I. General Terms and Conditions
1. The reciprocal written declarations of the contracting parties shall be authoritative/decisive for the scope of deliveries or services (hereinafter referred to as „Supplies“). General Terms and Conditions of the ordering party shall only apply insofar as the supplier or performing party (hereinafter referred to as „the Supplier“) has explicitly agreed to them in writing.
2. The Supplier shall reserve unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and other documentation (hereinafter referred to as „ the documents“). The documents may only be made accessible to third parties given the prior consent of the Supplier and must be returned immediately at the latter’s request, if the order is not assigned to the Supplier. The clauses 1 and 2 shall apply accordingly with regard to the ordering party’s documents which may, however, be made accessible to such third parties to whom were permissibly assigned deliveries by the Supplier.
3. The ordering party shall have the non-exclusive right to use standard software in a non-modified form comprising the stipulated performance characteristics/features on the agreed devices. The ordering party shall be entitled to create a backup copy without any explicit agreement.
4. Partial deliveries shall be permissible insofar as it may be reasonably expected of the ordering party to accept them.
II. Prices and Terms of Payment
1. The prices shall be deemed to be ex works excluding packaging plus the respective applicable statutory VAT.
2. If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser/Ordering Party shall pay the agreed remuneration and any incidental costs required, e.g. travel costs, costs for the transport of tools and equipment and personal luggage as well as allowances.
3. Payments shall be made to the Supplier’s paying agent/account free of transaction charges.
4. The Ordering Party/Purchaser may only offset such claims which are undisputed or have been finally adjudged by the court competent.
III. Retention of Title
1. The items of supplies (reserved goods) shall remain the property of the Supplier until each and every claim against the Purchaser/Ordering Party to which the Supplier is entitled under this business relationship has been duly satisfied. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests if so requested by the Purchaser/the Ordering Party.
2. As long as the retention of title is effective, the Purchaser shall be prohibited from pledging or transferring by way of security the items supplied, and resellers alone shall be authorised to resell the items in the normal course of business and subject to the reseller receiving payment from its client or with the proviso that the property shall not pass to the client until the latter has met its financial obligations.
3. In the event that a third party asserts rights by attaching, seizing, encumbering or otherwise encroaching on the reserved-title goods, the Purchaser shall be obliged to notify the Supplier immediately.
4. If the Purchaser/Ordering Party is in breach of his obligations, in particular if he is in default of payment, the Supplier shall be entitled, in addition to taking back the goods, to withdraw from the contract, if the Purchaser has failed to cure the breach within the reasonable time period specified by the Supplier; this shall be without prejudice to the legal provisions stipulating that no deadline needs to be fixed. The Purchaser/Ordering Party shall be obliged to surrender/return the goods.
IV. Delivery Deadlines; Delay
1. The observance of agreed time limits set for deliveries presupposes the punctual/prompt receipt of all documents to be delivered by the Purchaser, required authorizations and releases, in particular of plans as well as the observance of the agreed terms and conditions of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in a timely manner, the deadlines shall be extended correspondingly; this shall not apply when the Supplier is responsible for the delay.
2. If the non-observance of the time-limits is the result of force majeure, e.g. mobilization, war, riots or similar events, e.g. strike or lock-out, the agreed upon time-limits shall be prolonged reasonably.
3. Should the Supplier fail to meet the deadline, and the Purchaser be able to demonstrate that it has suffered consequential loss as a result thereof, the Purchaser may charge compensation amounting to 0.5% per full calendar week, but limited to a maximum of 5% in total, of the price of the portion of the Supply that could not be put into useful service because of the delay.
4. Both claims for damages by the Purchaser due to a delay in delivery as well as claims for damages in lieu of the performance that go beyond the limits specified under no. 3 shall be excluded in all cases of delayed delivery, including when a deadline for delivery has been set for the Supplier and has expired. This shall not apply in cases of mandatory liability based on intent, gross negligence or due to injury of life, body or health. The Purchaser may only withdraw from the contract within the framework of the statutory provisions, if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the disadvantage of the Purchaser shall not be connected with the above regulations.
5. At the request of the Supplier, the Purchaser shall be required to state within a reasonable period of time whether it is withdrawing from the contract as a result of the delay in delivery or whether it insists on the Supply being effected.
6. If dispatch or delivery is postponed at the Purchaser’s request by more than one month after notice is given that the goods are ready for dispatch, the Purchaser may be charged storage costs for each month commenced thereafter to the amount of 0.5% of the price of the supplied goods, but in no event shall the aggregate storage charges exceed a total of 5% of the price. The proof of higher or lower storage fees shall remain reserved to the contracting parties.
