These General Terms and Conditions (hereinafter referred to as “Terms and Conditions”) shall only apply if the Contracting Party (hereinafter referred to as the “Customer”) is a professional business partner, as defined by the German Commercial Code (HGB), a company, as defined by Section 14 of the German Civil Code (BGB), a government agency, or an entity involving a special fund under public law, as defined by Section 310(1) of the BGB.
2.1 These Terms and Conditions shall apply to all deliveries and services provided by ADLER Elektrotechnik Leipzig GmbH (hereinafter referred to as ADLER), even if they are not expressly mentioned in subsequent contractual relations. These Terms and Conditions shall prevail exclusively over any conflicting provisions. Conflicting, additional, or deviating terms and conditions of the Customer shall not be considered part of the contract (hereinafter referred to as the “sales transaction”) with ADLER unless ADLER has expressly agreed to their validity in writing. These Terms and Conditions shall apply notwithstanding any conflicting or deviating terms and conditions of the Customer, even if ADLER provides deliveries or services with such knowledge.
2.2 Any modification of these Terms and Conditions made between ADLER and the Customer for the execution of a sales transaction must be made in writing. This also applies to the waiver of this written form requirement.
2.3 Any rights to which ADLER is entitled under statutory provisions beyond these Terms and Conditions shall remain unaffected.
3.1 ADLER’s quotes are subject to change. They are also considered to be non-binding unless they have been expressly designated as binding offers.
3.2 Illustrations, drawings, weights, dimensions, power, and usage data as well as other descriptions of the goods from documents related to quotes are only to be considered approximations unless they are expressly designated as binding. They constitute neither an agreement nor any form of quality guarantee.
3.3 ADLER reserves all property rights and copyrights to all documents related to its quotes. It is prohibited to make these documents accessible to any third party whatsoever.
3.4 The Customer shall be bound by its own orders for two weeks. The Customer’s order shall then become binding for ADLER, only if ADLER has confirmed it in writing, unless otherwise agreed. For the purpose of this section, automated order confirmations lacking a signature and name shall still be deemed to constitute written form. If an order confirmation contains obvious errors, spelling mistakes, or arithmetic errors, it shall not be considered binding for ADLER. If no order confirmation is issued, ADLER may also accept orders by delivering or performing the services ordered.
3.5 Unless expressly agreed otherwise in writing, sales transactions shall be confined to the provisions of section 434 (2) (2) BGB, limiting it to the delivery of goods meeting the warranted quality. The warranted quality of goods is delineated in ADLER’s data sheets and/or other technical accompanying documents, unless otherwise agreed. Unless otherwise expressly agreed in writing, goods do not have to fulfil the objective requirements pursuant to section 434 (3) BGB. ADLER expressly disclaims any warranty regarding the fitness for purpose of the goods for ordinary use and/or their conformity to the customary quality of goods of the same type, which the Customer may reasonably anticipate, taking into account (i) the nature of the goods and (ii) any public statements made by ADLER or on its behalf, or by any other party in preceding stages of the contractual relationship, including but not limited to advertising or labeling. Furthermore, the goods are not obliged to correspond to the quality of any samples or specimens provided by ADLER to the Customer prior to the execution of the sales transaction.
3.6 ADLER’s written approval is required for the fulfillment of orders based on documents submitted by the Customer.
3.7 Without having to be asked, the Customer agrees to promptly notify ADLER, should it become evident that a product ordered may be subject to foreign trade restrictions. The Customer bears all costs and damages incurred by ADLER resulting from any breach of this obligation that is attributable to the Customer. Delivery to the Customer is contingent on obtaining any necessary authorizations from the government agencies responsible for such authorizations, such as the Federal Office of Economics and Export Control (BAFA).
3.8 Once sales transactions have been fulfilled, the Customer is obliged to acknowledge receipt of and to pay for the deliveries and services ordered.
4.1 Prices indicated in order confirmations shall govern. Unless specified otherwise, all prices are ex-works, commencing from the ADLER location or warehouse where the goods are transferred to the carrier, and do not include ancillary fees or expenses, such as packaging, freight, and insurance. All ancillary fees or costs incurred in connection with the delivery within Germany and, if applicable, exported from Germany shall be borne by the Customer. If the Customer does not receive order confirmation or if the order confirmation does not contain any price details, the price otherwise agreed between the parties shall apply. The statutory value added tax shall be shown separately on the invoice at the rate applicable as of the invoice date.
