General terms & conditions of Intel Deutschland GmbH
§ 1 Scope of Application
- The following General Terms and Conditions constitute the sole basis for any and all contracts regarding deliveries and services provided by Intel Deutschland GmbH. We shall not accept any conflicting or variant conditions imposed by the customer unless we expressly agreed to accept their applicability in writing.
- Our Conditions shall also be applicable if we carry out deliveries or services for the customer without reservations in the knowledge of conflicting or variant conditions imposed by the customer.Our Terms and Conditions shall also be applicable to all future transactions with the customer. A nonrecurring expressly declared consent with regard to conflicting conditions imposed by the customer does not constitute a new basis for future transactions.
- The following General Terms and Conditions apply vis-a-vis merchants, legal entities under public law and special public-law funds only.
§ 2 Products – General Conditions and Area of Application
- Our products are not destined for resale and their use shall be subject to the legal provisions applicable within the respective country of delivery.
- Our products of the AscTec Falcon Series are final products. In general, modifications to these systems are not permitted. Products of our product line for research and development (AscTec Hummingbird ResearchPilot, AscTec Hummingbird AutoPilot, AscTec Pelican, etc.) are meant to be modified and enhanced by the customer. It is known to the customer that modifications can not be re-examined by us. Therefore the customer itself is responsible for observance of the specifications provided by us und is in particular solely responsible for airworthiness and save operation.
- Our products are only destined for a non-military deployment. There are no exceptions unless agreed upon on the basis of separate contracts between us and the respective authorities respectively public authorities authorized to legally represent the military.
- Products delivered by us are meant to be used and to remain in the country of delivery as agreed upon with the Customer. The re-export of products by the customer may require authorization and be subject to foreign trade regulations of the Federal Republic of Germany or the respective country to which the products were originally delivered.
- For private and commercial use of the products in countries other than the original country to which the products were delivered the customer therefore needs to obtain the necessary export and re-import licenses. We shall not be obliged to support the customer when obtaining these licenses. The customer shall be obliged to independently inform itself about relevant regulations according to the German provisions at the Bundesamt für Wirtschaft und Ausfuhrkontrolle (BAFA), 65760 Eschborn/Taunus, according to the US provisions at the Bureau of Industry and Security (BIS), U.S. Department of Commerce, Washington DC 20320 or at the respective other competent authorities.
§ 3 Quotations and Conclusion of Contracts
- Our electronic, written or oral quotations are subject to change without notice and do not constitute an offer in the legal sense, but only an invitation vis-à-vis the customer to place an order with us.
- The order signed by the customer constitutes a binding offer which we may accept by written order confirmation or delivery.
- A contract shall only be concluded when the customer receives our written order confirmation, however at the latest when the customer accepts the delivery.
§ 4 Prices
- The prices defined within our written order confirmation shall apply. Otherwise, if nothing to the contrary has been agreed upon in writing, the prices defined by our price list as of the day of acceptance of the order shall apply.
- All price quotations are in Euro ex works plus any applicable VAT and plus costs of shipping, shipping insurance, packing and handling.
- Any customs duty and any other tax, charge, fee, etc. imposed pursuant to foreign regulations as well as any costs associated to it shall be borne by the customer.
- We reserve the right to raise our prices accordingly if after conclusion of the contract increases of costs, in particular as a result of labour agreements, increases in prices of material or changes in currency exchange rates occur. We shall prove this upon customer’s request.
§ 5 Payment
- Unless agreed otherwise our invoices shall become due for payment upon receipt by the customer and are to be settled without delay, at the latest within 14 days after receipt without any deduction. Place of payment shall be our registered office.
- If the customer defaults in payment, we shall – irrespective of any other rights – be entitled to calculate default interest of 8% above the respective base rate p.a.
- In case of customer’s default in payment all unsettled claims shall become due for payment immediately.
- The customer shall not be entitled to retain payments due to any counterclaims or to set-off its counterclaims unless these counterclaims have become res judicata or have not been con-tested.
§ 6 Retention of Title
- We retain title to the delivered products until all claims resulting from the business relationship between us and the customer have been settled.
