General Terms and Conditions for Deliveries and Services
§ 1 General - Scope
(1) Our General Terms and Conditions for Deliveries and Services shall apply exclusively to companies, legal entities under public law or public funds within the meaning of § 310 para 1 of the German BGB (Civil Code). Contradictory conditions or conditions of the buyer that differ from our General Terms and Conditions for Deliveries and Services we recognize only if we have explicitly approved their validity in writing. Our General Terms and Conditions for Deliveries and Services shall also apply if we make the delivery to the buyer without reservations in the knowledge that there are contradictory conditions or conditions of the buyer that differ from our General Terms and Conditions for Deliveries and Services.
(2) All agreements that are made between us and the buyer for the purpose of the execution of this contact are included in writing in this contract.
(3) Our General Terms and Conditions for Deliveries and Services shall apply also for all future transactions with the buyer, as long as it refers to related legal business cases.
§ 2 Quotation – Quotation -/Order documents, Contractual statement, Erection/Service bases
(1) If the order is to be qualified as a quotation or tender within the meaning of § 145 of the German Civil Code, we can accept this within 2 (two) weeks.
(2) In case of no contractual agreement the buyer has to return all licensed documents immediately.
(3) The contract is deemed concluded, when we have sent to the buyer a written declaration of acceptance after receipt of the buyer’s purchase order or within the time limit set by the buyer.
(4) If we have stated a deadline for acceptance in our written quotation, the contract is deemed concluded, when the buyer has sent to us a written declaration of acceptance before the expiry of the deadline. This applies only, when we receive the declaration of acceptance from the buyer one week after expiry of the deadline at the latest.
(5) Includes our declaration of acceptance extensions, restrictions or other changes to the issued order, so the acceptance of the buyer is considered as granted, if the buyer does not object within a reasonable period.
(6) Information on weight, dimensions, capacity, price performance and others as stated in catalogues, brochures, newsletters, advertisements, illustrations and price lists are only of limited significance. They are only binding if the terms of contract refer to them exclusively.
(7) To illustrations, drawings, calculations and other documentations, we reserve ownership and copyright. This also applies to those written documents, that are designated as ‘confidential’ . Before their transfer to third parties the buyer requires our express written consent.
(8) Plans or technical documents handed over to the buyer before or after signing the contract and which can be used for the manufacture of the goods or parts of it, exclusively remain our property. Without our approval the buyer may not use, copy, reproduce or transmit or communicate them to a third party; this does not apply if the information in general or are otherwise known to the buyer legally. They become the property of the buyer,
- a) when an express contractual provision refers to it; or
- b) when they are based on a separate, independent contract, made before the delivery contract , where the object of the contract is the provision of a draft and contains no reservation of ownership in our favour.
(9) We ensure that the object of delivery will be executed in accordance with all laws and rules referring to the scope of delivery and further on meets these provisions. At our request the buyer has to provide us with the particular information of these laws and regulations in written form. We perform all conversion work, resulting from changes in the above-mentioned laws and regulations or from changes in generally accepted principles of interpretation of these, unless such change is made between the filing date of offer and acceptance of the goods. The buyer will bear all extra costs and other consequences resulting from such changes, in particular for the conversion work. If the parties do not come to an agreement on the extra costs and other consequences of a change, we have to be compensated based on the executed working hours until a resolution of the dispute on the refurbishment work.
(10) If the parties agree on modifications subsequent to confirmation of the order, we are entitled to invoice the resulting additional costs to the buyer even if this is not explicitly emphasised at the time such modification is agreed. The changes must be technically and legally feasible. Effects of changes on the existing contract must be documented and mutually agreed in an additional contract. If the completion of the scope of supply is delayed due to disagreements of both parties as to the consequences of changes, the buyer pays the part of the contract price, which would have become due if the completion of the scope of supply would not have been delayed.
(11) At the request of the buyer at the beginning of the warranty period (see § 5.11) we provide instructions and drawings – other than shop drawings - free of charge, which have sufficient details to allow the buyer the installation, commissioning and operation of the goods as well as the maintenance of all parts (including ongoing repairs). These instructions and drawings will be the property of the buyer; the restrictions as per § 2.7 and § 2.8 regarding their use do not apply, however, we may lay down the confidential treatment.
