General terms of sale, payment and delivery
of Zinema Motion GmbH, Am Krebsgraben 15, Building 3.1, 78048 Villingen-Schwenningen, Germany – Short ZINEMA MOTION
These General Terms and Conditions of Business are only applicable to contracts with:
- Persons who, at the time the contract is concluded, are acting in the exercise of their commercial or self-employed professional activity (entrepreneurs) and
- legal entities under public law, who use our products and services as end customers for their own purposes.
Our products are not allowed to be used in the defense industry and in automotive OEM production.
I. General information
- All deliveries and services are subject to these terms and conditions and any special contractual agreements. Deviating terms and conditions of purchase of the customer shall not become part of the contract, even upon acceptance of the order. Any conflicting terms and conditions of the contractual partner are hereby expressly rejected. In the absence of any special agreement, a contract will only be concluded upon ZINEMA MOTION’s written order confirmation.
- ZINEMA MOTION reserves the right to all declarations, communications and documents, in particular offers, calculations, specifications, samples, cost estimates, drawings and the like. ZINEMA MOTION reserves all rights of ownership and copyright to all information of a physical and non-physical nature, including in electronic form; it may not be made available to third parties. This also applies to written documents that are not expressly designated as “confidential”. The Buyer must obtain the express written consent of ZINEMA MOTION before passing them on to third parties. ZINEMA MOTION undertakes to make information and documents designated by the Buyer as confidential available to third parties only with the Buyer’s consent.
- We reserve the right to make changes to the design or form of the delivery items which are attributable to improvements in technology or to the requirements of the law during the delivery period, provided that the delivery item is not substantially changed, and the changes are reasonable for the customer. However, we are not obliged to make such changes to products already delivered.
- Samples will only be delivered against payment.
- Oral collateral agreements do not exist. Changes, additions and any other agreement must be made in writing. This also applies to the cancellation of the requirement of the written form. This requirement may only be waived by express declaration.
- The written form is also fulfilled by sending a signed PDF files (electronic file) by e-mail.
- The requirement of the written form does not apply to contracts concluded via our web store.
II. Prices and payment
- In the absence of a special agreement, prices are ex works from ZINEMA MOTION in Villingen-Schwenningen, including loading at the factory, but excluding packaging and unloading. Value added tax at the respective legal rate will be added to the prices. If the statutory value-added tax changes between order and delivery, the Buyer will bear the additional costs arising from this.
- In the absence of a special agreement, payment shall be made without deduction as follows:
Payments are due net immediately upon receipt of invoice. Decisive for the timeliness of payment is the crediting of one of our business accounts. Discounts shall only be granted based on a separate written agreement in individual cases and under the condition that all payment obligations of the customer and its affiliated companies from previous deliveries are completely fulfilled.
- If the cost of the materials and/or parts purchased by ZINEMA MOTION to produce the contractual products should increase by more than 5% compared to the cost of materials at the beginning of the contract/offer or compared to the last price agreement, ZINEMA MOTION must re-determine the delivery price in accordance with the changed conditions, taking into account the interests of both parties to the contract in accordance with §315 BGB.
- Invoices for repairs or services as well as for spare parts deliveries are due for payment in full immediately.
- If ZINEMA MOTION ships the goods, the Buyer shall bear the costs of the shipment.
- If ZINEMA MOTION in addition to the delivery has also undertaken the erection and installation of the delivery item, the delivery to the installation site will also be at the expense of the Buyer. In addition to the agreed remuneration, the Buyer shall bear all necessary incidental costs, such as travel expenses and expenses of the installation personnel.
- The customer shall only have the right to withhold payments to the extent that his counterclaims are undisputed or have been established as final and absolute. In addition, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- The customer shall only be entitled to offset counterclaims arising from other legal relationships to the extent that these counterclaims are undisputed or are legally binding.
III. Delivery time
- The delivery time results from the agreements of the contracting parties. Delivery periods or dates for installation are in every case only approximate. ZINEMA MOTION’s compliance with these conditions requires that all commercial and technical questions between the parties to the contract have been clarified and that the Buyer has fulfilled all obligations incumbent upon it, such as the provision of the necessary official certificates or permits or the payment of a deposit. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if ZINEMA MOTION is responsible for the delay.
- If ZINEMA MOTION itself is not supplied correctly and in time by its subcontractors, although ZINEMA MOTION has placed congruent orders with reliable subcontractors in time, ZINEMA MOTION will be released from its obligation to perform and may withdraw from the affected contract. ZINEMA MOTION is obligated to inform the customer about the unavailability of the products or services concerned immediately and any consideration already paid must be refunded immediately. A liability for damages caused by delay is excluded in the aforementioned cases of the delivery bottleneck for which ZINEMA MOTION is not responsible. The above provision does not apply to disruptions in supply by subcontractors, if and insofar as ZINEMA MOTION is responsible for such disruptions.
