Terms & conditions for EPHYMESS Gesellschaft für Elektro-Physikalische Messgeräte mbH: Terms & conditions

1. Contract conclusion, quality, order confirmation

  1. Our quotes are non-binding. We are only bound by our quotes where they are explicitly marked as binding. A contract only exists upon our written order confirmation.
  2. We retain copyright and intellectual property of all documents submitted with a quote or for other reasons, in particular cost estimates, drawings and other documents. They must not be disclosed to third parties.
  3. Our written order confirmation is the decisive document for the determination of the scope of delivery.
  4. Oral side agreements and assurances from our staff or representatives require written confirmation to be legally binding.
  5. Once we have confirmed and accepted an order, customer requests for cancellation or delay of the order can no longer be granted. Any exceptions to this rule must be agreed in writing and require the approval of our Managing Director or their deputy. We retain the right to claim compensation in such cases.
  6. Product properties that the purchaser of our products (the “Customer”) can expect based on our public statements, especially our advertising, or the product labelling or that are the object of trade conventions, are only considered included in the contractual state if it is explicitly named in a quote or an order confirmation. Guarantees are only binding for us if they are marked as such in a quote or order confirmation and the individual obligations resulting for us from such a guarantee are named within it.
  7. We do not provide a guarantee of the suitability of our products for specific purposes intended by the customer. We make our recommendations and suggestions to the best of our knowledge. However, they are non-binding and exclude liability for damage or disadvantage of any kind. They do not exempt the customer from their own tests and trials.

2. Prices

  1. Our prices are net prices excluding the statutory value added tax applicable at the seller’s location (FCA Wiesbaden Incoterms 2010) and excluding packaging.
  2. Unless otherwise agreed in writing, any levies that are introduced or increased after contract conclusion, and any increases in raw material and auxiliary prices, wages, freight, customs duties etc. that make a delivery directly or indirectly more expensive shall be borne by the Customer and entitle us to increase the price appropriately.

3. Payment conditions

  1. Our invoices are due immediately and payable within 30 days of invoicing and delivery; the date upon which we receive payment is definitive. Unless otherwise agreed in writing, payment shall be made directly to us via bank transfer without deduction. Cheques are accepted as payment only by special agreement. All costs and expenses caused by this shall be borne by the Customer.
  2. Should the Customer fall into payment arrears, we may demand interest at 8 percentage points above the respective base interest rate of the Deutsche Bundesbank. This does not affect our other or additional rights. 
  3. Where we consider it necessary to appoint legal counsel or a collections agency in order to enforce overdue payments, the Customer shall pay all costs of this collection including reasonable legal costs.
  4. The offsetting or exercise of a right of retention due to counter-claims of the Customer contested by us and not determined in law is excluded. The exercise of a right of retention is also excluded where the counter-claims of the Customer are not based on the same contractual relationship.
  5. We retain the right to change payment conditions where we believe that the financial position or the previous payment behaviour of the Customer make this justified or necessary.

4. Worsening of Customer’s asset status

  1. Acceptance of a delivery by the Customer is considered confirmation of their ability to pay,
  2. Where there are indications of a significant worsening of the Customer’s asset position, in particular where an application is submitted for the opening of insolvency proceedings regarding their assets, or other circumstances that have significant effects on the Customer’s creditworthiness become known, we may refuse performance until the performance in return is provided or the Customer has provided appropriate security for such. This also applies where such circumstances existed before contract conclusion but were not known.
  3. Where the Customer does not provide the performance in return or an appropriate security within a reasonable period, we are entitled to withdraw from the contract or to demand compensation of 20% of the order value (including VAT). Both contractual parties retain the right to demonstrate greater or lesser damage.