(12) We shall provide in good time the requisite drawings for the installation of the delivery item, together with all information required for providing access for the delivery item and any necessary equipment to the point where the delivery item is to be erected, and for making all necessary connections to the works.
(13) The buyer shall provide in good time all installations and shall ensure that the conditions necessary for the installation of the delivery item and the correct operation of the works are fulfilled. This shall not apply for preparatory work which according to the contract shall be performed by us.
(14) The buyer shall carry out the preparatory work in accordance with the drawings and instructions we have provided as per § 2.12.The work shall be completed in good time. If the buyer is responsible for the transportation of the scope of supply to the site, he shall ensure that the scope of supply arrives at site in good time.
(15) The buyer additionally shall ensure that:
- a) Our personnel is able to start the work in accordance with the agreed time schedule and to work during normal working hours. Provided that we have been given notice in writing in reasonable time, work may be performed outside normal working hours to the extent deemed necessary by us.
- b)We have been informed in writing of all relevant safety regulations in force at the site in good time before installation work commences. The installation shall not be carried out in unhealthy or dangerous surroundings. All the necessary safety and precautionary measures shall have been taken before installation work commences and shall be maintained during installation work.
- c)Our personal is able to obtain suitable and convenient board and lodging in the neighbourhood of the site and have access to internationally acceptable hygiene facilities and medical services.
- d)The buyer will make available at site for our personal free of charge at time of request all necessary cranes, lifting equipment and equipment for transport on the site, auxiliary tools, machinery, materials and supplies (including fuel, oils, grease and other materials, gas, water, electricity, steam, compressed air, heating, lighting, etc.) as well as the measuring and testing instruments.
- e) The buyer will provide for our personal free of charge necessary storage facilities as protection against theft and deterioration of valuable elements of the scope of supply, tools, equipment, measuring and testing instruments required for the installation and the personal effects of our personal.
- f) The access routes to the site are suitable for the transport and installation work of the scope of supply.
§ 3 Prices – Terms of Payment
(1) If nothing is stated to the contrary in the order confirmation, our prices shall be regarded as "ex works", excluding packing; this will be billed for separately.
(2) Value Added Tax at the currently applicable rate is not included in our prices; it is shown separately in the invoice at the rate that is applicable as of the day of billing.
(3) All customs dues, tolls, taxes and other deductions that are charged in the connection with this delivery to the country of final destination shall be borne by the buyer in question.
(4) The deduction of discount requires special written agreement.
(5) If nothing else to the contrary is stated in the order confirmation, the purchase price is due to be paid net (without any deductions) within 30 (thirty) days from the date of the relevant invoice. The legal regulations concerning the consequences of delayed payment shall apply.
(6) The buyer only has a right to offset payments if his counter-claims have been legally validated, are not disputed or have been recognized by us. Furthermore, he is only entitled to exercise a right of retention to the extent that his counter-claim is grounded on the same contractual basis.
(7) In case of default payment by the buyer we are entitled to invoice default interests (2% above the discount rate of the “Deutsche Bundesbank”, but at least 5 %); further delay damages can be claimed. We are also entitled to set an extended deadline with the threat of rejection; after expiry of this extended deadline we are entitled to demand compensation for non-performance or withdraw from the contract.
§ 4 Delivery time and execution period
(1) The beginning of the delivery time specified by us presupposes that all commercial and technical questions have been clarified.
(2) Compliance with our obligation to deliver presupposes in addition the timely and orderly fulfilment of the obligation of the buyer (official certificates or permits). We reserve the right of the objection of non-performance of the contract.
(3) The delivery time is carried out when the goods have left our factory within the expiry date or when we have reported that the goods are ready for dispatch.
(4) We shall be entitled to an extension of the delivery period if delay occurs: owing to force majeure (§ 9), subsequent changes of scope of supply and services, delayed performance of the duties of the buyer. The extension shall be reasonable having regard to all circumstances. This shall also apply should such circumstances affect subcontractors.
(5) If the buyer defaults in accepting delivery of the goods or negligently infringes other obligations to cooperate, we are entitled to request that any damages incurred will be compensated, this including any additional costs incurred as a result. We reserve the right to make claims or to exercise rights going beyond this.
(6) If the preconditions of item (5) above apply, the risk of an accidental decline or an accidental worsening of the item being bought shall be transferred to the buyer at the point in time at which the latter has gone into default in accepting delivery of the goods or into debt.
