General Terms and Conditions for Deliveries and Services (dated 01.01.2009)
1. General terms
1.1 Any agreements – in particular to the extent that they modify these Terms and Conditions – shall be binding upon us only upon our explicit written consent. If any such of these Terms and Conditions are overruled by explicit written agreement to the contrary between us and the buyer, this shall have no effect on the validity of the other Terms and Conditions.
1.2 All of our – also future – deliveries and services including proposals, consultations and other additional services shall be governed by these General Terms and Conditions, even if we, being aware of different or conflicting terms and conditions of the buyer, perform delivery of the goods. Differing or conflicting terms and conditions of purchase and/or orders shall not be acknowledged by us without our prior explicit written consent.
1.3 We reserve all property rights and copyrights to cost estimates, drawings and other documents; such may not be disclosed to third parties without our approval.
1.4 If after the submission of a bid, changes to the contractual obligations result from new or revised legal regulations or new demands of public authorities and inspection authorities, the contract shall be modified considering the interests of both parties.
2. Prices, payment, security
2.1 The prices do not include packing, shipping, insurance and other incidental expenses (storage, third-party inspection). The applicable turnover taxes (value-added tax) at the respective statutory rate shall be added to the agreed prices. For advance payments and other payments to be made by the buyer before our delivery or service is effected, and for which the turnover tax liability arises on our part at the time of the collection, we shall issue separate invoices with separate identification of the turnover tax. The turnover tax is always due for payment with the amount charged in invoice.
2.2 Any payments shall be made to us at the agreed dates without any deductions; in the event that no date of payment has been agreed, invoices are due for payment within 30 days from the invoice date.
2.3 The buyer shall only be entitled to set-off rights and rights of retention, if its counterclaims are undisputed or have been legally recognized. In addition, the buyer shall only be entitled to exercise a right of retention with counterclaims that are based on the same contractual relationship.
2.4 Eligible and duly taxed bills of exchange shall be accepted by us on account of payment, if explicitly agreed. When accepting bills of exchange or checks, payment obligations shall only be considered fulfilled when the respective amount has been credited to our accounts. Discount charges and any costs incurred by encashment of checks or discharge of a bill of exchange shall be borne by the buyer.
2.5 In the case of non compliance with the dates for payment, overdue accounts shall bear default interest at a rate calculated according to the respective bank rates for overdraft facilities. Furnishing proof that actually lower damage occurred shall remain possible. Default interests, however, shall at least amount to 8 percentage points above the respective base rate.
2.6 If the buyer fails to make payment in due time, or if the collectability of our claims is endangered by a decline of the buyer’s creditworthiness, we shall be entitled to either demand immediate payment of our claims, irrespective of the term of possible bills of exchange, or to demand collateral. We shall also be entitled to continue further deliveries and services only against advance payment or the provision of appropriate collateral.
3. Dates, obstacles to fulfillment
3.1 The delivery dates shall be binding only under the condition of timely clarification of all details of the order, especially the provision of any documents and authorizations to be provided by the buyer, the possible release of drawings and the timely payment of any possibly agreed down payment as well as the timely provision of any possibly agreed collateral. A further condition is the buyer’s timely provision of the construction and mounting preconditions, especially the provision of power, gas, water and necessary ancillary personnel, free-of-charge for us.
3.2 The delivery dates named in the offer are non-binding. The adherence to a possibly agreed fixed delivery date by us requires that all commercial and technical questions between the contractual parties have finally been clarified before agreement of the delivery date and the buyer has fulfilled all obligations that are incumbent on him on schedule. If this is not the case or if subsequent changes of the object for delivery are agreed, the delivery date shall be extended to a reasonable extent. This does not apply insofar as we are exclusively liable for the delay. The adherence to the delivery date is with the proviso of the correct and timely delivery by our suppliers. A period for delivery is maintained if the object for delivery has left the works by the time of its expiry or, in the case of an agreed obligation of the buyer to collect the goods or if the buyer is in default of acceptance, as soon as the readiness for shipment has been communicated to the buyer. The agreed dates for the delivery are also maintained with communication of the readiness for shipment, if the objects for delivery cannot be dispatched on time in the event of circumstances which are outside our responsibility.
