1. All deliveries and services shall be based on these conditions and any separate contractual agreements. Deviating purchasing conditions of the Buyer shall not become an integral part of the contract even upon acceptance of the order.
Unless otherwise specified, a contract shall come into effect upon written confirmation of the order placed by the Supplier.
2. The Supplier shall retain proprietary rights and copyrights to samples, cost estimates, drawings and other similar information of a physical and non-physical nature – also in electronic form; they shall not be made available to third parties. The Supplier undertakes to only make confidential information and documentation designated as such by the Buyer accessible to third parties with the Buyer's consent.
II. Price and payment
1. In the absence of a special agreement, prices shall be ex works, including loading at the works but excluding packaging and unloading. Prices shall also be subject to value-added tax at the respective statutory rate.
2. In the absence of a special agreement, payment shall be made to the account of the Supplier without any deduction, namely,: 30% deposit upon receipt of order confirmation, 50% as soon as the customer is informed that the main parts are ready for dispatch, 20% after commissioning, but not later than 15 days after delivery.
3. The right to withhold payments or to offset counter-claims shall only be permitted for the Buyer insofar as its counter-claims are undisputed or have been judicially determined.
4. The right of the customer to set off counterclaims from other legal relationships is only granted to him in so far as they are undisputed or legally established.
III. Delivery period and delivery delays
1. The delivery period shall be based on the agreements by the contracting parties. Compliance therewith on the part of the Supplier shall presuppose that all commercial and technical matters have been clarified by the contracting parties and that the Buyer has performed all its obligations, such as for example, the provision of the necessary official licenses or approvals or remittance of a down-payment. If this is not the case, the delivery period shall be adequately extended. This shall not apply if the delay is attributable to the Supplier.
2. Compliance with the delivery period shall be subject to correct and timely deliveries to the Supplier. The Supplier shall give notification of any anticipated delays as soon as possible.
3. The delivery period shall be deemed to have been complied with if the delivery item has left the works of the Supplier by the end of the aforesaid period, or if readiness to supply has been notified. Should formal acceptance be required, the acceptance date shall be applicable, or alternatively, the notification of readiness for acceptance, provided there are no reasons for justified refusal of acceptance.
4. If shipment or acceptance of the delivery item is delayed for reasons attributable to the Buyer, the costs incurred as a result of the aforesaid delay shall be charged to the Buyer commencing one month after giving notification of shipment or readiness of acceptance.
5. Should non-compliance with the delivery period be attributable to force majeure, labor disputes or any other occurrences which cannot be influenced by the Supplier, the delivery period shall be adequately extended. The Supplier shall notify the Buyer of the commencement and end of the aforesaid circumstances as soon as possible.
6. Additional claims resulting from a delay in delivery shall be determined exclusively on the basis of Section VII.2 of these conditions.
IV. Transfer of risk and formal acceptance
1. The risk shall pass to the Buyer when the delivery item has left the works of the Supplier, also in the case of partial deliveries, or if the Supplier has assumed other obligations, for example, shipping costs or the delivery and installation. As far as an acceptance must take place, this shall be authoritative for the transfer of risk. The acceptance procedure shall be carried out immediately on the agreed date, or alternatively after notification being given by the Supplier of the readiness for acceptance. The Buyer shall not refuse acceptance if an immaterial defect is identified.
2. If the shipment or acceptance is delayed or not effected for reasons which are not attributable to the Supplier, the risk shall pass to the Buyer on the date the notification of the shipment or readiness for acceptance is given. The Supplier undertakes to take out any insurance requested by the Buyer at the Buyer's cost.
3. Partial deliveries shall be permitted
V. Retention of title
1. The Supplier shall retain ownership of the delivery item until all payments under the delivery contract have been received,- also if necessary for additional owed supplementary services-.
2. The Supplier shall be entitled to insure the delivery item against every insurable risk at the Buyer's cost unless the Buyer is able to prove that he has taken out the insurance himself.
3. The Buyer shall not sell, pledge or assign the delivery item by way of security. If the delivery item is pledged or seized or otherwise possessed by third parties, the Buyer shall notify the Supplier thereof immediately.
4. In the event of the Buyer acting in contradiction to its contractual obligations, especially in the case of delayed payment, the Supplier shall, after having issued an appropriate reminder, be entitled to take back the delivery item and the Buyer shall be obliged to return the same.
5. The assertion of the retention of title as well as the removal of the delivery item by the supplier shall not be deemed to be a withdrawal from the contract.
6. The retention of title applies until all, including future claims, from the business relationship between Buyer and Supplier have been satisfied.
7. The petition for commencing insolvency proceedings shall entitle the Supplier to withdraw from the contract and to demand an immediate return of the delivery item.
VI. Liability for defects
The Supplier shall assume warranty for any material defects or defects in title in the delivery without being under any further liability - except as provided in Section VII - as follows:
Material defects
1. All those parts that prove to be defective due to circumstances arising prior to the transfer of risk shall, at the discretion of the Supplier, be rectified or replaced free of defects. The identification of such defects shall be reported to the Supplier in writing without delay. Replaced parts shall become the property of the Supplier.
2. After consultation with the Supplier, the Buyer shall allow the Supplier the necessary time and opportunity to carry out all the rectifications and replacement deliveries considered necessary by the Supplier; the Supplier shall otherwise be exempt from any liability for the consequences resulting therefrom. Only in urgent cases of risks occurring to the operating security, or for averting disproportionately large damages, whereby the Supplier is to be informed of the aforesaid immediately, the Buyer shall be entitled to rectify defects itself or to have them rectified by third parties and to demand reimbursement from the Supplier of the expenses incurred.
