet requests for modifications by the customer regarding intended use, conditions of use or other requirements to the goods or services, which are made subsequent to the conclusion of the contract.
4. Remuneration for Services
4.1. If the services are charged per actual work carried out, we are entitled to calculate payment in accordance with the latest price lists after expiration of a contractual period of one year. In this case, we are also entitled to increase prices. Changes in prices will come into effect two month after announcement. Any required travel of our employees will be charged in accordance with our travel expenses regulation (see Section 6). VAT will be added to all prices.
4.2. If the invoices are calculated on an hourly basis, we will invoice additional charges for overtime, work on Saturday, Sunday or public holidays on the basis of a special agreement.
5. Prices
5.1. Our current price lists apply. For orders below EUR 250,00 net, we will charge a minimum extra charge of EUR 30,00..
5.2. All prices are to be understood EXW central storage Karlsruhe in accordance with Incoterms 2000 et.seq. plus charges for dispatch, packing, insurance, duty, travel expenses (see Section 6) and VAT.
6. Regulation on travel expenses
The following rates for travel expenses of our employees will be applied:
6.1. Costs for domestic travel: travel flat rate (up to a distance of 25 km) EUR 44,00; for distances > 25 km EUR 1,70 / per travel kilometer; train- or flight costs as per the invoiced amount.
6.2. Overnight rate for domestic travel (incl. extras): EUR 90,00 per overnight stay.
6.3. Travel costs for international travel will be charged according to an individual agreement.
7. Payment Conditions
7.1. Invoices are to be paid within 10 days of the invoice without any deductions.
7.2. We are entitled to perform services or deliveries against cash payment or granting of securities, if it becomes apparent after conclusion of the contract that our payment claim is at risk due to the lack of adequate financial capacity of the customer. The payment claim is deemed to be at risk especially if the customer has not affected payment upon having been sent two payment reminders by us. If the customer refuses advance payment or granting of securities, we are entitled to rescind the contract and demand damages for breach of contract.
7.3. In case of delay we are entitled to charge late interest at the rate charged to us by the bank for current account overdrafts, but at a minimum of 8 percentage points above the base interest rate of the European Central Bank at the time.
7.4. Both parties may set-off their claims against each other only in case if such claims are undisputed or determined by final court decision. A claim regarding rendered service does not allow the customer to retain complete payment. Where we have indisputably supplied goods which are partly defective, the customer is nevertheless obliged to pay for the non-defective part.
8. Dispatch and Passing of Risk
8.1. The dispatch of the goods is carried out EXW from our central storage facility in Karlsruhe (or other location) in accordance with Incoterms 2000 et.seq. In the absence of a special agreement we chose the means of transport and the route of transport.
8.2. For the dispatch and packing of goods within Germany we will charge the customer currently as follows: for orders up to 2 kg EUR 8,00, up to 5 kg EUR 16,00, up to 30 kg EUR 24,00, up to 60 kg EUR 32,00, up to 100 kg EUR 42,00, up to 250 kg EUR 75,00 and up to 350 kg EUR 85,00 (all other dispatches upon separate agreement). If special means of transport is requested or in case of deliveries abroad, the customer bears the costs. Upon request special transportation insurance can be taken out against extra charge.
8.3. Goods which are notified as being ready for dispatch are to be taken over immediately by the customer. We are otherwise entitled, at our option, to dispatch or to store them at the cost and risk of the customer.
8.4. The risk is transferred to the customer on handover to the railway, forwarding agent or freight carrier or on commencement of storage as per Section 8.3, but not later than departure from the warehouse or the location; this also applies if we have undertaken delivery.
8.5. In the event of transport damage, the instructions enclosed by us with the delivered goods have to be observed by the customer.
9. Right of Use
All intellectual property rights regarding the work results, in particular the copyright, shall remain exclusively with us. This also applies if and to the extent such work results are based on instructions or cooperation by the customer. If not otherwise agreed in written, we shall grant the customer a non-exclusive and non-transferrable right of use of the work results for the designated purpose. Software is being delivered only in object code form.
10. Reservation of Title
10.1. We reserve the right of title in respect of the goods supplied until complete payment of all accounts receivables resulting from the business relationship with the customer.
10.2. The customer is entitled to sell these goods in the ordinary course of business. The customer herewith assigns to us as security all claims and rights deriving from such sale. We herewith accept such assignment. Notwithstanding the assignment the customer remains entitled to collect the assigned claims. Upon request the customer shall inform us about the assigned claims and the debtors and provide us with all information and documents necessary for the collection of such claims. On our request the customer shall inform the respective debtors about the assignment.
