General Terms & Conditions

of Linux Automation GmbH
Steuerwalder Strasse 21
31137 Hildesheim
Hildesheim Commercial Register: HRB 206135
VAT number: DE322721507
Director: Robert Schwebel

Email: info@linux-automation.com

1. Scope of Application

1.1 These General Terms & Conditions ("T&C") apply for any and all declarations of intent, contractual agreements and contractual or quasi-contractual transactions that are issued, entered into or performed by Linux Automation GmbH in relation to its customer (“Customer”). Any confirmation to the contrary issued by the Customer in an entrepreneurial capacity (cf. Para. 2.2. below) and referring to its own terms of business and/or purchase are expressly refuted; the latter shall not be incorporated in any agreements unless such terms are expressly confirmed by Linux Automation GmbH.

1.2 If the Customer is a business customer (cf. Para. 2.2. below), these T&C shall apply for all the parties’ transactions going forward from the date on which they are first included. Subsequent amendments may be made in accordance with Para. 14. of these T&C.

2. Definitions

2.1 "Consumer" within the meaning of these T&C means any individual person who concludes the contract for purposes that are not mainly attributable to that person’s commercial activities or gainful self-employment.

2.2 "Business Customer" within the meaning of these T&C means any customer who when concluding the contract is acting in the context of their commercial activities or gainful self-employment.

3. Contract Closure

3.1 The information given on Linux Automation GmbH’s website is not binding. On placing an order, the Customer makes a binding offer to conclude a purchase contract. The order confirmation subsequently sent by Linux Automation GmbH constitutes the latter’s acceptance of such offer, thus bringing about the purchase contract.

3.2 The contract can be concluded in German or English. The Customer agrees to communications concerning contracts and invoices being conducted between itself and Linux Automation GmbH electronically.

4. Delivery

4.1 Delivery is made by parcel service (DHL) or carrier. If the ordered goods are transported by a carrier, kerbside delivery is made.

4.2 In principle, deliveries are made inside the EU. However, if the order process cannot be completed on the website, this may be owing to the fact that delivery to the ordering party’s address is only possible on certain conditions. In any such event, please send your order by email to sales@linux-automation.com.

4.3 In principle Linux Automation GmbH ships orders consisting of multiple items in a single consignment. If part-deliveries are made at the Customer’s specific request, the shipping costs pursuant to Para. 5. are charged extra for each part-consignment.

4.4 In order to ensure collection of its sales packaging, Linux Automation GmbH participates in a take-back system as defined in § 7 subsect. 1 sentence 1 of the German Packaging Act. Customers who are consumers (Para. 2.1.) can therefore return sales packaging at any collection point provided by the waste management system.

5. Prices, Packaging and Shipping Costs, Payment

5.1 All prices are exclusive of packaging and shipping costs, which are seperately shown when an order is placed, as well as for Business Customers (Para. 2.2.) plus the statutory VAT. If a request is made for the goods ordered to be transported to a country outside the EU, extra charges and customs duties may also be incurred which likewise have to be paid by the Customer. Business Customers (Para. 2.2.) must also assume the insurance costs pursuant to Para. 11.4. below.

5.2 The Customer may chose between various payment methods, which are indicated during the order process. However, no entitlement to demand a certain method of payment exists.

6. Delivery Periods

6.1 As a rule, delivery times are 10 working days for shipments inside Germany and 15 working days for shipments inside the EU. Availability and the anticipated delivery time are indicated for each product.

6.2 If the anticipated shipping date or date on which the goods are ready alters after the Customer has placed the order, the Customer shall be notified to this effect by email. If the Customer is a consumer (Para. 2.1.), it shall be entitled at any time before the goods are ready or shipped to withdraw from the order or make changes free of charge, unless some agreement to the contrary has expressly been reached by and between Linux Automation GmbH and the Customer.

6.3 Business Customers (Para. 2.2.) must set Linux Automation GmbH a reasonable subsequent deadline for performance if the goods are not ready on time or if the delivery period is exceeded.

