I. General Provisions
1. For the legal relationships between the Supplier and the Customer in conjunction with the deliveries and/or services rendered by the Supplier (hereafter: “Deliveries”), exclusively these General Business and Delivery Terms and Conditions shall be valid. Any general business terms and conditions of the Customer shall be valid only insofar as the Supplier has expressly approved them in writing. For the scope of the Deliveries, the written declarations that are reciprocally concurrent with each other shall be prevailing.
2. The Supplier shall, in unrestricted fashion, retain its ownership rights and exploitation rights under copyright law to the cost estimates, sketches and other documents (hereafter: “Documents”). The Documents may be made available to third parties only after having received the Supplier’s prior consent to do so and, if the order is not issued to the Supplier, they must be promptly returned to the Supplier upon its request. Clauses 1 and 2 shall be valid accordingly for the Customer’s Documents; however, they may be made available to such third parties to whom the Supplier has permissibly assigned Deliveries.
3. With regards to standard software and firmware, the Customer shall have the non-exclusive right to their usage with the agreed performance features in unaltered form on the agreed devices. The Customer may, without an express agreement in this regard, create a back-up copy of the standard software.
4. Partial Deliveries shall be permissible insofar as they are reasonable for the Customer.
5. The term “damage compensation claims” in these General Business and Delivery Terms and Conditions shall also encompass claims for the reimbursement of futile expenditures.
II. Prices, Payment Terms and Conditions, and Offsetting
1. The prices shall be understood to be ex works excluding packaging in addition to the respectively-valid statutory VAT.
2. If the Supplier has assumed responsibility for the erection or mounting work and unless something else has been agreed, then, in addition to the agreed fee, the Customer shall pay all required ancillary costs such as travel and transport costs as well as releases.
3. Payments must be made “free Supplier’s paying office”.
4. The Customer may offset only with such payment claims which are undisputed or which have been legally upheld.
III. Reservation of Ownership
1. The objects of the Deliveries (reserved goods) shall remain the Supplier’s property until all the claims to which it is entitled against the Customer from the business relationship have been satisfied. Insofar as the value of all security rights, to which the Supplier is entitled, exceeds the amount of all secured claims by more than 20 %, the Supplier shall, upon the Customer’s request, release a corresponding portion of the security rights; the Supplier shall be entitled to select the various security rights to be released.
2. During the period of time when the reservation of ownership is valid, the Customer shall be forbidden from pledging or assigning the goods by way of security and the resale thereof shall be permitted only to retailers in customary business dealings and only subject to the proviso that the retailer receives payment from his own customer or makes a proviso that the ownership to the goods shall only then be transferred to the Customer when the Customer has fulfilled his payment obligations.
3. If the Customer resells the reserved goods, then he shall already now assign his future payment claims from the resale against his customers with all ancillary rights – including any balance claims – for security purposes to the Supplier without any additional special declarations being required. If the reserved goods are resold together with other objects without an individual price having been agreed for the reserved goods, then the Customer shall assign that portion of the total price claim to the Supplier which corresponds to the price for the reserved goods that has been invoiced by the Supplier.
a) The Customer shall be permitted to process the reserved goods or to mix or combine them with other goods. The processing shall be done for the Supplier. The Customer shall safeguard the newly-created goods for the Supplier with the due care of a prudent business. The new goods shall be considered to be reserved goods.
b) The Supplier and the Customer are already in agreement that, in the case of the combining or mixing of the goods with other goods not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership to the new goods in the amount which is derived from the proportional value of the combined or mixed reserved goods to the value of the rest of the goods at the point in time of the combining or mixing. In this regard, the new goods shall be considered to be reserved goods.
c) The provision regarding the assignment of the payment claim in accordance with No. 3 shall also be valid for the new goods. However, the assignment shall be valid only up to the amount which corresponds to the value of the processed, combined or mixed reserved goods invoiced by the Supplier.
d) If the Customer combines the reserved goods with real estate properties or movables, then he shall, without any additional special declarations being required, also assign his payment claim to which he is entitled as a fee for the combining with all ancillary rights for security purposes in the amount of the proportional value of the combined reserved goods to the rest of the combined goods at the time of the combining to the Supplier.