5. Inspection and acceptance

  1. The Customer undertakes to report in writing any recognisable defects of the products no later than five working days after receipt of the delivery and any hidden defects within five days of their discovery. These periods are limitation periods. Where the Customer does not provide such notification, the products are considered approved and in line with the conditions of the purchase contract.
  2. We accept returns of defective or other products only where the Customer has applied for and received a Return Material Authorization (RMA). Returns that are not based on claims for defects are generally excluded where the customer does not register them within 30 days of invoice receipt in writing, stating reasons. Where a return is agreed to, the products affected shall be returned to a location named by us (DDP Incoterms 2010).
  3. Where we have agreed to the return of defective goods, defect-free shipping shall occur in line with Sections 6 and 8 of these terms & conditions without further obligations on our part.
  4. Where the products returned to us are defective or do not meet the agreed sales conditions, we shall reimburse the Customer for all transport costs.

6. Delivery, packaging and risk of loss

  1. Deliveries and transfer of risk are in line with FCA Wiesbaden Incoterms 2010, excluding packaging. Place of fulfilment for all our duties to perform is our company premises unless otherwise stated in the order confirmation.
  2. All packaging and transport costs incurred shall be borne by the Customer unless otherwise agreed explicitly in writing. This may also be done in the form of a lump sum that covers the costs we incur.
  3. The delivery dates stated are exclusively time guidelines agreed non-bindingly, unless explicitly marked as binding in our order confirmation. All delivery deadlines shall be extended by the duration of interruptions in our work processes due to disruption caused by labour dispute measures within our company or at our suppliers, in particular strikes and lawful lockouts, or the occurrence of other unforeseen events for which we are not responsible, even where these occur during an existing delay. Where we have only limited stocks of the products to be delivered as a result of such circumstances, we are entitled to divide up the available stocks among our customers in a way that we consider appropriate. The Customer shall be notified immediately of the start and end of disruption of this kind.
  4. Partial deliveries are permissible where they are economically reasonable for the Customer. We are entitled to issue an invoice for a reasonable partial amount for each partial delivery.
  5. Where delivery dates are not explicitly marked as binding, delivery default on our part applies no earlier than 4 weeks after expiry of the delivery deadline through a written reminder notice from the Customer. Should a delivery delay result from slight negligence, the claim for compensation due to violation of contractual duties or default is limited to 5% of the total price of the products affected by the delay.
  6. The products are packaged appropriately for shipping in a way that corresponds to a shipping method specified by the Customer or, where there are no Customer specifications, in a shipping method of our choice. Without particular specifications by the Customer, shipping shall use the route that we consider most advantageous having weighed up the risks, costs and time required.
  7. Where the scope of performance and delivery includes software, we retain all rights to the software, in particular the copyright usage and utilisation rights, unless these are granted explicitly to the Customer in a separate agreement. Otherwise, the Customer is granted only a limited right of use for the software in a software licensing agreement to be concluded separately in line with the purpose and scope of the delivery contract agreed with them.
  8. We retain ownership of all items delivered by us until full payment of the invoice. Where the Customer sells on the items delivered by us before paying the invoice in full, the Customer’s claim against his purchaser replaces the items delivered by us (extended reservation of title). The Customer hereby cedes the relevant claim to us now; we hereby explicitly accept this cession now. Where the items delivered by us are processed by the Customer or connected or mixed with other items, our right of ownership is replaced by co-ownership of the newly produced product that corresponds to the value (all-monies clause). Where this newly created product is sold before full payment of our invoices, an extended reservation of title exists to our advantage on a portion of our Customer’s claim against their purchaser that corresponds to the value as a ratio of the total value of the new product. The Customer hereby cedes this claim to us now; we hereby accept this cession now.

7. Taxes

  1. The Customer is responsible for the payment of all taxes applies or charged for the products sold or services provided, regardless of their description or origin.
  2. Where the Customer claims that a transaction is not subject to such tax obligations, that they are exempt or that we are not obligated to collect such taxes, they declare that they agree to submit to us the documents required to prove this claim so that we can document our decision not to collect this tax from the Customer. The Customer undertakes to exempt us from all financial penalties, fines, interest, taxes and other payments including reasonable legal defence costs incurred by us as a result of our trust in the accuracy of their information.