- The delivery time is deemed to be met if the delivery item has left ZINEMA MOTION’s factory or readiness for shipment has been announced before the delivery time expires. If acceptance is required, the date of acceptance or alternatively the notification of readiness for acceptance is decisive, except in the case of justified refusal of acceptance.
- If dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the costs incurred by the delay shall be charged to the customer, beginning one month after notification of readiness for dispatch or acceptance. If shipment is delayed at the request of the Buyer, ZINEMA MOTION will be entitled, after setting and fruitless expiry of a reasonable deadline, to dispose otherwise of the goods to be supplied and to supply the Buyer within a reasonably extended period.
- If the failure to comply with the delivery time is due to force majeure (such as high and low water, snow, ice, ash rain and similar natural phenomena), labor disputes or other events beyond ZINEMA MOTION’s control, such as disruptions of operations through no fault of ZINEMA MOTION or unforeseeable, fires, sabotage, hacker attacks, or official bans or other measures to protect against a pandemic, the delivery time will be extended accordingly. ZINEMA MOTION will notify the Buyer of the beginning and end of such circumstances as soon as possible.
- If ZINEMA MOTION is in default and the Buyer suffers damage as a result, the Buyer is entitled to demand lump-sum compensation for default. Such compensation shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the delay which cannot be used in time or in accordance with the contract due to the delay. Any further claims for compensation for delay shall be subject to concrete proof of higher damages by the customer.
- If ZINEMA MOTION’s customer sets a reasonable deadline for performance after the due date – considering the statutory exceptions – and if the deadline is not met, the customer is entitled to withdraw from the contract in accordance with the statutory provisions. It undertakes to declare within a reasonable period at ZINEMA MOTION’s request whether it will exercise its right of withdrawal.
- Further claims arising from delay in delivery shall be determined exclusively in accordance with Section VII. 2 of these terms and conditions.
IV. Transfer of risk, acceptance
- Risk will pass to the Buyer when the delivery item has left ZINEMA MOTION’s factory, even if partial deliveries are made or ZINEMA MOTION has assumed other services, e.g. shipping costs or delivery and installation. If a formal acceptance must take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after ZINEMA MOTION has notified the customer that the goods are ready for acceptance. The Buyer may not refuse acceptance in the event of an insignificant defect.
- If shipment or acceptance is delayed or does not take place as a result of circumstances for which ZINEMA MOTION is not responsible, the risk will pass to the Buyer on the date of notification of readiness for shipment or acceptance. ZINEMA MOTION undertakes to take out the insurance policies requested by the Buyer at the latter’s expense
- Partial deliveries shall be permissible, if they are reasonable for the customer.
- As far as an acceptance of the subject matter of the contract has to take place, the subject matter of the contract is deemed to be accepted if (1) the delivery and the installation, if ZINEMA MOTION owes this according to the contract, has been completed, (2) ZINEMA MOTION has notified the Customer of this with reference to this fiction of acceptance according to this clause and has requested the Customer to accept the subject matter of the contract, (3) 14 working days have passed since delivery or installation or the customer has started to use the object of the contract and in this case 6 working days have passed since delivery or installation, and (4) the customer has failed to accept the goods within this period.
V. Retention of title
- ZINEMA MOTION reserves title to the delivery item until all ZINEMA MOTION’s claims against the Buyer arising from the business relationship, including future claims, including claims arising from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims of ZINEMA MOTION have been included in a current account and the balance has been struck and accepted. If the Buyer acts in breach of contract, in particular if it defaults on payment, ZINEMA MOTION is entitled to take back the goods after issuing a reminder and the Buyer is obliged to surrender them. ZINEMA MOTION may only demand the return of the delivery item based on the retention of title if ZINEMA MOTION has withdrawn from the contract. The Buyer must notify ZINEMA MOTION immediately in the event of seizure or other interventions by third parties.
- The customer shall be entitled to resell the delivery item in the ordinary course of business. However, the Buyer hereby assigns to ZINEMA MOTION all claims against the customer or third parties arising from the resale, irrespective of whether the goods supplied have been resold without or after processing. The customer is authorized to collect these claims even after the assignment. ZINEMA MOTION’s authority to collect the receivables itself remains unaffected. The authority to collect expires – if the Buyer defaults on its payment obligations to ZINEMA MOTION or – if it is revoked or – if an application for the opening of insolvency proceedings is filed. ZINEMA MOTION may then demand that the Buyer discloses to it the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors of the assignment, unless ZINEMA MOTION has already done so. If the delivery item is resold together with other goods that do not belong to the Supplier, the Buyer’s claim against the customer shall be deemed assigned in the amount of the delivery price agreed between ZINEMA MOTION and the Buyer.
