General Terms and Conditions for the Supply of Goods and Services in Customer Service (applicable as of 1 August 2009)
1.1 Any agreements – particularly to the extent that they amend these Terms and Conditions – shall not become binding unless we have acknowledged them in writing. If individual parts of these Terms and Conditions are superseded by express written agreements of a different nature between the Customer and ourselves, this shall not affect the validity of the remaining parts of these Terms and Conditions.
1.2 All goods and services, including future goods and services, that we supply, including suggestions, consulting services and other additional services, shall be provided solely on the basis of these General Terms and Conditions, even if we deliver the goods knowing that the Customer has different or contrary terms and conditions. We will not recognise any different or contrary terms and conditions of purchase or terms and conditions for orders that the Customer may have unless we have expressly agreed to them in writing.
1.3 We reserve title and copyright to cost estimates, drawings and other documents. They may only be made accessible to third parties with our consent.
1.4 If there should be any changes in the contractual obligations after the offer has been submitted due to new or amended legislation or new requirements made by the authorities and inspectors, the contract shall be amended accordingly, taking account of the interests of both Parties.
2. Prices, payment, security
2.1 The prices are not inclusive of packaging, freight, insurance and other incidental expenses (warehousing, overseas inspection). Value added tax at the rate applicable at the time that the contract was formed must be added to the agreed prices. If nothing else has been agreed, the value added tax is due for payment along with the amount invoiced.
2.2 Assembly is not included in the prices. We will only carry out assembly work if and to the extent that this has been separately agreed, and only on our terms and conditions of assembly and in return for separate payment.
2.3 Unless otherwise agreed, all payments for part-deliveries shall be due for payment within 30 days of the date of the invoice. All payments for services shall be due for payment immediately without any deductions.
2.4 The Customer may only exercise rights of setoff and rights of retention if the Customer's counterclaims have been recognised by a final court judgment or are undisputed. Furthermore, the Customer may only exercise a right of retention in respect of counterclaims arising from the same contractual relationship.
2.5 We will accept discountable and duly taxed bills of exchange on account of payment, if this has been expressly agreed. If bills of exchange or cheques are accepted, the debt shall not be deemed paid until their encashment. Discount charges and all costs in connection with encashment of a cheque or bill of exchange shall be borne by the Customer.
2.6 If the deadlines for payment are not met, default interest shall be charged at the rates for bank overdrafts. The Customer shall be entitled to prove that a lesser loss was incurred. The default interest, however, shall amount to at least 8 percent above the applicable base rate.
2.7 In the event of late payment or if there is any risk that our claims may not be settled due to a deterioration in the Customer's creditworthiness, we shall have the right to demand immediate payment, irrespective of the term of any bills, or to request the provision of collateral. We shall also be entitled to demand payment in advance or the provision of collateral before supplying any outstanding goods and services.
3. Dates, hindrances in performing the contract
3.1 The delivery periods stated in the offer are not binding.
3.2 If we are unable to meet delivery dates that have been agreed as binding for no fault of our own (unavailability of goods or services) we will notify the Customer without delay. If delivery is delayed by more than four weeks the Customer shall have the right to rescind the contract in part or in full. We shall also have a right of rescission in this case. We will then refund any payments that the Customer has already made. The unavailability of goods or services in this sense particularly includes our suppliers failing to deliver in good time if we have entered into a congruent covering transaction (kongruentes Deckungsgeschäft). This shall not affect our statutory right of rescission and termination nor the law regarding the ending of the contract if a party is no longer obliged to perform its obligations (for instance impossibility or unreasonableness of performance and/or supplementary performance).
3.3 If we are in default, causing the Customer to suffer a loss, the Customer may claim a lump sum in compensation for the delay. This compensation shall amount to 0.5 % for each full week of the delay, but in total shall be no higher than 5 % of the value of the part of the contractual item that cannot be used in good time or as agreed by contract as a result of the delay. If we are still in default, even after this maximum compensation has been reached, the Customer, after setting a reasonable extended deadline in writing which expires to no avail, may rescind the contract in accordance with the legal requirements; the same applies if it becomes impossible for us to supply the goods and services due to a fault of our own. The Customer must notify us in writing within thirty (30) days of the end of the extended deadline that it intends to exercise this right. After the expiry of this period, the Customer may only rescind the contract after setting a further extended deadline in writing and if this also expires to no avail.
3.4 Any further rights that the Customer may have due to delay, particularly claims to damages, shall be excluded to the extent set out in clause 9.
4. Passage of risk, shipping
4.1 Unless otherwise stated in the acknowledgement of the order, delivery "ex works" is agreed.
4.2 The risk in respect of the delivery items shall pass to the Customer when the goods are handed over to the forwarding agent or carrier, but no later than when they leave our works, even if part-deliveries are effected or we have promised to provide other services such as shipping, installation or assembly. The risk shall also pass to the Customer if the goods are ready to be shipped and the Customer delays in accepting them.