8. Claims in case of defects

  1. In case of defects, we are entitled to remedy the defect or provide replacement (cure) as we choose. Further defect claims by the Customer are excluded except in the case of compensation claims limited subject to Section 9 of these Terms & Conditions.
  2. Where cure fails, the Customer is entitled to choose whether to withdraw from the contract or to demand a reasonable reduction in the purchase price.
  3. In order to allow us to properly meet our obligation to remedy, the Customer undertakes to notify us immediately in writing of any claims and to give us the opportunity to inspect and examine the allegedly defective products. Such an inspection can take place at the Customer’s premises or we may request that the Customer returns these products at their own cost. These costs shall be reimbursed if the product does indeed prove defective. A return is excluded where we have not received an RMA as per Section 5.2 of these Terms & Conditions.
  4. In the case of products that were transported to a different country from the original country of delivery after delivery, additional costs for repair or replacement of such products may be incurred as part of defect liability, depending on the current location. These additional costs shall be borne by the Customer.
  5. Defect claims are excluded for loss, damage or defects caused by improper installation or maintenance by the Customer, software or interfaces delivered by the Customer, unauthorized modifications or misuse, operation under ambient conditions other than those specified for the product, or improper preparation of the location. Defect claims are also excluded where they are caused by natural wear or unsuitable or improper handling; inadequate installation or commissioning; replacement of materials; chemical, electromechanical or electrical effects; incorrect or negligent treatment; or unsuitable equipment by the Customer or third parties not commissioned or authorised by us. Also excluded are defect claims in connection with incorrect assembly or repairs that were not executed by us or were executed by third parties not commissioned or authorised by us.
  6. We retain the right to change the external appearance or the features or technical details of our products where these changes are reasonable for the Customer or are insignificant deviations that do not impair proper use. Defect claims based on such modifications are excluded.
  7. Any remedy is conducted by us without recognition of a legal duty and does not lead to a restart of the statute of limitations. This also applies where spare parts are installed during remedy. Replaced parts become our property and shall be submitted to us.
  8. Should the inspection of claimed defects show that there is no defect claim, the Customer undertakes to bear the costs incurred through the inspection. 
  9. Where used items (including demonstration models) are the subject of the contract, all liability of defects is excluded unless we have conducted fraud.
  10. The statute of limitations for all defect claims is twelve months from the date of transfer of risk, unless otherwise explicitly agreed in writing.

9. Liability

  1. Unless liability relief is excluded due to mandatory statutory provisions, e.g. on product liability, or unless otherwise agreed with the Customer explicitly in writing, the limitations of liability below apply in all cases of statutory or contractual liability. 
  2. Liability is excluded in cases of simple negligence, except in the case of injury to life, limb or health.
  3. Where such a limitation of liability is permissible in law, we are liable only for foreseeable damage that is typical of the contract. Liability of indirect damage, consequential damage or loss of profit is then excluded. Furthermore, where permissible in law, our liability is limited to a maximum of three times the price of the performance that this the subject of the contract, or no higher than EUR 1,500,000.00 and for asset damage to twice the price, or no higher than EUR 1,000,000.00.
  4. The statute of limitations for compensation claims is two years from the time at which the Customer becomes aware of the damage or, regardless of this awareness, three years from the day on which the damaging event occurred for the first time.
  5. The limitations of liability above also apply to compensation claims of a Customer against our staff or representatives.

