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General Terms and Conditions of CLEMENS GmbH

Status: April 2014

1. General
1.1 (Conflicting business conditions, written form, additional agreements) These Terms and Conditions apply for the contract; other conditions are not part of the contract, even if we do not expressly reject the contract. The customer may only rely on ancillary agreements made before and upon conclusion upon the provision of immediate written confirmation.

1.2 (Change of title, data acquisition) Our offers are non-binding; technical improvements to our products remain our right. For contract handling and implementation we may store important data. 

1.3 (Offsetting, retentions) Offset or retention by the customer is only permissible with undisputed or legally established counterclaims. 

1.4 (Place of performance, jurisdiction, governing law) Place of performance is our works in Waldbüttelbrunn. Jurisdiction shall be at our discretion in Würzbug or competent seat of the court of our client. German law is applicable under exclusion of the UN Sales Convention (CISG).


2. Delivery, shipping costs, risk 

2.1. Partial deliveries are allowed. 

2.2 An over- or under-delivery of 10% is allowed, provided this is not unreasonable for the customer. 

2.3 If you use customized components (LP, IC, etc.) that are delivered only in packaging units, we are entitled to ship and invoice the remaining quantities. 

2.4 The customer shall bear all packing, transport and insurance costs. 

2.5 The risk passes to the customer when the goods leave our factory, even if we assume shipping, export or assembly / installation. 

2.6 The customer explicitly indicates the transferred production documents to us regarding safety-related components, modules or devices.


3. Delivery periods, delay, delay damages 

3.1 Delivery periods are ex works. Deliveries only start after outstanding technical issues are clarified at the conclusion of the contract, upon receipt by the customer for relevant documents such as drawings and permits and/or after approval of requested advance payments and production approvals. 

3.2 Acts of God and strikes, lockouts, operating breakdowns, shortages and/or delayed/failure to deliver by suppliers that are beyond our control may extend the delivery time and may cause delays. The same applies in the case where the customer has requested other additional or amended services. 

3.3 Our delivery delay shall in any event be preceded by a reminder to the customer requesting a reasonable extension. 

3.4 We shall be liable for consequences of default only in case of intent or gross negligence. Here, our liability is limited upon conclusion of the contract to the foreseeable, typical damage. The customer must immediately inform us in writing of any consequences of delay.


4. Prices, Payments and Default Payments

4.1 Our prices are excl. VAT and are quoted ex works. For replacement parts, our price list or the corresponding offer apply. 

4.2 Invoices are - subject to written special agreement – to be paid within 30 days or within 10 days with a 2% discount. Cheques are accepted only on account of performance. Costs of cashing checks and of LCs and bank transfer fees shall be borne by the customer and must be considered before any payments are made.

4.3 In case of default and/or reason to doubt the creditworthiness of the customer we can make each individual delivery dependent on advance payment or a security deposit in the amount of the invoice. 

4.4 In case of default or delayed payment of the customer we are entitled to charge default interest at the rate of 4% above the discount rate of the Deutsche Bundesbank, unless a higher or lower damage is proven.


5. Retention of title, assignment in advance 

5.1 The delivered goods remain our property until full payment has been made. In case we have open claims against the customer, we reserve the property rights until full payment has been made.

5.2 The customer may only sell the goods subject to retention of title – in the ordinary course of business - when his resale claims have not been compromised in any way. 

5.3 The customer may not combine the goods subject to retention of title with other items with third party rights. If goods subject to retention of title are combined with other objects to form part of a new (complete) product, then we shall be a directly proportional co-owner, even if it is a single item. Our co-ownership is determined by the proportion of the invoice value of the goods subject to retention of title in relation to the value of the new product at the time of the contract.

5.4 As a safeguard the customer shall assign us the claims against his customers from the resale of goods subject to retention of title (para. 6.1) and / or the newly constituted products in the amount of our invoice for the conditional goods in advance (point 6.3.). As long as the customer does not default with the payments he may collect the assigned claims during the normal course of business. However, he may only use funds received for the goods subject to retention of title to pay us. 

5.5 At the request of the customer, we shall release collateral at our discretion, if and to the extent the nominal value of the securities does not exceed the nominal amount of our outstanding claims against the customer by more than 20%. 

5.6 In case of default, we are entitled to rescind the contract, to demand the remaining goods subject to retention of title that are at the customer and to collect assigned claims ourselves. To determine our rights, we can have all our reserved rights in documents and books examined by a person bound by professional secrecy.


6. Defects and replacement liability

6.1 We are liable for our delivered goods/services being free of defects at the time of transport/passage. The required composition, shelf life and use is based solely on the written agreed specification, product or service description and/or operating instructions. Any additional information, in particular in preliminary discussions, advertisements and/or referenced industrial standards, only becomes part of the contract through express written agreement. If the customer wishes to use the delivered goods / services for purposes other than those agreed, he must carefully check the suitability of this and / or the admissibility at his own risk. For any other use of our products or services than explicitly agreed to in the contract we are not held liable. 

6.2 Our liability for defects is basically limited to subsequent rectification. At our discretion this may constitute product rectification or the delivery of a defect-free product or service. Any additional warranty claims shall only exist due to rejection, impossibility or failure of subsequent rectification. Expenses arising due to subsequent rectification after the customer has delivered the item to another location than was agreed upon are borne by the customer. 

6.3 Upon delivery or receipt the customer must inspect the goods/services for any defects and bring any defects to our attention in writing. Damage during transport must be reported immediately. The inspection and notification also extends to the product safety. Failure to comply with the inspection and notification makes any customer warranty claims null and void.

6.4 We furthermore, we are not liable for the consequences of improper handling, use, maintenance and operation of the delivered products by the customer or its agents, and for normal wear and tear. 

6.5 For the replacement of property or pecuniary damages we are only liable in the case of intent or gross negligence. For property or pecuniary damages unrelated to the delivered goods we are only liable if at the conclusion of the contract the customer made us aware in writing of the possible dangers and we, in retrospect, apply a special written warranty obligation. Our liability is limited to the extent that we could have foreseen any typical damage at the time of the conclusion of the contract. 

6.6 Warranty claims against us expire within one year after delivery of the goods to the customer. The same applies to claims for property, material or pecuniary damages unrelated to the delivered goods, or for the neglect of ancillary duties. 

6.7 If the customer or third parties perform improper alterations or repair work, the liability for the resulting consequences is null and void. Any subsequent repair costs to the goods are borne by the customer, regardless of whether the goods are still in the agreed warranty period.

6.8 Our liability shall be limited to the foreseeable damage, and in any case to the amount covered by our product liability insurance. Upon request, we are prepared to provide the customer insight into our policy.


7. Industrial Property Rights, Confidentiality

7.1 For our designs, patterns, illustrations, technical documentation, cost estimates or offers, we reserve ownership and all intellectual property rights, even if the customer bears the cost of the designs etc. The customer may only use the designs, etc. for the purposes agreed upon with us. He may not produce the products himself or by third parties without our express written consent.

7.2 If we deliver goods according to the customer designs, he is liable for the infringement of any intellectual property rights and other third party rights that may be affected by the production and delivery of the goods. He must compensate us for all damages resulting from such legal infringements.

7.3 Any knowledge gained by the customer during the business relationship with us must be kept confidential from third parties. 


GmbH: seated at Waldbüttelbrunn Registergericht Würzburg HRB 4531
Managing Directors: Dr. Martin Leu, Reinhold Mischau, Helmut Ermair