General Terms and Conditions
Based on the terms and conditions recommended by the AMA Association for Sensors and Measurement (AMA Verband für Sensorik und Messtechnik e.V.).
1. Scope / basic provisions
1.1 When undertaking business with companies, unless expressly agreed otherwise, the following General Terms and Conditions ("Terms and Conditions") of TWK-ELEKTRONIK GmbH, represented by managing directors Johannes W. Steinebach (Dipl.-Ing.), Dr Hannwelm Steinebach (Dipl.-Wi.-Ing.) and Dr Felix Steinebach (Dipl.-Phys.), Bismarckstraße 108, 40210 Düsseldorf, Germany, hereinafter "TWK", apply. The Terms and Conditions also apply in the case of ongoing business relationships, even if not explicitly referred to by TWK in individual cases.
1.2 TWK provides services and offers goods only to entrepreneurs and legal persons under public law. Contracts with consumers are excluded. An entrepreneur as defined under Section 14(1) of the German Civil Code (Bürgerliches Gesetzbuch — BGB) is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. TWK reserves the right to request from customers proof of their entrepreneurial capacity before concluding a contract and during the term of a contract.
1.3 The currently valid General Terms and Conditions can be accessed on and printed from the website at https://www.twk.de/agb. TWK hereby expressly rejects all terms and conditions of the contractual partner ("Customer"). When orders are made in our online shop, the complete contract text is saved by TWK only once the Customer has submitted the offer. However, the Customer can print out the contract text or save it before submitting the order using the print function in the browser.
2. Contract conclusion in the online shop
2.1 The presentation of goods at https://www.twk.de/ does not constitute a binding offer to conclude a purchase contract. It is a non-binding invitation to order goods in the online shop or, if no prices are provided for the product concerned, to submit a non-binding price request for that product.
2.2 If the price is already specified for a product in our online shop, you may submit a binding offer to buy that product (Section 145 BGB) by clicking on the button ["buy" / "complete payment"]. Before making the binding submission of the offer, all information entered can be edited using the usual keyboard and mouse functions.
2.3 Once the offer to buy has been received, you will receive an automatically generated email in which we confirm that we have received your order (confirmation of receipt). This confirmation of receipt does not yet constitute acceptance of your offer to buy. The confirmation of receipt does not establish a contract.
2.4 A purchase contract for the goods concerned is only concluded once TWK accepts this offer in writing or immediately processes the order following receipt of the offer.
3. Other offers, documents and industrial property rights
3.1 Unless explicitly designated as binding, other offers, including offers made by TWK in sales documents and catalogues and on the Internet outside of the online shop, are always non-binding and are to be understood solely as an invitation to submit a binding offer or a non-binding price request.
3.2 Insofar as they are not explicitly stated to be binding in TWK's offer documents, the approximate values that are customary in the industry apply for all technical data, material specifications etc. If TWK makes changes to a production method or product that do not have any impact on adherence to the approximate values that are customary in the industry, TWK shall notify the Customer only if a quality guarantee is affected.
3.3 All documents provided to the Customer by TWK remain the property of TWK; they may not be made available to third parties without TWK's prior written consent and must, if the order is not placed with TWK, be returned in full without delay, including any and all copies made.
3.4 The Customer shall check any product specifications provided in catalogues, brochures and other written documentation or online to make sure that the product is suitable for the intended use before accepting and using the product. This also applies to the selection of suitable materials. The Customer shall seek the relevant information regarding the possible applications of the product.
3.5 TWK is not obligated to check the Customer's information and/or specifications for accuracy and/or legal compliance (in particular infringements of industrial property rights); this is the sole responsibility of the Customer.
3.6 The Customer shall indemnify TWK against any third-party claims that arise from infringements of industrial property rights due to the Customer or an authorised representative of the Customer processing products, drawings or sample items of TWK further or using such products, drawings or sample items in a manner that infringes industrial property rights. If such processing or use of products, drawings or sample items leads to a legal dispute on account of alleged or actual infringements of industrial property rights, the Customer shall reimburse TWK for any expenses and damage that TWK incurs as a result of the dispute.
3.7 Assurances given by or side agreements made with employees of TWK are only valid if written confirmation has been provided by TWK, where they go beyond the written contract. Sentence 1 does not apply to verbal agreements and assurances that TWK or an authorised representative of TWK provides.
3.8 Appropriate remuneration is to be provided for any product samples requested by the Customer.
3.9 If the scope of supply of a product includes software, the Customer will be granted a non-exclusive right to use the supplied software, including the related documentation. The Customer is entitled to transfer the licence to third parties. The Customer may not issue sub-licences. The reproduction or modification of the software is prohibited, unless it is to make a backup copy.
