1. General information

These General Terms and Conditions of Sale, Delivery, and Service (hereinafter referred to as “Terms and Conditions”) shall apply to all deliveries and services, offers, and service offers (hereinafter generally referred to as “Services”) of NDTec AG (hereinafter referred to as "NDTec”). These Terms and Conditions shall be an integral part of all contracts that NDTec enters into with its contractual partners (hereinafter referred to as “Customers”) regarding the offered deliveries and services. Unless NDTec has explicitly agreed to them in writing, NDTec does not recognize any Customer terms and conditions that deviate completely or partially from these Terms and Conditions. These Terms and Conditions shall apply exclusively even if NDTec performs the delivery or service for the Customer without reservation despite being aware of conflicting or deviating terms and conditions of the Customer.

These Terms and Conditions shall also apply to the future business relationship with the Customer even if they are not explicitly agreed by the parties again.

In case of conflicting or incomplete provisions, the agreements between NDTec and the Customer shall apply in the following order – to the extent relevant: individual contract, these Terms and Conditions, legal regulations. No oral collateral agreements exist between the parties.

2. Offers, conclusions of contract regarding deliveries and services

Offers made by NDTec shall always be subject to change and non-binding unless they are explicitly designated as binding. A contract shall only materialize when NDTec accepts the order in writing through an order confirmation or executes the order.

Cost estimates shall be generated only upon Customer request and shall be non-binding. In the event that within 10 working days after receipt of the cost estimate, the Customer does not respond to the cost estimate, NDTec shall return the unrepaired device to the Customer.

NDTec reserves the right to charge a processing fee of EUR 120.00 plus VAT for cost estimates that do not lead to a repair order if the generation of the cost estimate was time-consuming. The same shall apply if no defect can be identified in the sent-in product despite comprehensive inspection.

In the event that the Customer’s order value is less than the minimum order value of EUR15.00 plus VAT, NDTec shall be entitled to invoice the flat fee of EUR 15.00 plus VAT.

Information provided by NDTec on the subject of the delivery or service (e.g., information regarding quality, weight, performance and dimensions in brochures and offers or drawings and figures) are approximations only and are not to be interpreted as guarantees. The right to use new parts or refurbished like new parts is reserved.

Any guarantees of quality or durability agreed at the conclusion of the contract must be in writing to be effective.

NDTec shall retain ownership, copyright, and all other industrial property rights to figures, drawings, models, technical documents, calculations, brochures, catalogs, and other documents in physical or intangible form, including in electronic form. This shall also apply to written documents marked as “confidential”.

In cases where software is included in the scope of delivery, the Customer shall receive a non-transferable and non-exclusive right to use the supplied software under the contractually agreed specifications at the agreed installation site. In the event that hardware is supplied as well, this right shall apply exclusively to use on this hardware. NDTec reserves all other rights to the hardware and software.

The Customer may use all specified documents and other information exclusively for the purposes of the operation or maintenance of contractual objects. For any disclosure to third parties, the Customer needs the explicit written approval of NDTec. The Customer shall not remove or modify any manufacturer specifications – including copyright information – without the prior explicit consent of NDTec.

3. Deliveries/services and related deadlines

Deliveries shall be made EXW (in accordance with Incoterm 2010).

NDTec shall be entitled to make partial deliveries or provide partial services unless the Customer cannot be reasonably expected to accept them.

Any proposed delivery periods and scheduled dates for the supply of goods and services announced by NDTec shall always be approximate unless NDTec has explicitly agreed to a fixed period or date.

Periods for delivery or performance shall begin after all commercial and technical matters have been resolved between NDTec and the Customer, and the Customer has met all of its duties (e.g., supply of the required documents, other materials, approvals and releases, and making of any down payments).

A delivery deadline shall be considered met if the Customer has been notified of readiness for dispatch by the deadline. If shipment has been agreed, the delivery deadline shall be considered met if the goods left the NDTec plant by the deadline and were transferred on time to the forwarder, carrier, or third party appointed to ship.

In the event that an agreed delivery or service deadline is exceeded or another contractual duty is not met in time by NDTec, the Customer shall set a reasonable period of time of at least three weeks for NDTec to deliver or render the service before asserting any statutory claims.