10.3. If the value of the existing securities exceeds the secured claims in total by more than 20 %, we undertake, at the customers request,
to release securities of our choice in this respect.
11. Duties of Cooperation
11.1. Without being asked and free of charge the customer shall supply us in due time with any information, including any all customer data
necessary for the implementation of the respective project, required to perform the contractual obligations and shall participate in the
performance of the contract.
11.2. The customer shall grant us access to all premises and, after special agreement, to its hard- and software and to the system administration, as far as necessary for the performance of the contract.
11.3. The customer shall carry out a data back-up of the IT installation at regular intervals as well as prior to the commencement of all work to be carried out by us. We will inform the customer prior to the commencement of such work in due time.
11.4. The above duties of cooperation are primary duties of the customer. If the customer breaches its duties of cooperation and if such breach causes delays or additional costs, we may demand a change of (a) the delivery date- or term and (b) the agreed prices or remuneration. Furthermore we are entitled to grant the customer a reasonable grace period for the performance of its duties of cooperation. Upon fruitless expiration of such grace period we are entitled to rescind the contract.
12. Delay
12.1. If we are able to anticipate that it will not be possible to deliver the goods within the delivery period, we will immediately the customer in writing of the reasons therefor, and also if possible indicate the probable delivery date.
12.2. In the event of delivery being delayed by an event of Force Majeur (see Section 2.2), or as a result of any action or omission on the part of the customer, an appropriate extension of the delivery period will be granted as the case may be.
13. Defects
13.1. Claims for defects shall become statute-barred after 12 months. If the manufacturer grants a longer warranty period, such period shall apply.
13.2. The customer must inspect incoming goods immediately and, if a defect is revealed, notify us thereof in writing immediately. Should the customer fail to make such defect notification, the goods are deemed to be approved by the customer, unless the defect could be recognized during the inspection.
13.3. We must be given the opportunity of assessing the notified defect. The goods complained of must be returned to us immediately; we will take over the transport costs where the notice of defect is justified. In the event of the customer failing to observe these obligations or carrying out modifications of the goods which are complained of without our consent, any claims for defects will expire. If, during process of evaluating the defect, it cannot be established that the defect was caused by a fault in delivery or service by us, we are
entitled to charge the customer with the expenses incurred.
13.4. In the event of notice of defect which is justified and made at the due and proper time, we will, at our choice, repair the goods complained or supply a replacement free of defect. In the event of our failing to meet these obligations, or failing to do so within a reasonable time in accordance with the contract, the customer may set in writing a final deadline within which we must fulfill our
obligations. In the event of this period expiring without result, the customer may demand reduction in price, rescind the contract or repair, or have repaired by a third party, the defective goods at our cost.
13.5. Where it is agreed that the goods are to be accepted after completion, notification of defects which could have been discovered by the customer under careful acceptance is excluded.
13.6. Unless stated otherwise above, for the handling of defective goods the terms and conditions of the respective manufacturer shall apply.
13.7. Any quality defects deriving from unsuitable or improper use , defective assembly or operation by the customer or third parties, normal wear and tear, defective or negligent handling, are also excluded as the consequences of unsuitable modifications or repairs undertaken by the customer or third parties without our prior written approval. The same shall apply to defects which only reduce the value of the goods or their fitness for their intended use to an insignificant extent.
14. Liability
14.1. Unless specified otherwise below, any additional or more extensive claims by the customer against us are excluded. This shall apply in particular to claims for damages for a breach of contractual duties or from tort. We are therefore not liable for any damage not deriving from the delivered goods themselves. We are in particular not liable for any loss of profit or other financial losses by the customer. Furthermore our liability is limited to the amount covered by our liability insurance.
14.2. The above limitations of liability do not apply in the case of intent, gross negligence on the part of our legal representatives or senior employees, and in the event of culpable violation of significant contractual obligations. In the event of culpable violation of significant contractual obligations we are liable - other than in cases of intent or gross negligence on the part of our legal representatives senior employees - only for the characteristic loss, or loss which might reasonably have been expected.
14.3. The limitations of liability are also not applicable in those cases where there is liability in accordance with product liability laws in the case of defects in goods supplied for private use. They are also not applicable in case of injury of live, body or health and in the absence of guaranteed characteristics, if and insofar the object of the guarantee was to cover customer against losses not deriving from the goods supplied themselves.
15. Liability for the Loss of Data
For the destruction of the data we are liable only if such destruction was caused willfully or gross negligently and the customer has ensured through proper measures of data back-up that such data are capable of restoring from data in machine readable form.