7. Non-Delivery by Our Own Suppliers

7.1 Linux Automation GmbH shall not assume any procurement risk. If the item ordered by the Customer is not available or is temporarily unavailable, despite Linux Automation GmbH having already concluded a relevant purchase contract with its own suppliers, then Linux Automation GmbH shall notify the Customer to this effect immediately after the order is placed and shall keep it informed at regular intervals thereafter. Until such time as it receives delivery from its own supplier, Linux Automation GmbH shall be released from its duty to perform and it may rescind the contract if the item cannot be supplied. This shall not apply if Linux Automation GmbH is responsible for non-delivery by its own supplier. In the event that Linux Automation GmbH wants to rescind the contract, it shall exercise its right of rescission without undue delay.

7.2 In the event of rescission, any amounts already paid towards the purchase price shall immediately be refunded by Linux Automation GmbH. Compensation claims on the part of the Customer are excluded. This shall not apply if Linux Automation GmbH is responsible for non-delivery by its own supplier.

8. Special Terms for Business Customers

For Business Customers (Para. 2.2.) the following terms shall apply in addition:

8.1. Export Regulations, Export License for Onward Sale

8.1.1 The Customer warrants compliance with all laws, rules and regulations regarding export control, insofar as they relate to the goods ordered from Linux Automation GmbH.

8.1.2 Insofar as an official license is required for exporting the goods, the Customer undertakes to obtain the required license.

8.2 Place of performance is Linux Automation GmbH’s registered place of business.

8.3 For deliveries made to some other location, the risk of accidental loss or deterioration shall pass to the Customer at the latest when the goods are handed over to the contracted forwarding agent. This shall also apply if Linux Automation GmbH has assumed the transport costs.

8.4 The Customer is under obligation to inspect the goods without delay on receipt and to immediately report any defects found to Linux Automation GmbH. If the Customer fails to make a complaint the goods shall be deemed approved, unless the defect did not become evident during inspection. If any such concealed defect emerges later, it must be reported immediately after its discovery; otherwise the goods shall be deemed approved notwithstanding the defect concerned.

8.5 Any complaint about a defect must be lodged in writing and must contain a specific description of the defect. The deadline for reporting defects is 48 hours after receipt of the goods and 48 hours after discovery of the defect in the case of concealed defects, unless the Customer proves that it was unable to meet the deadline even in the normal course of business.

8.6 Damage to transport packaging that is evident on the outside and any noticeable damage to the goods resulting from such transport damage must be noted and confirmed on the bill of lading and must be reported to Linux Automation GmbH in writing – attaching the note – within 48 hours, so that Linux Automation GmbH can in turn perform its duty to report the damage as prescribed in the transport insurance policy (Para. 11.4.).

8.7 Business Customers (Para. 2.2.) fall into arrears with payments, no reminder required, unless payment is received by Linux Automation GmbH within 10 days of receipt of invoice by the Customer. In the event of default in payment, interest shall be charged at a rate of 10 percentage points above the respective base interest rate in force at the time. This shall not affect the right to charge Business Customers (Para. 2.2.) the lump sum pursuant to § 288 subsection 5 of the German Civil Code, to which any losses in excess of such sum may be added. Said lump sum pursuant to § 288 subsection 5 of the German Civil Code shall also be offset against any further claim for compensation.

9. Warranty

9.1 Liability for defects exists by law. The warranty complies with statutory regulations and the following terms.

9.2 If an item is defective, the Customer must demand rectification from Linux Automation GmbH. If the Customer sets a deadline for rectification, such deadline must be reasonable.

9.3 If the Customer is a registered trader, and if the order is connected with business at its trading enterprise, then complaints about defects are governed by statutory regulations. Any notification of a defect must be sent in writing and comply with Para. 8.4. and Para. 8.5. above.

9.4 Claims for material defects become statute-barred two years after delivery of the item. For Business Customers (Para. 2.2.), claims for material defects become statute-barred one year after delivery of the item. This shall be without prejudice to the statutory limitation period for rights of recourse (German Civil Code, Section 445b).