- If the customer uses the acquired product in breach of applicable law or in any way negligently or intentionally causes any damage to property or persons by use of our products the customer shall be exclusively liable for any such damage, even if title is still retained by us.
- The customer is not entitled to resell the delivered products within the ordinary course of business or in any other manner or way or to offer them for sale.
- The customer is not entitled to pledge the delivered products or to transfer them by way of security. In case any third person shall nonetheless acquire any rights to the security collateral the customer herewith assigns any and all of his rights to the security collateral resulting therefrom to us. We accept such assignment. The customer is obliged to immediately inform us, if any third person has affected an attachment, seizure or any other action with regard to the security collateral.
- If the retention of title as defined above shall be invalid pursuant to the laws of the country of delivery, the customer is obliged to assist us to establish a respective security interest pursuant to the legal provisions of the country.
§ 7 Quality, Times of Delivery and Delivery, Default in Delivery
- Our written specifications or specifications provided in text form shall be decisive with regard to the extent and time of delivery as well as the quality agreed upon. Subsidiary agreements and modifications require confirmation by us, written or in text form.
- Unless anything contrary is stated within our specifications it shall be agreed that deliveries are affected of Krailling, Konrad-Zuse-Bogen 4. Costs and risk of transport as well as costs of loading and packing shall be borne by the customer. This also applies to returns.
- Transport and other packing pursuant to the regulation on packaging shall not be taken back, with the exception of return containers specifically labeled by us. The costs of disposal of packing shall be borne by the customer.
- The periods of delivery specified by us shall only be binding in case of explicit agreement. The periods of delivery specified by us shall only start if all technical questions have been answered. Any period of delivery specified by us shall start on the date of issuance of a respective confirmation, however not before provision of the documentation, authorizations, clearances to be obtained by the customer and receipt of any advance payment agreed upon.
- The period of delivery shall be observed if the products have left the warehouse until the end of the period of delivery or the readiness for shipping has been reported.
- The period of delivery shall be prolonged by any period of obstruction in case of measures in connection with labour disputes at Intel Deutschland GmbH and/or our suppliers, in particular strike, lock-out, as well as in case of unforeseeable obstructions, which are not be controlled by us, as far as such obstructions influence the production or delivery of our products. This shall also apply if such circumstances occur at the site of sub-suppliers. We shall also not be responsible for the above-mentioned circumstances, even if they occur during a time of already existent default. We shall inform the customer about beginning and end of such obstructions as early as possible. If we are unable to deliver for a period of three month due to force majeure we shall be released from our obligation to deliver. The customer shall, in this case, be entitled to withdraw from the contract.
- If, after conclusion of the contract, the customers financial circumstances worsen significantly or we become aware of such worsening, which endangers the claim for payment, we shall be entitled to refuse to perform our obligations under the contract or performance under any other contracts already concluded with the customer until the customer has fulfilled its obligations under this contract or has provided security.
§ 8 Examination of Products
- The customer is obligated to examine the products immediately upon receipt of the delivery with regard to completeness, consistency with the delivery papers and the order and with regard to defects and to notify us in writing about apparent deviations and defects within 7 working days after receipt of the delivery.
- The buyer shall notify us about defects which are unapparent at the latest within 1 year after receipt of the delivery.
- Should the customer fail to observe the cut-off periods mentioned under Clause 1. respectively 2. the product shall be deemed to have been approved of as a result of which the customer shall loose its warranty right pursuant to § 9.
- Furthermore defects caused by transport or missing of parts apparent at the time of delivery are to be noted on the carrier’s receipt voucher pursuant to § 438 HGB [German Commercial Code].
- If the examination of the notification on defects establishes that no material defect exists we are entitled to invoice a standard operating/processing fee vis-à-vis the customer. The customer shall be free to prove that the costs incurred were lower than the invoice amount.
§ 9 Liability for Defects
- Products and equipment, which are delivered upon explicit request of the customer carrying defects explicitly specified by us, may not be objected to. Guarantees for such products are not assumed by us as a manufacturer. The customer shall be solely responsible for the purchase and use of a product despite the fact that we classified it as deficient and not fully functional.
- In case of sale of used products and beta equipment any liability for defects is excluded.
