- The contract shall be regarded as concluded according to the terms and conditions contained in the written confirmation of order issued by the Supplier and to these Terms and
Conditions of Sale, unless a special written agreement between Purchaser and Supplier precedes. Any contrary purchase conditions of the Purchaser shall not be binding even if no objections are made.
- All legally relevant declarations and agreements of the contracting parties shall be made in writing in order to become valid.
- The Purchaser and the Supplier shall only pass on their contractual rights to third parties with previous mutual consent.
- Only those properties shall be regarded as assured and/or guaranteed that are specified in the contract as being assured and/or guaranteed.
- The Supplier shall have the right to modifications to the object of supply if this seems to be necessary with regard to constructive development and technical progress.
II. Drawings and technical documents
- Brochures and catalogues shall not be binding. Data contained in drawings and technical documents shall only be binding if they are explicitly assured as such.
- The Supplier reserves all rights to the drawings and technical documents delivered. They shall not be made available to third parties. If no order is placed, all drawings are to be returned to the Supplier.
- Unless otherwise agreed upon, the prices for supplies from Germany shall be deemed as unpacked, loaded ex supply works, and for supplies outside of Germany unpacked, customs cleared, ex-works factory.
- For packing being effected as per best judgement, the prime cost for wages and material will be invoiced. Packing material will not be taken back.
- For changes in cost before the delivery is effected, the Supplier reserves the right to revise the prices.
- The delivery time shall start upon conclusion of the contract and as soon as the Purchaser has arranged for all the contracted prerequisites to be provided for by him, in particular the stipulated payments and securities and clarification of all the technical details being required for the execution of the order.
- The delivery time shall be deemed to be met if the object of supply is ready for dispatch at the supply works within such time.
- Performance of the contractual obligations by the Purchaser is a prerequisite for compliance with the delivery time on the part of the Supplier.
- The delivery time shall be reasonably extended if its completion becomes impossible due to a circumstance occurring after the conclusion of the contract that is beyond the Supplier’s control and that obstructs the completion or delivery of the object of supply. Such circumstances (relieving causes of the Supplier) are for instance: all cases of Force Majeure, operating failures, restrictions regarding energy supply, fire, missing means of transport and shortage of workers/skilled workers due to labour conflicts as well as direct and indirect consequences of labour conflicts. The Supplier shall not be held responsible either for the circumstances indicated above even if they might occur during an already existing delay in delivery.
- In case a delay in delivery occurs on the part of the Supplier and damage is sustained by the Purchaser, he shall be entitled to a lump-sum compensation for delayed performance for each full week of 0.5% of the value of that part of the total supply which cannot be used in time or according to contract due to the delay. However, the total compensation shall never exceed 5% of the contract price indicated above.
- The Purchaser shall be entitled to cancel the contract without fixing a time limit if the execution of the total performance definitely becomes impossible for the Supplier prior to the transfer of risks. Moreover, the Purchaser shall have the right to cancel the contract if the execution of a part of the supply of the order becomes impossible and he is legitimately interested in declining a partial delivery. Otherwise, the Purchaser shall pay the contract price apportionable to the partial delivery. The same shall be applicable in case of incapability on the part of the Supplier. As to the rest, clause X. 2 shall be applicable.
- If the impossibility or incapability occurs during a delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obliged to counter-performance.
- If the Purchaser grants to the Supplier being in delay a reasonable period of time for the performance – considering the exceptional cases by law – and if this time limit is not met, the Purchaser shall be entitled to cancellation within the scope of the legal stipulations.
- Further claims from a delay in delivery shall be determined exclusively as per clause
- 2. of these terms and conditions.
V.Transfer of risks
- The point of time for transfer of risks shall be determined according to the agreed Incoterms being valid on the day of contract conclusion.
- In case of delivery ex works, the risk shall be transferred to the Purchaser at notification of readiness for dispatch.
- Insignificant deficiencies/reasons shall not entitle the Purchaser to decline taking-over of the supply.
- Partial deliveries shall be regarded as admissible.
- Acceptance tests that are carried out beyond the standard checks of the Supplier shall be borne by the Purchaser and are subject to an explicit agreement.
- If the Purchaser does not take over the supply at the point of time stipulated by contract, the Purchaser shall nevertheless pay the owing sums on the due dates agreed upon. If dispatch is delayed for reasons the Supplier cannot be held responsible for, the supply shall be stored and insured at the Purchaser’s account and risk.
