1. Scope of Application
a. All deliveries and services shall be made exclusively based on the following terms and conditions, unless expressly agreed otherwise in writing. Conflicting terms and conditions shall not be recognised unless they have been expressly agreed in writing. Within the framework of an ongoing business relationship, these terms and conditions in their respective version shall apply to all future deliveries and services even without express reference to their inclusion.
2. Offer and Conclusion of Contract
a. NEROFORCE concludes contracts exclusively with entrepreneurs. Consumers are not supplied.
b. Offers from NEROFORCE are always subject to change without notice. A contract shall not be concluded until NEROFORCE has confirmed the order in writing, begun the execution of the service or delivered the goods.
c. Verbal promises shall only bind NEROFORCE if they are expressly confirmed in writing. This also applies to advertising statements in words and pictures or product descriptions. They also do not represent any assurance or guarantee.
d. NEROFORCE is entitled to withdraw from the contract without notice if the customer's assets have deteriorated sustainably or if insolvency proceedings have been initiated against the customer's assets.
a. The product illustrations can deviate slightly in form and colour from the delivered products. The product description is authoritative.
4. Prices and Terms of Payment
a. Prices are net ex works plus the applicable value added tax and packaging and shipping costs.
b. The prices at the time of the order shall apply.
c. If more than four months elapse between the conclusion of the contract and the agreed delivery, NEROFORCE shall be entitled to increase the price accordingly if the general price and wage level in the industry makes this necessary. The customer will be informed immediately after the increase becomes known.
d. Invoices are due immediately and payable without deduction within 14 days of the invoice date, unless otherwise agreed.
e. The customer may only set off claims against NEROFORCE against undisputed or legally established claims. He may only refuse performance if his right to do so is based on the same contractual relationship. Each individual order shall be deemed a separate contractual relationship.
5. Terms of delivery; passing of risk
a. Delivery and performance periods are only binding if NEROFORCE has confirmed them as binding in writing. It begins with the dispatch of the order confirmation by NEROFORCE. If the customer has to make an advance payment, it begins with the receipt of this advance payment to NEROFORCE.
b. NEROFORCE is entitled to make partial deliveries to a reasonable extent. The customer is obliged to pay for the delivered partial quantities.
c. If NEROFORCE does not meet a delivery date and is responsible for this, the customer may withdraw from the contract if he has set NEROFORCE a reasonable period of grace in writing and this period also expires without delivery.
d. In the event of delays in delivery or performance for which NEROFORCE is not responsible, e.g. force majeure, strikes, import and export restrictions, operational disruptions or disruptions of traffic routes, the delivery period shall be extended accordingly, even within a delay. The same shall apply if these circumstances occur at NEROFORCE's suppliers or their sub-suppliers. NEROFORCE will immediately inform the customer about such obstacles and the expected duration.
e. e. If the customer is in default of acceptance, NEROFORCE shall be entitled, starting one month after notification of readiness for dispatch, to demand the actual costs incurred by storage or 0.5% of the invoice amount for each month commenced, unless the customer can prove that NEROFORCE has suffered less damage. NEROFORCE may withdraw from the contract after a reasonable period has expired. Upon default of acceptance, the risk of accidental deterioration and accidental loss shall pass to the customer.
f. Deliveries shall be made ex works (EXW INCOTERMS 2010) NEROFORCE. The delivery period shall be deemed to have been met if NEROFORCE has notified the customer that the goods are ready for dispatch by the end of the delivery period. The transfer of risk shall take place upon notification that the goods are ready for shipment.
6. Retention of Title
a. NEROFORCE retains title to the goods until payment has been made in full. NEROFORCE retains title to goods received by the customer within the framework of an ongoing business relationship until all claims arising therefrom have been settled. The customer is obliged to keep the reserved goods in proper condition for the duration of the retention of title and to carry out all necessary maintenance work and repairs or have them carried out by third parties.
b. The customer shall be entitled to process or combine the reserved goods within the framework of its proper business operations. NEROFORCE shall acquire co-ownership of the resulting objects, which the customer hereby transfers to NEROFORCE. The amount of the co-ownership share of NEROFORCE shall be determined by the ratio of the value of the reserved goods to the other products. In such cases, the customer shall store the goods owned or co-owned by NEROFORCE free of charge.
