General terms and conditions of sale and delivery including license terms for the granting of standard software
As of: December 2020
I. Terms and Conditions of Sale
§ 1 General Information, Applicability
(1) These Terms and Conditions of Sale (“T&CS”) apply to all of our business relationships with our customers (“Buyers”). The T&CS apply only when the Buyer is an entrepreneur (§ 14 German Civil Code), a legal person under public law or a special fund under public law.
(2) In particular, the T&CS apply to contracts for the sale and/or delivery of goods and services regardless of whether we produce the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code). Unless otherwise stipulated, the T&CS as amended at the time of the Buyer’s order or, in any case, the most recently they were communicated to the Buyer in text form apply as a framework agreement for future contracts of the same nature without the need for us to refer to them in each instance.
(3) Our T&CS apply exclusively. Deviating, contrary or supplemental terms and conditions from the Buyer become an integral part of the contract only and insofar as we expressly consent to their applicability. This consent requirement always applies, including on the occasion that we, while fully aware of the Buyer’s terms and conditions, provide delivery to the latter without condition.
(4) Agreements made with the Buyer on an individual basis (including ancillary agreements, addenda and amendments) always take precedence over these T&CS. The content of such agreements is, in absence of evidence to the contrary, governed by a written contract or our written confirmation.
(5) Legal statements and notices the Buyer must submit to us following conclusion of the contract (e.g., deadlines, claims of defects, statements of withdrawal or diminution) must be in writing to have legal force.
(6) Insofar as the transaction requires, we are authorized to electronically store and process the Buyer’s data in accordance with data protection laws.
§ 2 Contractual Declarations
(1) Our product and service offering is subject to change without notice. This also applies in the event we have furnished the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, costing, references to DIN standards), other product descriptions or documents—incl. electronic—to which we reserve title and copyright.
(2) The ordering of goods on the part of the Buyer constitutes a binding offer of contract. Unless otherwise indicated in the order, we are entitled to accept this offer of contract within two (2) weeks of receipt.
(3) Acceptance may be declared either in writing (e.g., via order confirmation) or via dispatch of the goods to the Buyer.
§ 3 Delivery, Transfer of Risk, Delayed Acceptance, Partial Performance
(1) Delivery is ex works (“EXW” per Incoterms 2020), which is also the place of performance for the delivery as well as any supplementary performance. The goods may be shipped to another destination at the Buyer’s request and expense. Unless otherwise stipulated, we are entitled to determine the shipping method (in particular carrier, route and packaging).
(2) The risk of accidental loss or accidental deterioration of the goods transfers to the Buyer no later than upon handover. In the event of shipment, however, the risk of accidental loss or accidental deterioration of the goods as well as the risk of delay transfers to the forwarder, carrier, or other person or institution charged with completing shipment upon dispatch.
(3) Should delivery be delayed for reasons for which the Buyer is responsible, such delayed acceptance or failure to cooperate, we are entitled to demand compensation for any resulting damages, including additional expenses (e.g. for storage).
(4) In the event of call orders, approximately the same quantity of goods must be accepted each month unless otherwise stipulated. The total order quantity is deemed called one (1) month after expiration of the stipulated call period or, in absence of such agreement, twelve (12) months after conclusion of the contract. Should the Buyer fail to take a designated portion of the ordered goods within one (1) month of expiration of the apportionment period or, in absence of such agreement, one (1) month of request on our part, we are entitled to apportion and deliver the goods at our discretion and at the Buyer’s expense.
(5) Partial performance and corresponding invoicing are permitted, unless unreasonable for the Buyer.
§ 4 Force Majeure, Frustration of Purpose, Conditions of Performance
In the event of force majeure suffered either by us or our suppliers, our service and delivery obligations will be in abeyance for the duration of the disruption. The same applies in cases of energy or raw material shortfalls, labor disputes, official injunctions, traffic disruptions or disruptions of operations. Should a material change of circumstances occur following conclusion of the contract resulting in an inability on our part to reasonably adhere to the contract, we are entitled to withdraw from the same. Our performance of the contract is conditioned upon compliance with national and international foreign trade laws as well as any sanctions or embargoes.
§ 5 Delivery Dates and Delays
(1) The delivery date is stipulated on an individual basis or indicated by us upon acceptance of the order.
(2) The delivery or service date indicated by us commences only upon resolution of all technical issues as well as the timely and due fulfillment of the Buyer’s obligations.
(3) Insofar as we cannot adhere to binding delivery dates for reasons for which we are not responsible (non-availability of performance), we will inform the Buyer without delay and communicate the new, estimated delivery date. Should the non-availability of performance persist past the new delivery date as well, we are entitled to withdraw from all or part of the contract; we will reimburse without delay any payment rendered by the Buyer. In particular, non-availability of performance in this sense also refers to instances where our supplier fails to supply us in a timely manner in a matching cover transaction, neither we nor our supplier are at fault or we, in a particular instance, are not responsible for procurement.