5. Until revocation of this authorisation is made, the Customer shall be authorised to collect the assigned payment claims from the resale. If an important reason exists – particularly in the case of payment default, the discontinuation of payments, opening of bankruptcy proceedings, protest of a bill of exchange or substantiated indications of excessive debt or looming insolvency upon the Customer’s part, the Supplier shall be entitled to revoke the Customer’s authorisation to collect payment claims. Moreover, after having made a prior threat of its intention while providing appropriate notice, it may disclose the assignment of the security, exploit the assigned payment claims as well as demand the disclosure of the assignment of the security by the Customer to his end customer.
6. In the case of seizures, attachments or any other disposals or interventions by third parties, the Customer must promptly notify the Supplier of this. In the case that an entitled interest can be credibly demonstrated, the Customer must promptly provide the Supplier with the information and the Documents required for the assertion of its rights against the Customer.
7. In the case of contractual violations by the Customer – particularly in the case of payment default, the Supplier shall be entitled, after the fruitless lapsing of an appropriate notice period that has been set for the Customer, to both take back the goods as well as withdraw from the Agreement; the statutory provisions regarding the dispensability of the setting of a notice period shall remain unaffected. The Customer shall be obliged to surrender the goods. However, the taking-back of the goods and/or the assertion of the reservation of ownership or the seizure of the reserved goods by the Supplier shall constitute no rescission of the Agreement unless the Supplier has expressly declared this.
IV. Timeframes for Deliveries; Delayed Deliveries
1. The fulfilment of timeframes for Deliveries shall require the prompt receipt of all Documents to be provided by the Customer as well as any required permits and approvals – particularly of plans as well as the fulfilment of the agreed payment terms and conditions as well as any other obligations by the Customer. If these requirements are not promptly fulfilled, then the timeframes shall be appropriately extended; this shall not be valid if the Supplier is responsible for the delay.
2. If the non-fulfilment of the timeframes is attributable to:
a) Force majeure, e.g. mobilisations, wars, terrorist acts, civil unrest or similar events (e.g. strikes, lockouts),
b) Viruses and other third-party attacks on the Supplier’s IT system insofar as they have occurred despite the exercising of the due care that is customary for protective measures,
c) Hindrances in accordance with German, U.S. as well as any other applicable national, EU or international directives in accordance with foreign trade law or based upon other sets of circumstances for which the Supplier is not responsible, or
d) If the Supplier has not been promptly or properly supplied by its sub-suppliers, the timeframes shall be extended appropriately.
3. If the Supplier is late with the delivery, the Customer may – insofar as he credibly demonstrates that he has suffered damages – demand compensation for each full week of the delay of respectively 0.5%, but nonetheless collectively at most 5 % of the price for the portion of the Deliveries which could not purposefully be used owing to the delay.
4. Both damage compensation claims upon the part of the Customer owing to the delay in the delivery as well as also damage compensation claims in lieu of performance which exceed the limits specified in No. 3 shall be excluded in all cases of delayed delivery – including after the lapsing of a delivery extension period that has been set for the Supplier. This shall not be valid for liability in cases of intentional wrongdoing, gross negligence or as the result of the loss of life, physical injury or damage to health. The Customer may withdraw from the Agreement in accordance with the statutory directives only insofar as the delivery delay is the Supplier’s responsibility. This shall not entail any change in the burden of proof to the Customer’s detriment in accordance with the aforementioned provisions.
5. The Customer shall be obliged, upon the Supplier’s request, to declare within an appropriate timeframe whether he, as the result of the delivery delay, intends to withdraw from the Agreement or insists on the delivery still being made.
6. If, upon the Customer’s request, the shipment or the delivery is delayed by more than one month after the notification of the readiness for delivery has been made, the Customer may be charged, for each additional month begun, a warehousing fee in the amount of 0.5 % of the price for the goods for the Deliveries, but nonetheless at most a total of 5 %. The contractual parties shall be at liberty to document higher or lower actual warehousing costs.