3.3 If we are prevented from the fulfillment of our obligations by the occurrence of unforeseen events that affect us or our suppliers or subcontractors, and that we also could not avoid by exercising due care and attention as required by the circumstances of the individual case, e.g. war, force majeure, national unrest, forces of nature, accidents, scrap production, other disruptions of operation and delays in the delivery of essential working materials or starting materials, the dates shall be suspended for the duration of such disruption and to the extent of their effect. If the fulfillment of our obligations becomes impossible or unreasonable as a result of the disruption, we shall be entitled to rescind the contract; the buyer shall have the same right if acceptance is unacceptable to it due to the delay. Strikes and lock-outs shall in any case be deemed hindrances for which we are not liable pursuant to this section. We shall inform the buyer of the beginning and the anticipated end of such circumstances as soon as possible.
3.4 If we are in default with our delivery and this results in damage to the buyer, the buyer shall be entitled to liquidated damages. These liquidated damages shall amount to 0.5 % for each full week of the delay, however limited to a maximum amount of 5 % of the value of that part of the contract goods, that cannot be used on time or as agreed as a result of the delay. If delivery is still subject to a delay attributable to us after reaching the maximum compensation for delay mentioned above, the buyer can, after expiry of a reasonable grace period set by it in writing, rescind the contract pursuant to the applicable statutory regulations; the same also applies if the delivery or service becomes impossible for circumstances on our part. The buyer is obligated to inform us in writing that he shall exercise this right within thirty (30) days from the end of the grace period. After expiry of this deadline, rescission shall only be possible after fruitless expiry of another reasonable grace period set by the buyer in writing.
3.5 If the shipment is delayed at the request of the buyer, the costs arising for storage in our works shall be due to it, beginning one month after notification of the readiness for shipment, at least, however, 1% of the invoice total shall be calculated for each started month of storage, unless the buyer can prove lower costs. In the event of a default of acceptance we shall be entitled to dispose of the delivery items pursuant to the applicable statutory regulations.
3.6 Further rights of the buyer due to delay, especially claims for damages, are excluded to the extent set out in clause 9.
4.1 If an acceptance has been agreed, it shall be immediately carried out after notification of the readiness for acceptance.
4.2 If particular features of the object for delivery are agreed or if we demand this, the buyer is obligated to an acceptance. This also applies with regard to self-contained partial deliveries and/or services.
4.3 If the acceptance does not take place in good time or is incomplete without fault on our part, the object for delivery shall be considered to be accepted upon expiry of the 3rd working day after notification of the readiness for acceptance.
4.4 Acceptance is effected in any case, if the object for delivery is put into operation without our consent.
4.5 The buyer shall provide the necessary requirements for the performance of an acceptance and shall bear the entire costs attributable to the acceptance.
4.6 The buyer shall not be allowed to refuse an acceptance due to minor defaults of the delivery items without prejudice to his rights in clause 8.
5. Transfer of risk, shipment
5.1 Unless otherwise stated in the order confirmation, delivery is agreed to be “ex works”.
5.2 Upon commissioning of the delivery items to the forwarding agent or carrier, at the latest, however, upon leaving our premises, the risk as regards the delivery items passes to the buyer, even if partial deliveries are made or if we have undertaken further services, e.g. shipping, emplacement or assembly. The risk shall also pass to the buyer if the goods are ready for shipment and the buyer is in default of acceptance.
5.3 For the interpretation of the commercial clauses, the Incoterms shall apply in each case in the relevant version on the day the contract is concluded.
5.4 The means of transportation and transport route shall be selected by us. The same applies for the selection of the forwarding agent or carrier.
5.5 We are entitled to perform and invoice partial deliveries.
6. Retention of title
6.1 Title in all delivery items shall be retained until all of our claims against the buyer resulting from the business relationship have been settled (conditional goods).
6.2 The buyer is obliged to insure the conditional goods at its cost against theft, breakage, fire, water and other damage for the duration of its obligations towards us and to prove this to us on request. The buyer herewith irrevocably assigns to us all claims from the respective insurance contracts, until complete fulfillment of its obligations.