c. The customer may resell the reserved goods in the ordinary course of business against payment or under reservation of title. The customer hereby assigns to NEROFORCE, by way of security, all claims and ancillary rights arising from the resale or on any other legal grounds (insurance, tortious act). NEROFORCE accepts this assignment. If the resold reserved goods are co-owned by NEROFORCE, the assignment of the claims shall extend to the amount corresponding to the share value of NEROFORCE in the co-ownership.
d. NEROFORCE revocably authorises the customer to collect the claims assigned to NEROFORCE for its account in its own name. This authorisation to collect may be revoked if the customer fails to meet his payment obligations. The proceeds to which NEROFORCE is entitled from the assignment shall be passed on to NEROFORCE immediately upon receipt. Upon request, the customer shall inform its customers of the assignment and inform NEROFORCE of the names of the debtors of the assigned claims so that NEROFORCE can disclose the assignment and/or collect the assigned claims itself.
e. The customer may neither pledge nor assign by way of security the goods subject to retention of title. If third parties access goods subject to retention of title and/or claims assigned to NEROFORCE, the customer is obliged to inform NEROFORCE immediately. Costs incurred by NEROFORCE as a result of such access shall be borne by the customer unless the replacement can be obtained from third parties.
f. In the event of excess security of more than 20%, NEROFORCE shall be obliged to release the collateral exceeding this percentage at its discretion.
a. The statutory warranty provisions shall apply unless otherwise regulated below.
b. NEROFORCE shall not be liable for damage caused by natural wear and tear, soiling, improper transport, handling, storage, use, assembly of the goods or other circumstances for which the customer or third parties are responsible. Any damage caused by special conditions of use of the goods which NEROFORCE could not specifically foresee (e.g. risk of soiling) shall not constitute a defect within the meaning of the warranty.
c. The customer is obliged to inspect the delivered goods or services for quantity and quality immediately upon receipt. Obvious defects which are recognisable upon proper inspection must be reported in writing immediately, at the latest within 5 working days of receipt of the goods, stating the exact nature of the defect. Defects which cannot be discovered within this period, even after careful inspection, must be reported in writing immediately after discovery. If the customer fails to notify us immediately, the goods shall be deemed to have been approved.
d. Specifications of the goods or other information about the subject matter of the contract are for descriptive purposes only and do not contain any assurance as to their quality. Deviations from these specifications and information are not defects if these deviations are within the scope of the legal or state of the art permissible and the functionality is not significantly impaired. This shall not apply if NEROFORCE has expressly assured the customer of the specification as such in writing upon conclusion of the contract.
e. NEROFORCE may repair or replace a defective item at its own discretion. If the defects are not remedied even after a second attempt to remedy them, either by rectification or new delivery, or if NEROFORCE does not attempt to remedy them within a reasonable period, the customer may reduce the purchase price or withdraw from the contract. If NEROFORCE has not acted with intent or gross negligence, all further rights of the customer arising from the defective delivery shall be excluded.
f. The warranty period shall be 12 months from the passing of risk.
a. NEROFORCE shall only be liable for damages caused by NEROFORCE intentionally, grossly negligently or in violation of essential contractual obligations due to slight negligence. In cases of slight negligence, damages for the violation of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, not exceeding the purchase price.
b. The provisions in paragraph 1 do not apply to claims for damages under the Product Liability Act and for injury to life, limb or health:
c. Insofar as liability is excluded or limited under these conditions, this shall also apply to the liability of the organs of NEROFORCE as well as to the liability of employees, vicarious agents and assistants.
d. All liability claims are subject to a limitation period of twelve months. In the event of intentional or grossly negligent breach of duty, fraudulent conduct, injury to life, limb or health as well as claims under the Product Liability Act, the statutory periods shall apply.
e. Section 7 remains unaffected.
a. Amendments to this contract must be made in writing. This also applies to the cancellation of this written form clause.
b. German law shall apply exclusively to all transactions between the parties, to the exclusion of the reference standards of international private law and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
c. If the customer is a merchant, the place of jurisdiction shall be Ulm. However, NEROFORCE shall be entitled to sue the customer at his place of business.
Leipheim, October 2019