- If products prove to be deficient the customer shall as remedy of defect – at our choice – be entitled to request elimination of defect or delivery of products without defects. Replaced products or parts thereof are our property and shall be returned to us.
- We shall be entitled to declare that remedy of defects shall be subject to payment of a part of the contractual remuneration equivalent to the value of the deficient product. We shall be entitled to refuse the chosen way of remedy of defects, if it is associated with unreasonable costs.
- If an elimination of defects fails for the second time, we refuse both ways of remedy of defects or we do not perform remedy of defects within a reasonable time period defined by the customer, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. The purchaser’s rights to withdrawal and damages in lieu of performance shall be excluded if the product’s defect is only insubstantial.
- In case of withdrawal the customer’s benefit of use until this point shall be deducted. The benefit of use for the period until withdrawal shall be calculated based on the purchase price and the customary total time of use of the product on the pro-rata basis, unless the possibility of use was limited or eliminated by the defect. Both parties are free to prove a lesser or higher benefit of use.
- The customer shall not be entitled to any claims for defects which result from ordinary wear and tear or any handling (e.g. incorrect use, service or storage) of the product by the customer or third parties contrary to the specifications of the instruction manual or any other written recommendations regarding its use provided by us or which are of only visual nature.
- Warranty claims of the customer shall be subject to a limitation period of 1 year as of receipt of the delivery.
- Processing of the notification of defect by the customer effected by us shall not constitute an acknowledgment of the defect. Processing of the notification of defect only results in a suspension of the period of limitation if the legal requirements to this regard are met. A restart of the period of limitation is not effected thereby. This also applies if upon notification of defect by the customer a remedy of defect (elimination or delivery of product without defect) is conducted. A remedy of defects may only effect the limitation of the defect causing remedy and possibly of any anew defect resulting from remedy of defects.
- In case a wear and tear element possesses an average durability which is shorter than the period of limitation under this Clause, the warranty rights of the customer have to be asserted within the period of average durability. For wear and tear elements remedy of defects is limited to replacement of the wear and tear element. The statutory limitation in case of defects maliciously concealed remains unaffected.
- As far as a defect concerns a purchased good acquired via us, but originating from a distinct manufacturer the customer shall be obliged to first seriously try to assert its claims resulting from a manufacturer’s warranty vis-a-vis the manufacturer extrajudicially, if such a manufacturer’s warranty exists, before the customer asserts any rights against us. We shall support the customer to this regard. Any other customer’s warranty claims remain unaffected.
§ 10 Liability
- We only assume unlimited liability in case of intent and gross negligence.
- In case of slight negligence we assume liability – with the exception of cases of injury to life, body or health – only if a significant obligation under the contract (cardinal obligation) has been violated and restricted to the average damage that is predictable and typical for the agreement not exceeding three times the amount of remuneration to which we are entitled under the contract.
- Liability for indirect or unforeseeable damage as well as consequential harm caused by a defect, loss of earnings, lacking reductions of costs and financial loss due to third party claims are excluded in case of slight negligence.
- Any additional liability beyond the scopes of these General Terms and Conditions is excluded – regardless of the legal nature of the asserted claims.
- Liability is excluded if the customer has effected modifications to products of the AscTec Falcon Series, unless these modifications were effected with our explicit written consent.
- Furthermore liability is excluded if modifications or enhancements to products of our product lines for research and development (AscTec Hummingbird ResearchPilot, AscTec Hummingbird AutoPilot, AscTec Pelican, etc.) were effected.
- The above mentioned limitations and exclusions of liability pursuant to Clauses 2., 3., 4., 5. and 6. do not apply to any statutory liability irrespective of culpability, in particular resulting from a guarantee or pursuant to the German Product Liability Act.
- As far as our liability is limited or excluded pursuant to Clauses 2., 3., 4., 5. and 6. this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents.
§ 11 Industrial Property Rights, Copyright
- In general the products including schematic diagrams, drafts, concepts, descriptions and similar documents (hereinafter „Documents”) as well as software are subject to industrial property rights and/or copyrights held by the manufacturer or licensors. Indication of such proprietary rights on products may not be altered, covered or eliminated by the customer. Documents shall not be made available to any third party without our prior written consent.
