GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERY of
§ 1 General
1. All deliveries and services shall be based on these conditions as well as any separate contractual agreements. Deviating purchase conditions of the purchaser shall not be included in the contract, even upon acceptance of the order. In the absence of a separate agreement, a contract shall only be realized through the supplier's written order confirmation.
2. The supplier reserves the right to title and copyright on samples, cost estimates, drawings or similar information in physical or non-physical form, including electronic form. They may not be made available to third parties. The supplier shall not make available any information or documents to third-parties which have been designated as confidential by the purchaser without the purchaser's consent.
§ 2 Price and payment
1. Our claims shall be due to payment in accordance with the dates mentioned in the relevant invoices. In the absence of a date the payment shall be due immediately. Discount deductions should not be permitted, unless specifically stated in the order confirmation and/or invoice.
2. In case that the payment is not made until the due date we shall be entitled to claim interests of 3 % above the prevailing discount rate of the German Central Bank since the date when the due date was exceeded, plus the respectively applicable VAT applied on the interests. We reserve the right to apply higher default interests.
3. We accept drafts and cheques, including those of customers of our purchaser as given for the purpose of payment only. The underlying liabilities thereof will not be considered as settled until the amount of the draft or cheque is credited by the debtor of the security. This shall also apply in the case of so-called draft-cheque payment of the debtor, insofar as we have accepted the exhibitor's liabilities as "simple" contingent liabilities. All costs with regard to drafts and cheques shall be for the account of the payer.
4. In the event of payments which are not settled in time until the due date, all our other claims become due without irrespective of any possible concessions or the term of accepted drafts. In such an event we shall be entitled to demand securities and/or to realize pending deliveries only after receipt of advance payment or safety declaration. In the event of failure to comply with due dates we shall be entitled to claim the resale of the goods delivered under subject of title, to forbid their processing and machining as well as their connection and/or mixture and demand their immediate return or the transfer of direct ownership at the expenses of the customer or purchaser without having to withdraw from the contract.
5. The customer shall only be entitled to withhold payments, or offset them against counterclaims, insofar as his counterclaims are undisputed or have been stated as legally binding.
§ 3 Passage of risk, acceptance
1. The risk shall pass to the purchaser when the delivery has left the supplier's factory, even if it is only a partial delivery or if the supplier has accepted to provide further services such as delivery costs or delivery and setup. If the goods have to be accepted, this is considered to be the time, when the risk passes. It must be carried out immediately at the date of acceptance or alternatively after the supplier's notification of readiness of acceptance. The purchaser must not refuse acceptance because of the presence of a minor defect.
2. Should the dispatch or acceptance be delayed due to circumstances beyond the supplier's control, the risk shall pass to the purchaser at the day of notification of the willingness to dispatch or to accept. The supplier shall be obliged to take out the insurances required by the purchaser at the purchaser's expense.
3. Partial deliveries shall be permitted, insofar as they are acceptable for the purchaser.
§ 4 Retention of title
1. The supplier shall retain title of any delivery item until all payments specified in the delivery contract have been received.
2. In the event of a breach of contract on the part of the purchaser, particularly default of payment, the supplier shall be entitled to recover the delivery items. The purchaser hereby gives his advance consent to this recovery in such an event. This recovery shall not represent a withdrawal from the contract, unless this has been explicitly declared by the supplier. Any expenses arising to the supplier because of such a recovery (especially transportation costs) shall be borne by the purchaser. Furthermore, the supplier is entitled to forbid to the purchaser any resale or processing of the items delivered under the retention of title and to cancel the direct debit mandate (Paragraph 1).
3. The purchaser shall be obliged to handle the delivery items with adequate care; in particular he is obliged to take out at his own expense appropriate insurances against elemental force and theft at an amount at sufficient reinstatement value. Any claims resulting thereof against the insurance are herewith assigned to the supplier.