(7) We are liable on the basis of the legal regulations if the delay in delivery is due to an infringement of the contact resulting from malice aforethought or gross negligence for which we are responsible; we are also liable here for the actions of our representatives or parties assisting in fulfilment of the contract. If the delay in delivery is due to an infringement of the contact resulting from malice aforethought or gross negligence for which we are responsible, our liability to pay damages as compensation is to be limited to the typical kind of damage that occurs and could be predicted.
(8) We are also liable on the basis of the legal regulations if the delay in delivery for which we are responsible is due to the culpable infringement of a significant contractual obligation; however, in this case our liability to pay damages to make good is to be limited to the typical kind of damage that occurs and could be predicted.
(9) If we delay delivery or services the buyer is entitled after expiry of a reasonable extension to ask for compensation of the damages due to the delay or retire from the contract, if the buyer has pointed out that to reject the delivery/service when accepting the extension; however the claim for compensation is limited according § 4.17. Our right to terminate the contract as per § 4.20 remains unaffected.
(10) If the buyer is in delay and cannot take over the delivery he has still to effect the payments depending on the delivery, as if the delivery had taken place. In this case we have to take care for the storage of the goods at the costs and risk of the buyer. On request of the buyer we will arrange the insurance of the goods at the costs of the buyer. If, however, the delay is based on circumstances as per § 9 and if it is possible to store the goods in our premises without affecting our business processes, we will not charge any costs for this storage.
(11) Should the buyer anticipate that he will be unable to fulfil his obligations necessary for completion of the preparation work, especially as per § 2.13 – 2.15, he shall inform us in writing immediately stating the reason for the same and, if possible, specifying the time by which it will possible to comply with his obligations.
(12) Without prejudice to our rights under § 4.5, 4.6 should the buyer fail to fulfil , correctly and in time, its obligations necessary for completion of the preparation work, especially as specified under § 2.13 – 2.15, the following shall apply:
- a) We shall , at our own discretion, be entitled to elect to perform or employ a third party to perform the buyer’s obligations, or otherwise take such measures as under the circumstances are appropriate in order to avoid or alleviate the effects of the buyer’s default.
- b) We shall be entitled to suspend performance of the contract in whole or in part. We shall forthwith notify the buyer in writing of said suspension.
- c) If the goods have not been delivered to the site, we shall arrange for storage of the goods at the buyer’s risk. At the request of the buyer we shall also insure the goods.
- d) Should performance of the contract be delayed owing to default on the part of the buyer, the buyer shall nevertheless pay to us the part of the contract price which , but for such delay, would have become due. The buyer shall reimburse us for any storage costs incurred in accordance with § 4.10.
- e) The buyer shall reimburse us for any costs reasonably incurred by the buyer as a result of measures under a), b) or c) of this paragraph.
(13) Should completion of the scope of supply/service be prevented by the buyer’s default as referred under paragraph 2, and should such default not be due to any of the circumstances referred to paragraph 9, we shall be entitled to make a demand in writing to the buyer requiring the latter to remedy the default within a final reasonable period. Should for any reason for which we are not responsible, the buyer fail to remedy said default within such period, we shall be entitled to serve notice in writing terminating the contract.
(14) We shall then be entitled to compensation for any losses suffered as a result of the buyer’s default. The compensation shall not exceed the contract price.
(15) If the delay of acceptance is not based on circumstances as per § 9 we are entitled to request in written form the acceptance of the goods by the buyer within a reasonable period. Should for any reasons the buyer fail to fulfil this request, we are entitled regarding the non-accepted part of the goods to terminate the contract by simple written notice ( without participation of a court) and claim for compensation of losses due to non-acceptance, especially if the buyer is responsible that he did not fulfil his obligations within the extended period; The compensation is limited on max. 25 % of the contractual value of the said part.
(16) We shall however be entitled, after stipulation and the abortive expiry of a reasonable period, to dispose otherwise of the goods and to make delivery to the buyer within a reasonable prolonged period of time provided that we have drawn the attention of the buyer to such consequences at the time said period was stipulated.
(17) The liquidated damages shall be payable at a rate of 0,5 per cent of the contract price of the part which is delayed for each completed week of delay, however shall not exceed 5 per cent of the delayed delivery item.
