I. General Provisions
- The legal relationship between the Supplier and the Purchaser in connection with the supplies and/or services of the Supplier (hereinafter referred to as "Supplies") shall be governed exclusively by these General Terms and Conditions. The Purchaser's general terms and conditions shall apply only to the extent that the Supplier has expressly agreed to them in writing. The scope of the Supplies shall be determined by the concurrent written declarations of both parties.
- The Supplier reserves its unrestricted rights of use and exploitation under property and copyright law in respect of cost estimates, drawings and other documents (hereinafter referred to as "Documents"). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred Supplies.
- The Purchaser shall have the non-exclusive right to use standard software with the agreed performance features in unchanged form on the agreed equipment. The Purchaser may make a backup copy without express agreement.
- Partial deliveries are permissible insofar as they are reasonable for the customer.
- The term "claims for damages" in these GTCs also includes claims for reimbursement of futile expenses.
II. Prices and Terms of Payment
- Prices are ex works including packaging plus the applicable statutory value added tax.
- If the Supplier has undertaken the installation or assembly and unless otherwise agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage and allowances.
- Payments shall be made free Supplier's payment office.
- The customer may only set off such claims as are undisputed or have been finally determined by a court of law.
III Retention of title
- The objects of the deliveries (reserved goods) shall remain the property of the supplier until all claims against the purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests when releasing the security interests.
- For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be permitted only to resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of title to the customer conditional upon the customer fulfilling its payment obligations.
- If the customer resells goods subject to retention of title, he hereby assigns to the supplier by way of security his future claims against his customers arising from the resale together with all ancillary rights - including any balance claims - without any further special declarations being required. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Purchaser shall assign to the Supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier.
- a) The Purchaser is permitted to process the reserved goods or to mix or combine them with other items. The processing shall be carried out for the supplier. The Purchaser shall keep the resulting new item in safe custody for the Supplier with the due care of a prudent businessman. The new object shall be deemed to be reserved goods.
b) The Supplier and the Purchaser agree already now that in the event of combination or mixing with other objects not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new object in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. To this extent, the new item shall be deemed to be reserved goods.
c) The provision on the assignment of claims under No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed goods subject to retention of title invoiced by the Supplier.
d) If the Purchaser combines the goods subject to retention of title with real estate or movable property, the Purchaser shall, without any further special declarations being required, also assign to the Supplier by way of security its claims to which it is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined goods at the time of the combination.
- Until revoked, the Purchaser is authorised to collect assigned claims from the resale. In the event of good cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser's collection authorisation. In addition, the Supplier may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Purchaser to the customer.
- In the event of seizures, attachments or other dispositions or interventions by third parties, the customer shall notify the supplier without delay. If a justified interest is substantiated, the customer must immediately provide the supplier with the information required to assert its rights against the customer and hand over the necessary documents.
- In the event of a breach of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to withdraw from the contract in addition to taking back the Retained Goods after expiry of a reasonable period of grace granted to the Purchaser; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The customer shall be obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by the Supplier shall not constitute a rescission of the contract unless the Supplier has expressly declared such rescission.
IV. Time limits for deliveries; default
- Compliance with delivery periods shall be conditional upon the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these preconditions are not fulfilled in due time, the time limits shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
- If non-compliance with the deadlines is due to
a) force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strike, lockout)
b) virus and other attacks by third parties on the Supplier's IT system, insofar as these occurred despite compliance with the care customary for protective measures.
c) obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the Supplier is not responsible, or
d) untimely or improper delivery to the Supplier
the deadlines shall be extended accordingly.
- If the Supplier is in default, the Purchaser may - provided that it can credibly demonstrate that it has suffered a loss as a result - claim compensation for every full week of default of 0.5% each, but in no case more than a total of 5% of the price of that part of the Supplies which, owing to the default, could not be put to the intended use.
- Claims for damages by the Purchaser due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
- At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it rescinds the contract due to the delay in delivery or insists on delivery.
- If dispatch or delivery is delayed at the request of the Purchaser for more than one month after notification of the readiness for dispatch, the Purchaser may be charged storage costs of 0.5% of the price of the items of the Supplies for every month commenced, but in no case more than a total of 5%. The contracting parties are free to prove higher or lower storage costs.
V. Transfer of risk
- Even in the case of carriage paid deliveries, the risk shall pass to the Purchaser as follows:
a) in the case of deliveries without installation or assembly, when they have been dispatched or collected. At the request and expense of the Purchaser, deliveries shall be insured by the Supplier against the usual transport risks;
b) in the case of deliveries with installation or assembly, on the day of acceptance in the Purchaser's own works or, if agreed, after successful trial operation.
- If dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser's own works or the trial run is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for any other reason, the risk shall pass to the Purchaser.
VI. Installation and Assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
- The Purchaser shall assume at its own expense and provide in good time:
a) all earthwork, construction work and other ancillary work outside the trade, including the skilled and unskilled labour, building materials and tools required for this purpose,
b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
c) power and water at the place of use, including connections, heating and lighting.
d) at the assembly site for the storage of machine parts, apparatus, materials, tools, etc. d) at the place of assembly for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and, for the assembly personnel, adequate working and recreation rooms, including sanitary facilities appropriate to the circumstances; in all other respects, the Purchaser shall take the same measures to protect the property of the Supplier and of the assembly personnel on the site as he would take to protect his own property.
e) protective clothing and protective devices which are necessary due to special circumstances at the place of assembly.
- Before the start of the assembly work, the customer shall provide the necessary information on the location of concealed electricity, gas, water lines or similar installations, as well as the required statistical data, without being asked to do so.
