General Terms and Conditions
I. General Provisions
- The written statements signed by both parties are decisive for the scope of deliveries or services (referred to herein as the "services"). The Customer's general terms of business are applicable only inasmuch as the Supplier or Provider (referred to herein as the “Supplier") has expressly agreed to these in writing.
- The Supplier reserves to have the unrestricted rights to his proprietary and copyright-related rights of usage where any quotations, drawings or other documentation is concerned (referred to herein as the "documentation"). The documentation may only be made accessible to third parties after obtaining prior approval from the Supplier; said material must be returned immediately on demand if the contract is not placed with the Supplier. Accordingly, Clauses 1 and 2 apply to the Customer’s documentation; this documentation should however not be made accessible to such third parties, to whom the Supplier has transferred such shipments.
- The Customer has the non-exclusive right to use the standard software with the agreed performance features in an unaltered form on the agreed equipment. The Customer is entitled to make a backup copy of the software without requiring express permission to do so.
- Partial deliveries are allowed inasmuch as this is reasonable to the Customer.
II. Prices and Payment Terms
- The prices are understood to be ex works excluding packaging and are subject to the respective legal rate of value added tax (input tax).
- If the Supplier has taken over the setup or assembly and nothing to the contrary has been agreed, then the Customer will be held responsible for all the incidental expenses such as travel costs, costs of transporting the tools or the personal luggage and per diems in addition to the agreed hotel and accommodation.
- Payments must be made to the Supplier’s bank. The payment terms for the equipment deliveries are 30 days net. Invoices for exchange parts and repair work are payable within 10 days net.
- The Customer can only offset any demands that are undisputed and legally ascertained to be enforceable.
III. Reserved Ownership
- The delivery items (goods with reserved ownership) remain the property of the Supplier until all the claims the Customer may be entitled to as a result of the business agreement are fulfilled. If the value of all the security rights to which the Supplier is entitled exceeds the value of all the secured rights by more than 20%, then the Supplier must release a corresponding portion of the security rights at the request of the Customer.
- During the period of reserved ownership, the Customer is forbidden to mortgage or transfer ownership by way of security but is permitted to resell the product solely to re-sellers as part of a normal business transaction; this is conditional on the fact that the re-seller receives payment from his customers or requires that the property only passes to the customer after he/she has fulfilled his/her payment obligations.
- The Purchaser must notify the Supplier immediately in the case of liens, seizure attachments or other orders or interventions by third parties.
- In the event of breaches of duty by the Customer, especially payment defaults, the Supplier is entitled to cancel and withdraw; the Customer is obliged to give up possession. Retracting or enforcing the reserved ownership does not require the Supplier's cancellation. In the case of such actions or if the goods with reserved ownership are seized under distress by the Supplier, there is no cancellation of the contract, except if the Supplier has expressly declared this.
IV. Deadlines for Deliveries; Default
- Complying with deadlines for deliveries is conditional on the timely arrival of all the documentation required from the Customer, having all the necessary permits and approvals, especially with regard to drawings, as well as the Customer’s compliance with the agreed payment terms and other obligations. If these conditions are not fulfilled promptly, then the deadlines are extended appropriately; this does not apply if the Supplier is responsible for the delays.
- If non-compliance with the deadlines is due to Acts of God, such as mobilisation, war, unrest or similar events, e.g. strikes, lock-outs, then the deadlines are extended appropriately.
- If he is able to credibly prove that he has suffered a damage as a result of this and if the Supplier is in default, then the Customer may demand damages of 0.5% for every full week of default; this may not total more than 5% of the price for the portion of the deliveries that he was not able to put into use as a result of the breach.
- Late deliveries are excluded under all circumstances, both from any claims for compensation by the Customer as a result of shipment delays as well as claims for damages for performance, even after the new deadline for delivery has expired, . This does not apply in cases of intent, gross negligence, or where there is a liability because of personal injuries to the life, limb or health; changing the burden of proof to the Customer’s disadvantage is not affected with this. The Customer can only cancel the contract within the framework of the legal requirements, inasmuch as the Supplier is held responsible for the performance.
- The Customer is obliged at the request of the Supplier to indicate within an appropriate deadline whether he is going to cancel the order as a result of the delivery delays or whether he will demand compensation for damages or if he is going to insist on delivery.
- If shipment or delivery is delayed at the request of the Customer by more than one month after the Customer has been sent the Shipping Advice notification, the Supplier can charge the Customer storage fees equalling 0.5% of the price of the objects of the shipment for every month that commences; this amount may not exceed 5% of the value of the shipment. The contracting parties are free to prove the storage costs are higher or lower.
V. Passing of Risk
- The risk is transferred to the Customer as follows even if the delivery was carriage prepaid:
a) When goods are shipped or picked up in the event of shipments without setup or assembly. The Supplier can insure deliveries against the usual transportation risks at the expense and request of the Customer.
b) In the event of shipments with setup or assembly, on the day of takeover at one’s own premises or following a problem-free trial operation.
- The risk is transferred to the Customer if the shipment, delivery, commencement, actual setup or assembly, acceptance at one’s own premises or the trial run is delayed for reasons for which the Customer is responsible, or if the Customer defaults in taking delivery for some other reason
VI. Setup and Assembly
The following provisions apply for setup and assembly, if nothing to the contrary has been agreed in writing:
- All the required additions and items must be available at the setup or assembly site before commencement of the setup work or assembly and all the preliminary work must be sufficiently advanced to enable the setup and assembly work to commence as agreed and without any interruptions.
- If the setup, assembly or commissioning is delayed as a result of circumstances for which the Supplier is not responsible, then the Customer must bear the reasonable costs for the waiting time and the costs of any additional necessary travel by the Supplier or his assembly staff.
