General Terms and Conditions
- All supplies and services are subject to these conditions in addition to any separate contractual agreements. Deviating purchasing conditions do not become part of the contract, even through acceptance of the order.
Unless otherwise agreed, a contract is only concluded upon written order confirmation by the supplier.
- The supplier reserves the ownership and copyrights to prototypes, cost proposals, drawings and similar physical and non-physical information - even in electronic form; they may not be made accessible to third-parties.
The supplier pledges to make information and documentation that the purchaser designates as confidential available to third parties only with the purchaser's agreement.
II. Prices and Payment
- Unless otherwise agreed, prices shall be understood to be ex-works including loading at the factory, but exclusive of packaging and unloading, unless we have offered otherwise. VAT is added to the agreed prices at the usual legal rate.
- The right to withhold payments or to offset with counterclaims shall only accrue to the purchaser to the extent that their counterclaims are not disputed or are established as being legally binding.
III. Delivery period, delivery delays
- The delivery period is governed by the agreements between the parties to the contract. Adherence to it by the supplier assumes that all commercial and technical questions have been clarified between the contractual parties, and that the purchaser has fulfilled all obligations for which they are responsible, such as provision of the necessary official certificates or permits or has made a down payment, unless we have offered otherwise. If this is not the case, the delivery period is reasonably extended. This does not apply if the supplier is responsible for the delay.
- Adherence to the delivery deadline is subject to punctual and correct delivery by our own suppliers. The supplier shall notify foreseeable delays as soon as possible.
- The delivery deadline is adhered to if the delivery item leaves the supplier's factory or readiness for shipment has been notified. Where an acceptance is required - except for justified refusal of acceptance - the date of acceptance, alternatively the notification of readiness for acceptance, is governing.
- If the shipping or acceptance of the purchased item is delayed for reasons the purchaser is liable for, the purchaser shall bear the cost resulting from such delay after one month following the notification of readiness for shipping or acceptance.
- If non-adherence to the delivery period is the result of force majeure, industrial action or other events outside of the sphere of influence of the suppler, the delivery period is reasonably extended. The supplier shall notify the purchaser without delay of the beginning and the end of any such circumstances.
- The purchaser may withdraw from the contract without giving notice if the supplier's performance becomes impossible in its entirety before the transfer of risk. Moreover, the purchaser may withdraw from the contract if the execution of part of the delivery becomes impossible and the purchaser has a justified interest in refusing the partial delivery. If this is not the case, the purchaser must pay the contractual price due for the partial delivery. The same applies to the supplier's inability to perform. Otherwise subject to section VII. 2.
If the impossibility or inability occurs during the delay in acceptance or the purchaser alone is responsible or predominantly responsible for these circumstances, the purchaser remains obliged to provide a consideration.
- If the supplier culpably fails to meet the agreed delivery deadline and if this results in damage to the purchaser, the purchaser has the right to demand liquidated damages. This shall be 0.5% per full week of delay, but a maximum of 5% of the value for the respective part of the overall supply, which cannot be used in due time or as contractually agreed as a result of the delay.
If – allowing for statutory exceptions – the purchaser allows the supplier a reasonable time period for performance and the deadline is not met, the purchaser is entitled to withdraw from the contract within the framework of the statutory regulations.
All further claims resulting from default are exclusively governed by section VII. 2 of these conditions.
IV. Risk transfer, acceptance
- The risk is transferred to the purchaser if the delivery item has left the factory even if this is as a partial delivery or the supplier has undertaken to perform other services, such as accepting shipping costs, or delivery and erection. If an acceptance is required, this governs the transfer of risk. It must be performed immediately on the acceptance date, or alternatively following the supplier's notification of readiness for acceptance. The purchaser may not refuse acceptance in the event of an immaterial defect.
- In the event of a delay in or non-performance of shipping or acceptance as a result of circumstances beyond the supplier's control, the risk is transferred to the purchaser from the day of notification of readiness for shipping or readiness for acceptance. The supplier undertakes to insure the goods upon request and at the sole expense of the purchaser.
- Partial deliveries are permissible if the purchaser considers them reasonable.
V. Retention of title
- The supplier retains title to the delivery item until receipt of all payments made under the supply contract.
- The supplier is entitled to insure the delivery item, at the cost of the purchaser, against theft, breakage, fire, water damage and other damages, unless the purchaser has demonstrably taken out insurance cover itself.
- The purchaser may neither sell nor pledge the delivery item, nor assign it as security. In the case of pledges and seizure or other orders by third parties, the purchaser must immediately notify the supplier.
- If the purchaser violates the conditions of the contract, in particular in the event of late payment, the supplier is entitled to repossess the goods after a final reminder and the purchaser is obliged to surrender possession.
- As a consequence of the retention of title, the supplier may only be entitled to demand the return of the delivery item if the supplier has withdrawn from the contract.
- The application for initiation of insolvency proceedings entitles the supplier to withdraw from the contract and demand the immediate return of the subject of the contract.