3.10 All other rights to the software and the documentation, including the backup copy, are retained by TWK or the software supplier. The right to resell is not restricted.
4. Delivery period and scope
4.1 Delivery periods commence upon conclusion of the contract and end when the goods are dispatched or notification is provided that they are ready for dispatch. In the case of annual or call-off orders that stipulate a specific quantity, each call off will be executed with a delivery period of approx. 80 workdays unless a different delivery period has been expressly agreed upon or unless specified otherwise for the relevant product in our online shop. The Customer will be informed of the specific delivery period in our order confirmation. If changes to the delivery periods should arise on TWK's side in individual cases, TWK shall notify the Customer in the order confirmation, which, in the case of significant changes, will then constitute a new, binding offer by TWK.
4.2 If the Customer requests changes, the delivery period will start again on the date that TWK sends the modified order confirmation.
4.3 Delivery periods will be extended accordingly in the event of force majeure events or similar events for which TWK is not responsible or that TWK could not have foreseen, such as the refusal to issue official licences, operational disruptions, industrial disputes, disruption to transport routes, delays in the supply of bought-in parts for which TWK is not responsible etc., provided that such impediments have a demonstrably significant impact on delivery. Sentence 1 does not apply if TWK is already in default with delivery of the product.
4.4 These provisions do not constitute a change to the burden of proof to the Customer's detriment.
4.5 The Customer's right to cancel after providing TWK with an appropriate grace period without result remains unaffected.
4.6 Partial deliveries are permitted provided that they are reasonable for the Customer.
4.7 Annual or call-off orders that stipulate a specific quantity impose an obligation on the Customer to accept the total quantity within the agreed period of time; if a period of time has not been agreed upon, the agreed quantity must be called off within one year following conclusion of the contract.
5. Place of delivery, transfer of risk
5.1 Unless otherwise agreed, deliveries not including the set-up or assembly of the product are made ex TWK production facility or ex TWK store at the Customer's expense and risk. Unless the Customer provides particular specifications, the shipping method will be selected at TWK's discretion. At the Customer's request and expense, TWK shall insure the shipment against breakage, transport and fire damage.
5.2 In the case of delivery not including set-up or assembly, the risk relating to the product, including if freight-paid delivery is agreed upon, is transferred to the Customer upon handover of the product to the Customer, carrier or freight forwarder, and at the latest when the product leaves TWK's factory or store, unless otherwise agreed.
5.3 If, in the case of delivery not including set-up or assembly, delivery is delayed at the Customer's request or through the Customer's fault, the product will be stored at the Customer's expense and risk. In this case, notification that the product is ready for dispatch is considered equivalent to delivery. The risk is transferred to the Customer at the time that the Customer enters into default with acceptance.
5.4 In the case of delivery with set-up or assembly of the product, the risk relating to the product is transferred on the date that the product is accepted, and at the latest on the date that the product is incorporated into the Customer's in-house operations. A product is deemed to have been accepted if the Customer does not expressly refuse acceptance within 14 days following the request. TWK shall draw the Customer's attention to this legal consequence when making said request. No. 5.3 applies accordingly.
6.1 All prices are ex works plus freight/postage, packaging, insurance and the applicable statutory VAT rate, unless otherwise agreed. The costs for commissioning, alignment and similar services will be invoiced separately. The shipping cost for deliveries is calculated based on the following indicators depending on the content of the relevant shopping cart: gross shipping weight per product, delivery address and shipping method (standard or premium). The shipping costs will be shown to the customer with the appropriate selection of the shipping option during the order process before the order is submitted.
6.2 TWK is entitled to increase the price of the product if there is more than 4 weeks between the date of contract conclusion and the agreed delivery date and the production costs for the product have increased between contract conclusion and delivery due to circumstances for which TWK is not responsible, in particular if the prices of bought-in parts increase. If TWK does increase the price under these conditions, the price increase must not exceed the increase in production costs. TWK shall provide proof of the increase in production costs to the Customer on request.
7.1 The payment process in our online shop is explained in more detail on the relevant order page. Payment may be made in the following ways: prepayment, purchase on account, credit card, PayPal or direct debit. TWK is responsible for selecting the payment methods offered. In particular, TWK reserves the right to only offer selected payment methods to the Customer in question.