In the event that the delivery or service is delayed by circumstances beyond the control of NDTec, the delivery or performance term shall be extended accordingly by the duration of the interference. This shall particularly apply to disruptions of operations beyond the control of NDTec and its suppliers, e.g., due to strike, lockout, incorrect or delayed delivery by upstream suppliers, lack of energy or raw materials, interventions of authorities through no fault of NDTec or its suppliers as well as force majeure. In the event that a binding delivery or service deadline is missed by more than three months due to such interference and it is not foreseeable that the interference shall end within a further four weeks, both parties shall be entitled to withdraw from the contract.

In the event that the Customer is in default of acceptance, NDTec shall be entitled to demand compensation for any additional expenditures for the duration of the delay, including customary storage costs, even if stored at the NDTec plant. In such cases, the date of placement into storage shall be considered the delivery date; the storage certificate shall replace the shipping documents. After a reasonable grace period for acceptance, NDTec shall be entitled to make other use of the delivery item. The right to pursue further claims remains reserved. This provision shall also apply to service objects.

4. Prices

Unless explicitly agreed otherwise, prices shall be quoted ex works, excluding freight, packaging, temporary storage, insurance, customs duties, fees, and other public charges.

On the invoice date, the Customer shall be additionally invoiced VAT separately in the statutory amount.

To the extent that the agreed prices are based on the NDTec list prices and the delivery/service is to be provided more than four months after the contract is concluded, the NDTec list prices valid at the time of delivery/service provision shall apply unless explicitly agreed otherwise.

5. Payments

Payments shall be due without deduction within the agreed payment term or if no payment term is agreed, within 30 days after date of invoice. Deduction of a cash discount shall be permissible only in accordance with the relevant information on the invoice.

Regardless of any fault on the part of the Customer, the statutory default interest shall be applied to any arrears immediately following expiry of the payment term and a reminder shall be sent. From the second reminder onwards, a flat-rate reminder fee of €10.00 will be charged, which will then increase to €15.00 from the third reminder onwards. The right to assert further damages in case of arrears is reserved.

Bills of exchange (including notes receivable), checks, and cessions shall be accepted as conditional payment only and shall be considered actual payment only after they are honored. Discounts, exchange charges, and similar charges shall be reimbursed by the Customer immediately upon request.

The Customer may offset NDTec claims only with counterclaims that are uncontested or have been upheld by final decision of a court of competent jurisdiction. This applies mutatis mutandis to asserting a right of detention or to withholding performance. Under the conditions above, the right of detention due to defects must be proportionate to the defect arisen.

NDTec reserves the right to demand advance payment or security in the invoice amount in the event that conditions arise or become known after the conclusion of the contract that may considerably reduce the Customer’s creditworthiness and that may jeopardize the Customer’s payment of the open claims of NDTec resulting from the respective contractual relationship.

6. Passing of risk, dispatch

The risk of destruction, loss, or damage, etc., of the delivered goods (including goods for repair) shall be passed to the carrier, freight forwarder, or third party assigned to handle the shipment at the time of transfer, or in the event that the Customer picks them up, to the Customer at the time the goods are placed at the Customer’s disposal. This shall also apply in case of partial deliveries or if NDTec still owes dispatch in conjunction with the delivery.

In the event that dispatch is delayed due to a fault of the Customer or the Customer’s vicarious agent, the risk shall pass already on the day of notification of readiness for dispatch.

In the event that NDTec also owes assembly and/or commissioning of the goods, risk shall pass to the Customer with acceptance of the assembly and/or commissioning. If the acceptance has not been completed by the Customer within 12 working days after written notification of completion of assembly and/or commissioning for reasons for which NDTec is not responsible, the risk shall pass immediately after expiry of this 12-day period.

In case of software provision by means of electronic communication media (e.g., via the Internet), the risk shall pass to the Customer as soon as the software leaves the sphere of influence of NDTec.

In the event that it is agreed that the goods are to be shipped by NDTec, NDTec shall be entitled to ensure the shipment of the goods in the best manner at its professional discretion unless the Customer has made special shipment demands vis-à-vis NDTec sufficiently in advance.