VI. Claims for defects
In the case of material defects and defects of title regarding the delivery the supplier shall warrant by way of exclusion of further claims - subject to Section VII - as follows:
- All parts shown to be defective due to circumstances that arose before the transfer of risk must be remedied or replaced according to the reasonable discretion of the supplier. The supplier must be immediately notified of any such defects in writing. Replaced parts become the property of the supplier
- In agreement with the supplier, the purchaser must grant the supplier the time and opportunity for all necessary improvements and substitute deliveries as the supplier deems necessary; otherwise, the supplier is relieved from liability for the ensuing consequences. Only in urgent cases that endanger operational safety and to avoid disproportionately severe damages, of which the supplier needs to be immediately informed, does the purchaser have the right to rectify the defect or have it rectified by a third party and to demand appropriate repayment for the ensuing costs.
- Of the immediate costs arising from the improvement or substitute delivery, the supplier shall, in the event that the complaint is revealed to be justified, be responsible for the costs of the replacement item including shipping. In addition, the supplier bears the cost of removal and refitting and the cost of providing the required mechanics and assistants, including travel expenses, provided this is not an unreasonable burden on the supplier.
- The purchaser has the right to terminate the contract within the framework of statutory regulations if the supplier, taking due account of the exceptions provided by the law, fail to improve or make a substitute delivery for a material defect within a reasonable extended period of time agreed between the parties. If the defect is of a minor nature only, the purchaser is only entitled to a price reduction. The entitlement to a price reduction is otherwise excluded.
All further claims are governed by section VII. 2 of these conditions.
- No guarantee is granted in the following cases, in particular:
unsuitable or improper use, incorrect assembly or commissioning by the purchaser or third party, natural wear and tear, incorrect or negligent handling, incorrect servicing, use of operating resources, unsuitable construction works, unsuitable ground, chemical, electrochemical or electrical influences - provided that they are not the responsibility of the supplier.
- If the defect is rectified improperly by the purchaser or a third party, the supplier bears no liability for the ensuing consequences. The same applies to any modifications to the delivered item not previously authorised by the supplier.
Defects of title
7. If the use of the delivered item leads to the violation of domestic industrial property rights or copyrights, the supplier shall, at their expense, provide the right for the purchaser to generally continue to use the delivered item, or modify the delivered item in a manner reasonable for the purchaser such that the violation of the property right no longer exists.
If this is not possible at commercially reasonable conditions or in a reasonable period, the purchaser is entitled to withdraw from the contract. Under the given conditions, the supplier also has the right to withdraw from the contract.
In addition, the supplier shall indemnify the buyer against any undisputed or legally enforceable claims of the respective holders of the property rights.
8. The supplier's obligations indicated in section VI.7 are exclusive for infringements of property rights or copyright, with the exception of the provisions in section VII.2.
They apply only if
- the purchaser promptly informs the supplier of the patent or copyright infringement claim,
- the purchaser assists the supplier to a reasonable extent in defending against the asserted claims or allows the supplier to perform the modification measures pursuant to section VI. 7,
- all defence measures including any settlements out of court remain reserved to the supplier,
- the defect of title is not based on the purchaser's instructions and
- the infringement of rights was not caused by the fact that the purchaser carried out unauthorised modifications or used the delivery item in a manner contrary to the contract.
- If the delivery item cannot be used as stipulated in the contract for reasons attributable to the purchaser as a result of negligent or incorrect implementation of proposals and advice that took place prior to the conclusion of the contract or due to a violation of other secondary obligations - in particular relating to the operations and servicing instructions for the delivery item - the regulations in sections VI and VII.2 apply accordingly with the exclusion of further claims on part of the purchaser.
- The supplier is only liable for damages not arising on the delivered item itself - on whatever legal grounds - in the case of
b.) gross negligence on the part of the owner/managing bodies or company executives,
c.) culpable injury to life, limb and health,
d.) defects the supplier has maliciously concealed or the absence of which were guaranteed,
e.) defects in the delivery item, inasmuch as there is liability for physical or material damage to objects used in the private sphere in accordance with the Product Liability Act.
In cases of culpable breach of major contractual obligations, the supplier is also held liable even in cases of grave negligence of non-managerial staff and for minor negligence, in the latter case limited to damage typical and reasonably foreseeable for the type of contract.
No further claims may be asserted.
VIII. Limitation period
All claims of the purchaser – based on whatever legal grounds – are limited to 12 months. Claims for damages pursuant to section VII. 2.a – e are subject to the statutory deadlines. This limitation shall also apply to defects in a structure or for delivered items which, due to the customary nature of their use, were used in a structure and caused the defects in said structure.
IX. Software use
If software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. It is transferred exclusively for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The purchaser may only reproduce, edit and translate the software to the legal admissible extent (§§ 69 a pp. German Copyright Act) or convert it from the object code into the source code. The purchaser undertakes not to remove any manufacturer's details - in particular copyright notices - or to change such details without the supplier's prior express consent.
All other rights to the software and the documentation, including copies, remain with the supplier or with the software supplier. The granting of sublicences is prohibited.
X. Applicable law, jurisdiction
All legal relationships between the supplier and the purchaser are governed exclusively by the law of the Federal Republic of Germany governing legal relationships between domestic parties.
The place of jurisdiction is the court at the supplier's head office. However, the supplier is entitled to bring legal action at the location of the purchaser's head office.