In the case of purchases on account, payments are processed via the financial service provider PayPal (PayPal (Europe) S.à.r.l. et Cie, S.C.A., ,22-24 Boulevard Royal, L-2449 Luxembourg). When placing an order using this payment method, the Customer will be forwarded to PayPal to enter the required information. Once an order has been accepted by TWK, the Customer will receive the invoice on delivery and an email from PayPal containing the relevant payment information. The Customer's payment will then be made to PayPal.
If advance payment is selected as the payment method, TWK shall provide its bank account details to the Customer in the order confirmation. The invoice amount is to be transferred to this account within 10 days following receipt of the order confirmation.
In the case of credit card payments, the purchase price will be reserved on the Customer's credit card (authorisation) at the time the order is placed. The credit card will then actually be debited when TWK dispatches the goods to the Customer. The payment is also processed by financial service provider PayPal in this case, so the Customer shall provide the necessary payment information to PayPal.
If paying by direct debit, the Customer shall bear any costs that may be incurred as a result of a payment being reversed due to a lack of funds or due to the Customer providing incorrect bank details. This payment method is also processed by financial service provider PayPal, so the Customer shall provide the necessary payment information to PayPal.
7.2 For payments that are not made via our online shop, payment may be made by means of an advance payment or purchase on account. TWK is responsible for selecting the payment methods offered. In particular, TWK reserves the right to only offer selected payment methods to the Customer in question.
7.3 Unless agreed otherwise, the agreed price is payable in euro without deductions and free of fees within 30 days following the due date and receipt of the invoice or an equivalent request for payment. The Customer shall bear the risk and cost of the payment process.
7.4 The Customer has a right to retention or setoff only in the case of undisputed or legally established claims.
7.5 The Customer shall bear any costs incurred in relation to the provision of a security, letter of credit in the case of foreign businesses or similar.
8. Liability for material defects
8.1 The Customer shall inspect the products for defects immediately upon receipt. Any obvious defects are to be reported to TWK in writing within 5 working days following receipt, and any hidden defects within 5 working days following discovery.
8.2 In the case of defects reported in a timely manner, TWK shall provide supplementary performance within a time frame that is reasonable based on the technical complexity of the product — more than once if necessary; the Customer shall provide the opportunity for TWK to do so. TWK is entitled to decide on the nature of the subsequent performance (subsequent delivery of a defect-free product or repair), taking into account the Customer's interests.
8.3 If the subsequent performance fails to rectify the defect, the Customer is entitled at its option — without prejudice to any compensation claims — to withdraw from the contract or to request a reduction in the remuneration.
8.4 In the case of defects that were identified, or could have been identified with reasonable effort, prior to installation or processing by the Customer, all claims arising from liability for material defects lapse as soon as the product is processed or installed. This does not apply where TWK, its executive employees or its vicarious agents acted with wilful intent or gross negligence or caused injury to life, limb and health, where there is liability on account of the breach of an essential contractual obligation as defined in No. 9.1 or where liability is mandatory in accordance with the German Product Liability Act (Produkthaftungsgesetz).
8.5 TWK does not provide a guarantee that the products will have a specific service life, particularly under challenging and previously unknown operating conditions. Any claims in the event that the supplied product stops functioning prematurely are excluded to the extent that they are due to challenging or previously unknown operating conditions.
8.6 For products that have been produced in accordance with drawings or specifications provided by the Customer, TWK's liability for material defects only covers compliance with the specifications. Mandatory liability under the German Product Liability Act, for wilful intent and gross negligence, for injury to life, limb and health and on account of the breach of an essential contractual obligation remains unaffected.
8.7 Liability for material defects that do not impair, or only marginally impair, value or usability are also excluded.
8.8 Claims for material defects become time-barred after 12 months following commissioning, and 15 months following the transfer of risk at the latest. Sentence 1 does not apply if compensation is being requested on the basis of a material defect due to a breach of duty by TWK or a vicarious agent through wilful intent or gross negligence or due to injury to life, limb or health. Furthermore, sentence 1 does not apply where Section 438(1)(2) or Section 634a(1)(2) BGB prescribes longer periods.
8.9 Claims to recourse as defined in Sections 478 and 479 BGB exist only to the extent that the claim by the consumer was justified and only to the statutory extent, however not for goodwill regulations not agreed with TWK. Such claims also require that the party entitled to recourse fulfils its own obligations, in particular the obligations to report defects.
9. General limitation of liability
9.1 TWK is liable in accordance with the statutory provisions insofar as the Customer asserts compensation claims that are based on the wilful intent or gross negligence of TWK or TWK's executive employees or vicarious agents. Furthermore, TWK is liable for the fulfilment of essential contractual obligations in accordance with the statutory provisions. Essential contractual obligations are obligations whose fulfilment is required to enable the proper performance of the contract and upon whose compliance the contractual partner can and does routinely rely. If TWK, its executive employees or its vicarious agents are not guilty of wilful intent or gross negligence, liability for compensation is limited to foreseeable damage that is typical for contracts of this type.