The Customer shall bear all shipment costs unless explicitly agreed otherwise.

7. Retention of title

Until the full payment of all claims of NDTec arising from the business relationship with the Customer, including any future claims, accessory claims, and claims for damages and until checks and bills of exchange are honored, NDTec shall retain the title to the delivered and/or installed goods (so-called goods subject to retention of title). This shall also apply to payments made on specifically designated claims.

For as long as the title has not been transferred to the Customer, the Customer shall be obligated vis-à-vis NDTec to treat the goods subject to retention of title with care, store them diligently, and maintain and repair them at its own expense as well as to insure them at its own expense against theft, breakage, fire, water, and other damage, with the insured sum being adequate to cover the replacement value, and to provide evidence of the insurance upon request. The Customer hereby assigns in advance its claims from the insurance policies to NDTec.

In the event that the goods subject to retention of title are connected or mixed with a main component from the Customer or a third party or are processed in another manner, the processing shall be carried out on behalf and on account of NDTec as the manufacturer, and NDTec shall immediately acquire ownership or – in the event that the processing is carried out using materials of multiple owners or the value of the processed item is higher than the value of the goods subject to retention of title – joint ownership (fractional ownership) of the newly created items in the proportion of the value of the goods subject to retention of title to the value of the newly created item.

If the Customer acts contrary to the contract, particularly in case of payment arrears, NDTec shall be entitled to take back the goods subject to retention of title following a reminder and to withdraw from the contract, and the Customer shall be obligated to return the goods subject to reservation of title. The filing of an application to open insolvency proceedings on the Customer’s assets shall entitle NDTec to withdraw from the contract with immediate effect and to demand the immediate surrender of the goods subject to retention of title.

In case of attachments, confiscations, or other encroachments by third parties regarding the goods subject to retention of title, the Customer shall immediately notify NDTec in writing. The Customer must reimburse NDTec for the costs arising to NDTec by the intervention, particularly judicial and extra-judicial costs, to the extent that the third party is not able to do so.

The following shall additionally apply to Customers as resellers:

a. The Customer shall be entitled to sell the goods subject to retention of title in the ordinary course of business provided that the Customer retains the title to the goods subject to retention of title vis-à-vis the buyers in accordance with this Section 7. The entitlement to resell does not exist if and to the extent to which the Customer and the Customer’s buyers have agreed on a prohibition of assignment of the purchase price claim. The Customer shall not be entitled to pledge, chattel mortgage, or otherwise encumber.

b. The Customer, already at this time, assigns all claims arising from the resale of the goods subject to retention of title through the retention of title agreed with its buyers in order to secure all claims, including future claims, of NDTec arising from the business relationship with the Customer. This shall also apply if the goods subject to retention of title were processed or resold by the Customer to several purchasers. NDTec accepts this assignment.

c. Even after this assignment, the Customer shall be entitled to collect the receivables from the resale. The entitlement of NDTec to collect the receivable itself shall remain unaffected hereby. However, NDTec shall not collect the receivable for as long as the Customer properly meets its own payment obligations, does not get into payment arrears, has not revoked the collection authorization of  NDTec, and no application for the opening of insolvency proceedings on the Customer’s assets has been filed. Upon request of NDTec, the Customer shall immediately declare in writing to whom the goods were sold and which receivables have arisen from the sale, provide all information required for collection and hand over the associated documents, and notify the debtors about the assignment.

d. Upon Customer request, NDTec shall immediately release securities of its choice to which NDTec is entitled to the extent that their value more than temporarily exceeds the claims to be secured by more than 50%.

8. Taking back of goods (outside of warranty)

Any takeback of goods requires the explicit written consent of NDTec. The value to be credited at the time the goods are taken back shall be determined based on the goods’ age, quality, and suitability for resale.

Custom-made products that were ordered upon Customer request or are not included in the NDTec standard product range are generally excluded from takeback.

The Customer shall bear the risk and costs of the transport of the taken back goods.