V. Transfer of Risk
1. Even in the event of freight-paid delivery, the risk shall pass to the Purchaser as follows:
a) If the supplies do not include installation or assembly, at the time when they are shipped or picked up. Upon request and at the expense of the Purchaser, the Supplier shall take out an insurance policy for the deliveries against common transport risks;
b) if the supplies do include installation or assembly, on the day of acceptance at the ordering party’s own business premises or, if agreed, following a faultless trial run. General Terms of Supply for Products and Services
2. If the shipment, delivery, start, performance of mounting or assembly, acceptance at the Purchaser’s business premises or test run is/are delayed for reasons attributable to the Purchaser or if the Purchaser delays acceptance for other reasons, the risk shall pass to the Purchaser/Ordering Party.
VI. Mounting and Assembly
Unless otherwise agreed in writing, the following provisions shall apply to mounting and assembly services:
1. The ordering party shall bear the costs for the following and provide the same on time:
a) all earthwork, construction and other not trade-related ancillary works, including all required skilled and unskilled workers, building materials and tools,
b) the equipment and materials necessary for the assembly and commissioning such as scaffolds, lifting equipment and other devices, fuels and lubricants,
c) energy supply and water on-site, including connections, heating and illumination,
d) at the place of assembly, enough suitable, dry and lockable space of appropriate size for stocking machine parts, apparatuses and equipment, materials, tools etc. and suitable working and break rooms for the assembly staff with appropriate sanitary facilities suitable for the circumstances; Purchaser shall, in addition, take the same measures to protect the property of the Supplier and assembly staff on the construction site that it would take to protect its own possessions,
e) protective clothing and safety equipment that are necessary for the assembly site due to special circumstances.
2. Prior to the start of the assembly work, the Purchaser shall unsolicitedly provide the required information about the position of subsurface energy, gas, water conduits or similar installations as well as the required data on statics.
3. Prior to the beginning of installation or assembly work, accessory equipment and objects required for the commencement of work shall be at the site of installation or assembly, and all preliminary work must have progressed so far before commencement of the installation and set-up that the installation or assembly work can be started as agreed and performed without interruption. Access roads and the place of installation or assembly site shall be flattenend and cleared.
4. Should mounting, assembly or commissioning be delayed for reasons beyond the control of the Supplier, the Purchaser/Ordering Party shall bear the costs for waiting time and additionally required travels of the Supplier or the assembly staff in an adequate amount.
5. The Purchaser/Ordering Party shall promptly issue to the Supplier weekly certificates showing the working hours of the assembly and mounting staff as well as a certificate on completion of installation, mounting, assembly or commissioning.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. If Purchaser fails to do so, the acceptance shall be deemed to be completed. The acceptance shall also be deemed to have occurred, if the delivery has been put into operation, if applicable following completion of an agreed test phase.
The ordering party shall not be entitled to refuse acceptance of supplies and deliveries due to insignifcant defects.
VIII. Material Defects
The Supplier shall assume liability for material defects as follows:
1. All parts or services where a material defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired and remedied, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the defect had already existed at the time when the risk passed.
2. Material defect claims shall become time-barred after 12 months. This shall not apply, insofar as the law under sec. 438 para 1 no. 2 (Construction Work and Objects for Construction Work), sec. 479 para. 1 (Right of Recourse) and sec. 634a para. 1 no. 2 (Construction Defects) of the Civil Code (BGB) require longer deadlines as well as in cases of damage to life and limb, health or in cases of wilful acts or gross negligence related to breaches of duty on the Supplier’s part and in cases of deceitful concealment of defect. The statutory provisions on the expiry suspension, interruption and re-commencement of the time limits shall remain unaffected.
3. The Purchaser shall be required to immediately give written notice of material defects to the Supplier.
4. In case of reported defects, the Purchaser’s payments may be withheld to an extent which is in reasonable proportion to the occurred material defects. The Purchaser may withhold payments only, if the subject-matter of the notification of defects occurred is justified beyond doubt. Unjustified notifications of defect shall entitle the Supplier to demand the reimbursement of expenses incurred from the Purchaser.
5. The Supplier shall first be given the opportunity for supplementary performance and rectification within a reasonable period of time.
6. If the supplementary performance fails, then the orderer may, at its discretion and without prejudice to any claims for damages in accordance with Article XI, either withdraw from the contract or reduce the remuneration.
7. Defect claims shall be excluded and not be deemed to be permissible in the case of merely insignificant deviations from the agreed condition and characteristics of the supplied items, insignificant impairment in the serviceability, in case of normal wear and tear or damages that have occurred after passing of the risk due to incorrect or negligent handling, excessive loads, unsuitable equipment, imperfect workmanship and construction work, unsuitable building ground or which arise due to special external circumstances which are not presupposed in accordance with the contract as well as in case of not reproducible software faults. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences resulting thereof shall be likewise excluded.
8. Claims of the Purchaser derived from the expenses required to satisfy the supplementary performance, in particular, transport, in-transit, labour and material cost shall be ruled out insofar as the expenses increase because the subject of the consignment was subsequently taken to a place other than the branch of the Purchaser, unless such transport corresponds to the designated contractual use.