16. Confidentiality
16.1. Each of the contracting parties will use all documents and information received by them under the business relationship only for the contractual purpose, and maintain secrecy in respect of third parties with the same due care as applied to their own documents and information, where the other party describes them as confidential or has an obvious interest in maintaining secrecy in respect of such documents of information. These obligations commence on first receipt of the documents or information and end 36 months after the
end of the business relationship.
16.2. The obligation does not apply to documents and information which are generally know, or which were already known to the contracting party on receipt and where the contracting party was not under obligation of secrecy or where they are subsequently conveyed by a third party who is authorized to pass on such documents or information, or where the documents or information are developed by the receiving contracting party without exploitation of documents or information of the other contracting party.
17. Final Provisions
17.1. Regarding the services mentioned in Annex “Specific Contractual Terms for certain Product Areas” the provisions contained therein shall apply in addition. Furthermore our “General Terms for Project Contracts” (GTP) shall apply additionally for project-, works- and framework contracts. In the event of a contradiction between these GBT and the GTP or the provisions contained in the Annex, these GBT shall prevail.
17.2. Place of Performance is Karlsruhe, if not agreed otherwise. The conclusion of contracts and any contract amendments require written form.
17.3. Place of jurisdiction for all legal disputes is Karlsruhe. We are also entitled to bring an action at the place of business of the customer.
17.4. The contractual relationship is exclusively governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 Aprils 1980 (CISG - UN Sales Convention) is excluded.
- Specific Contractual Terms for certain Product Areas -
1. IT-Services
1.1. IT-Services shall be understood as continuous rendering of services.
1.2. The customer assures that a complete system back-up (system back-up and other data) is always available and can be restored. Should there be no complete system back-up, this can be done by us against extra charge and upon agreement with the customer. Required data carriers are to be provided by the customer.
1.3. All required auxiliary- and operational tools are to be made available by the customer without charge. A competent employee as well as a person with knowledge of the system must be available on-site at all times. All work which has been carried out, is to be documented with time sheets.
1.4. All system administration work which has been carried out, is to be checked by the customer immediately, possible faults are to be documented and we must be informed immediately in writing thereof. We are in charge as first contact only in case of complete new installations. For updates (system update) as well as for defects of hardware components or user software we cannot be held responsible.
2. Standard Software produced by Transcat
2.1. For standard software produced by Transcat our “End User Licence Agreement” (EULA) apply additionally.
3. PLM-Services (Training/Consulting)
3.1. Scheduling:
Proposed appointment dates are to be taken from our course overviews. Furthermore, all offered courses and workshops can be freely arranged upon consultation.
3.2. Registration:
All registrations must be made in writing through use of the Transcat course registration form. Registrations will be processed in the order in which they arrive and either confirmed or an alternative date will be offered.
3.3. Fees:
All prices are based on the valid price list unless special conditions are agreed in written. For all services of our employees out of office, expenses as listed in Section 6 GBT (travel expenses) will be charged. Training at our facilities include training material, lunch, snacks and drinks.
3.4. Cancellation:
A cancellation must be carried out in writing, per fax or email. No charges will be due for cancellations up to 2 weeks ahead of the course. For cancellations up to one week before the course, we will charge a cancellation fee of 50% of the course price, thereafter 100% of the course price are due. A substitute for a participant being prevented from participation can be nominated at any time.
3.5. Course times:
Generally courses begin at 9:30 am on the first day. The usual course times on the following days are from 8:30 am to 5:00 pm. The last course day ends normally at 3:00 pm. Changes can be arranged separately.
3.6. Additional terms:
Courses will only be carried out with at least 3 participants. Smaller groups or single lessons are possible after special agreement. The maximum number of participants for standard courses is 8 persons. Special arrangements are possible. In case of training courses at the customer’s premises, the customer will provide all required training equipment such as training room, PCs, presentation material (board, flipchart, overhead projector, beamer, etc.).
If there is an insufficient number of registrations two weeks ahead of the course, we are entitled to cancel the course. We are also entitled to cancel or reschedule courses due to organizational reasons. We do not take responsibility for the achievement of the course targets by the participants or their future professional qualification. Every participant will receive a participation certificate after the conclusion of the course.
4. HelpDesk Services
4.1. We will provide HelpDesk services on basis of a HelpDesk maintenance contract to be concluded between us and the customer in written.
4.2. We may increase prices for our services with 3 month notice, but at the earliest 12 months after the commencement of the contract. The increase shall not exceed the usual and customary prices in the industry for similar services. The customer is entitled to terminate the contract with a notice of one month to the date on which the increase will come into force.