V. Transfer of Risk
1. In the case of a freight paid delivery, the risk shall also be transferred to the Customer as follows:
a) In the case of a delivery without erection or mounting work, if the goods have been handed over for shipping or picked up. Upon the request and at the expense of the Customer, the delivery shall be insured by the Supplier against the customary transport risks;
b) In the case of a delivery with erection or mounting work on the day of acceptance in the customer's operations or, insofar as this has been agreed, after successful trial operations have been conducted.
2. If the shipping, the delivery, the beginning, the implementation of the erection or mounting work, the acceptance in the customer's operations or trial operations for reasons for which the Customer is responsible or the Customer enters into delivery acceptance default for any other reasons, then the risk shall be transferred to the Customer.
VI. Erection and Mounting
For the erection and mounting, unless something else has been agreed in writing, the following provisions shall be valid:
1. The Customer must, at his own expense, assume responsibility for and provide the following in a prompt manner:
a) All excavation, construction and other non-industry ancillary work including the required specialised and auxiliary personnel, construction materials and tools,
b) The consumer goods and materials which are required for the mounting and commissioning work such as scaffolds, hoisting devices and other fixtures, fuels and lubricants,
c) Energy and water at the usage site including the electrical power connections, heating and lighting,
d) At the mounting site, rooms which are sufficiently large, suitable, dry and lockable for the storage of the machine parts, apparatuses, materials, tools, etc. and work and break rooms which are appropriate for the mounting personnel including sanitary facilities that are appropriate for the respective sets of circumstances; moreover, the Customer must, in order to protect the belongings of the Supplier and the mounting personnel at the construction site, undertake measures which he would undertake in order to protect his own belongings,
e) Protection clothing and protective devices which are required based upon the special circumstances of the mounting site. Before beginning the mounting work, the Customer must, without this having to be requested, provide the required data regarding the location of the concealed electricity, gas, and water lines or similar facilities as well as the required static data.
2. Before beginning the erection or mounting work, the supplies and objects that are required for the implementation of the work at the erection or mounting site must be provided and all preliminary work before beginning the erection work must be completed to such an extent that the erection or mounting work can be begun as agreed and can be implemented without interruption. The access roads and the erection or mounting site must be paved and accessible.
3. If the erection, mounting or commissioning work is delayed owing to circumstances for which the Supplier is not responsible, then the Customer must, in an appropriate scope, assume the costs for waiting time and any additionally-required travel by the Supplier or by the mounting personnel.
4. The Customer has to confirm to supplier on a weekly basis the duration of ongoing works performed by the assembly staff, and the finalization of installation, assembly, or commissioning without undue delay.
5. If, upon completion, the Supplier demands the acceptance of the delivery, then the Customer must do so within two weeks’ time. It shall equate to the acceptance if the Customer allows the two-week timeframe to lapse or if the delivery has been used – where applicable, after the completion of an agreed test phase.
VIII. Material Defects
For material defects, the Supplier shall be liable as follows:
1. In the case that a material defect is discovered, as the Supplier so chooses, those parts or products must, upon a free-of-charge basis, either be rectified, a replacement delivery must be made or services must be rendered anew insofar as the cause of the material defect already existed at the time that risk was transferred.
2. Claims for subsequent performance shall become statute-barred within 12 months after the statute of limitations period begins to run; the same shall be correspondingly valid for the rescission of the Agreement and the reduction of the purchase price. This timeframe shall not be valid insofar as the law in accordance with §§ 438 Para. 1 No. 2 (building structures and objects for building structures), 479 Para. 1 (claims for recourse) and 634a Para. 1 No. 2 (building structures) German Civil Code prescribe longer timeframes, in the case of intentional wrongdoing, the malicious concealment of a defect as well as in the case of the failure to fulfil a quality feature guarantee. The statutory provisions regarding the expiry suspension, suspension and the new beginning of the timeframes shall remain unaffected.