9. Transport insurance / return of packaging

Upon explicit written Customer request, NDTec shall insure the shipment against damage resulting from theft, breakage, transport, fire, and water as well as other insurable risks. The associated costs shall be borne by the Customer.

To the extent that NDTec is obligated by packaging regulations to take back packaging, NDTec shall pick up the packaging at the Customer’s facilities at its own expense. The parties shall agree on details separately.

10. Warranty rights in case of quality defects

The Customer shall examine deliveries and services for any defects, incorrect quantities, or incorrect items immediately after their receipt. The Customer shall notify  NDTec of any deliveries or services that are wholly or partially faulty immediately after detecting the defect; otherwise, the delivery or service shall be considered approved. For deliveries, the notification period for defects that could be discovered by proper examination appropriate to the type of goods shall be at most seven working days after receipt of the goods. For other defects, the delivered items shall be considered approved by the Customer if the notice of defects is not received by  NDTec within seven working days after the time the defect arose. The provisions of this Section 10 shall also apply to software deliveries.

Provided that at the passing of risk, the delivery or service exhibits a defect for which NDTec is responsible and the notification of the defect was issued on time, NDTec shall, at its discretion, repair this defect or replace the item free of charge within an appropriate time period (“subsequent performance”).

In the event that the elimination of defects fails twice or NDTec refuses subsequent performance, the Customer shall be entitled to, at its own discretion, withdraw from the contract or demand reduction (of the purchase price).

The Customer shall always support NDTec in the error analysis and elimination of defects. The Customer shall take the necessary and reasonable measures to limit and prevent damage.

If a defect is due to the fault of NDTec, the Customer may demand compensation under the conditions specified in Section 12.

In case of software defects, the warranty includes troubleshooting as well as the elimination of faults and malfunctions. The elimination of faults requires that the fault interferes with operation, is reproducible, the Customer has installed, at most, only new software versions offered free of charge within the warranty period, and that NDTec receives all documents and information necessary for fault elimination. Defects in individual programs do not entitle the Customer to terminate the contract regarding the other programs. In the event that the Customer has not entered into a software service agreement with  NDTec, software maintenance that is not covered by the warranty terms shall be billed according to the applicable list prices of NDTec.

Excluded from the liability for defects shall be any defects due to inappropriate or unsuitable use of the goods/service objects, particularly due to excessive load, as well as any changes to the delivered object without the prior consent of NDTec, faulty assembly or commissioning by the Customer or by third parties commissioned by the Customer, normal wear due to use of a product, any defects due to unauthorized modification by the Customer or commissioned third parties, failure of components of the system environment, or other damage due to external influences. For software,  NDTec accepts no liability for the software functions meeting the Customer’s requirements, for the programs selected by the Customer working together, for them running without interruptions and errors, or for all software errors being amenable to elimination. The Customer shall not derive any rights from the defectiveness of the delivery/service provided by NDTec if it causes only a minor reduction in value or suitability of the delivery/service.

The limitation period for defect claims is twelve months from the passing of risk or completion of service delivery or from acceptance if acceptance is required.

For replaced or repaired parts of the delivered item, the warranty period shall start anew for twelve months from the date of invoicing if the warranty period in accordance with Section 10.8 for the delivered item expires earlier.

The liability for defects of NDTec according to this Section 10 shall be excluded for used delivered items, except for parts that are new or refurbished like new.

For quality defects, any further warranty claims of the Customer vis-à-vis NDTec or its vicarious agents as well as warranty claims not provided for in Section 10 shall be excluded.

11. Warranty rights in case of defects of title

In the event of any violation of property rights of third parties through a delivery or service of NDTec, NDTec shall be liable only to the extent that the delivery or service is used in accordance with the contract and particularly within the operating environment stipulated in the contract.

NDTec shall be liable for violations of the property rights of third parties only at the contractually stipulated place of use of the delivery or service.

In the event that a third party claims vis-à-vis the Customer that a NDTec delivery or service violates its property rights, the Customer shall immediately notify NDTec. Insofar as permissible, the Customer shall leave it up to NDTec and, if applicable, NDTec upstream suppliers to defend against the claims at the expense of NDTec. For as long as NDTec avails itself of such authorization, the Customer must not of its own initiative recognize the claims of the third party without the consent of NDTec.