(18) The installed scope of supply is complete d after acceptance as per § 5.15.
(19) § 4.18 shall apply for the extension of the completion date, too. Moreover the completion date shall be extended in accordance with possible delay of the delivery of the goods as per § 4.4.
(20) Should the buyer terminate the contract, the buyer shall be entitled to compensation for losses suffered as a result of our delay. Total compensation, including liquidated damages as payable under § 4.17, shall not exceed 10 per cent of that part of the contract price which is attributable to the part of the scope of supply in respect of which the contract is terminated.
(21) The buyer retains the right to further claims and rights under law.
§ 5 Inspection and acceptance
(1) If the contract contains an explicit right of the buyer for the inspection of the goods before shipment, the buyer or his representative is entitled to inspect the quality of the used materials and the manufactured parts during or after completion of the manufacturing process. The control and inspection will take place in the manufacturing plant of the goods by prior written notice of the buyer with exact date and hour during normal working time.
(2) Are in the opinion of the buyer based on the examination certain materials or parts of the goods defective or contrary to the contract, the buyer has to down his objections with reasons in writing.
(3) Prior to dispatch of the goods the buyer has to accept them at the manufacturing plant. For this purpose the goods have to be positioned and assembled that their mechanical function can be checked. The goods shall be accepted when the buyer has signed a relevant acceptance certificate. Failures which explicitly are mentioned in the acceptance certificate apply to be reprimanded.
(4) If the buyer waives the acceptance test or misses the date of the acceptance test, we are entitled to execute the acceptance test by our own and the acceptance certificate which the buyer cannot deny will be sent to the buyer; in this case the goods shall be regarded as accepted. This clause is not valid in case the buyer missed the agreed date of acceptance tests due to circumstances beyond his control.
(5) Unless otherwise agreed acceptance tests shall be performed in our manufacturing plant during the normal working hours. If the contract does not contain any definition about technical details, so the tests shall refer to the existing common practice of the particular industry of the country of manufacture.
(6) We shall inform the buyer in good time that his representatives are able to participate in the tests.
(7) If the test shows the goods defective or contrary to the contract we shall eliminate the defect or provide the contractual requirements as fast as possible (this does not refer to contractual agreed tests at site ). On request of the buyer the test shall be repeated.
(8) Unless otherwise agreed we shall bear all costs of acceptance tests executed in our premises, except all costs relating to the personnel and other representatives of the buyer.
(9) If the contract contains acceptance tests at site, both parties conclude a special agreement about the valid conditions.
(10) ) Unless otherwise agreed, acceptance tests shall be performed upon completion of the installation work to determine whether the installed goods comply with the contractual terms of acceptance. We shall notify the buyer in writing that the installed goods are ready for acceptance. Said notice shall specify a date for acceptance tests which provides the buyer with sufficient time to prepare for and be represented at the same. The buyer shall bear all costs of acceptance tests. We shall, however, bear all costs relating to our personnel and our other representatives.
(11) The buyer shall not be entitled to use the installation or any part of thereof prior to acceptance. Should the buyer do so without our consent in writing, the buyer shall be deemed to have accepted the installation. In such cases we shall be relieved of our duty to perform acceptance tests.
(12) The buyer shall provide free of charge any power, lubricants, water, fuel, raw materials and other materials required for the acceptance tests and for final adjustments in preparing for these tests. The buyer shall also install free of charge any equipment and provide any labour or other assistance necessary for the performance of acceptance tests.
(13) Should the buyer fail to fulfil its obligations as per § 5.12 after having been notified in accordance with § 5.10 or should the buyer otherwise prevent the acceptance tests from being performed, the tests shall be regarded as having been satisfactorily completed on the date for acceptance tests stated in our notice.
(14) The acceptance tests shall be carried out during normal working hours. Unless the contract explicitly stipulates the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the buyer’s country.
(15) The goods and the installation of the goods shall be deemed to be accepted
- a)when the acceptance tests have been completed successfully or are deemed to have been successful pursuant to § 5.13, or
- b)when we have informed the buyer in writing that the installed scope of supply has been completed, provided that the installed scope of supply comply with the contractual acceptance conditions and only in those cases in which the parties have agreed not to perform acceptance tests. Acceptance shall not be prevented by minor defects which do not affect the efficiency .