- The customer may neither pledge the delivery item nor assign it as security.
- ZINEMA MOTION is entitled to insure the goods at the expense of the Buyer against theft, breakage, fire, water and other damage, unless the Buyer can prove that he has taken out such insurance himself.
- If ZINEMA MOTION becomes liable under a bill of exchange in connection with the payment of the purchase price by the customer, the retention of title, including its agreed special forms, or other securities agreed to secure payment will not expire before the bill of exchange is honored by the customer as the drawee.
VI. Quality and liability for defects
We always strive to supply our customers with ZINEMA MOTION products of good quality. Should there be any complaints in individual cases, we will try to find an appropriate solution together with our customer, considering the following regulation.
ZINEMA MOTION is liable for material and legal defects of the delivery under exclusion of further claims – subject to section VII – as follows:
- ZINEMA MOTION may choose to repair or replace all parts proven by the Customer to be defective due to circumstances that existed at the time of the transfer of risk. Customer agrees to immediately inform ZINEMA MOTION of such defects – at the latest within 7 working days after knowledge of the defect – in writing. Replaced parts become the property of ZINEMA MOTION
- After consultation with ZINEMA MOTION, the Buyer must give ZINEMA MOTION the necessary time and opportunity to carry out all improvements and replacement deliveries that ZINEMA MOTION deems necessary; otherwise ZINEMA MOTION will be released from liability for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case ZINEMA MOTION must be informed immediately, does the Buyer have the right to remedy the defect itself or have it remedied by third parties and to demand compensation from ZINEMA MOTION for the necessary expenses.
- ZINEMA MOTION bears – as far as the complaint proves to be justified – the expenses necessary for the purpose of the supplementary performance in the context of § 439 BGB. ZINEMA MOTION will also reimburse, to the extent of its legal obligation, the expenses incurred by the Buyer in the event of the sale of a newly manufactured item within the scope of recourse claims in the supply chain.
- Any additional costs or expenses arising from the transfer of the delivery items to a place other than the delivery address shall be borne by the customer. Replaced parts become the property of ZINEMA MOTION and must be returned to ZINEMA MOTION on request.
- The Buyer has a right to withdraw from the contract according to the relevant statutory provisions if ZINEMA MOTION – taking into account the statutory exceptions fail to repair or replace the goods due to a material defect within a reasonable period of time for this action set by the Customer. If the defect is insignificant, the Buyer is only entitled to a right to reduce the contract price. The right to reduce the contract price shall otherwise be excluded. Further claims shall be determined exclusively in accordance with Section VII. 2 of these terms and conditions.
- No liability is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the Buyer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, defective construction work, unsuitable building ground, chemical, electrochemical or electrical emissions – unless ZINEMA MOTION is responsible for them. ZINEMA MOTION is only liable for defects in the material supplied by the Buyer if ZINEMA MOTION should have recognized the defects when exercising professional care. In the case of production according to the Buyer’s drawings ZINEMA MOTION is only liable for the execution of the order according to the drawings.
- ZINEMA MOTION shall not be liable for the consequences of improper repairs carried out by the Buyer or a third party. The same applies to any changes to the goods supplied made without the prior consent of ZINEMA MOTION.
- Liability for defects is excluded for contractual objects sold as used goods.
Defects of title
- If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, ZINEMA MOTION will, at its own expense, procure the right to continue to use the delivery item for the Customer or modify the delivery item in a manner that is reasonable for the Customer in such a way that the infringement no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the Customer shall be entitled to withdraw from the contract. ZINEMA MOTION is also entitled to withdraw from the contract under the above-mentioned conditions. In addition, ZINEMA MOTION will indemnify the Buyer against undisputed or legally binding claims by the relevant owners of the property rights.
- ZINEMA MOTION’s obligations set forth in Section VI. 9 are, subject to Section VII. 2, final in the event of infringement of intellectual property rights or copyrights. They only exist if
- the Buyer shall immediately inform ZINEMA MOTION of any claims for protection or copyright infringements informed,
- the Buyer supports ZINEMA MOTION to a reasonable extent in defending the claims asserted or enables ZINEMA MOTION to carry out the modification measures in accordance with Section VI. 9,
- ZINEMA MOTION all defense measures including out-of-court settlements are reserved,
- the defect of title is not based on an instruction of the customer and
- the infringement of rights was not caused by the fact that the customer has arbitrarily changed the delivery item or used it in a manner not in accordance with the contract.