4. The items to be delivered and the claims replacing them may neither be pledged or used as a security nor transferred by the purchaser. In the event of seizures or other action by third parties, the purchaser must notify the supplier immediately in writing so that the supplier can lodge a lawsuit in accordance with § 771 ZPO. Any residual costs of such action remaining to the supplier despite winning the lawsuit pursuant to § 771 ZPO shall be borne by the purchaser.
5. The purchaser is entitled to sell, to process or to mix the items delivered in the proper course of business. Herewith, however, the purchaser assigns any claims resulting from the resale, processing or combination or from other legal reasons (in particular in connection with collateral security or wrongful acts) up to the amount of the final amount of the invoice, including VAT. The purchaser shall remain entitled to enforce such claims after they have been assigned, however this shall not affect the supplier's right to enforce them on his own. However, the supplier undertakes not to collect the claim as long as the purchaser complies with his payment obligations arising out of the proceeds collected, is not in default of payment and in particular has not filed a petition for the opening of insolvency proceedings and payments have not been suspended. If this is the case, the purchaser has to inform the supplier on demand about the assigned claims and the debtor, to provide all information required for the collection, to submit all documents pertaining thereto as well as to inform the debtor about it. In the event of contractual breaches committed by the purchaser (in particular default of payment), the supplier shall be entitled to cancel the direct debit mandate.
6. The retention of title shall also be extended to the products that exist due to the processing, mixing or combining of or with the goods delivered by the supplier at their full value, whereby these processes shall be deemed to be carried out for the supplier, so that the supplier is considered to be the manufacturer. In case of processing, mixing or combining our goods with parts of a third-party, the supplier shall acquire co-ownership in relation to the objective values of these goods.
7. The purchaser shall also assign to the supplier the claims intended to secure the claims of the supplier against the purchaser which arise to the purchaser against a third-party because of the combination of the delivered goods with a property.
8. The securities to which the supplier is entitled shall not be included, insofar as the value of the securities of the supplier exceeds the nominal value of the claims to be secured by 10 %. The supplier shall be responsible for the selection of the securities to be released.
§ 5 Claims for defects
For material defects and defects of title of the delivery, the supplier shall be held liable, under exclusion of any further claims except for Paragraph VII - as follows:
1. All parts which proved to be defective due to a circumstance which occured before the transfer of risks have to be repaired for free or replaced defectless at the descretion of the supplier. The identification of such defects must be reported to the supplier immediately. Replaced parts become the property of the supplier.
2. The purchaser shall be obliged to provide the supplier with reasonable time and opportunity to implement all reworks and replacement deliveries deemed necessary by the latter. Otherwise the supplier shall be released from liability with regard to resulting consequences as well. The purchaser shall only have the right to eliminate the deficiencies himself or have them eliminated by third-parties and to demand compensation for the required expenses from the supplier in urgent cases of danger to operational security or to prevent unreasonably large damages, whereby the supplier has to be informed immediately.
3. Of the direct costs resulting from the rework or the replacement delivery, the supplier shall bear the costs of the replacement part including shipment in the case of a justified complaint.
4. The purchaser shall have a right to withdraw from the contract should the supplier - taking into account the statutory exceptions - allow a set time limit for rework or replacement delivery due to redhibitory defect to elapse fruitlessly. If only a minor deficiency exists, the purchaser shall only be entitled to a reduction of the contract price. The right for a reduction of the contract price remains otherwise excluded. Further claims are determined in accordance to § 6, Par. 2 of these terms.
5. No warranty is assumed for the following particular cases: inappropiate or incorrect usage, fault assembly or commissioning by the purchaser or a third-party, natural wear, faulty or negligent treatment, incorrect maintenace, inappropiate equipment, defective construction work, inappropiate building ground, chemical, electrochemical or electrical influences - provided they do not lie within the scope of the supplier's responsibility.
6. If the purchaser or a third-party performs subsequent improvement in an inappropiate manner, the supplier shall not be held liable for consequences arising thereof. The same applies to modifications performed on the delivered good without having previously obtained the supplier's permission.