(16) We shall prepare a test report of the acceptance tests which shall be sent to the buyer. Should the buyer not be represented at the acceptance tests after having been notified in accordance with § 5.10, the test report shall be accepted as accurate
(17) Should the acceptance tests show that the installed scope of supply does not comply with the contract, we shall remedy the defects forthwith. New tests shall be carried out in accordance with § 5.10 should this be requested in writing without undue delay by the buyer. This shall not apply in the case of immaterial defects.
§ 6 Transfer of risk
(1) Subject to § 4.10 the date of the transfer of risk shall become applicable according to the international rules for the interpretation of trade terms of the International Chambers of Commerce (Incoterms) based on the version which is valid at the date of signing the contract.
(2) If nothing is agreed to the contrary in the order confirmation, the delivery is to be agreed as "ex works" (EXW).
(3) Upon request of the buyer for delivery the risk shall pass to the buyer upon dispatch of the goods to the buyer at the latest. This refers also to those cases in which partial deliveries are made and is independent from the place of dispatch of the goods or who has to pay for the freight charges.
(4) Special agreements shall apply regarding the returning of packing and packaging.
(5) If the buyer wishes, we will cover the delivery with transport insurance, if requested against further risks by insurance cover, too; any costs so incurred are to be borne by the buyer.
(6) Any loss or damage to the delivery item and/or installation work after the risk has passed to the buyer shall be at the risk of the buyer, unless such loss or damage results from our negligence.
(7) Should dispatch or acceptance be delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer on the day on which readiness for dispatch has been notified; however, we shall obtain requisite insurance cover at the request and cost of the buyer.
§ 7 Retention of ownership
(1) We reserve title of ownership to the item sold until all payments due under the delivery contract have been made. We are entitled to take back the item sold in the event of actions contrary to the contract by the buyer, and in particular relating to any delays in payment. The buyer is obliged to return the item sold. A withdrawal from the contract is not implicit if we enforce our title of ownership or impound or take back the sold item. We are authorized to exploit the sold item after taking it back and the proceeds from this exploitation are to be used to settle against the liabilities of the buyer after deducting any appropriate costs incurred in this exploitation. This refers also to all future deliveries, even if we do not always point it.
(2) The buyer is required to handle the sold item with due care; in particular, he is required to insure it adequately on own costs on the basis of the new value against damage from fire, water and theft. If any maintenance and inspection work is required, the buyer must carry out this at the appropriate times at his own expense. If the buyer does not prove that he has fulfilled his obligations we are entitled to insure the delivered goods at the cost of the buyer.
(3) The buyer is required to inform us immediately in writing so that we can take legal action in accordance with section 771 of the ZPO (German Code of Civil Procedure) in the event of attachment or otherwise that third parties attempt to seize the sold item. If the third party is not in a position to reimburse us for the legal and extralegal costs incurred due to legal action in accordance with section 771 of the German Code of Civil Procedure, then the buyer shall be liable for any financial losses that we have incurred as a result.
(4) The buyer is entitled to resell the item sold in the course of regular business; however, he shall assign to us from then on all claims in the amount of the final invoiced amount (including VAT as applicable) to meet our claim that he has incurred through the reselling with respect to his buyers or third parties and this regardless of whether the sold item was resold without or after processing. The buyer continues to be authorized to do this to enable the claim to be settled even after the assignment. Our authorization to settle the claim ourselves shall remain unaffected. However, we undertake not the settle the claim ourselves as long as the buyer meets his financial obligations to us out of the incoming proceeds, if he does not fall behind on his payments, and in particular as long as he has not made an application to open proceedings for insolvency or compounding or is affected by a stoppage of payments. If this is the case, we can then require that the buyer informs us of the assigned claims and who he owes money to, all the details that are required to collect the money, that he gives us the associated documents and informs debtors (third parties) of the assignment.
(5) Any processing or conversion of the sold item by the buyer is always reserved to be done by us. If the sold item is processed together with other objects that do not belong to us, we shall then acquire joint ownership in the new item in relation to the value of the sold item (amount of the final invoice, including VAT) compared with the other processed objects at the time of the processing. In general, the same shall apply for the item that arises as a result of the processing as for the sold item that had been supplied with retention of ownership.