4.2 If a pricing determinant, such as labor costs, energy expenses, or the price of raw materials fluctuates by more than 5% for services rendered after four months following the sales transaction, ADLER retains the right to modify prices commensurate with the variations in purchasing or production expenses of those items delivered. If this price indexing clause is applied, ADLER shall be obliged, at the Customer’s request, to provide reasonable evidence of the additional expense incurred. If ADLER has agreed to prices with the Customer based on specific pricing assumptions, such as raw material prices, changes in those input factors may also lead to corresponding price adjustments, irrespective of the time frame.
4.3 Payments are due in full within 20 days from the date of invoice, unless otherwise stipulated in writing. However, ADLER reserves the right to require cash-in-advance or collateral for products to be delivered or services to be rendered if the business relationship with the Customer is new, for international deliveries, if the Customer is domiciled abroad, or if there are concerns regarding timely payment upon product delivery or service completion.
4.4 If circumstances arise post-sales transaction that could substantially impair the Customer’s creditworthiness and threaten ADLER’s ability to collect payment for invoices generated from the sale, ADLER reserves the right to withhold delivery until payment or collateral is received from the Customer. This provision also applies if the Customer refuses or neglects payment for outstanding invoices in cases in which there are no disputed or legally established objections to ADLER’s accounts receivable.
4.5 Payments shall be deemed to have been made on the day on which ADLER has access to the amount owed. If ADLER accepts checks, payment shall only be deemed to have been made when the check has been cashed and cleared, and ADLER has access to the money. Discounts and other treasury-related expenses shall be borne by the Customer. If the Customer defaults on payment, he or she shall incur a default interest at a rate of 9% above the base interest rate set by the Deutsche Bundesbank. ADLER reserves the right to claim additional damages.
4.6 ADLER is entitled to offset payments made by the Customer against the Customer’s oldest debt. If any expenses and/or interest have already been incurred, ADLER is entitled to offset incoming Customer payments according to the following hierarchy: first against expenses, then against the interest, and finally against the principal.
4.7 The Customer is only entitled to offset claims and exercise a right of retention if the claims have been legally validated or remain undisputed. Furthermore, the right of retention may be exercised by the Customer solely based on claims arising from the same contractual relationship.
5.1 The order confirmation shall determine the extent of obligations. Any changes to the scope of performance must be confirmed in writing by ADLER to be considered valid.
5.2 Unless expressly otherwise agreed, delivery shall be made from an ADLER location or warehouse, from which the goods are handed over to the carrier.
5.3 The agreed delivery period commences upon the completion of the sales transaction. Delivery periods and dates are binding on ADLER only if expressly designated or confirmed as such by ADLER. Otherwise, they are non-binding. Agreed delivery periods are considered met if the goods are handed over to the carrier at an ADLER office or warehouse by the expiration of the specified period, or if ADLER has informed the Customer that the goods are ready for dispatch, but still remain in ADLER’s possession due to the Customer’s refusal of acceptance.
5.4 In instances in which the provision of agreed deliveries or services by ADLER necessitates the Customer’s cooperation, the Customer must ensure timely and adequate provision of all necessary information and data to ADLER. Should there be any delays in the Customer’s cooperation, ADLER shall not be held responsible for any resulting delivery delays.
5.5 The commencement of the delivery period is contingent upon the Customer providing all necessary documents, information, authorizations, and approvals in full, resolving all technical matters, and fulfilling any agreed down payments. Timely and proper compliance with other Customer obligations is essential for meeting the delivery period or date. ADLER’s adherence to agreed delivery periods and dates depends on the timely and proper receipt of its own supplies. Any requests for changes or additions to orders subsequently agreed with ADLER shall result in a reasonable extension of agreed delivery dates.
5.6 ADLER retains the right to carry out partial deliveries and to provide partial services as it deems reasonable. Early deliveries or services are permissible unless explicitly prohibited by mutual agreement.
5.7 If the Customer fails to accept delivery or violates other obligations to cooperate, ADLER reserves the right to seek compensation for resulting damages, including additional expenses and storage costs. This action does not preclude other claims. After providing the Customer with reasonable notice and allowing for a reasonable extension, ADLER may dispose of the goods in another manner if delivery remains untenable.
6.1 Unless expressly agreed otherwise, delivery shall be made ex ADLER’s location or warehouse, where the goods are transferred to the carrier. The risk of accidental loss of or damage to the goods passes to the Customer upon transfer to the carrier or upon departure from ADLER’s warehouse for shipment. This applies even in the case of partial deliveries or when a freight-free or cost-free shipment has been agreed. ADLER shall select the carrier and transport route unless written instructions are provided by the Customer. At the Customer’s request and expense, ADLER shall insure the goods against risks specified by the Customer by arranging transport insurance.