3. Notifications of defects lodged by the Customer must be promptly submitted in writing.
4. In the case that notifications of defects are lodged, payments from the Customers may be withheld in a scope which is appropriate based upon the material defects that have been discovered. The Customer may withhold payments only if a notification of defects is asserted regarding whose justification no doubt can exist. A right of retention upon the part of the Customer shall not be valid if his claims for defects have become statute-barred.
5. If the notification of defects is unjustifiably lodged, the Supplier shall be entitled to demand that the Customer reimburse it for the expenditures which it has incurred in this regard.
6. The Supplier must be granted the opportunity to render subsequent performance within an appropriate timeframe.
7. If the subsequent performance is unsuccessful, the Customer may – notwithstanding any other damage compensation claims in accordance with No. 10 – either withdraw from the Agreement or reduce the purchase price.
8. Claims for defects shall not be valid in the case of only a minor deviation from the agreed quality, in the case of only a minor restriction of usability, in the case of natural wear-and-tear or damages which are created after the transfer of risk owing to flawed or careless handling, excessive workloads, unsuitable operational resources, flawed construction work, unsuitable construction sites or which are created as the result of special external influences which are not required in accordance with the Agreement as well as in the case of non-reproducible software errors. If the Customer or third parties implement improper modifications or repair work, then likewise no claims for defects shall be valid for them and the resulting consequences.
9. Claims asserted by the Customer owing to the expenditures required for the purpose of subsequent performance – particularly transport, travel, labour and materials costs – shall be excluded insofar as the expenditures increase because the object of the delivery has been belatedly relocated to another location than the Customer’s branch unless the relocation corresponds to its contractual usage.
10. Recourse claims of the Customer against the Supplier in accordance with § 478 German Civil Code (entrepreneur’s recourse) shall be valid only insofar as the Customer has concluded no agreements exceeding the statutory claims for defects with his end customer. Moreover, for the scope of the Customer’s recourse claim against the Supplier in accordance with § 478 Para. 2 German Civil Code, No. 8 shall be valid accordingly.
11. Damage compensation claims upon the part of the Customer owing to a material defect shall be excluded. This shall not be valid for the malicious concealment of the defect, for the non-fulfilment of a quality feature guarantee, for the loss of life, physical injury or damage to health and for contractual violations upon the part of the Supplier which are based upon its intentional wrongdoing or its gross negligence. No change in the burden of proof to the Customer’s detriment shall be associated with the aforementioned provisions. Any more extensive claims or other claims than those regulated in this Art. VIII upon the Customer’s part shall be excluded.
IX. Industrial Property Rights and Copyrights; Legal Defects
1. Unless something else has been agreed, the Supplier shall be obliged to render the delivery merely in the country of the delivery destination whereby the delivery shall not be encumbered by industrial property rights and copyrights of third parties (hereafter: “Proprietary Rights”). Insofar as a third party asserts justified claims against the Customer owing to the violation of Proprietary Rights as the result of the Deliveries which have been provided by the Supplier which have been used contractually, the Supplier shall be liable to the Customer within the timeframe specified in Art. VIII No. 2 as follows:
a) As it so chooses and at its own expense, the Supplier shall either affect a usage right for the affected Deliveries, modify them in such a manner that the proprietary right is no longer being violated or exchange them. If this is not possible for the Supplier at appropriate conditions, the Customer shall be entitled to statutory rights of rescission or rights to reduce the purchase price.
b) The Supplier’s obligation to pay damage compensation shall be as prescribed in Art. XII.
c) The aforementioned obligations upon the Supplier’s part shall be valid only insofar as the Customer has promptly notified the Supplier in writing of the claims asserted by third parties, a violation has not been acknowledged and the Supplier reserves the right to undertake all measures to ward off the claims and settlement negotiations. If the Customer discontinues the usage of the delivery in order to reduce damages or for any other important reasons, he shall be obliged to notify the third party that the discontinuation of usage should not be construed as being an acknowledgement of a proprietary right violation.