6.3 The buyer is obliged to preserve the conditional goods in perfect condition and to have any repairs that become necessary immediately carried out by specialist companies; he must always provide information to us about the conditional goods, especially as regards their respective location. The buyer may only dispose of, pledge as collateral, transfer by way of security, hire out or elsewhere transfer the conditional goods or change the reported location without our prior written consent, except for a resale within the ordinary course of business pursuant to Section 6.4.
6.4 The buyer shall be entitled to resale the goods which are subject to retention of title within the ordinary course of business. In this case the buyer, however, herewith assigns all claims arising from such a resale to us. Irrespective of our right to collect the assigned claim ourselves, the buyer shall remain entitled to collect the claim after the assignment. We undertake not to collect the claim as long as and to the extent that the buyer complies with its payment obligations, no petition for insolvency or similar proceedings is filed and no suspension of payments occurs. The buyer is obliged to immediately inform us of any circumstances that might impair our property rights, especially due to seizure, confiscation or other dispositions of the object for delivery by a third party and to inform these third parties of our property rights.
6.5 If the buyer is in breach of contract, especially, but not limited to default of acceptance, following a reminder, we are entitled to rescind the supply contract. We reserve all other statutory claims.
7. Right to rescind
We shall be entitled to rescind the supply contract completely or partially if insolvency proceedings are initiated or filed for over the assets of the buyer or any other material deterioration of its financial status occurs.
For any deficiencies in our deliveries and/or services warranty is given, subject to the following regulations:
8.1 Any claim of warranty of the buyer requires the buyer’s compliance with all obligations of examination and notifications of non-conformity pursuant to Section 377 HGB (German Commercial Code).
8.2 Deficient delivery items shall at our option either be rectified or taken back and replaced by flawless delivery items. Faulty services shall at our option either be rectified or newly rendered. We shall bear the costs of supplementary performance (“Nacherfüllung”) to the extent the complaint can be proven to be justified. Ownership in any replaced parts shall be retransferred to us. The buyer shall make available tools and lifting appliances as well as fitters and ancillary workers to us free-of-charge for the purpose of supplementary performance. The buyer shall, after consultation with us, give us the necessary time and opportunity and enable us unobstructed access to the delivery item, to effect supplementary performance; otherwise we are exempt from liability for any consequences resulting therefrom. Only in imminent cases of danger the operational safety or for warding off disproportionately large, immediately impending damages the buyer shall have the right to remedy the defect after consultation with us, either by itself or by a third party, and to demand from us reimbursement of expenditures. If the buyer or a third party improperly carries out supplementary performance, we are released from the liability for the consequences arising therefrom.
8.3 If we are in default with rectification, replacement delivery or new delivery after futile expiry of a reasonable grace period set by the buyer in writing, the buyer shall be entitled to either reduce the purchase price or rescind the contract. In the event that the supplementary performance has to be considered failed, the buyer shall be entitled to reduce the purchase price or to rescind the contract.
8.4 We shall not grant any warranty in the following cases: unsuitable or improper use; unauthorized or incorrect assembly or commissioning of the equipment by the buyer or a third party; subsequent modifications carried out by the buyer or a third party; normal wear and tear; negligent or incorrect handling, maintenance or servicing; failure to comply with the operating manual; unsuitable operating materials; inadequate construction work by the buyer; unsuitable foundation; chemical, electrochemical or electrical influences and extreme temperature and climatic influences beyond our responsibility. Wear-and-tear parts are also excluded from warranty.
8.5 Should use of the object for delivery lead to an infringement of industrial property rights or copyrights in our home country, we shall, at our own expense, procure for the buyer a fundamental right to continue using the object for delivery or modify same in a reasonable manner so that it becomes non-infringing. If this is not feasible within reasonable financial terms or within a reasonable period of time, the buyer is entitled to rescind the contract. The aforementioned conditions represent grounds on which we are likewise entitled to rescind the contract, provided that we are not responsible for the infringement of an industrial property right. Furthermore, we shall indemnify the buyer against undisputed or legally recognized claims from the respective property right holder.