- The customer shall assume responsibility for the documents to be provided by him, such as drawings, gauges, samples or the like. The sole responsibility for the documents to be provided by him. The customer shall be responsible for ensuring that any design drawings submitted by him does not infringe the property rights of third parties. ZINEMA MOTION shall not be obliged to check whether the submission of offers based on design drawings submitted by the Buyer infringes any third-party property rights. Should ZINEMA MOTION be liable to third parties in individual cases, the Buyer shall indemnify us.
The Purchaser’s claims as described in § 437 No. 1 and 3 BGB (German Civil Code) shall become statute-barred after 24 months starting with the passing of risk of the sold products.
VII. Liability, Disclaimer
- If the delivery item is delivered as a result of culpably omitted or faulty suggestions or consultations made by ZINEMA MOTION before or after the conclusion of the contract, or as a result of culpable violation of other contractual obligations by ZINEMA MOTION – in particular unclear instructions for operation and maintenance of the delivered goods – the provisions of the following Section VII. 2 shall apply to the exclusion of further claims of the Buyer.
- ZINEMA MOTION is only liable for damages that have not occurred to the delivered goods themselves – for whatever legal reasons – in the following cases
- in case of intent,
- in the event of gross negligence on the part of the owner/the organs or executive employees,
- culpable injury to life, body or health,
- in case of defects that ZINEMA MOTION has fraudulently concealed,
- within the framework of a no-fault guarantee,
- in case of defects of the delivery item, insofar as according to product liability law for personal injury or property damage to privately used objects.
In case of culpable violation of essential contractual obligations ZINEMA MOTION is also liable for gross negligence of non-executive employees and for slight negligence, in the latter case limited to the contract-typical, reasonably foreseeable damage.
- Further claims are excluded.
VIII. Limitation of actions
Also all claims of the customer other than those mentioned in § 437 No. 1 and No. 3 BGB for whatever legal reasons – shall become statute-barred after 24 months; this shall also apply to the statute of limitations for claims under a right of recourse in the supply chain pursuant to § 445b (1) BGB, provided that the last contract in this supply chain is not a purchase of consumer goods. The suspension of expiration from § 445b para. 2 BGB remains unaffected. The statutory periods shall apply to claims for damages in accordance with Section VII. 2 a-d and f. They shall also apply to defects in a building structure or to delivery items which were used for a building structure in accordance with their ordinary use and which caused its defectiveness.
IX. Laws and Safety Standards
The Deliverables to be provided hereunder conform to the following compliances and standards: CE Declaration of Conformity, Industrial EMC Standards, Electrical Safety, Emergency Stop Buttons, and Standards Applied to Design. Even so, the Customer is responsible for ensuring that the Deliverables meet the requirements of all applicable federal, state, local, and regional laws applicable to the Deliverables and their use – including the Occupational Health and Safety Act of 1970 (the Act) and the industrial safety laws applicable where the Deliverables are used. ZINEMA MOTION hereby disclaims any liability for any violations of the Act or other applicable regulation or law for safe and healthy operation. Customer shall be responsible for training, requiring, and causing its employees to (i) comply with the directions set forth in safety and operation instructions, manuals, drawings, safety notices and warnings, and other instructions furnished by ZINEMA MOTION; (ii) comply with directions set forth in any documented inspections of the Deliverables and their use; (iii) use reasonable care, safety equipment, and all applicable safe guards and safety systems in the set-up, adjustment, operation, maintenance, and repair of the Deliverables; (iv) not remove, disable, or permit anyone to remove or disable safety equipment, safety features, warning placards, labels, or warning signs from the Deliverables; (v) assure that the Deliverables are used in accordance with all applicable laws, regulations, customs, permits, and standards in force.
X. Returns and Cancellation by Customer with 45 Day Money Back Guarantee
(a) Buyer must obtain a Return Authorization Number from ZINEMA MOTION prior to returning any Deliverable. The Return Authorization Number must be obtained within 45 days from date of purchase of the Eligible Product and then customers have a further 30 days to return the Eligible Product. Refunds will only be valid if the Eligible Product is received by ZINEMA MOTION within these time periods.
(b) No Deliverable may be returned to ZINEMA MOTION without ZINEMA MOTION’s prior written consent.