- The Purchaser shall make the payments according to the stipulated terms and conditions of payment. Unless otherwise agreed upon, the Purchaser shall pay 1/3 of the contract price immediately after the conclusion of the contract and 2/3 after the notification of readiness for dispatch without deduction ex paying agency of the Supplier.
- In case of delay in payment on the part of the Purchaser or in case of circumstances proving that the creditworthiness of the Purchaser is not ensured anymore, the Supplier shall have the right to postpone the actions required for completion of his contractual obligations.
- If the stipulated payment dates are exceeded, the Supplier shall be entitled besides the outstanding payments to demand default interest in the amount of the usual bank interest rates for a non-covered credit at the place of the Supplier. If the Purchaser does not make a payment even after a reasonable period of time, payment of the total remaining balance shall become due immediately, notwithstanding further rights of the Supplier.
- The Purchaser shall only be entitled to withhold his payments due to counter-claims in the same amount including warranty claims acknowledged by the Supplier or to offset them in the same amount.
- If the object of supply is delivered before the Purchaser has paid all the due sums, the Purchaser shall be obliged to sufficiently insure the object of supply for the benefit of the Supplier until complete payment has been effected.
VIII. Reservation of title
- The supplies shall solely be effected with reservation of title. The title shall only pass to the Purchaser after completion of all his liabilities from all the material supplies and from other performances of the Supplier.
- If the object of supply is closely connected to another object, the Purchaser shall pass in advance to the Supplier his property rights and co-ownership gained due to the connection until entire fulfilment of all his payment obligations.
- If the object of supply is disposed by the Purchaser – which requires the explicit permission from the Supplier – the Purchaser shall assign in advance a claim from the sales contract to the Supplier until the entire fulfilment of all his payment obligations.
- The Purchaser shall neither pawn nor assign the object of supply without consent of the Supplier before entire completion of his payment obligations and, in case of pawning of the object of supply by third parties or any other impairment regarding reservation of title of the Supplier, he shall immediately notify the Supplier in writing.
- The Purchaser shall have to cooperate in any measures necessary for the protection of the Supplier’s ownership. If the validity of reservation of title registration in a register for reservation of title or similar public registers is required, the Purchaser shall authorize the Supplier, upon entering into a contract, to register or notify the reservation of title in public registers, books or similar records, all in accordance with relevant national laws, and to fulfil all corresponding formalities, at Purchaser’s cost.
IX.Scope and duration of the warranty
For defects in the supply, the Supplier shall warrant to the exclusion of any further rights – with reservation as to clause X. 2. – as follows:
- All those parts shall be reworked or supplied anew free of charge at the Supplier’s choice that turn out to be deficient due to a circumstance occurred before the transfer of risk. The Supplier must immediately be notified in writing of such deficiencies determined. Replaced parts shall become property of the Supplier.
- For execution of rework and replacement supplies deemed to be necessary by the Supplier, the Purchaser shall grant as per agreement with the Supplier the required period of time and opportunity; otherwise, the Supplier shall be relieved from his liability regarding the consequences resulting therefrom. Only in urgent cases of impairment of the operational safety and in order to ward off disproportionate damage of which the Supplier must immediately be notified, the Purchaser shall have the right to remedy the deficiency himself or to have it remedied by third parties and to demand compensation for the required expenditure from the Supplier.
- As to the cost arisen for rework and/or replacement supply, the Supplier shall bear the cost – to such an extent as the claim turns out to be justified – for the replacement part including dispatch, import/customs clearance as well as the reasonable cost for mounting and dismounting, and, if it can be claimed by rights in individual cases, the cost for the possibly required provision of his erectors and helpers.
- The Purchaser shall have the right to cancel the contract within the scope of the legal
stipulations if the Supplier – under consideration of exceptional cases by law – let’s expire in vain a reasonable period of time granted to him for rework and replacement supply due to a material deficiency. In case of an insignificant deficiency, the Purchaser shall only have the right to reduction of the contract price. Otherwise, the right to reduction of the contract price shall be excluded.
- Warranty shall not be granted in the following particular cases:
Unsuitable or improper use, incorrect installation and/or commissioning carried out by the Purchaser or third parties, normal wear and tear, faulty or negligent handling, improper maintenance, unsuitable utilities, constructional deficiencies, electrical and/or chemical influences – as far as they are beyond the scope of responsibility of the Supplier.