3. Insofar as the complaint proves to be justified, the Supplier shall bear the costs for the replacement item, including the shipment, from the direct costs incurred as a result of the rectification or replacement delivery. The Supplier shall also bear the costs for dismantling and installing the replacement as well as the necessary costs for assigning any required mechanics and ancillary workers, including their travelling expenses, provided that no disproportionate burden is imposed on the Supplier as a result.
4. The Buyer shall be entitled to withdraw from the contract within the scope of the relevant legal regulations, if the Supplier - under consideration of the legal exceptions -fails to comply with a reasonable and commensurate period of grace set for the rectification or replacement delivery due to a physical defect, with no response on his part. If the defect is only immaterial, the Buyer shall only be entitled to reduce the contract price. The right to reduce the contract price shall otherwise be excluded.
5. Additional claims shall be determined on the basis of Section VII. 2 of these General Terms and Conditions.
6. No warranty shall be assumed particularly in the following cases: Inappropriate or improper use, defective assembly or putting into operation by the Buyer or third parties, natural wear and tear, improper or careless handling, improper maintenance, unsuitable means of operation, defective construction work, unsuitable building ground and chemical, electrochemical or electric influences insofar as they were not attributable to the Supplier.
7. Should the Buyer or a third party make improper rectifications, the Supplier shall assume no liability for the consequences arising therefrom. The same shall also apply for any changes made to the delivery item without the prior consent of the Supplier.
Defects in title
8. Should the use of the delivery item lead to infringing any domestic industrial property rights or copyrights the Supplier shall, at his own cost, basically procure the right for the Buyer to continue using the delivery items, or shall modify the delivery item in an acceptable manner for the Buyer, such that the property rights are no longer infringed. Should this not be possible under reasonably acceptable, economic conditions or within a reasonable period of time the Buyer shall be entitled to withdraw from the contract. The Supplier shall also be entitled to withdraw from the contract under the aforementioned conditions.
Furthermore, the Supplier shall indemnify the Buyer against any undisputed claims or legally enforceable claims asserted by the respective holders of the property rights.
9. The obligations of the Supplier referred to in Section VI.8 shall, with the exception of Section VII.2, be final and conclusive in the event of any infringement of property rights or copyrights.
They shall only apply
if the Buyer immediately notifies the Supplier of any infringement of property rights and copyrights which have been asserted,
if the Buyer supports the Supplier to a reasonable extent in its defence against the asserted claims, or enables the Supplier to execute the modification measures referred to in Section VI.8,
if the Supplier retains the right to take all defensive measures including out-of-court settlements, if the defect of title is not attributable to an instruction given by the Buyer and
if the infringement was not caused by the Buyer modifying the delivery item on his own authority, or using the delivery item in a non-contractual manner.
VII. Liability of the supplier, disclaimer
1. If the delivery item cannot be used by the Buyer in accordance with the contractual terms due to the fault of the Supplier as a result of non-execution or defective execution of suggestions made and discussions carried out before or after the conclusion of the contract, or due to the infringement of other ancillary contractual obligations - especially instructions for operation and maintenance of the delivery item -the provisions referred to in Section VI and VII.2 shall apply accordingly, excluding any other claims asserted by the Buyer.
2. Regardless of whatever legal ground, the Supplier shall only be liable for damages other than to the delivery item itself
a. in the event of wilful intent,
b. in the event of gross negligence on the part of the proprietor/the executive bodies or senior managers
c. in the event of culpable injury to life, body or health,
d. in the event of defects which he has maliciously concealed e. in the event of a guarantee promise,
f. in the event of delivery item defects, to the extent that liability is provided under the Product Liability Act for personal injury and property damages caused to items used for private purposes.
VIII. Period of limitation
All claims of the Buyer – for whatever legal reason- shall become statute-barred in 12 months. For compensation claims referred to in Section VII.2 a-d and f, the relevant statutory periods shall be valid. They shall also be valid in the case of defects in a building construction or for delivery items that were used for a building construction in conformity with their normal method of utilisation and have caused its defectiveness.
IX. Software utilisation
If software is included within the scope of delivery, the Buyer shall be granted a non-exclusive right to use the delivered software, including its documentation. It shall be provided for use of the delivery item intended for this. The utilisation of the software on more than one system shall be prohibited. The Buyer shall only copy, revise or translate the software, or convert it from the object code to the source code to the extent permitted by law (§§ 69 a et seq. of the German Copyright Act). The Buyer agrees neither to remove the manufacturer's specifications -especially the copyright references -nor to change them without the express, prior consent of the Supplier.
All other rights to the software and the documentation, including copies thereof, shall remain with the Supplier or with the software supplier, respectively. It shall not be permitted to grant sublicenses.
In the case of culpable violation of substantial contractual obligations, the Supplier shall also be liable for gross negligence of non-managerial employees and simple negligence, this being restricted, in the latter case, however, to damage or loss that is reasonably foreseeable and typical for the contract.
Any further claims shall be excluded.
X. Applicable law and place of jurisdiction
1. All legal relationships between the Supplier and the Customer shall be subject exclusively to the legislation of the Federal Republic of Germany for the legal relations between domestic parties.
2. The place of jurisdiction shall be the competent court at the domicile of the Supplier. However, the Supplier shall be entitled to institute proceedings at the Buyer's main place of business.
3. This text is only valid in German. All translations into another language are aid measures without a legal liability.
4. These conditions apply without any other written agreement in Germany and abroad.
5. All previous conditions are irrelevant from 01 January 2016th. Unless an order has been accepted and has not yet been executed.
