I. general provisions
- The scope of the deliveries or services (hereinafter referred to as deliveries) shall be determined by the written declarations made on both sides. However, the Buyer’s general terms and conditions shall only apply to the extent that the Supplier has expressly agreed to them in writing.
- The supplier reserves its rights of ownership and copyright for all estimates, drawings and other documents (hereinafter referred to as documents). The documents may be made available to third parties only with the prior consent of the supplier and, if the order is not given to the supplier, shall be returned to the supplier without delay upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the purchaser, which may, however, be made available to third parties to whom the supplier has legitimately transferred deliveries.
- The customer has the non-exclusive right to use standard software with the agreed performance characteristics in unchanged form on the agreed devices. The purchaser may make a backup copy without express agreement.
- Partial deliveries are permissible insofar as they are reasonable to the purchaser.
II. prices and payment terms
- The prices are ex works only packaging plus the applicable VAT.
- If the supplier has taken over the installation or assembly and nothing else has been agreed upon, the purchaser shall bear all necessary ancillary costs such as travel expenses, transport of the handicraft and personal luggage, as well as cancellations, in addition to the agreed remuneration,
- Payments shall be made free of charge to the supplier.
- The purchaser can only offset against such claims which are undisputed or legally determined.
III. reservation of title
- The goods of the deliveries (reserved goods) shall remain the property of the Supplier until all claims against the Customer arising from the business relationship have been fulfilled. If the value of all security rights which are due to the Supplier exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security rights at the Buyer’s request.
- During the existence of the retention of title, the purchaser is prohibited from pledging or transferring security and the resale is permitted only to resellers in the ordinary course of business and only under the condition that the reseller receives payment from his customer or makes the reservation that the ownership will not be transferred to the customer until the customer has fulfilled his payment obligations.
- In the event of seizure or other dispositions or intervention by third parties, the purchaser shall immediately inform the supplier.
- In the event of a breach of obligations on the part of the Buyer, in particular in the event of late payment, the Supplier shall be entitled to withdraw from service after a reasonable period set for the Buyer has failed; the legal provisions on the necessity of setting a time limit shall remain unaffected. The customer is obliged to surrender.
IV. time limits for deliveries; delay
- Compliance with deadlines for deliveries shall provide for the timely receipt of all documents, necessary approvals and approvals to be supplied by the purchaser, in particular of plans; and compliance with the agreed terms of payment and other obligations by the customer. If these conditions are not met in good time, the time limits shall be extended appropriately; this shall not apply if the supplier is responsible for the delay.
- If the failure to comply with deadlines is due to force majeure, such as mobilization, war, rioting, or similar events, such as strike, lockout, the deadlines shall be extended appropriately.
- If the Supplier is in default, the Buyer may - if he proves that he has suffered damage - claim compensation for each completed week of delay of 0,5% each, but a maximum of 5% of the total price for the part of the deliveries; which could not be put into proper use due to the delay.
- Both claims for damages of the customer due to delay of delivery and claims for damages instead of the service provided in No. 3, in all cases of delayed delivery, shall be excluded, even after the expiry of a time limit for delivery set for the supplier. This shall not apply in cases of intent, gross negligence or because of injury to life, body or health. The purchaser can only withdraw from the contract within the scope of the statutory provisions, insofar as the delay in delivery is attributable to the supplier. A change in the burden of proof to the detriment of the customer is not linked to the above regulations.
- The Buyer shall be obliged, at the Supplier’s request, to declare within a reasonable period of time whether he resigns from the contract or insists on delivery because of the delay in the deliveries.
- If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the Buyer’s request, the Buyer may receive a storage payment of 0.5% of the price of the goods of the deliveries, up to a maximum of 5%, for each started month; be calculated. Evidence of higher or lower storage costs shall remain at the discretion of the Contracting Parties.
V. transfer of risk
- The risk shall also pass to the customer in the case of freight-free delivery as follows:
- in the case of deliveries without installation or assembly, when they have been dispatched or collected. At the customer’s request and expense, deliveries shall be insured by the supplier against the usual transport risks;
- in the case of deliveries with installation or assembly on the day of take-over, in-house or, if agreed, after a perfect trial operation.
- If, for reasons attributable to the purchaser, the dispatch, delivery, commencement, installation, take-over or trial operation is delayed, or if the purchaser is in default of acceptance for other reasons, the risk passes to the purchaser.