(c) Returned Deliverables must be securely packed by Buyer to reach ZINEMA MOTION without damage. Buyer is solely responsible for the costs and risks of returning the Deliverable to ZINEMA MOTION. Risk of loss for the returned Deliverable will transfer to ZINEMA MOTION when the Deliverable has been unloaded onto ZINEMA MOTION’s factory floor. Reimbursement for returned Deliverables shall not in any case exceed the full credit of the purchase price.
(d) Buyer’s purchase order shall not, for any reason, be cancelled by Buyer without ZINEMA MOTION’s prior written consent, which consent ZINEMA MOTION may withhold in its sole discretion. No software may be returned.
(e) ZINEMA MOTION SHALL AT ITS OWN CHOICE REPAIR OR DELIVER AGAIN ANY GOODS DELIVERED IN A FAULTY OR DEFICIENT CONDITION OR REPEAT THE PROVISION OF SERVICE. IN CASE OF GOODS THAT MAY BE RETURNED TO ZINEMA MOTION WITHOUT ANY UNREASONABLY HIGH COSTS, DEFECTS SHALL BE REMEDIED AT ZINEMA MOTION’S PREMISES. CUSTOMER SHALL PROPERLY PACKAGE GOODS AND RETURN THEM TOGETHER WITH THE APPROPRIATE FITTINGS. IF THE OBJECT IS NOT IN THE PLACE OF PROPER USE, ANY EXTRA COSTS OF REPAIR SHALL BE BORNE BY CUSTOMER, INCLUDING BUT NOT LIMITED TO ANY INCREASED TRANSPORTATION AND TRAVEL COSTS. IN THE COURSE OF REMEDYING OF DEFECTS, CUSTOMER SHALL PROVIDE ZINEMA MOTION WITH THE TIME AND OPPORTUNITY FOR FAIR ASSESSMENT. SHOULD CUSTOMER REFUSE TO DO SO, ZINEMA MOTION SHALL NOT BE CONSIDERED IN DELAY IN REMEDYING THE DEFECT.
XI. Software use, data access and prohibition of reverse engineering
- Insofar as software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
- The Customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG [Copyright Act]). The Customer undertakes not to remove or change manufacturer’s information – in particular copyright notices – without the prior express consent of ZINEMA MOTION.
- All other rights to the software and the documentation including the copies remain with ZINEMA MOTION or the software supplier. The granting of sublicenses is not permitted.
- ZINEMA MOTION is primarily entitled to use the data stored by the purchased goods. ZINEMA MOTION will consider the legitimate interests of the Buyer when using this data. ZINEMA MOTION will allow the Buyer access to the data concerning his business operations in individual cases by separate agreement and, if necessary, against separate payment.
- The Buyer’s claim for damages for the loss of stored data is excluded if the loss would not have occurred had the data been properly backed up at intervals appropriate to the application, unless ZINEMA MOTION did not properly instruct the Buyer in how to back up the data.
- The customer is not entitled to reverse engineer the purchased item including the software and to gain access to and knowledge of trade secrets of ZINEMA MOTION.
XII. Data protection; declarations of consent of the customer
- Notice according to § 33 BDSG:
The data required for order processing, in particular name and address/business location of the customer, are stored electronically by us and are used and processed for the handling of orders, in particular communication with the customer or processing of corresponding inquiries from the customer, as well as for further advertising purposes by our company (mailings, brochures, etc.). The contract data will also be used to arrange for a credit check in the case of a business report. The storage and processing of the customer data by us takes place under strict observance of the data protection act.
- Declarations of consent of the customer:
By making an inquiry to us, but at the latest upon conclusion of a contract, the customer agrees to the storage of his data as mentioned under point 1. The customer further agrees that in the event of a lack of conformity on the part of the customer, we may pass on this data to such companies and persons that we commission to enforce our own claims and rights. Furthermore, the customer agrees that the postal service company commissioned by us may inform us of the correct address of the customer if a postal item could not be delivered at the address known to date. The customer has the possibility to revoke his consent to the storage, use and processing of his data at any time. He can demand the deletion of his data in writing at any time. The customer has the right at any time to request information about the stored data concerning his person, its origin and recipient, the to demand the use of the data as well as the relevant purpose.
XIII. Applicable law, jurisdiction, validity
- All legal relations between ZINEMA MOTION and the Buyer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relations between domestic parties. Application of the UN Sales Convention is excluded.
- Place of jurisdiction is the court responsible for the legal seat of ZINEMA MOTION. ZINEMA MOTION is however entitled to bring an action at the principal place of business of the Buyer.
- Should any provision of these terms and conditions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. In place of the ineffective provision or the ineffective part of a provision, the legally effective provision which comes closest to the purpose of the ineffective provision shall apply.