2. The Customer’s claims shall be excluded insofar as he is responsible for the proprietary right violation.
3. Moreover, the Customer’s claims shall be excluded insofar as the proprietary right violation has been caused owing to special requests by the Customer, through a usage not foreseeable by the Supplier or owing to the fact that the delivery has been altered by the Customer or used in conjunction with products not provided by the Supplier.
4. Moreover, in the case of proprietary right violations, for the Customer’s claims regulated in No. 1a), the provisions of Art. VIII Nos. 4, 5 and 9 shall be valid accordingly.
5. In the case that other legal defects are discovered, the provisions of Art. VIII shall be valid accordingly.
6. Any more extensive claims or any other claims than those regulated in this Art. IX upon the part of the Customer against the Supplier and its vicarious agents owing to a legal defect shall be excluded.
X. Proviso of Contractual Fulfilment
1. The contractual fulfilment shall be subject to the proviso that no hindrances in accordance with German, U.S. as well as any other applicable national, EU or international directives of international trade law as well as no embargos or no other sanctions oppose this.
2. The Customer shall be obliged to provide all information and Documents which are required for the exporting, relocation and/or importing of the goods.
XI. Impossibility, Contractual Changes
1. Insofar as the delivery is impossible, the Customer shall be entitled to demand damage compensation unless the Supplier is not responsible for the impossibility of rendering the delivery. However, the Customer’s damage compensation claim shall be limited to 10 % of the value of that portion of the delivery which cannot be purposefully used owing to the impossibility of rendering the delivery. This limitation shall not be valid for liability in cases of intentional wrongdoing, gross negligence or owing to the loss of life, physical injury or damage to health; this shall not hereby entail any change in the burden of proof to the Customer’s detriment. The Customer’s right to withdraw from the Agreement shall remain unaffected.
2. Insofar as events in accordance with Art. IV No. 2 a) - c) substantially alter the commercial significance or the contents of the delivery or have substantial ramifications for the Supplier’s operations, the Agreement shall be appropriately modified in good faith. Insofar as this is not economically feasible, the Supplier shall have the right to withdraw from the Agreement. The same shall be valid if required exporting permits are not issued or not usable. If the Supplier wishes to exercise this right of rescission, then it must, after becoming aware of the scope of the event, promptly notify the Customer in this regard and indeed also then if an extension of the delivery timeframe was initially agreed with the Customer.
XII. Miscellaneous Damage Compensation Claims
1. Unless something to the contrary has been regulated in these General Business and Delivery Terms and Conditions, damage compensation claims upon the Customer’s part – regardless of the legal reason, particularly owing to the violation of contractual obligations and tortious acts – shall be excluded.
2. This shall not be valid insofar as liability is prescribed as follows:
a) In accordance with the German Product Liability Act,
b) For intentional wrongdoing,
c) In the case of gross negligence upon the part of owners, legal representatives or management personnel,
d) For malice,
e) In the case of the non-fulfilment of a warranty that has been provided,
f) Owing to the culpable loss of life, physical injury or damage to health, or
g) Owing to the culpable violation of essential contractual obligations. However, the damage compensation claim for the violation of essential contractual obligations shall be limited to the contractually-typical, foreseeable damages insofar as none of the other aforementioned cases exists.
3. No change in the burden of proof to the Customer’s detriment shall be associated with the aforementioned provisions.
XIII. Legal Venue and Applicable Law
1. If the Customer is an entrepreneur, the sole legal venue for all disputes arising from the contractual relationship, directly or indirectly, shall be the Supplier’s commercial residence. However, the Supplier shall also be entitled to take legal action in the legal venue which is competent for the Customer’s commercial residence.
2. This Agreement – including its interpretation – shall be subject to German law while excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV. Binding Validity of the Agreement
In the case that individual provisions are discovered to be invalid, the Agreement as a whole shall continue to remain valid. This shall not be applicable if a continued binding commitment to the Agreement would constitute an unreasonable hardship for one party.