VI. installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply for the installation and assembly:
- The purchaser shall bear his costs and submit in good time:
- all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled workers, building materials and tools,
- the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
- energy and water at the point of use, including connections, heating and lighting,
- suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the same measures to protect the possessions of the Supplier and of the erection personnel on the site as it would take to protect its own possessions,
- protective clothing and protective devices which are necessary due to special circumstances at the installation site.
- Prior to the start of the installation work, the customer shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being asked.
- Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be level and clear.
- If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
- The Purchaser shall certify to the Supplier on a weekly basis the duration of the working hours of the erection personnel as well as the completion of the erection, assembly or commissioning without undue delay.
- If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out such acceptance within two weeks. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use - if necessary after completion of an agreed test phase.
The customer may not refuse to accept deliveries due to minor defects.
VIII. material defects
The supplier is liable for material defects as follows:
- All those parts or services which show a material defect within the limitation period - irrespective of the operating time - shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
- Claims for material defects shall become time-barred after 12 months. This shall not apply where longer periods are prescribed by law according to Sections 438 para. 1 No. 2 (buildings and things used for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (defects of a building) of the German Civil Code (BGB) as well as in cases of injury to life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The statutory provisions on suspension of the statute of limitations, suspension and recommencement of the periods remain unaffected.
- The Purchaser shall immediately notify the Supplier in writing of any material defects.
- In the event of notices of defects, payments by the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may only withhold payments if a notice of defect is asserted, the justification of which is beyond doubt. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by the Purchaser.
- Initially, the supplier must be given the opportunity for subsequent performance within a reasonable period of time.
- If the supplementary performance fails, the customer may - without prejudice to any claims for damages according to Art. XI - withdraw from the contract or reduce the remuneration.
- Warranty claims shall not exist in the event of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to particular external influences which are not provided for under the contract, as well as non-reproducible software errors. If the Purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the consequences thereof.
- Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the Purchaser's branch office, unless the transfer corresponds to its intended use.
- The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB (recourse of the entrepreneur) shall exist only to the extent that the Purchaser has not concluded any agreements with its customers exceeding the scope of the statutory provisions governing claims based on defects. Furthermore, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
- For claims for damages Art. XI (Other claims for damages) applies. Further or other claims than those in this Art. VIII against the Supplier and its agents on account of a defect as to quality shall be excluded.
IX. industrial property rights and copyrights; defects of title
- Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as "Property Rights") only in the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows:
- The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction.
- The supplier's obligation to pay damages is governed by Art XI.
- The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in writing, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the discretion of the Supplier. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
- Claims of the customer are excluded if he is responsible for the violation of property rights.
- Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
- In the event of infringements of industrial property rights, the claims of the customer regulated in No. 1.1 shall be subject to the provisions of Art. VIII No. 4, 5 and 9 shall apply mutatis mutandis to the claims of the Purchaser regulated in No. 1.1.
- In case of other defects of title, the provisions of Art. VIII shall apply accordingly.
- More extensive or different from those in this Art. IX against the Supplier and his vicarious agents due to a defect of title are excluded.
X. impossibility; adaptation of contract
- If the delivery is impossible, the customer is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10% of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this shall not imply a change in the burden of proof to the detriment of the Purchaser. The right of the purchaser to withdraw from the contract remains unaffected.
- If unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted accordingly in good faith. Insofar as this is not economically justifiable, the supplier has the right to withdraw from the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event, even where an extension of the delivery period had previously been agreed with the Purchaser.
XI. other claims for damages
- Claims for damages and reimbursement of expenses on the part of the Purchaser (hereinafter referred to as "Claims for Damages"), regardless of their legal basis, in particular for breach of duties arising from the contractual obligation and from tort, are excluded.
- This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of material contractual obligations. However, the claim for damages for the violation of essential contractual obligations is limited to the contract-typical, foreseeable damage, as far as there is no intent or gross negligence or liability for injury to life, body or health.
- Insofar as the customer is not entitled to any claims under this Art. XI, such claims shall be time-barred upon expiration of the limitation period applicable to claims for defects of quality pursuant to Art. VIII No. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
XII. place of jurisdiction and applicable law
- If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. However, the supplier is also entitled to bring an action at the customer's place of business.
- Legal relations in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. binding nature of the contract
- The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.