4.3 The commercial clauses shall be interpreted in accordance with the Incoterms in the version applicable at the time that the contract was formed.
4.4 We have the right to choose the means of transport and the route. The same applies to the choice of forwarding agent or carrier.
4.5 We have the right to effect and charge for part-deliveries.
5. Reservation of title
5.1 We reserve title to the delivery item until the satisfaction of all claims against the Customer under the business relationship (goods under reservation of title).
5.2 The Customer must keep the goods under reservation of title in faultless condition and immediately arrange for any repairs that become necessary to be carried out by specialist companies; the Customer must provide us with information about the goods under reservation of title at any time, particularly with regard to their location. Subject to resale in the normal course of business in accordance with cause 6.3 below, the Customer may only sell, pledge or hire out the goods under reservation of title, transfer them by way of security, make them available in any other way, modify them or change their reported location, if we have first given our written consent. The Customer must immediately notify us of any risk to our property, particularly through seizure, confiscation or any order dispositions made by third parties in respect of the delivery item and must inform these third parties that the items are our property.
5.3 The Customer has the right to sell the goods under reservation of title in the normal course of business. In this case, however, the Customer hereby assigns to us all claims from such a resale. Irrespective of our right to collect the assigned debt ourselves, the Customer is authorised to collect the debt even after its assignment. We undertake not to collect the debt ourselves as long as and to the extent that the Customer complies with its payment obligations, does not file for insolvency or similar proceedings and has not ceased making payments.
5.4 The processing or reshaping of the goods by the Customer shall always be done in our name and on our behalf. If the goods are processed together with other items that do not belong to us we shall acquire co-ownership of the new item in the same ratio as that between the value at the time of processing of the goods we have supplied and that of the other processed items. The item created as a result of such processing shall be subject to the same provisions as the goods supplied under reservation of title.
5.5 If the goods are inseparably joined or amalgamated with other items that do not belong to us, we shall acquire co-ownership of the new item in the same ratio as that between the value of the goods at the time of amalgamation or joining and that of the other items that have been joined or amalgamated. If the goods are joined or amalgamated in such a way that the Customer's item is to be regarded as the main item, it is agreed that the Customer shall assign co-ownership to us proportionately. The Customer shall hold the jointly owned property created in this way in safe keeping on our behalf. In order to secure our claim, the Customer also hereby assigns any claims against third parties that may arise due to the fact that the goods are fixed to a plot of land.
5.6 If the Customer should be in breach of contract, particularly in the case of late payment, we shall have the right to rescind the supply agreement after sending a reminder. This shall not affect further statutory rights that we may have.
6. Right of rescission
We have the right to rescind the supply agreement in part or in full if an application is filed for the opening of insolvency proceedings against the Customer or in the case of any other substantial deterioration in the Customer's financial situation.
We give a warranty for defects in our goods and/or services in accordance with the following provisions:
7.1 In order for the Customer to exercise any warranty rights, the Customer must duly fulfil all obligations to examine the goods and report any defects, in accordance with section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
7.2 At our discretion, defective items will be repaired or returned and replaced by delivery items of faultless quality. Defective services will either be improved or provided again, at our discretion. We shall bear the costs of rectifying defective goods and services, in as far as the complaint proves to be justified. In order for us to rectify any defects, the Customer must provide us with available tools and hoists, fitters and assistants, in reasonable quantities and free of charge. Parts that have been replaced must be returned to us. The Customer must consult with us and give us the necessary time and opportunity to rectify the defects and provide us with unobstructed access to the delivery item. We will not otherwise be liable for the consequences that result. Only in urgent cases of risk to operational safety or in order to avert the immediate threat of disproportionately large damage does the Customer have the right to rectify the defect itself, after consulting us, or to have it rectified by third parties, and to claim reimbursement for the necessary expenses. We are not liable for the consequences if the Customer or a third party improperly attempts to rectify the defects.
7.3 If we delay in rectifying the defects, supplying a replacement or re-providing a service, the Customer, after setting a reasonable extended deadline in writing which expires to no avail, may demand a reduction in price or rescind the contract. If the attempt to rectify the defects fails, the Customer has the right to demand a reduction in price or to rescind the contract.
7.4 No warranty is given in the following cases: unsuitable or improper use, unauthorised or faulty assembly or commissioning by the Customer or by third parties, subsequent modification work by the Customer or by third parties, natural wear and tear, careless or faulty handling, upkeep or maintenance, failure to comply with the operating instructions, unsuitable materials, defective construction work on the part of the Customer, unsuitable foundation soil, chemical, electro-chemical or electric influences beyond our control and unusual temperature and weather influences. Parts subject to wear are also excluded from the warranty.