9.5 The limitation periods specified in Para. 9.4. sentence 2 do not apply in cases of intent or fraudulent concealment of a defect, or if Linux Automation GmbH has assumed a guarantee for the quality of the supplied item. Moreover, they do not apply for claims for material defects in cases involving mortal injury, physical harm or health damage, for claims covered by the German Product Liability Act, or in the event of a grossly negligent breach of duty or a culpable breach of cardinal duty (Para. 11.2.).

9.6. For Business Customers (Para. 2.2.), the warranty for defects shall be in accordance with the following terms:

9.6.1 In the event of a material defect, the Customer must set Linux Automation GmbH a reasonable deadline for rectification. Linux Automation GmbH is entitled to refuse the type of rectification chosen by the Customer if the costs involved are disproportionate. This shall be the case in particular if the rectification costs exceed the value of the purchased item (assuming it to be free of defects), or if the rectification costs exceed the amount by which the defect reduces the value of the purchased item, or if a different type of rectification from that chosen by the is cheaper and does not pose any significant disadvantages for the Customer.

9.6.2 The Customer’s warranty right is limited in this case to said different type of rectification. If the costs involved for said different type of rectification are likewise disproportionate, then Linux Automation GmbH may refuse to provide rectification altogether.

9.6.3 Warranty rights or guarantee claims do not exist for defects that arise due to operating errors, interference, or repairs made by the Customer or by third parties without authorisation from Linux Automation GmbH. This also applies for natural wear and tear, for temperature or weather exposure, or if unsuitable accessories are used, unless Linux Automation GmbH is responsible for any of those impacts.

9.6.4 For mistakes and printing or transmission errors, for which Linux Automation GmbH is not to blame and which entitles Linux Automation GmbH to appeal, the Customer may not demand compensation as a consequence of such appeal.

10. Retention of Title

10.1 The goods delivered shall remain the property of Linux Automation GmbH until such time as the purchase price has been paid in full and all the claims based on the delivery contract have been settled.

10.2 Moreover, in the case of Business Customers (Para. 2.2.) Linux Automation GmbH shall retain title to the goods delivered until the entire claims already created by the date of contract closure, including all claims based on follow-up contracts and repeat orders, have been settled (“Total Receivables”). By way of providing security, any Business Customer (Para. 2.2.) here and now assigns to Linux Automation GmbH in full the entire receivables to which it becomes entitled vis-à-vis its own customers on reselling the goods. The Customer is revocably authorised to collect such receivables. Linux Automation GmbH shall only revoke this authorisation and collect the assigned receivables itself if the Customer defaults in its payment obligations towards Linux Automation GmbH, or if a petition has been filed for insolvency proceedings to be instituted against the Customer’s assets.

10.3 At the Customer’s request, Linux Automation GmbH shall be under obligation to release the security provided, to the extent that its value exceeds that of the Total Receivables by more than 20%. The security that is to be released shall be selected at Linux Automation GmbH’s discretion.

10.4 If the Customer is an entrepreneur (Para. 2.2.), any third-party interference with the goods to which Linux Automation GmbH holds title or joint title must be reported without delay. Any costs for out-of-court recovery incurred by reason of such interference shall be borne by the Customer.

10.5 Linux Automation GmbH shall be entitled to rescind contracts under which the goods delivered are subject to retention of title, if the Customer defaults in payment of the purchase price or in payment of Total Receivables in excess of EUR 250. This right of rescission shall be limited to contracts where the value of the goods delivered is equivalent to not more than 120% of the Total Receivables.

11. Liability

11.1 Claims for damages based on breach of duty or tort and compensation claims for wasted expenditure are excluded, both in relation to Linux Automation GmbH and in relation to Linux Automation GmbH’s performing and vicarious agents.