NDTec shall defend against the potential third party claims at its own expense and shall indemnify the Customer against all costs related to the defense against these claims to the extent that these are not based on the Customer’s breach of duty (e.g., use of the programs in violation of the contract).

If a delivery or service violates third party property rights, NDTec, at its own discretion and expense, shall

a. provide the Customer with the right to use the delivery or service or

b. design the delivery or service such that it does not violate any rights or

c. take back the delivery or service at the invoice price (minus an appropriate compensation for use) if NDTec cannot achieve any other redress with reasonable effort.

The Customer’s interests shall be taken into account appropriately.

Customer claims due to defects of title shall come under the statute of limitations in accordance with Section 10.8. Section 12 shall apply for claims for damages and compensation of expenses.

12. Liability

The liability of NDTec for claims for damages, regardless of their cause, particularly due to delay, defective or incorrect delivery, impossibility of performance, breach of contract, breach of obligations in contract negotiations, and tort shall be limited in accordance with this Section 12.

NDTec shall not be liable in case of simple negligence except in case of breach of essential contractual obligations. Essential contractual obligations include the duty of NDTec to ensure on-time delivery, any agreed installation of the delivered item or service free of major defects, freedom from defects of title as well as from quality defects that impair functionality or usability more than insignificantly, and fulfillment of consulting, protection, and due care obligations intended to permit the Customer to use the delivered item in accordance with the contract or intended to protect the life and limb of the Customer’s staff or to protect the Customer’s property from considerable damage. Otherwise, NDTec shall be liable only for intentional or grossly negligent behavior.

Insofar as NDTec is liable in accordance with Section 12.2, this liability shall be limited to damage that NDTec foresaw or could have foreseen as a possible consequence of the breach of contract at the time the contract was entered into.

NDTec shall bear no liability whatsoever for damage for which the Customer is responsible, particularly because the Customer has failed to have repair recommended by NDTec carried out, damage the Customer has caused through incorrect operation, assembly or installation, or other actions or failure to act or damage due to other external causes beyond the control of NDTec.

In case of data loss, NDTec shall be liable only for the expenditure necessary to restore the data which would arise if the Customer had made proper back-up copies of the data. In case of slight negligence, NDTec shall only be liable if the Customer made a proper data backup immediately before the measure which led to the data loss.

Liability for indirect or consequential damage resulting from defects of the delivered item or service shall only be accepted if such damage can be typically expected when the delivered item or service is used for its intended purpose.

The above exclusions or limitations of liability shall equally apply to the benefit of organs, legal representatives, employees, and other agents of NDTec.

The limitations of Section 12 shall not apply to the liability of NDTec for intentional actions, for guaranteed characteristics, in case of violation of essential contractual duties, for damage to life, limb, or health, and according to the German Product Liability Act.

For claims for damages due to defects or other claims for damages against NDTec, the statute of limitations is 24 months from the passing of risk for the delivery or completion of service delivery. In case of intent, fraudulent concealment of a defect, or injury to life, limb, or health, or in case of violation of essential contractual duties, the regular statute of limitations shall apply.

To the extent that NDTec provides technical information or acts as an adviser and this information or advice is not part of the services owed and contractually agreed, this is done free of charge and under exclusion of any liability whatsoever.

13. Duty of cooperation

The Customer shall be responsible for compliance with relevant legislation, ordinances, and safety regulations, particularly as regards the approval, installation, operation, repair, and maintenance of the goods, and shall autonomously meet these obligations. This shall also apply to the observation of statutory and regulatory requirements for the import, transport, storage, and use of the goods or service objects. The Customer shall indemnify NDTec against all claims against NDTec raised as a result of the violation of these regulations.

Essential duties of the Customer include using the device in accordance with the instructions for use, performing function checks, and replacing consumable items at suitable intervals as well as cleaning in accordance with the instructions for use.

In the event of malfunction, the Customer shall immediately take the measures needed to protect people and property. NDTec shall be notified. Immediately after the malfunction is noticed, the affected products must be taken out of service unless a release is obtained from NDTec.