- If the Supplier demands that the handover of the delivery occur upon completion, then the Customer must do this within two weeks. If this does not occur, then the following will be considered as agreed. Similarly, handover will be considered to have occurred if delivery is put into operation, possibly after completing an agreed test phase.
The Customer may not refuse acceptance of deliveries because of minor faults.
VIII. Quality Defects
The Supplier is liable for quality defects as follows:
- All those parts or services which display quality defects within the period of limitation must be reworked, re-supplied or re-delivered, at the discretion of the Supplier without consideration of the period of operation, provided the causes for the defects already existed at the time of passing the risk.
- Claims for quality defects become statute-barred within twelve months. This does not apply inasmuch as the law under §§ 438 Sub-section 1, No.2 (Bauwerke und Sachen für Bauwerke1), 476 Sub-section 1 (Rückgriffsanspruch2) and 534 a Sub-section 1 No. 2 (Baumängel3) BGB4 requires longer deadlines.
- The Customer must notify the Supplier in writing about any quality defects immediately.
- The Customer has the right to hold back payments in the event of quality defects, providing the amount is proportional to the experienced quality defects. The Customer can only withhold payments if a complaint is being enforced and there is no doubt of his entitlement. If the complaint is lodged unjustly then the Supplier is entitled to demand compensation from the Customer for the expenses he has incurred.
- The Supplier must always be provided with the opportunity to subsequently discharge his obligations within an appropriate deadline.
- If the subsequent performance fails, the Supplier can cancel the contract or reduce the price due to defect, irrespective of any entitlements for claims for damages in Clause 11.
- Warranty claims do not exist for minor deviations from the agreed conditions, in the event of considerable impairments to the serviceability, in the case of natural wear or damages that did not occur after the passing of the risk as a result of a faulty or negligent action, excessive strain, inappropriate operating materials, unsatisfactory construction work, inappropriate building land or as a result of special external influences, which have not been specified in the contract, and for non-reproducible software errors. If inappropriate modifications are made by the Customer or third parties or if repairs are carried out, then there will be no warranty claims for these and any ensuring consequences.
- Claims by the Customer as a result of any work that may be required for the purpose of subsequent performance, especially transportation, travel, labour and material costs, are excluded provided the expenditures do not increase because the object of the delivery was subsequently taken to a different place than the Customer's branch office. This is not the case if the transfer corresponds with the appropriate use. In the case of supplementary performances the appliance had to be returned basically after previous accord with the manufacturer back to the manufacturer. Also there will be the possibility that the manufacturer organizes the retour shipment. In the case of other agreements there will be referred to the individual agreement.
- The Customer’s legal rights of recourse against the Supplier only exist to the extent that the Customer has not entered into any agreements with his workforce which exceed the legal quality claims. Clause 8 applies accordingly for the Supplier's legal rights of recourse against the Supplier and any persons employed in performing an obligation for which the Supplier is vicariously liable.
- Furthermore, Clause X applies for any entitlements for damages (Miscellaneous entitlements for damages). Any continuing or other claims made against the Supplier or any persons employed in performing an obligation for which the Supplier is vicariously liable by the Customer that are excluded from this clause.
IX. Impossibility; Contract Adaptation
- If the delivery is impossible, then the Customer is entitled to demand damages, except in circumstances where the Supplier cannot be held responsible for this impossibility. However, the Customer’s entitlement to damages is limited to 10% of the value of that share of the delivery which cannot be put into use because of the aforementioned impossibility. This restriction does not apply if there is mandatory liability in cases of intent, gross negligence or injuries to life and limb and health. Changing the burden of proof to the disadvantage of the Customer is not related to this. The Customer’s right to cancel the contract remains unaffected.
- If unforeseen circumstances in terms of Clause IV No. 2 have a major affect on the economic significance or the content of the delivery or on the Supplier’s operation, then the contract will be adapted appropriately in good faith. If this is not tenable economically, then the Supplier has the right to cancel the contract. If he wishes to exercise this right of cancellation, then he must immediately notify the Customer upon recognising the extent of the event, even in cases where an extension of the delivery time had previously been agreed with the Customer.
X. Miscellaneous Entitlements for Damages
- All claims for damages and expenses by the Customer (referred to herein as “entitlements for damages”), regardless of their legal basis, especially because of infringements of duties as a result of the obligation and the illegal action, are excluded.
- This does not apply, if there is compulsory liability, e.g. according to the product liability law (Produkthaftungsgesetz), in case of intent, gross negligence, because of injuries to life, limb or health, because of breaches of major contractual duties. The entitlements for damages for breaching major contractual duties are however limited to typical, foreseeable damages, provided there is no intent or gross negligence or if liability is ensured because of injuries to life, limb and health. Changing the burden of proof to the disadvantage of the Customer is not involved with the aforementioned rulings.
- If the Customer is entitled to claims for damages under Clause X, then these damages are statute-barred upon expiry of the limitation period valid for entitlements for damages in accordance with Clause XIII, No. 2.
XI. Legal Venue and Applicable Law
- In the event that the Customer is a businessman, then the sole place of jurisdiction will be place in which the Supplier has his registered offices directly or even indirectly after the dispute occurs. The Supplier is also entitled to file his action in the town in which the Customer has his registered offices.
- German material law, excluding the UN Convention on Contracts for the International Sale of Goods(CISG), applies in conjunction with this Contract.
XII. Validity of the Contract
The contract remains valid in its remaining parts even if individual clauses are legally non-enforceable. This does not apply if standing by the contract would represent unreasonable hardness for one of the parties.
Dated: February 2018
Buildings and items for buildings
Claim under a right of recourse
BGB = Bürgerliches Gesetzbuch = German Civil Code