11.2 This limitation of liability shall not apply if the loss or damage has been caused with intent or is owing to gross negligence, and in cases of breach of cardinal duty, i.e. a contractual duty performance of which is a prerequisite for due implementation of the contract in the first place, compliance with which may as a rule be relied upon by the contractual partner, and which conversely may jeopardise attainment of the contractual purpose if breached. It shall not apply for any loss or damage based on mortal injury, physical harm or health damage if Linux Automation GmbH is responsible for the breach of duty. Furthermore, the limitation of liability shall not apply for any loss or damage that results from the lack of a warranted characteristic or is covered by the German Product Liability Act.

11.3 In cases involving compensation claims for a slightly negligent breach of cardinal duty or for a grossly negligent breach of ancillary contractual obligations, liability shall be limited to the foreseeable loss or damage typical for the type of contract. This shall not apply in cases involving personal injury, or involving loss or damage that results from the lack of a warranted characteristic, or which are covered by the German Product Liability Act.

11.4 In order to cover the transport risk, transport insurance is automatically effected for all deliveries. The insurance costs depend on the net value of the goods and will be charged to Business Customers (Para. 2.2.) together with the goods ordered. Any amounts paid out by the insurance shall be credited to the Customer promptly by Linux Automation GmbH. This shall also apply if Linux Automation GmbH’s liability is excluded under the foregoing provisions, but the foreseeable damage typical for the type of contract is nevertheless included in the insurance coverage. In this case, further claims by the Customer in relation to Linux Automation GmbH are excluded.

12 Exclusion of Set-Off, Right of Retention

If the Customer is a entrepreneur (Para. 2.2.), it shall not be entitled to offset any claims which do not concern the performance and counter-performance specified in the contractual relationship. This exclusion of set-off shall not apply if the counterclaims are not disputed by Linux Automation GmbH, if they have been declared res judicata, or if a final judgment on them is pending. Business Customers cannot assert right of retention unless one of the aforementioned exceptions applies.

13 Amendments to the T&C

Linux Automation GmbH is entitled to make amendments to these T&C with effect going forward. The amendments shall come into effect when the amended T&C are incorporated in any transaction. They shall also be deemed agreed with operative effect if Linux Automation GmbH draws attention to the amendments electronically (email), the Customer is able to take note of the amendments and no objection to them is made within three weeks of receipt of the change notice. The change notice shall state the period allowed and the consequences of missing the deadline. If an objection is made, Linux Automation GmbH reserves the right to terminate the business relationship.

14. Final Provisions, Dispute Resolution

14.1 The contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding CISG and provisions of German private international law. In addition, if the Customer is a Consumer (Para. 2.1.), then the compulsory consumer protection regulations in force in the country where the Customer normally resides shall apply, insofar as they afford the Customer extra protection.

14.2 If the Customer is a registered trader, a public corporation or a special trust under public law, then Würzburg shall be exclusive place of jurisdiction for any and all claims ensuing from the contractual relationship. This shall also apply in cases where the Customer’s registered place of business or normal place of abode is moved out of the scope of application of the German Code of Civil Procedure subsequent ot contract closure, or is unknown at the time when action is brought.

14.3 If any one or more of the provisions of these T&C is or becomes ineffective, this shall be without prejudice to the continued validity of both the contract and the remaining terms of business. The Customer and Linux Automation GmbH undertake to replace the provision concerned with arrangements which reflect the original contractual purpose in business terms.

14.4 Link to the Online Dispute Resolution platform, in accordance with Regulation (EU) No. 524/2013 Art. 14(1):

http://ec.europa.eu/consumers/odr/

Linux Automation GmbH is not obliged by law nor has it undertaken on a voluntary basis to take part in any dispute resolution procedure before a consumer dispute resolution body. In the event of any conflict, Linux Automation GmbH shall endeavour with the Customer to find a solution that is acceptable to both sides. Since dispute resolution bodies charge fees, Linux Automation GmbH’s decision not to participate in any dispute resolution procedure before a consumer dispute resolution body is also anticipated to be in the Customer’s interest.