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General Terms and Conditions

General terms and conditions
1. General
1.1 These General Terms and Conditions of Sale shall apply to deliveries and services undertaken by us, unless other specific agreements have been made. The customer’s General Terms and Conditions which conflict with our Terms and Conditions of Sale shall apply only insofar as we have expressly given our consent to them in writing.
1.2 The assignment to third parties of receivables against us is excluded. Paragraph 354 a of the German Commercial Code (HGB) shall remain unaffected.
1.3 The sale, resale and scheduling of the deliveries and services as well as any associated technology or documentation may be subject to German, EU or US export control law and as applicable to the export control law of other countries. Any resale of goods to embargoed countries or to denied persons or persons who use or may use the deliveries and services for military purposes, ABC weapons or nuclear technology is subject to approval. On ordering, the customer declares its conformity with such laws and regulations and agrees that the deliveries and services are not delivered directly or indirectly to countries which forbid or restrict the importation of these goods. The customer declares that it has received all approvals necessary for export and/or import.
2. Information, consultation
Information and consultation in connection with our deliveries and services are provided on the basis of our experience to date. The values specified here, in particular information regarding services are average values determined in trials carried out under laboratory conditions. We cannot accept any obligation to upholding the values and application possibilities precisely. In the event of liability, Paragraph 10 of these Terms and Conditions shall apply.
3. Prices
3.1 Only the prices set out in our order confirmation are definitive. Additional services shall be billed separately.
3.2 All prices are net prices and exclude Value Added Tax which the customer must also pay in the amount determined by law.
3.3 Unless other specific agreements have been made, the prices from the plant of the ZEISS Group company applying these Terms and Conditions shall apply. The customer must additionally bear the shipping costs, packaging costs for packaging over and above the trade standard, public charges (incl. withholding tax) and customs.
4. Delivery
4.1 Unless other specific agreements have been made, we shall deliver ex-works (EXW INCOTERMS 2010) from the plant of the ZEISS Group company applying these Terms and Conditions.
4.2 Delivery dates are only deemed to have been agreed following express written confirmation. Delivery times begin with the date of our order confirmation, but not before explicit clarification of all details of the order including any necessary approvals. With the timely notification of readiness for shipment, they are deemed to have been observed if the goods cannot be dispatched on time through no fault of our own.
4.3 For delivery times and deadlines which are not characterized as fixed, the customer may set an appropriate deadline for delivery/ service for us two weeks following their expiry. We can only be in arrears following the expiry of this deadline.
4.4 Irrespective of our rights arising from customer delays, delivery times and deadlines shall be extended by the length of time during which the customer fails to fulfill its obligations to us. In the event of non-compliance with an obligation, we are only liable for damages in accordance with Paragraph 10 of these Terms and Conditions.
4.5 We reserve the right to carry out deliveries using our own delivery organization.
4.6 We shall be entitled to carry out partial deliveries and partial services, if these are considered reasonable by the customer.
4.7 The customer shall be entitled to withdraw from the contract following a two-fold unsuccessful setting of a deferred deadline, unless the obstacle is only of a temporary nature and the deferral of the delivery date is considered reasonable by the customer.
4.8 If the customer is entitled to a contractual or statutory right of withdrawal and if we set a reasonable period for the customer to exercise this right, the right of withdrawal lapses if the customer fails to state that he wishes to exercise this right before the end of the period set.
5. Shipment, passing of risk
5.1 Unless other specific agreements have been made, shipping and transport are undertaken at the customer's risk. The risk is transferred to the customer as soon as the delivery has been transferred to the person carrying out the transportation.
5.2 If the dispatch of the delivery is delayed for reasons attributed to the customer, the risk of the accidental deterioration and loss is transferred to the customer upon notification of readiness for delivery. Following the transfer of risk, storage costs are borne by the customer. Additional claims remain unaffected.
5.3 In the event of a default of acceptance on the part of the customer, we shall be entitled to demand the replacement of the expenses we incurred; upon the default of acceptance, the risk of accidental deterioration and loss shall be transferred to the customer.
6. Payment
6.1 Payment must be made within 30 days of the invoice date. The timeliness of the payment is determined by the receipt of the payment. Bills of exchange and checks are only deemed to constitute payment after encashment and are accepted without any obligation of timely presentation or protest.
6.2 Effective from the due date if you are a businessman, and from the commencement of the delay in payment in all other cases, we shall be entitled to demand interest on delayed payments at a rate of 8 percentage points over the base rate (5 percentage points for consumers). This shall not affect the possibility of asserting a claim for actual damages amounting to a larger sum.
6.3 The retention of payments by the customer by reason of counter-claims or offsetting against counter-claims by the customer are only permissible if these counter-claims are uncontested or have been judged to be final and absolute.
6.4 Irrespective of the term of any bills of exchange received or credited, all our receivables shall fall due immediately in the event of the default of payment, protest of a bill or cessation of payment on the part of the customer. In all cases mentioned, we are also entitled to only carry out outstanding deliveries in exchange for pre-payment or security, and if the pre-payment or security is not paid within two weeks, to withdraw from the contract without setting a new deadline. Additional claims shall remain unaffected.