In case of technicians working on site, the Customer shall provide NDTec with unrestricted access to the service object. If necessary, basic cleaning of the surroundings must be performed. In addition, the Customer shall ensure that qualified contacts are present while the servicing is carried out. Furthermore, any data (e.g., client data) associated with service objects must be professionally backed up by the Customer at frequent intervals. In addition, the Customer shall ensure that the necessary supply connections are available and the service objects are shielded from other business operations. NDTec reserves the right to separately bill the Customer for any costs arising in conjunction with waiting times, for instance if agreed appointments are not kept or access to the devices has to be generated before starting work.

If the Customer has a duty of cooperation in the provision of a delivery/service by NDTec, NDTec may ask for the compensation of additional expenses or damages arising because the contractual partner fails to meet this duty of cooperation to the agreed extent. The same applies in case the contractual partner makes it more difficult for NDTec to provide the delivery/service.

14. Confidentiality

The Customer shall be obliged to treat confidentially any business-related, operational, and technical information about NDTec that came or comes to its knowledge in connection with the delivery/service, even beyond the term of the contract. The Customer must not make available to third parties for reference or for disposal any objects or marketing materials, brochures, etc., provided by NDTec without the written consent of NDTec.

The confidentiality obligation ends when the information becomes publicly known without a violation of the confidentiality obligation being involved.

The Customer may advertise its business relationship with NDTec only with the prior written consent of NDTec.

Any violation of the above confidentiality obligations entitles to immediate withdrawal from or termination without notice of all existing contracts without the Customer being entitled to damages or to the supply of goods yet to be delivered.

15. Export control

Fulfillment of the deliveries and services is subject to the proviso that this fulfillment is not hindered by any restrictions based on national or international provisions of export or import law or other legislative provisions.

The Customer shall support NDTec in the collection of any required information and documents needed for export/shipment. In addition, the Customer shall immediately notify NDTec in writing of any circumstances of which the Customer learns after conclusion of the contract that substantiate the assumption of a potential or actual violation of export regulations.

No-fault delays resulting from export inspections or approval procedures shall suspend delivery terms and deadlines.

In the event that NDTec is unable to fulfill the contract due to denied approvals, the contract shall be considered never entered into concerning the affected goods/services. No claims for compensation or reimbursement of expenses shall arise for the Customer.

Obtaining any required import authorization shall be the Customer’s responsibility.

16. Final provisions

The Customer hereby agrees to the Customer’s data that have been received by NDTec in conjunction with the business relationship being stored for the purposes of data processing and, to the extent required for fulfillment of the contract, the data being transferred to third parties (e.g., for credit check, insurance).

Any Customer claims may be assigned only with the written consent of NDTec.

NDTec hereby declares compliance with the requirements of the minimum wage legislation (MiLoG).

The Customer shall be obligated to meet the laws of the respective applicable legal system(s), including the provisions of the MiLoG. In particular, the Customer shall not participate – whether actively or passively, directly or indirectly – in any form of corruption, violation of its employees’ basic rights, or child labor. In addition, the Customer shall take responsibility for the health and safety of its employees at the workplace, comply with environmental protection regulations, and promote and require compliance with this code of conduct from its suppliers to the extent possible. In the event that the Customer culpably violates these obligations, NDTec shall be entitled to withdraw from the contract or terminate the contract without prejudice to any further claims. To the extent that the violation of duties can be remedied, this right may be exercised only after the fruitless expiry of a reasonable period of time for eliminating the breach of duty.

For all disputes arising from or in conjunction with this contractual relationship, Bamberg is the exclusive place of jurisdiction.

For the relationship between NDTec and the Customer, the law of the Federal Republic of Germany shall exclusively apply under exclusion of international private law and of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

In the event that one or several provisions of these Terms and Conditions are or become invalid, the validity and enforceability of the remaining provisions shall not be affected in any way. In the event that such a case arises, the parties undertake to replace the invalid provision by a legally valid provision that most closely approximates the economic intent of the Terms and Conditions. The same applies in case of a gap in the provisions.

Last updated: December 2021