6.2 If the handover or dispatch is delayed due to circumstances attributable to the Customer, the risk transfers to the Customer from the day the goods are ready for dispatch, as notified by ADLER.
6.3 If ADLER is responsible for selecting the shipping method, route, and/or personnel, its liability shall be limited to cases of willful misconduct or gross negligence related to the selection.
7.1 The goods delivered shall remain the property of ADLER until full payment has been received for all claims arising from the business relationship with the Customer to which ADLER is entitled. These claims include any and all checks, bills of exchange, and accounts receivable.
7.2 The Customer shall be obligated to handle any goods subject to retention of title with care while the retention of title is in force. Specifically, the customer is required to adequately insure the goods at their his or her own expense against risks such as fire, water damage, and theft at replacement value. The Customer hereby assigns all claims for compensation under this insurance to ADLER. ADLER accepts the assignment. If this type of assignment is not permissible, the Customer hereby irrevocably instructs its insurer to make any payments solely to ADLER. This directive does not preclude any additional claims ADLER may have. Upon request, the Customer shall furnish ADLER with proof of insurance coverage.
7.3 The Customer is solely permitted to sell the goods subject to retention of title in the ordinary course of business. Any pledging, collateral assignment, or other dispositions that could endanger ADLER’s ownership rights of the goods subject to retention of title is strictly prohibited. In cases of seizures or other interventions by third parties, the Customer must promptly inform ADLER in writing, providing all necessary details. Additionally, the Customer must notify the third party of ADLER’s ownership rights and cooperate fully with ADLER in implementing measures to safeguard the goods subject to retention of title. All costs incurred for the cancellation of the seizure and for the replacement of the goods, for which the Customer is responsible, shall be borne by the Customer, unless they are recoverable from the third party.
7.4 The Customer hereby assigns to Adler all claims arising from the resale of the goods, along with all related rights, regardless of whether the goods subject to retention of title are resold as is or after processing. ADLER acknowledges and accepts this assignment. In cases where such a transfer is not feasible, the Customer grants irrevocable instructions to the third-party debtor to make payments directly to ADLER. The Customer is authorized, albeit revocably, to collect the assigned claims on behalf of ADLER. Any amounts collected must be promptly remitted to ADLER. ADLER reserves the right to revoke the Customer’s collection authorization and resale rights if the Customer fails to meet its payment obligations, defaults on payment, suspends payments, experiences a degradation in creditworthiness or financial stability, ceases relevant business activities, or becomes unable to fulfill contractual obligations for any other reason. Any resale of the assigned receivables requires ADLER’s prior consent. The Customer’s collection authorization ceases upon notification of the assignment to the third-party debtor. In the event of revocation, ADLER may request the Customer to disclose the assigned claims and their debtors, to provide all necessary information for collections, to furnish relevant documents, and to notify the debtors of the assignment.
7.5 In the event the Customer defaults on payments due to ADLER, ADLER reserves the right to terminate the contract without prejudice to its other entitlements. The Customer shall promptly provide ADLER or an authorized third party with access to the goods under retention of title, surrender them, and disclose their whereabouts to ADLER. Following appropriate notification, ADLER may otherwise utilize the goods under retention of title to settle its outstanding claims against the Customer.
7.6 The processing or transformation of goods subject to retention of title by the Customer shall always be conducted on behalf of ADLER. The Customer’s anticipatory right to the goods subject to retention of title shall extend to the processed or transformed items. In the event that the goods are processed, combined, or commingled with other items not belonging to ADLER, ADLER shall acquire co-ownership of the resulting new item in proportion to the value of the delivered goods compared to the other processed items at the time of processing. The Customer shall keep the new items separately identifiable for ADLER. All other provisions concerning the item resulting from processing or transformation shall be subject to the same terms as the goods subject to retention of title.
7.7 Upon the Customer’s request, ADLER shall release the collateral it holds to the extent that its realizable value, considering customary bank valuation discounts, exceeds ADLER’s claims arising from the business relationship with the Customer by more than 20%. The valuation shall be based on the invoice value of the goods subject to retention of title and the nominal value of receivables.
7.8 In jurisdictions where the retention of title provision, as outlined in sections 7.1 to 7.7, does not carry the same legal weight as in the Federal Republic of Germany, the Customer hereby agrees to provide comparable collateral to ADLER. Should additional declarations or actions be necessary to establish this interest, the Customer agrees to provide such declarations and to take requisite actions. The Customer shall collaborate in all measures essential for ensuring the effectiveness and enforceability of these security interests.