- The customer may be held liable for damage caused by the violation of proprietary rights, even proprietary rights of third parties, e.g. rights and licenses to components of our products manufactured by others.
- In case any third party asserts legitimate claims vis-a-vis the customer due to violation of proprietary rights by products delivered by us and used pursuant to contractual specifications we shall – as chosen by us and at our expense – either acquire a right of use for the respective products, alter the products so that proprietary rights are no longer violated or exchange the products. As far as this shall not be possible or reasonable, the customer is entitled to the statutory rights of withdrawal or reduction. Claims for damages only exist as defined by § 10. Any and all claims of customers are limited as stated within § 9 Clause 8.
- The obligations under Clause 3. only apply if the customer has informed us about any claims asserted by third parties immediately in writing, did not recognize the violation itself and we remain free to take all measures of defense and to conduct settlement negotiations. If the customer ceases to use the products for reason of mitigation of damages or other significant reasons it shall inform the third party that this does not constitute an acknowledgement of a violation of proprietary rights.
- Claims of the customer are excluded as far as the customer itself is responsible for the violation of proprietary rights or as far as it was caused by a use of the product unforeseeable for us or by customer’s modification to the product or use of the product together with products not supplied by us.
§ 12 Liability for Damage resulting from Operation of the Products
- It is known to the customer that it has to observe the statutory and official provisions of the respective place of use when operating and using the products bought from us. For any and all damages or claims resulting from non-observance of these provisions the customer shall be exclusively liable.
- The customer shall be liable for damages, regardless of what kind, including personal injuries, caused by incorrect handling, even if the customer did not attend a respective instruction or training for the product. This also applies if we do not explicitly suggest or offer training to the customer since the assessment of the necessary skills and the following correct operation by the customer is unforeseeable to us and may not be observed by us.
- We as manufacturer shall not be liable for any damage to products and equipment which have been used by the customer for any purpose deviating from the one originally intended. Any warranty is omitted in case of a misuse. This also applies to damages, irrespective of kind, caused by misuse. Furthermore this applies to products and equipment, which have been modified by the customer.
§ 13 Returns
- Returns shall only be accepted subject to examination. Returns of used or deficient products shall be directed at Intel Deutschland GmbH, Konrad-Zuse-Bogen 4, 82152 Krailling carriage paid.
- Returns shall, unless anything to the contrary is agreed upon, only be processed by us if they are accompanied by a return covering letter including the RMA- and the customer reference as well as a respective description of defects. The RMA reference may be acquired via our Support-web-Portal at www.asctec.de or if our website is unreachable also via telephone at 0049-89-89 55 60 79 0. Announcement of the RMA reference shall in no case constitute an acknowledgement of defect, or of any other complaint by the customer. In any case return shall be effected at customer’s risk, even in case of accidental perishing.
- In case of returns for which the customer is responsible, in particular, but not limited to, cases of refusal of acceptance, we shall invoice a lump-sum for costs of storage.
§ 14 Assignment
- Assignment of any of the customer’s claims against us resulting from the business relationship requires our written consent to be valid, which we shall not unreasonably withhold if any legitimate interest of the customer exists.
§ 15 Applicable Law, Place of Performance, Legal Venue, Severability Clause
- With regard to all legal relations between us and our customers the laws of the Federal Republic of Germany excluding the provisions of the UN Sales Convention (CISG) shall apply exclusively.
- Exclusive place of performance with regard to all obligations arising from the contractual relationship shall be Munich.
- Exclusive legal venue with regard to all disputes arising from the contractual relationship shall be Munich. However, we shall be entitled to bring forward any action against the customer at its registered office.
- If any provision of these General Terms and Conditions or any part thereof is or shall become invalid, in full or in part, this shall not affect the validity of all other provisions of these General Terms and Conditions. Invalid provisions shall be replaced with valid provisions which shall reflect these General Terms and Conditions in total as well as all other contractual agreements as closely as possible with regard to actual, legal and economic effect. The same applies if these General Terms and Conditions possess any lacunae.
Any subsidiary agreement or deviant agreement requires written form. This also applies to the waiver of this written form requirement.