9. Claims for recourse on part of the orderer against the Supplier according to sec. 478 of the Civil Code (BGB, recourse claims of the entrepreneur) shall only exist insofar as the orderer has not entered into any specific agreements beyond the statutory claims for defects with its customers. In addition to the foregoing, clause 8 shall apply mutatis mutandis to the extent of the orderer’s right of recourse against the Supplier in accordance with sec. 478 para. 2 of the Civil Code (BGB).
10. Furthermore, Article XI (Other Claims for Damages) shall apply in respect of claims for damages. Further-reaching claims based on material defects or other claims than those provided for under this Article 8 of the Purchaser against the Supplier and its vicarious agents shall be excluded.
IX. Industrial Property Rights and Copyrights; Defects of Title
1. Unless otherwise agreed, the Supplier shall be obliged to carry out the delivery solely in the country of delivery place free of third parties’ industrial property rights and copyrights (hereinafter referred to as: property rights). If a third party asserts a justified claim against the Purchaser based on an infringement of industrial property rights with respect to the supplies made by the Supplier and then used in conformity with the agreement, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII, item 2 as follows:
a) The Supplier shall either, at its choice and expense, acquire the utilization rights for the supplies in question, change the delivery in such a way that the protection rights are not infringed, or replace the delivery. If this would be impossible for the Supplier under reasonable conditions, the Purchaser shall be entitled to exercise the statutory rights of cancellation or price reduction.
b) The Supplier’s obligation to provide compensation for damages shall be governed by Article XI.
c) The above-stated obligations of the Supplier shall apply only insofar as the Purchaser notifies the Supplier of any claims asserted by third parties immediately in writing, refrains from recognizing an infringement and the Supplier retains the right to all defensive measures and conciliatory negotiations. If the Purchaser suspends the use of the delivery for reasons of minimizing damages or other important reasons, it undertakes to inform the third party that the suspension of use does not involve any acknowledgement of a property right.
2. Claims of the Purchaser shall be excluded insofar as he is responsible for the infringement of the property right.
3. Furthermore, claims of the Purchaser shall be excluded to the extent that the infringement of the property right and commercial right is the consequence of its own special instructions, arises as a result of its use in an application that was unforeseeable for the Supplier or was caused by the fact that the Purchaser modified the goods or combined them with other products which were not delivered by the Supplier.
4. In the event of infringements of property rights, the provisions set forth under Article VIII, item 4, 5 and 9 shall apply mutatis mutandis in respect of the Purchaser’s claims stipulated under item no. 1a).
5. In case of other defects of title, the provisions of Article VIII shall apply mutatis mutandis.
6. Further-reaching claims based on legal deficiencies or other claims than those provided for under this Article IX of the Purchaser against the Supplier and its vicarious agents shall be excluded.
X. Impossibility; Contractual Adjustment
1. To the extent that the supply is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for such impossibility. Any claim for damages by the Purchaser shall, however, be limited to 10% of the value of the respective part of the delivery which cannot be put into appropriate operation due to the impossibility of performance. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or due to injury of life, body or health; this shall not lead to a change in the burden of proof to the Purchaser’s disadvantage. The Purchaser’s right to withdraw from the contract shall remain unaffected.
2. Should unforeseeable events within the sense of Article IV item no. 2 significantly change the economic meaning or the contents of the delivery or have a significant effect on the Supplier’s operations, the contracted shall be adapted in good faith. Where this is economically not justifiable, the Supplier shall be entitled to withdraw from the contract. If the Supplier intends to rescind the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the Purchaser.
XI. Other Claims for Damages
1. Claims for damages and reimbursement of expenses by the Purchaser (hereinafter referred to as: claims for damages), regardless of whatever legal ground, in particular owing to a breach of duties arising from the contractual obligations and a tortious act shall be excluded.
2. This shall not apply in cases of mandatory liability based on the Product Liability Act, intent, gross negligence or due to injury of life, body or health, or in cases of a violation of fundamental contractual obligations. Claims for damages for the violation of fundamental contractual obligations shall, however, be limited to contract-typical, predictable damage, provided there is no intent or gross negligence or liability is assumed on account of damage to life and limb, physical injury or damage to health. A change in the burden of proof to the disadvantage of the Purchaser shall not be connected with the above regulations.
3. To the extent that the Purchaser is entitled to claims for damages under the present Article XI, such claims shall become time-barred upon expiry of the limitation period applicable to material defect claims in accordance with Article VIII, item no. 2 thereof. The statutory limitation periods shall apply in respect of claims for damages governed by the Product Liability Act .
XII. Legal Venue and Applicable Law
1. If the Orderer/Purchaser is a fully qualified merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s seat of business. The Supplier shall, however, also be entitled to take legal action at the Purchaser’s place of jurisdiction.
2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding Effect of the Contract
Even if individual provisions of this contract become legally ineffective, the remaining parts of the contract shall continue to be valid and binding. This shall not apply, if adherence to the contract would constitute an unreasonable and undue hardship for either party to the agreement.