Defects in title
7. If use of the delivery item leads to violation of industrial property rights or copyrights within domestic territory, the supplier shall on his own expense basically entitle the purchaser to continue usage or shall modify the delivered good in a manner that is reasonable to the purchaser and ensures that the proprietary right is no longer breached. If it is not financially viable to do this or to do it in a reasonable period of time, the purchaser shall be entitled to withdraw from the contract. Under the above-mentioned preconditions, the supplier shall also be entitled to withdraw from the contract. In addition, the supplier shall release the purchaser from undisputed or non-appealable claims from affected copyright holders.
8. The liabilities of the supplier mentioned in § 5, Sect. 7 shall be final, subject to § 6, Sect. 2 in the event of breaches of property rights or copyrights. They shall only prevail if
• the purchaser informs the supplier immediately about property rights or copyrights invoked,
• the purchaser provides reasonable support to the supplier for the purpose of fending off the claims invoked or enables the supplier to execute the modification measures in accordance to § 5, Sect. 7,
• if all measures to fend off such claims including any out-of-court decisions are retained by the supplier,
• the infringement of rights is not based on instructions made by the purchaser and
• the infringement of rights was not caused by the purchaser by having made unauthorized changes to the goods supplied or having used them in a manner not compliant with the contract.
§ 6 Liability
1. If the delivered good cannot be used by the purchaser for the contractually agreed purpose, due to negligence or falt on the part of the supplier in the execution of suggestions or advice before or after completion of contract or by breach of other contractual subsidiary obligations - particularly instructions for use or maintenance of the delivered good - the regulations specified under § 5 and § 6, Sect. 2 shall apply respectively.
2. For damages which did not occur on the delivered good itself the supplier shall only be held liable - for whatever legal reasons - in the following situations
a. in the event of wrongful intent,
b. in the event of gross negligence on the part of the owner / boards or senior executives,
c. in the event of culpable injury to life, body and health,
d. in the event of defects which the supplier maliciously did not reveal or whose absence he had ensured,
e. in the event of defects on the delivered good insofar as liability exists under the Liability Act for personal injury or property damage on privately used items.
In the event of culpable violation of significant contral obligations, the supplier shall also be liable in the event of gross negligence of non-senior executives and in the event of slight negligence; in the latter case, limited to typically contractual, reasonable and forseeable damage further claims are excluded.
§ 7 Limitations
All claims of the purchaser - for whatever legal reasons - become statute-barred after 12 months. Damages under § 6, 2 a - e shall be governed by the statutory deadlines. They shall also apply for defects of building works or for delivered goods which due to the customary purpose of use were used for a building and have caused its defectiveness.
§ 8 Information / Samples
1. Information, gathered from us about deliveries or other services, shall not be binding, even if they are given in writing. In the absence of any other written notice, the information shall not be regarded as an assurance of features.
2. Samples and specimens shall be regarded as approximate representative samples for quality, dimensions and colour.
§ 9 Software utilization
If software is included in the scope of delivery, the purchaser will be granted a non-exclusive entitlement to use the delivered software including its documentation. It will be entrusted for the sole purpose of being used on the specific delivery item. The utilization of the software on more than one system is prohibited. The purchaser may only reproduce, modify, translate the software or transfer from the object code to the source code as far as this is legally permitted (§§ 69 a ff. UrhG). The purchaser shall be obliged not to remove or change any manufacturer's information - especially those about copyright, without prior explicit permission of the supplier.
All other rights to the software and the documents including copies remain the property of the supplier or of the software supplier. The granting of sub-licences shall not be permitted.
§ 10 Applicable law, place of jurisdiction
1. All legal relationships between the supplier and the purchaser shall solely be governed by the law of the Federal Republic of Germany, applicable to legal relations between domestic parties.
2. The place of jurisdiction shall be the court responsible for the supplier's head-office. The supplier, however, shall be entitled to file a lawsuit at the local court of the purchaser.
§ 11 Ineffectiveness of a provision
Should individual terms of this contract be ineffective or become ineffective by a final judgement, the remaining parts shall remain unaffected in terms of their validity.