8.1 ADLER manufactures and delivers its products in accordance with the state of the art applicable at the time the sales transaction takes place. Liability for defects in material and legal violations shall be limited to the warranted quality as agreed in ADLER’s data sheets and/or other technical accompanying documents, unless otherwise agreed.
8.2 The products supplied by ADLER are intended solely for general electronic applications as outlined in the accompanying data sheets. Prior to installing these products in specialized areas such as, but not limited to, military, aerospace, nuclear control, submarines, transportation (vehicle control, train control, ship control), transportation signaling, disaster control, medicine, or any other context where enhanced safety and reliability are expressly mandated, or where there exists a potential for significant damage or harm to life, limb, or health, the Customer must obtain written consent from ADLER. It is solely the responsibility of the Customer to determine the suitability and usage of ADLER’s products in any specific application.
8.3 The Customer’s warranty rights are contingent upon compliance with its statutory obligations regarding inspections and notification (sections 377, 381 HGB). Specifically, the Customer is required to inspect the delivered goods upon receipt and promptly notify ADLER, in written form, of any apparent defects or defects that could have been discovered during such an inspection. Hidden defects must be communicated to ADLER in written form immediately upon their discovery. For visible defects or those that would be evident upon proper inspection, notification must be made within two weeks of delivery, while hidden defects must be reported promptly upon discovery. Timely dispatch of the notification or complaint suffices to meet this deadline. Failure by the Customer to conduct a proper inspection and/or report defects will result in the exclusion of ADLER’s liability for said defects. When notifying ADLER, the Customer must provide a detailed written description of the defects.
8.4 Unless otherwise stipulated, the Customer is responsible for initially delivering the goods to ADLER at its own expense for the defect(s) to be inspected. ADLER will only cover the expenses necessary for the inspection and subsequent actions, including transportation, travel, labor, and material costs as outlined in section 439 (2) and (3) BGB, if an actual defect is confirmed during inspection. These expenses will not be reimbursed if the goods were transported by the Customer to a location other than the designated delivery address. Any personnel and material costs incurred by the Customer in this regard will be invoiced based on their actual cost.
8.5 If the goods are found to be defective, ADLER reserves the right to choose between rectifying the issue or delivering replacement goods, at its discretion.
8.6 If ADLER fails to provide subsequent fulfillment within a reasonable timeframe, or if such fulfillment is deemed impracticable or unreasonably delayed due to ADLER’s fault, the Customer may, at its discretion, opt to cancel the transaction or to negotiate a reduced delivery price.
8.7 The Customer’s right to cancel shall not apply if the inability to return the received service is not attributable to reasons such as the inherent nature of the service, ADLER’s responsibility for the defect, or if the defect only becomes apparent during the processing or transformation of the goods. Furthermore, the right to cancel shall be forfeited if ADLER is not liable for the defect and if compensation is to be paid in lieu of returning the goods.
8.8 No claims are permissible for defects that arise from natural wear and tear, improper handling, or unauthorized modifications or repairs performed on the goods by the Customer or third parties. This provision also applies to defects resulting from actions attributable to the Customer or arising from technical causes unrelated to the original defect. Specifically, the Customer is required to adhere to ADLER’s or the manufacturer’s operating, storage, and maintenance recommendations.
8.9 If the goods comprise digital products as defined in sections 327 et seq. BGB or goods containing digital items as described in section 475b BGB, ADLER’s liability to the Customer for providing updates shall be limited to the duration and scope specified in accordance with the agreed quality as per the second sentence in section 3.5 of these Terms and Conditions or as otherwise agreed upon in writing with the Customer.
8.10 Claims by the Customer for reimbursement of expenses in lieu of compensation for non-performance are excluded unless such claims would be considered reasonable by a third party.
8.11 ADLER shall not be liable for damages arising from circumstances for which ADLER is not responsible, particularly damages resulting from improper use or mishandling of the products. It is the Customer’s responsibility to adhere to the operational, storage, and maintenance guidelines provided by ADLER or the manufacturer, to carry out authorized modifications only, to professionally replace spare parts, and to utilize consumables that meet the required specifications. The Customer is also obligated to regularly back up data on its IT systems both before and after ADLER has supplied the goods and services. ADLER shall not be held liable for any damages resulting from or attributable to the Customer’s failure to comply with the aforementioned obligations.