- Prior to the commencement of assembly or erection, the materials and objects required for the commencement of the work must be available at the site of assembly or erection and all preparatory work must have progressed to such an extent that assembly or erection can be commenced as agreed and carried out without interruption. Access roads and the installation or assembly site must be level and cleared.
- 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 immediately certify to the Supplier on a weekly basis the duration of the working hours of the erection personnel and the completion of the erection, assembly or commissioning.
- If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out such acceptance within two weeks. Acceptance shall be deemed to have taken place if the Purchaser allows the two-week period to elapse or if the Supplies have been put to use, where appropriate after completion of an agreed test phase.
The customer may not refuse to accept deliveries due to insignificant defects.
VIII Material Defects
The Supplier shall be liable for material defects as follows:
- All parts or services showing a material defect shall, at the Supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the passing of risk.
- Claims for subsequent performance shall become statute-barred 12 months after the statutory commencement of the limitation period; the same shall apply mutatis mutandis to rescission and reduction. This period shall not apply:
- if longer periods are prescribed by law pursuant to §§ 438 para. 1 No. 2 (buildings and things used for a building) and 634a para. 1 No. 2 (defects of a building) German Civil Code (BGB),
- in the case of advance compensation
- in the case of fraudulent concealment of the defect, and
- in the case of non-compliance with a quality guarantee.
Claims for reimbursement of expenses of the buyer according to §445a BGB (recourse of the seller) are also subject to a limitation period of 12 months from the statutory commencement of the limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.
- Notification of defects by the customer must be made in writing without delay.
- In the event of a notice of defect, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may withhold payments only if a notice of defect is asserted and there can be no doubt as to its justification. If the notice of defects is unjustified, the Supplier shall be entitled to demand reimbursement from the Purchaser of the expenses incurred by it.
- The supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
- If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages pursuant to No. 10 - rescind the contract or reduce the remuneration.
- Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of 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 foundation soil or as a result of particular external influences not assumed under the contract, or in the case of non-reproducible software errors. If improper modifications, installation/removal or repair work is carried out by the purchaser or by third parties, no claims for defects shall exist for these and the resulting consequences.
- Claims of the customer for expenses incurred for the purpose of supplementary performance shall be excluded to the extent that expenses are increased because the subject-matter of the delivery has subsequently been brought to another location than the customer's branch office, unless the transfer is in accordance with its intended use. This shall apply mutatis mutandis to claims for reimbursement of expenses of the Purchaser pursuant to Section 445a of the German Civil Code (recourse of the Seller), provided that the last contract in the supply chain is not a sale of consumer goods.
- The Purchaser's right of recourse against the Supplier pursuant to Sec. 445a BGB (Seller's right of recourse) shall only exist to the extent that the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
- Claims for damages by the purchaser due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions. Further or other claims of the Purchaser than those provided for in this Art. VIII on account of a material defect are excluded.
IX. Industrial property rights and copyrights; defects of title
- Unless otherwise agreed, the Supplier shall be obliged to effect delivery only in the country of the place of delivery without infringing any industrial property rights and copyrights of third parties (hereinafter referred to as "IPR"). 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 period stipulated in Art. VIII No. 2 as follows:
a) The Supplier shall, at its option and expense, either obtain a right of use for the Supplies concerned, modify them so that the IPR is not infringed or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduction.
b) The Supplier's obligation to pay damages shall be governed by Art. XII.
c) The aforementioned obligations of the Supplier shall only exist insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for the Supplier. If the Purchaser ceases to use the Supplies in order to minimise the damage or for other good reason, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of an infringement of an IPR.
- Claims of the customer are excluded insofar as he is responsible for the infringement of the property right.
- Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by an application 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 Purchaser set out in No. 1 a) shall otherwise be governed by the provisions of Art. VIII No. 4, 5, 8 and 9 shall apply mutatis mutandis.
- In the event of other defects of title, the provisions of Art. VIII shall apply mutatis mutandis.
- Further claims or claims other than those provided for in this Art. IX against the supplier and his vicarious agents on account of a defect in title are excluded.
X. Reservation of Performance
- The performance of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.
- The Purchaser is obliged to provide all information and documents required for the export, transfer or import.
XI. Impossibility; Adjustment of Contract
- If delivery is impossible, the Purchaser shall be 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 of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the customer to withdraw from the contract remains unaffected.
- Insofar as events within the meaning of Art. IV No. 2 a) to c) substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, the Supplier shall be entitled to withdraw from the contract. The same shall apply if required export licences are not granted or cannot be used. If the Supplier intends to exercise this right of rescission, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.
XII Other claims for damages
- Unless otherwise provided for in these GTCs, claims for damages of the Purchaser, irrespective of their legal basis, in particular for breach of duties arising out of the contractual obligation and for tort, are excluded.
- This shall not apply in the following cases of liability:
a) under the Product Liability Act,
b) in the event of intent,
c) in the event of gross negligence on the part of owners, legal representatives or executive employees,
d) in the event of fraudulent intent,
e) in the event of non-compliance with an assumed guarantee,
f) due to culpable injury to life, limb or health, or
g) due to culpable breach of essential contractual obligations.
However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.
- A change in the burden of proof to the detriment of the purchaser is associated with the above rules.
XIII Place of jurisdiction and applicable law
- If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier's place of business. However, the Supplier shall also be entitled to bring an action at the Purchaser's place of business.
- This contract including its interpretation shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV Binding force of the contract
The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would constitute an unreasonable hardship for one party.
Status: January 2018