(6) If the sold item is inseparably mixed together with other objects that do not belong to us, we shall then acquire joint ownership in the new item in relation to the value of the sold item (amount of the final invoice, including VAT) compared with the other mixed objects at the time of the mixing. If the mixing is done in such a way that the item of the buyer can be regarded as the main item, it shall then be taken as agreed that the buyer transfers joint ownership to us on a proportional basis. The buyer shall then save our sole ownership or joint ownership that has arisen as a result.
(7) The buyer shall also assign to us the claims to secure our claim against him that have arisen through the connection of the sold item with a piece of real estate against a third party.
(8) We undertake to release at the request of the buyer the sureties given to us once the conversion value of our sureties exceeds that of the claims to be secured by more than 20%; the selection of the sureties to be released is our responsibility.
§ 8 Warranty liabilty
(1) Claims for defects of the buyer shall exist only if the buyer has complied with its inspection and notification duties persuant to § 377 of the German Commercial Code (Handelsgesetzbuch – HGB) in due time.
(2) Despite all the careful treatment, all such parts are to be replaced or repaired at our discretion that are shown to have been defective prior to the transfer of risk, subject to timely complaint. For carrying out all the reworking and replacement deliveries we shall bear all costs arising from the reworking and replacement deliveries, in particular costs for freight, travel and working hours and materials. Should the defective part which has to be corrected not at the site, the buyer shall bear all additional costs incurred when remedying defects. The buyer shall allow a reasonable period of grace for the reworking and replacement deliveries. Title of recourse remain valid for above regulation unrestricted.
(3) If the remedy of defects fails, the buyer shall be entitled to withdraw from the contract or to request a reduction of payment, at his choice.
(4) We are liable according to the legal regulations, provided the buyer enforces compensation claims incurred due to wilful intent or gross negligence, including wilful intent or gross negligence of our representatives or our contractors. As far as we did not breach the contract wilfully, the compensation of damage shall be limited to the predictable, typical occurring damage.
(5) We are liable according to the legal regulations, provided we culpably violate a contractual obligation; also in this case the compensation of damage shall be limited to the predictable, typical occurring damage.
(6)If the buyer is entitled for a compensation of claim instead of performance, our liability shall be limited to the predictable, typical occurring damage according to item (4).
(7) In the event culpable injury to life, limb or health the liability remains unaffected; this remains valid for liabilities according to the German Product Liability Act.
(8)Claims for defects of the buyer shall not exist in case of minor deviation from the agreed quality, minor impairment of usefulness, normal deterioration or wear, or defects due to causes arising after the risk due to negligent treatment, excessive use, inappropriate resources, poor workmanship, unsuitable site or due to extraordinary external influences which are not provided under the contract.
(9) If the buyer or a third party carries out the commissioning or execute improper repairs or alterations or no original exchange parts are used, we shall accept no liability for the consequences of the same.
(10) Claims for compensation of necessary expenses of the buyer, especially costs for transportation, travelling, labour and materials are excluded, if these expenses increase because the goods delivered by us were passed to another place at a later date than basically nominated in the contract.
(11) The limitation period for warranty claims is 12 months, calculated from transfer of the risk.
(12) The limitation period as per §§ 478, 479 BGB remains unaffected, it is five years, calculated from the delivery of the claimed parts in question.
(13) Title of recourse in favour of the buyer shall remain valid as long as the buyer has not agreed with his purchaser warranty claims which are excessive than the binding legal terms.
(14) If it is not required to repair the claimed part at the buyers site, the buyer shall deliver the claimed parts for repairing or exchange. In this case we have fulfilled our warranty obligation when we have sent the repaired part or a spare part to the buyer.
(15) If the repair has to be executed at site (§2), the parties agree on special regulations valid for the presence of our representatives.
(16) The defective parts, item 14, become our property and have to be provided on our demand immediately. Should the buyer fail to provide the damaged part(s), the claim shall be deemed as unproven. In this case the buyer shall reimburse all the costs relating to the exchange of the part(s) notified as defective.
(17) If we culpably refuse to fulfil our obligations or culpably fail to proceed with due diligence after being required so to do, the buyer may proceed to do the necessary work at our expense and risk, provided that he does so in a reasonable manner.
(18)The same terms and conditions of warranty as those applicable to the original delivery shall apply to parts supplied in replacement of defective parts or renewed in pursuance of this clause 14. This provision shall to the remaining goods, the warranty period of which shall be extended only by a period equal to the period during which the goods were out of action as a result of a defect covered by clause 2 or were inspected or repaired by us.