7. Reservation of title
7.1 All goods delivered shall remain our property (goods subject to retention of title) until all receivables, for whatever legal reason arising from the legal relationship underlying the delivery are fulfilled.
7.2 In the case of processing, combining and mixing the goods subject to retention of title with other goods on the part of the customer, we shall be entitled to co-ownership of the new item at a ratio equivalent to the invoice value of the goods subject to retention of title in proportion to the value of the other goods used. If our property expires due to processing, combining or mixing, the customer shall already transfer the ownership rights assigned to him to the new stock or item within the scope of the goods subject to retention of title, and shall store them for us free of charge. The subsequent co-ownership rights shall apply as goods subject to retention of title as defined in Paragraph 7.1.
7.3 Only within the scope of orderly business operations and provided he is not in arrears, shall the customer be entitled to carry out further work on the goods subject to retention of title, to combine them with other items and to mix or resell them. Any other disposal of the goods subject to retention of title is not permissible. Any seizures or other access to the goods subject to retention of title undertaken by third parties must be announced to us immediately. All intervention costs shall be borne by the customer, insofar as they cannot be collected from the third party. If the customer defers the sales price to his buyer, he must reserve the ownership of the goods subject to retention of title available at the same Terms and Conditions under which we reserved the ownership upon delivery of the goods subject to retention of title. Otherwise, the customer shall not be authorized to resell.
7.4 The customer's receivables arising from the resale of the goods subject to retention of title are already surrendered to us at this stage. They serve for security within the same scope as the goods subject to retention of title. The customer is only entitled and authorized to resell if it is ensured that the receivables arising for him as a result are transferred to us.
7.5 If the goods subject to retention of title are sold by the customer together with other goods not delivered by us, this will result in the relinquishment of the receivable from the resale for the amount of the invoice value of our respectively resold goods subject to retention of title.
7.6 If the assigned receivable is incorporated into an ongoing invoice, the customer shall already a relinquish part of the balance corresponding to the amount in accordance with this receivable including the closing balance from the current account.
7.7 The customer shall be authorized to collect the receivables assigned to us until our revocation is issued. We are authorized to revoke if the customer does not meet his payment obligations arising from the business relationship with us in an orderly manner If the conditions for exercising the right of cancellation are present, the customer must, at our request, immediately inform us of the assigned receivables and the debtors, furnish all information required for the collection of the receivables, supply us with the associated documents and show the debtor the assignment. We are also entitled to show the debtor the notice of assignment.
7.8 If the value of the existing securities exceeds the secured receivables by a total of more than 50 percent, we shall be obligated to approve securities as we choose at the customer's request.
7.9 If we enforce the retention of title, it shall only apply as a withdrawal from the contract if we declare this in writing. The customer's right to own the goods subject to retention of title shall be rendered void if he does not comply with his obligations arising from this contract.
8. Rights to software
8.1 All software programs shall remain our property. Without our prior written consent, programs, documentation and subsequent upgrades must not be made available to third parties and my be neither copied nor duplicated in any way even as a back-up copy for personal use.
8.2 A non-exclusive, non-transferable right to use programs, related documentation and subsequent upgrades shall be granted for the internal use of the products for which such programs are supplied. The buyer shall be granted non-exclusive and non-transferable rights of use for the desired number of single licenses for end customers for programs and documentation manufactured on behalf of the buyer and which constitute our delivery package.
8.3 In general, source codes are not available and shall only be provided by us on the basis of a separate written agreement.
9. Warranty
9.1 The rejected goods must be sent back to us for inspection in the original packaging or packaging of the same value. In the case of justified and timely complaints, we shall correct the deficiencies by means of rectification in accordance with our choice by eliminating the defect or by delivery of defect-free goods; we shall only bear the costs required for the purpose of the rectification.
9.2 We are authorized to refuse the rectification in accordance with the legal stipulations. The rectification may also be refused if the customer did not send us the rejected goods in accordance with our request.
9.3 The customer may demand withdrawal from the contract or reduced payment in accordance with the legal stipulations. However, this must occur no earlier than following the unsuccessful expiry of two deadlines for rectification set by the customer, unless the setting of a deadline for rectification is unnecessary in accordance with the legal provisions. In the case of withdrawal, where there is intent or any negligence, the customer shall be liable for deterioration, loss and advantages not obtained.
9.4 In the event of malicious concealment of a deficiency or a transfer of a quality guarantee in accordance with Paragraph 444 of the German Civil Code (BGB) (seller's declaration that, on transfer of risk, the purchased object has a specific property and that the buyer wishes to be answerable for all consequences of its deficiencies with no-fault liability), the customer's rights are based on the legal stipulations only.
9.5 For any claims for damages or for other costs of the customer, the stipulations of Paragraph 10 shall apply.
9.6 All information on our products, particularly the images, drawings and information on their weight, size and performance contained in our orders and documents should be regarded as approximate average values. They do not constitute a quality guarantee, rather they are descriptions or labels of the goods.