10. Indemnification from third-party claims

  1. Where claims are made against the Customer in connection with the claim that the use of the products delivered by us violate commercial property rights (patent, copyright, trademark or other commercial property rights), we shall defend this at our own cost and pay all costs and compensation payments incurred by the Customer in connection with this. This requires that we are notified of the assertion of such claims immediately in writing, that we maintain sole control of defence against them and settlement negotiations regarding this, that all reasonable support in this defence is granted to us at our cost, and that no limitation of liability as per Section 9 of these terms & conditions applies.
  2. Where a legally binding prohibition title against the use of the product by the Customer applies or a settlement as per Section 10.1 has been made, we shall as we see fit and at our own cost either provide the Customer with a further right of use for the product or replace or modify the product in such a way that commercial property rights of third parties are no longer violated and yet the significant performance features are retained. Where we are of the view that none of the above alternatives is reasonably practicable, we shall take back the product and reimburse the purchase price paid and the licence fees minus a reasonable compensation for use for the period in which the product was in the Customer’s possession (calculated based on a total usage period of three years).
  3. Claims of the Customer in connection with violations of property rights are excluded where these are based on the product being used in contradiction of the provisions in the manuals provided by us or in connection with other products, accessories, software or data not supplied by us, or the product having been modified by the Customer or third parties, or the Customer continuing to use the product after a modified version was provided by us that results in these property rights not being violated.
  4. Subject to the provision in Section 9 of these Terms & Conditions, our liability and the claims of the Customer in connection with violations of property rights by the product are governed finally in this Section 10 of these Terms & Conditions.
  5. Except in case of fraud, the claims of the Customer expire in accordance with this Section 10 of the Terms & Conditions within 12 months of delivery of the product.

11. Software licences and copyright protected material

  1. We supply software exclusively on a licence basis. The conditions of this licence are available from us and are considered to be accepted by the Customer upon delivery of the licensed software.
  2. Unless otherwise stated, our copyright protected materials (software, firmware and printed documentation) must not be reproduced by Customers except for archiving purposes, in order to replace an incorrect copy, or to examine programming errors.

12. Export

  1. The Customer undertakes not to export or re-export our products or associated technology or technical data in contradiction of the export provisions of the Federal Republic of Germany or the European Community. The Customer recognises that our products and the associated technical information, accessories and software are subject to export provisions that exclude their delivery to certain countries.
  2. We may refuse to fulfil our duties to the Customer where and while such fulfilment violates the export provisions of the Federal Republic of Germany or the European Community.

13. Protection of data and intellectual property

  1. All personal data is collected, processed and used exclusively in line with the provisions of data protection law applicable in each case. 
  2. Where we are asked or consider it appropriate in connection with the sale, purchase, use or maintenance of the products to transmit data or information that we consider confidential or legally protected at our own discretion, we are in no way obligated to supply such data, unless the Customer concludes an agreement regarding the handling of this information, its use, reproduction, retention and return (non-disclosure agreement, NDA) in line with our specifications. We do not accept any legally protected or confidential information from the Customer unless there is a written agreement signed by our authorised representative.

14. Final provisions

  1. The conditions defined here form the basis of our business relationship with the Customer. These Terms & Conditions also apply to all future business with the Customer. 
  2. We do not recognise the Customer’s own business conditions unless we have agreed to them explicitly in writing. This also applies where we conduct a delivery without having explicitly objected to the Customer’s own business conditions.
  3. German law applies exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  4. Place of jurisdiction for all disputes arising in connection with the business relationship with the Customer is the seat of our company.
  5. The Customer must not assign, transfer, delegate or allow third parties to use any of its rights or obligations in connection with the business relationship without our written prior consent. Any transfer of such rights or obligations without our explicit prior written consent is invalid.
  6. Where individual provisions of these Terms & Conditions are or become ineffective, this does not affect the effectiveness of the remaining provisions. The ineffective provisions are replaced by the effective provision with which the legal or economic purpose of the ineffective provision is achieved to the greatest possible extent. All contractual parties are entitled and obligated to collaborate in any amendments or supplements to this contract. The same applies in the case of any contractual loophole.
  7. The headings of the individual sections of these Terms & Conditions serve merely to provide a better overview. They otherwise have no legal significance, in particular not that of a final provision.