The aforementioned provisions encompass our entire obligation for property right or copyright infringement, except otherwise provided in Clause 9.2. These provisions shall apply only if the buyer gives us prompt notice of the patent or copyright infringement claim, and if the buyer gives us reasonable support and enables us to carry out the necessary modifications – as described above – to ward off claims, and if we retain the right to execute all measures required for warding off the claims, including out-of-court settlement, and if the infringement was not caused by instructions prescribed by the buyer, and if the infringement did not arise from unauthorized modifications of the object for delivery by the buyer or by use of same by the buyer in a way that does not comply with the contract.
8.6 Any additional rights arising from defects, especially as concerns contractual or non-contractual claims for damages that occurred not on the contractual goods themselves, are excluded to the extent provided for in Section 9.
8.7 The aforementioned provisions shall also apply to deliveries of items other than contractual goods.
8.8 All warranty claims shall be time-barred pursuant to the limitation provisions in Section 10.
9.1 If the buyer is unable to use the object for delivery in compliance with the contract as a consequence of our having neglected to carry out or having improperly carried out suggestions and consultations made prior to or subsequent to the signing of the contract, or as a consequence of a breach of other accessory obligations, especially as regards instructions for operating and servicing the object, the provisions pursuant to Clauses 8 and 9.2 apply respectively, provided that we are at fault, under exclusion of any additional claims made by the buyer.
9.2 We shall be liable towards the buyer to the fullest extent according to statutory provisions (i) in the event of damages caused by willful misconduct or gross negligence; (ii) in cases of damage resulting in death or personal injury; (iii) to the extent that we have expressly given a guarantee or assumed a procurement risk; (iv) in the event of liability under the German Product Liability Act (“Produkthaftungsgesetz”). We shall only be liable for the assumption of a procurement risk, if we have assumed the procurement risk expressly as “assumption of a procurement risk” by means of a written agreement.
9.3 Beyond what is set out in Section 9.2, above, we shall only be liable to the buyer in the event of damage caused by a negligent breach of a material contractual obligation. “Material contractual obligations” are such obligations, which protect material contractual positions of the buyer, which are contractually owed to the buyer pursuant to the spirit and purpose of the contract; “material” are such contractual obligations, the fulfillment of which renders the performance of the contract possible and on the fulfillment of which the buyer usually relies and is allowed to rely. In such a case damages shall be limited to the losses which could be typically foreseen at the time of the conclusion of the contract.
9.4 Any further liability shall be excluded.
10. Periods of limitation
Any claims raised by the buyer, irrespective of the legal ground, shall be time-barred by the statute of limitations upon expiry of 12 months from the date of the passing of risk. In any case pursuant to Section 9.2 the statutory periods of limitation shall apply. The statutory periods of limitation shall also apply to deficiencies on a building structure or to objects for delivery items that have been used for a building structure in accordance with their usual mode of operation and which has caused its deficiency.
11. Software use
Insofar as the scope of delivery includes software, the buyer is granted a nonexclusive right to use the delivered software and the accompanying documentation. The software is provided for use with the respective object for delivery. Use of the software on more than one system is prohibited. The buyer may duplicate, rework or translate the software, or convert the software from object code to source code, only within the scope that is legally permissible (§§ 69a et.seq. German Copyright Act (“Urheberrechtsgesetz, UrhG”). The buyer is obliged not to remove manufacturer’s data – especially copyright information – or to alter such data without our prior express consent. All other rights to the software and documentation, including copies, shall remain with us or with the software supplier. The granting of sub-licenses is prohibited.
12. Place of performance, partial invalidity
12.1 The place of performance for our deliveries is the location of our delivering plant. If we are required to render services (e.g. assembly), the place of performance is the location at which the services are to be rendered. For payment obligations of the buyer, the place of performance is the location of payment specified on our invoice.
12.2 If an individual clause of the Terms and Conditions is held to be invalid, this shall not affect the validity of the remainder hereof; an invalid clause shall be substituted by a valid clause having the same economic effect as the invalid clause.
13. Venue, applicable law
13.1 The exclusive venue for all legal disputes, including litigation involving bills of exchange or checks, is Nuremberg.
13.2 The contractual relationship shall be governed exclusively by the applicable laws of the Federal Republic of Germany, excluding its conflict of law provisions (IPR). The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG, UN-Kaufrecht) dated 11 April 1980 shall be expressly excluded.