9.2 Liability on account of culpable injury to life, limb and health remains unaffected by No. 9.1. Liability in accordance with the German Product Liability Act also remains unaffected by No. 9.1.
9.3 Compensation claims, irrespective of the legal grounds, that go beyond the compensation claims governed in Nos. 9.1 to 9.2 are excluded. This also applies where the Customer, instead of seeking compensation instead of performance, requests the reimbursement of wasted expenses.
9.4 If the Customer provides material for the manufacture of the products it has ordered, said material will only be insured by TWK against theft. Liability for the destruction, loss or deterioration of this material exists only in the case of wilful intent or gross negligence on the part of TWK.
9.5 The statutory regulations concerning burden of proof remain unaffected.
10. Retention of title
10.1 The supplied product (hereinafter: product subject to retention of title) remains the property of TWK until all due claims that TWK currently possesses or acquires in the future from a business relationship with the Customer, including those arising from contracts concluded at the same time or at a later date, have been paid in full.
10.2 If the Customer processes the product subject to retention of title such that it becomes a new movable object, said processing is deemed to have been carried out for TWK without any obligations thereby being imposed on TWK. The new object becomes the property of TWK. If the product subject to retention of title is processed together with products that do not belong to TWK, TWK shall acquire joint ownership of the new object based on the ratio of the invoice value of the product subject to retention of title in relation to the value of the other products at the time of processing and the processing value. If the product subject to retention of title is combined, mixed or blended with products that do not belong to TWK in accordance with Sections 947, 948 BGB, TWK will become a co-owner in accordance with the statutory regulations. If the Customer acquires sole ownership as a result of the combination, mixing or blending, the Customer hereby assigns to TWK joint ownership based on the ratio of the value of the product subject to retention of title to the other products at the time of combination, mixing or blending. The new object owned or co-owned by TWK is deemed to be a product subject to retention of title as defined in these provisions. The Customer shall keep the product subject to retention of title in safe custody for TWK free of charge with the due diligence of a prudent businessperson.
10.3 The Customer hereby assigns to TWK its claims arising from the resale of the product subject to retention of title in the amount of the product subject to retention of title, irrespective of whether the product subject to retention of title is sold by itself or together with products that do not belong to TWK. TWK hereby accepts this assignment. If the resold product subject to retention of title is co-owned by TWK, the assignment of claims covers the amount equivalent to TWK's share in the joint ownership.
10.4 The Customer hereby assigns the assignable claims that arise against a third party as a result of the installation of the product subject to retention of title as a material component in a property, ship, ship under construction or aircraft to TWK in the amount of the value of the product subject to retention of title. TWK hereby accepts the assignment. Sentence 3 of No. 10.3 applies accordingly.
10.5 The Customer is entitled and authorised to process, install, use and resell the product subject to retention of title only in the ordinary course of business and with the proviso that the claims under Nos. 10.3 and 10.4 are actually assigned to TWK. The Customer may otherwise dispose of the product subject to retention of title, in particular pledge said product or transfer said product by way of security, only with TWK's consent.
10.6 The Customer is revocably entitled to collect the claims assigned to TWK under Nos. 10.3 to 10.5 in the ordinary course of business. TWK shall not make use of its right to collect the assigned claims provided that the Customer fulfils its payment obligations, including towards third parties. At TWK's request, the Customer shall provide the names of the debtors of the assigned claims and notify these debtors of the assignment of the claims. TWK is also authorised to notify the debtors of the assignment itself. In case of doubt, the assertion of the retention of title and in particular the demand for the return of the relevant products constitutes a withdrawal from the contract.
10.7 The Customer shall notify TWK of any third-party enforcement measures pertaining to the product subject to retention of title or the assigned claims without delay, providing the documents required to object to said proceedings.
10.8 TWK shall, at the Customer's request and at TWK's option, release the securities to which it is entitled to the extent that the realisable value of these securities exceeds the claims being secured by more than 10%.
11. Place of jurisdiction
11.1 The law of the Federal Republic of Germany applies exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
11.2 If the Customer is a merchant, a legal person under public law or a special fund under public law, the place of jurisdiction for both parties, including for disputes concerning documents, bills of exchange and cheques, is TWK's registered office. TWK is also entitled to take legal action against the Customer in any other legal place of jurisdiction.
© 2020 TWK-ELEKTRONIK GmbH