8.12 ADLER shall bear liability for damages resulting from a guarantee violation or injury to life, limb, or health in accordance with statutory regulations. That includes liability for intentional acts, gross negligence, mandatory statutory liability for product defects (especially under the Product Liability Act), and liability for fraudulent concealment of defects. Liability for ordinary negligence shall be limited to breaches of material contractual obligations crucial for achieving the contract’s purpose. In such cases of breach, default, or impossibility, ADLER’s liability shall be limited to damages typically foreseeable under the contract.
8.13 The time frame during which the Customer is permitted to issue a claim for defects is limited to one year, unless the defective goods have been utilized for construction in their intended manner, resulting in their defectiveness. This time frame also encompasses claims arising from unauthorized actions stemming from a defect in the goods, commencing from the goods’ delivery. However, ADLER’s liability remains unrestricted for damage resulting from guarantee violations, injuries to life, limb, or health, acts of intent or gross negligence, and product defects. It’s worth noting that any communication from ADLER regarding a defect claim made by the Customer will not be considered as engaging in negotiations on the claim or the circumstances underlying it, should ADLER reject the claim in its entirety.
8.14 The suspension of the statute of limitations for recourse regarding claims outlined in the first sentence of section 445b, paragraph 2 of the BGB shall cease at the latest five years after ADLER’s delivery of the goods to the Customer. Should the goods be ultimately sold to a consumer, ADLER may only enforce this provision if equivalent compensation is provided to ADLER’s Customer.
9.1 The Customer is prohibited from altering the products, including but not limited to modifying or removing existing warnings regarding the risks associated with improper use of the products. In the event of a breach of this obligation, the Customer shall indemnify ADLER against any third-party product liability claims attributable to the defect for which the Customer is responsible.
9.2 If ADLER is required to initiate a product recall or issue a warning due to a product defect, the Customer shall cooperate with ADLER and undertake all reasonable measures as directed by ADLER. The Customer shall bear the costs associated with the product recall or warning to the extent that it is responsible for the product defect and resulting damages. Any additional claims ADLER may have shall remain unaffected by this provision.
9.3 The Customer shall promptly notify ADLER in written form of any risks or potential product defects discovered during the use of ADLER’s products.
10.1 If ADLER is unable to fulfill its contractual obligations, particularly regarding the delivery of goods, due to force majeure, ADLER shall be exempted from its duty to perform for the duration of the impediment and a reasonable start-up period, without being liable for damages to the Customer. The same shall apply if ADLER’s fulfillment of its obligations is unreasonably hindered or temporarily impossible due to unforeseen circumstances beyond ADLER’s control, such as labor disputes, pandemics and epidemics, governmental actions, including quarantine orders, energy shortages, supply complications at a supplier, or other significant operational disruptions.
10.2 ADLER reserves the right to terminate the transaction if the force majeure persists for more than three months and fulfilling its contractual obligations is no longer viable for ADLER due to force majeure. Upon the Customer’s request, ADLER will announce its decision whether to exercise its right to terminate the transaction or to deliver the goods within a reasonable timeframe after the deadline has passed.
ADLER and the Customer are bound to maintain strict confidentiality indefinitely regarding any information shared by the other party during their collaboration that is identified as proprietary or sensitive business data, or which should reasonably be considered as such based on the context of disclosure. Both parties agree not to document, disclose, or utilize such information for their own benefit. They will also ensure, through appropriate contractual arrangements with their respective employees and representatives, that they refrain from any unauthorized use, disclosure, or recording of such proprietary information or trade secrets for an indefinite period.
12.1 The transfer of rights and obligations of the Customer arising from the contractual relationship to third parties is permissible only with ADLER’s prior written consent.
12.2 The legal relationship between the Customer and ADLER shall be governed by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.3 The exclusive venue for all disputes arising directly or indirectly from the contractual relationship with the Customer, including international disputes, shall be ADLER’s registered office. However, ADLER also reserves the right to initiate legal proceedings at the Customer’s location. Any mandatory statutory provisions, particularly related to exclusive jurisdiction, shall remain unaffected by this clause.
12.4 The place of performance for all services rendered by the Customer and ADLER shall be ADLER’s registered office.
12.5 If any provision of these Terms and Conditions or the contract with the Customer is or becomes invalid or unenforceable, in whole or in part, or if there is a gap in these Terms and Conditions or in the contract with the Customer, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision, the valid or enforceable provision that most closely reflects the purpose of the invalid or unenforceable provision shall be deemed to have been agreed. In the event of a gap, the provision that corresponds to what would have been agreed in accordance with the purpose of these Terms and Conditions or the contract with the Customer shall be deemed to have been agreed, provided that the parties had considered this aspect from the outset.