General Terms and Conditions of Sale of Plustek Technology GmbH
This text shall be governed by and construed in accordance with the laws of Germany. The English version of this text serves only for information and is not part of this legal transaction. Therefore, in the event of any inconsistency between the German and the English version, only the German version shall apply.
§ 1 Application
Offers, delivery and other performances are exclusively based on these terms and conditions of sale. These terms and conditions shall also govern all future transaction between the parties even though the contractual parties will not have agreed them explicitly. Differing or contrary terms shall not apply, even the seller does not explicitly contradict such terms.
§ 2 Conclusion of the contract
1. Quotes contained in brochures, advertisements etc. are - including contained prices - subject to confirmation and nonbinding. All prices are quoted as net prices before VAT.
2. The specified descriptions and specifications describe the state of technology at the time of the conclusion of the contract. Technical deviations of the supplied goods from the offert made are permitted unless the deviations are not fundamental and the contractual purpose of use is not restricted unreasonable.
§ 3 delivery, delivery time and passing of risk
1. Seller's goods shall be delivered exwarehouse unless there is deviation from the foregoing agreed, confirmed in writting
2. The goods are generally insured against damages in transit at the expense of the buyer, unless the buyer instructs otherwise.
3. Part deliveries are permitted and are regarded as independent deliveries.
4. Shipping and delivery shall be effected at buyer's expense. The customer shall inspect the goods immediately after receipt with regard to completeness and defects. If no quality complaint is lodged within the specified period of time after receipt of the shipment, the goods are considered to be accepted by the customer. The risk is transferred to the buyer upon takeover of the goods by the shipper or his agent, carrier or his agent assigned with the execution of the transport of the goods by the seller. In the event that, without any culpability on the part of the seller, such shipping shall be delayed or shall become impossible, then the risk shall be transferred to the customer at such time as the communication of readiness to dispatch the goods shall be sent to the customer.
5. If the seller comes into default with a delivery, a reasonable grace period of six weeks shall be allowed, starting from the day of the notice of default by the buyer. Only after this period of time has elapsed, the purchaser shall be entitled to reassert his rights. Should the seller be overdue with the delivery after that, claims by the customer for the reimbursement of indirect damages are excluded unless the delay or impossibility is due to a deliberate act or gross negligence by the seller. The extended liability according to § 287 BGB is hereby excluded.
6. Unexpected events beyond the seller's control such as the risk of war, violent acts of third parties, authoritative manipulations including currency or trade policy measures, strikes at the place of the seller or its suppliers or its forwarders, interruptions of the intended transportation routes, raw material scarcity, lack of power and other operational interruptions at the seller or its suppliers shall extend firmly agreed upon delivery times or deadlines by the amount of time the interruption persists plus an appropriate start-up time. This shall apply also if the seller is in default or in the event that the circumstances causing the interruption were already in effect at the time the agreement was closed, albeit the buyer was not aware of them. The seller shall notify the buyer of such obstacles as soon as possible. If delivery delays due to such causes should last for longer than two months, both sides shall be entitled to repudiate the contract. However, the buyer may only repudiate the contract if, following his request, the seller fail to state within a week whether the seller intend to repudiate the contract or to deliver within within an appropriate period of time. The same right of repudiation shall apply if execution of the contract has become intolerable for the parties as a result of the delay incurred.
§ 4 Warranty and liability
1. Should the object of delivery be deficient, the seller can deliver a replacement or repair the defect at its discretion and on his own costs. The purchaser's claims for cancellation of contract, reduction of the purchase price, and/or damages are excluded unless the seller is not able to provided a replacement or remedy the deficiency within a time limit of eight weeks. In case of Plustek is not able to deliver at all or an adequate replacement or to remedy the defect, the buyer has the right to request cancellation of the contract or to ask for an equitable reduction of the purchase price. Demands for compensation shall be ruled out, insofar as the damage was not caused by the seller intentionally or through gross negligence.
2. The seller shall also not be liable for any damage caused by using a programm, unless the damage is based on an intentional or grossly negligent breach of duty of the seller or his legal agents. 3. The warranty period is two years from the date of handing over of the purchased item. However, in the event of a claim of recourse according to § 478 BGB (German Civil Code) is asserted, the limitation period does not occur within a period of two months, following the date the buyer has fulfilled the warranty claims of the consumer. Apart from this, the limitation period of all claims shall become statute-barred after a period of five years from date of handing over of the purchased item at the buyer.
4. The guarantee shall also not apply, independent of the existing legal causes of exclusion, if the warranty is inapplicable if the customer or a third party installs the contractual goods improperly or if maintains them on their own, repair, modify or expose them to a working environment which is not compatible the stated requirements for installation.
§ 5 Retention of title
1. The goods supplied to the buyer remain the property of the seller until their complete payment as well as until all other liabilities of the buyer have been settled as a result of this business connection. This shall also apply if and when payments are made for charges referred to separately.
2. The buyer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the buyer hereby assigns all claims arising out of such resale or any other legal grounds. The customer shall be authorized to collect claims against the third party, provided the customer complies with his or her payment obligations in relation to the seller.
3. The seller is obliged to release the securities to which they are entitled according to the afore-mentioned regulation (sec. 1 and 2), at their choice on demand by the buyer inasmuch as their value surpasses the claims to be secured by 20%.
§ 6 payment
1. Seller's invoices are payable per C.O.D. or prepayment as far as no other agreements have been stipulated.
2. The seller expressly reserves the right to reject checks or bills of exchange. Cheques and bills are accepted only as an undertaking to pay. Discount and bill charges are for the buyer's account and are immediatly payable. If the agreed upon deadline for payment is not met, interest shall be calculated at the legal rate of 5 percentage points above the respective base interest rate of the Deutsche Bundesbank, without any further reminder.
3. Buyer may only set off claims from Seller against an undisputed or adjudicated counterclaim. The assertion of a right of retention by the Buyer is excluded.
§ 7 place of performance, place of jurisdiction, partial effectiveness
1. Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Ahrensburg. This contract shall be governed by the laws of the Federal Republic of Germany.
2. Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining provisions of the Agreement. In this event, the parties shall be obliged to replace the invalid provision by a valid provision which comes closest to what the parties had intended with respect to the purpose under the invalid or void provision.