7.5 If the use of the delivery item leads to the infringement of industrial property rights or copyrights in the domestic market, we will procure a general right for the Customer to continue to use the item, or we will modify the item in a way that is reasonably acceptable to the Customer and so that it no longer infringes industrial property rights. These measures will be taken at our expense. If this is not possible on reasonable commercial terms or within a reasonable time, the Customer has the right to rescind the contract. Under the said preconditions we also have the right to rescind the contract if the infringement of industrial property rights is no fault of our own. Furthermore, we will indemnify the Customer against undisputed claims made by the owner of the rights or against claims that have been recognised through a final court judgment.
Without prejudice to clause 8.2, we have no further obligations in the event of an infringement of industrial property rights or of copyrights. We will only have such obligations if the Customer immediately notifies us that claims are being asserted due to the infringement of industrial property rights or copyrights and if the Customer gives us reasonable support in defending such claims and allows us to carry out modifications – as described above – and if we have the right to take all defensive measures, including out-of-court settlements, and as long as the defect of title is not due to an instruction given by the Customer and that the infringement of rights has not been caused by the Customer modifying the delivery item without authorisation and using it in a way not intended under the contract.
7.6 Further rights due to defects, particularly contractual or ex-contractual claims to damages not arising from the contractual item itself, shall be excluded to the extent set out in clause 8.
7.7 The provisions set out above also apply if we deliver items other than those agreed in the contract.
7.8 The limitation period set out in clause 9 applies to all claims asserted in connection with the warranty.
8.1 If the Customer cannot use the delivery item for its contractual purpose due a fault on our part as a result of failing to act on suggestions and advice given either before or after the contract was formed, or due to the breach of other secondary contractual obligations, particularly instructions on the operation and maintenance of the item, the provisions of clauses 7 and 8.2 shall apply accordingly, excluding further claims on the part of the Customer.
8.2 We shall be fully liable to the Customer as prescribed by law (i) in cases of damage caused by intent and gross negligence; (ii) in the case of death, personal injury or damage to health; (iii) if we have explicitly given a guarantee or assumed a procurement risk; (iv) in cases covered by the Product Liability Act. We are only liable in relation to the assumption of a procurement risk if we have explicitly accepted the procurement risk as "acceptance of the procurement risk" in a written agreement.
8.3 Apart from the cases set out in clause 8.2, we are only liable to the Customer for damage caused by a negligent breach of a fundamental contractual obligation. "Fundamental contractual obligations" are obligations that protect the Customer's fundamental legal rights under the contract in terms of its contents and its purpose; also fundamental are contractual obligations that need to be fulfilled in order for the contract to be properly performed at all and which the Customer regularly and justifiably relies on. In this case the claimable damages shall be limited to the loss that was typically foreseeable at the time that the contract was formed.
8.4 All further liability is excluded.
9. Limitation period
9.1 The statutory limitation periods applies in all cases set out in clause 8.2.
9.2 In departure from clause 438(1)(3) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the general limitation period for claims due to material defects and defects of title shall be one year from the date of delivery.
9.3 This shall not affect special statutory provisions for the restitution of property of third parties (section 438(1)(2) of the German Civil Code (BGB) in the case of bad faith on the part of the seller (section 438(3) of the German Civil Code and claims regarding suppliers' recourse in the case of final delivery to the consumer (section 479 of the German Civil Code).
9.4. The aforementioned limitation periods of commercial law also apply to the Customer's contractual and extra-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation period (sections 195 and 199 of the German Civil Code (BGB)) would result in a shorter limitation period in the individual case.
10. Use of software
In as far as software is included in the goods to be supplied the Customer is granted a non-exclusive right to use the software that is delivered, including the documentation. The software is provided for use on the delivery item it is intended for. It is not permitted to use the software on more then one system. The Customer may only reproduce, revise or translate the software or convert the object code into source code to the extent permitted by law (sections 69a pp of the German Copyright Act (Urhebergesetz, UrhG). The Customer undertakes not to remove or modify the manufacturer's details – particularly copyright notices – unless we have first given our explicit consent in writing. All other rights to the software and the documentation, including the copies, shall remain with us or with the software supplier. It is not permitted to grant sub-licences.
11. Place of performance, severability
11.1 The place of performance for our deliveries is the place where the our plant for deliveries is located. If we also have to provide services (e. g. assembly), the place of performance is the place where the services are to be rendered. For payments to be made by the Customer the place of performance is the place of payment indicated in our invoice.
11.2 If individual terms of this Agreement should be void, the remaining terms shall nevertheless remain binding; an invalid term shall be replaced by one which is valid and comes as close as possible to the commercial purpose of the invalid term.
12. Place of jurisdiction and applicable law
12.1 The sole place of jurisdiction for all legal disputes, including litigation in connection with cheques and bills of exchange, is Nuremberg.
12.2 The contractual relationship shall be governed by the law of the Federal Republic of Germany, with the exception of the provisions of international private law. The provisions of the Vienna Convention of the United Nations of 11 April 1980 on the international sale of goods (United Nations Convention on Contracts for the International Sale of Goods/CISG) are explicitly excluded.