(19) We shall only be liable for damages, not incurred on the delivery item itself, regardless of the legal standing of the same, in the event of wilful intent; gross negligence of the proprietor/corporate bodies or executive employee; non-accidental injury to life, limb or health; the fraudulent concealment of defects or where the absence of such defects has been warranted; defects in the delivery item where liability is borne under the German Product Liability Act (Produkthaftungsgesetz) for personal injury and damage to privately used property. In the event of a culpable breach of contract, we shall also be liable for gross negligence on the part of non-executive employees and for the slight negligence, in the latter case limited to reasonably foreseeable damages which are intrinsic of the contract. Further claims are excluded.
(20) If the buyer is in default of payment, we may postpone the fulfilment of our own obligations until such payment is made, unless the default of the buyer is due to our culpable act or omission.
(21) If the financial position of the buyer deteriorates materially or circumstances become known to us which endanger our claim for payment we may refuse to render the contractual service until payment is made or a security in relation thereto has been provided. After expiry of a reasonable extension of the payment period, we shall be entitled to rescind the contract.
(22) Goods which have to be installed shall be erected and commissioned within two months after arrival at the buyers place to prove the contractual function of the goods. The buyer is liable to request in written form the erection service in time. Requests later than two months will exclude the title of claims of the delivered goods.
(23) The buyer shall be entitled to terminate the contract should we, taking account of statutory exemptions, allow a reasonable period of grace for reworking or replacement delivery on account of material defects to expire abortively. In the case of insubstantial defects the buyer’s right shall be limited to the right to demand a reduction in the contract price. The right to demand a reduction in the contract price is excluded in all other cases.
(24) An extended liability for compensation of damages as stated in § 8.4 is regardless the legal nature of the asserted claim excluded. This is valid especially in cases of claims for damages for negligence in contractual statements, other duties or claims for compensation of property damages as per § 823 BGB.
(25) The limitation as per clause 24 is also valid if the buyer asks for useless expenses instead of a compensation for the damage.
(26) As far as the liability of compensation for damage is excluded or limited this is also applicable for the personal liability of our employees, worker, collaborators, representatives and co-operation partners.
(27) Leads the use of the goods to the violation of property right or copyrights in Germany, we shall provide on our own expenses the legal right for the buyer to use the goods further on or to modify the goods in an acceptable way, that the violation of the protected rights are not existing any longer. If this is not possible under commercial reasonable terms or within an adequate time the buyer has the right to terminate the contract. Based on above terms also we have the right to terminate the contract. In addition we shall exempt the buyer from claims of the owners of above mentioned rights.
§ 9 Force Majeure
(1) Either party shall be entitled to suspend performance of its obligations under the contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: Industrial disputes and any other circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays by subcontractors caused by any such circumstance as referred to in this clause. Should any of the circumstances referred to in this clause occur prior or subsequent to formation of the contract, such circumstances shall only entitle the parties to suspend performance if the effect of such circumstances on performance of the contract could not be foreseen at the time of the formation of the contract.
(2) The party claiming to be affected by Force Majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance. Should Force Majeure prevent the buyer from fulfilling its obligations, the buyer shall compensate us for expenses incurred in securing and protecting the works.
(3) Regardless of anything which may otherwise follow from these General Terms, either party shall be entitled to terminate the contract by notice in writing to the other party if performance of the contract is suspended under § 9.1 for longer than six months. The termination of the contract, for whatever reason, does not entail the loss of the rights of the parties which were existing during the validity of the contract until its termination.
§ 10 Applicable Law, place of fulfilment, jurisdiction, other
(1) Place of fulfilment and exclusive jurisdiction and for all arising from this contract is the place of our company’s address if nothing else has been stated in the order confirmation. However we are entitled to take legal action against the buyer at the head office of the buyer.
(2) The law of the Federal Republic of Germany is valid to the exclusion of the United Nations Convention on Contracts for the International Sales of Goods (CISG).
(3) If any provision of the contract is or becomes invalid or contains a gap in the law, the other provisions shall remain unaffected. The parties undertake to replace the invalid regulation against a legal permissible regulation, which is nearest to the economic purpose of the invalid regulation or fills the gap in the law.
Reinbek, April 2010