9.7 Provided no limits for deviations have been expressly agreed in the order confirmation, industry-standard deviations are permitted in every case.
9.8 A warranty for deficiencies in the delivered goods caused by normal wear and tear is excluded. For goods which are sold as declassified or used material, the buyer shall not be entitled to any claims due to any deficiencies.
9.9 If, contrary to our user and service manuals, changes are carried out on the deliveries or services, parts are exchanged or consumables which do not correspond to the original specifications are used, every warranty shall be rendered invalid, unless the customer proves that the deficiency is not based on these actions.
9.10 If the customer is a merchant, he shall be obligated to file complaints in writing or by fax.
9.11 The period of prescription for claims for defects is 12 months (24 months in the case of consumers). This does not apply to claims for compensation by the customer based on compensation for bodily injury or impairment of health due to a fault for which we are responsible or based on intent or gross negligence on our part.
10. Limitation of liability
10.1 In the event of a breach of duty, defective supply or tort, we are only liable to pay compensation for loss or damage and reimbursement of expenses – subject to additional contractual or legal preconditions – in the case of intent or gross negligence and, in the case of ordinary negligence, in the performance of a material contractual obligation (a breach of contract which prejudices the attainment of the purpose of the contract). However, in the case of ordinary negligence resulting in the breach of a material contractual obligation, our liability is limited to the loss or damage that can be anticipated at the conclusion of the contract and is typical under the contract.
10.2 For damages caused by a delay, we are only liable for an amount of up to 5 percent of the sales price agreed with us.
10.3 The exclusions of liability and limitations of liability contained in Paragraphs 10.1 – 10.2 do not apply in the case of a transfer of a quality guarantee for the goods in accordance with Paragraph 444 of the German Civil Code (BGB) (see Paragraph 9.4), in the case of malicious concealment of a deficiency, in the case of damages arising from the violation of a life, body or health, and in the case of a mandatory liability in accordance with the German Product Liability Act.
10.4 All claims for compensation against us, irrespective of their reason in law, are time-barred at the latest 1 year (2 years in the case of consumers) from the delivery of the goods to the customer or, in the case of liability in tort, from the knowledge of or grossly negligent ignorance of the circumstances giving rise to the claim and of the person of the individual liable for the claim. The provisions of this paragraph do not apply in the event of liability for intent or gross negligence and in the cases specified in Paragraph 10.3.
10.5 If the customer is a supplier for the item delivered to him and the end-customer of the goods is a consumer, the legal stipulations shall apply for the limitation period of any claims under the right of recourse by the customer in relation to us.
10.6 In the case of software supplies, we shall be liable for the loss or alteration of data caused by the program only to the extent that would be unavoidable if the customer had fulfilled its data backup obligations at adequate intervals, but at least on a daily basis.
11. Industrial property rights, copyrights
11.1 If a claim is made against the customer due to the violation of a property right or copyright because he uses our deliveries/ service in the contractually agreed manner, we are obligated to provide the customer with the right of further use. This is on the proviso that the customer notifies us immediately in writing of the claims of third parties of this nature and we reserve all defense mechanisms and extrajudicial measures. If, under these pre-requisites, a further use of our deliveries/ service under economically viable conditions is not possible, it is deemed agreed that, as we choose, we shall either modify or replace the delivery/ service to rectify the defects in title, or accept a return of the delivery/ service and the sales price paid to us, less an amount taking the age of the delivery/ services into account.
11.2 Further claims due to patent rights or copyright violations are not assigned to the customer unless significant contractual obligations are violated or a violation of other contractual obligations occurred either with intent or due to gross negligence. We have no obligations in accordance with Paragraph 11.1, in the event that violations of rights are brought about as a result of our delivery/ service not being used in the contractually agreed manner or in conjunction with delivery/ services other than ours.
12. Disposal
12.1 When disposing of the goods, the customer must observe our information delivered with the goods and must ensure that the goods are disposed of in an orderly fashion in accordance with the legal stipulations.
12.2 If the customer is an entrepreneur, he is obligated to undertake the disposal at his own expense. In the case of the resale of the goods or their components, the customer must transfer this obligation to the next buyer. If the customer is a consumer, the legal stipulations apply in relation to disposal.
13. Confidentiality
13.1 Unless otherwise expressly agreed in writing, information given to us in connection with orders is not deemed to be confidential unless confidentiality is obvious.
13.2 We wish to point out that we save personal data which relates to our business relationship and that we also pass this information to companies associated with us in the ZEISS Group.
14. Other
14.1 In so far as you are a merchant, a legal entity established under public law or a special fund under public law, the place of jurisdiction is the registered office of the ZEISS Group company applying these Terms and Conditions. However, we are also entitled to bring an action against you at your registered offices.
14.2 German law applies but with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the rules on the conflict of law of German international private law.
14.3 Should individual clauses of these Terms and Conditions be made invalid wholly or in part, this shall not affect the validity of the remaining clauses or the remaining parts of those clauses.