- In case of inexpert rework carried out by the Purchaser or a third party, the Supplier shall not be held responsible for the consequences resulting therefrom. The same shall be applicable to modifications to the object of supply carried out without prior consent of the Supplier.
- The warranty period shall be 12 months starting from commissioning, however, at the utmost 18 months after delivery, whichever occurs first. The warranty period for replaced or newly installed parts shall elapse 18 months from the date of conclusion of the contract at the latest.
- If the use of the object of supply leads to an infringement of inland industrial property rights or copyrights, the Supplier shall basically procure to the Purchaser at his own expense the right to further use or to modify the object of supply in a reasonable way so that a property right infringement will no longer exist. If this is not possible on economically reasonable conditions or within a reasonable time, the Purchaser shall have the right to cancel the contract. On the a.m. conditions, the Supplier, too, shall have the right to cancel the contract. In addition, the Supplier shall release the Purchaser from any determined indisputable or valid claims of the respective proprietors of industrial rights.
- The obligations of the Supplier specified in clause IX. 8. shall be conclusive with reservation of clause X. 2 in case of an infringement of industrial property rights or copyrights.
They shall only exist if
- the Purchaser notifies the Supplier without delay of an infringement of industrial property rights or copyrights claimed,
- the Purchaser reasonably supports the Supplier regarding defence of claims and/or
enables the Supplier to execute modification measures as per clause IX.8.,
- the right to all the defence measures including out-of-court settlements is retained to the Supplier,
- the deficiency in title was not caused by the fact that the Purchaser has modified
without authority the object of supply or has not used it in conformity with the contract.
- If the object of supply cannot be used by the Purchaser in conformity with the contract by fault of the Supplier as a consequence of defaulted or deficient execution of proposals and consultation prior to or subsequent to conclusion of the contract or by infringing other secondary contractual obligations – especially instructions for operation and maintenance of the object of supply – the stipulations of clauses IX. and X. 2. shall be valid to the exclusion of further claims of the Purchaser.
- The Supplier shall be liable – irrespective of the legal basis – for damage that does not arise on the object of supply itself, such as production loss, loss of use, loss of orders, and lost profit, as well as for further direct and indirect damage only in case of wilfulness, in case of gross negligence of the owner / of the bodies or executive employees, in case of negligent harm to life, body, health, in case of deficiencies that he maliciously concealed or the absence of which he had guaranteed, in case of deficiencies of the object of supply as far as he can be held liable according to the product liability law for bodily and material injury to privately used objects.
In case of malicious infringement of major contractual obligations, the Supplier shall also be held liable for gross negligence of non-executive employees and for minor negligence; the latter case shall be limited to reasonably foreseeable damage being typical of the contract.
- Further claims shall be excluded.
All the Purchaser’s claims – irrespective of the legal basis – shall prescribe in 12 months; with regard to claims for repair of deficiencies, IX. 7 shall be applicable. In case of wilful or malicious behaviour and claims according to the product liability law, the periods fixed by law shall be applicable. They shall also be applicable for deficiencies at buildings or objects of supply that have been applied for a building according to its normal use, thereby having caused its defectiveness.
XII. Software use
As far as software is included in the scope of supply, the Purchaser shall be granted a non-exclusive right to use the delivered software including the documentation. It will be handed over for use on the object of supply destined for that purpose. Use of the software on more than one system is prohibited.
The Purchaser is only allowed to copy, revise, and translate the software or transform it from the object code to the source code within the scope permitted by law. The Purchaser shall be obliged neither to remove manufacturer’s data – in particular copyright notes – nor to modify them without prior explicit permit from the Supplier.
All further rights to the software and documentation including copies shall remain with the Supplier and/or software supplier. Granting sublicenses shall not be permitted.
If the Supplier also undertakes to install the object of supply, the terms and conditions of installation of the Supplier shall be applicable unless otherwise agreed upon by contract
XIV. Applicable law and place of jurisdiction
- The contract shall be governed by German law.
- A lawsuit regarding all the disputes arising from the contract shall be filed at the competent court at the Supplier’s headquarters or subsidiary being responsible for the execution of the supply. The Supplier shall also be entitled to file a lawsuit at the headquarters of the Purchaser.