(4) Should a stipulated delivery or service date not be met for reasons for which we are responsible, the Buyer must set a reasonable extension for the delivery or service in writing. This extension must be no fewer than five (5) weeks. Should delivery or service fail to be rendered upon lapse of the extension and the Buyer thus wishes to withdraw from the contract or demand compensation in lieu of performance, the Buyer is obliged to submit to us express written notice thereof and demand delivery or service within a reasonable grace period. The Buyer is obliged at our request to declare within a reasonable period of time whether the Buyer, due to delayed delivery or service, is withdrawing from the contract and/or demanding compensation in lieu of performance, or insisting on delivery or service.
(5) The Buyer’s rights pursuant to § 9 of these T&CS and our legal rights, in particular when we are no longer under an obligation of performance (e.g., due to performance and/or supplementary performance being impossible or unreasonable), remain unaffected.
§ 6 Prices and Terms of Payment
(1) All prices are ex works (“EXW” per Incoterms 2020) unless otherwise stipulated. Unless otherwise stipulated, our prices do not include tax, shipping, handling or insurance. Should we agree to set up or assemble the goods and unless otherwise stipulated, the Buyer bears all necessary ancillary costs, such as costs for travel, tool transportation, luggage and accommodations in addition to the stipulated compensation.
(2) In the event of shipment, the Buyer bears the costs of shipping ex store as well as the costs for any cargo insurance desired by the Buyer. The Buyer bears any customs, duties, taxes and any other government charges.
(3) The purchase price is due in full within thirty (30) days of invoicing and delivery. However, we are entitled at any time, including as part of an ongoing business relationship, to render delivery in full or in part against prepayment only. We will stipulate such a condition no later than upon order confirmation.
(4) The Buyer is in default upon the lapse of the preceding term of payment. While in default, interest will be charged on the purchase price at the applicable legal default interest rate. We reserve the right to claim additional damages in the event of default. Our claim to the commercial maturity interest (§ 353 German Commercial Code) against merchants remains unaffected.
(5) The Buyer only has the right to withhold payment insofar as counterclaims are undisputed or adjudicated. The Buyer only has the right to offset payment with counterclaims from other legal relationships insofar as said counterclaims are undisputed or adjudicated.
In case of defects in delivery, the Buyer’s adverse rights, in particular pursuant to § 8 (6) (2), remain unaffected.
(6) Should the delivery or service date occur more than four (4) months after the conclusion of the contract, we are entitled, with timely notification to the Buyer and prior to delivery or performance, to adjust the price of the goods or service stipulated at the conclusion of the contract, including for shipping, to the extent reasonable to offset cost trends beyond our control (e.g., wholesale costs, exchange rate fluctuations, customs and duties increases). For framework contracts containing price agreements, the aforementioned four-month period commences upon conclusion of the framework contract.
§ 7 Retention of Title
(1) We retain title to any goods sold until payment is receiving in full for all of our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to a third party nor assigned as collateral before our secured claims have been paid in full. The Buyer must notify us immediately in writing in the event a petition is filed to commence insolvency proceedings or insofar as third parties seize (e.g., garnishment) goods belonging to us.
(3) In case of a breach of contract on the part of the Buyer, in particular nonpayment of the due purchase price, the law entitles us to withdraw from the contract and to replevy the goods on the basis of retention of title and withdrawal. Should the Buyer fail to pay the due purchase price, we may only assert these rights after having ineffectively set a reasonable extension period for payment for the Buyer or should the law not require such an extension.
(4) Until further notice pursuant to (c) below, the Buyer is authorized to sell and/or process the goods under retention of title in the course of ordinary business. In such case, the following provisions apply in addition.
- (a) Retention of title extends to the full value of products arising from the processing, intermingling or combining of our goods, with we being considered the manufacturer. Should a third party’s right to title persist through processing, intermingling or combining with goods of said third party, we acquire joint ownership for the invoice amount for the processed, intermingled or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
- (b) The Buyer hereby cedes as security all claims against third parties arising from the sale of the goods or product in full or in the amount of any joint ownership percentage pursuant to the foregoing. We hereby accept such cession. The Buyer’s obligations arising from § 5 (2) also apply with regard to the ceded claims.
- (c) The Buyer remains authorized to collect claims on our behalf. We are obliged not to collect the claim insofar as the Buyer fulfills all payment obligations to us, there is no indication of an inability to pay and we do not assert retention of title through the exercising of one of the rights pursuant to § 5 (3). However, should this be the case, we may demand the Buyer disclose to us the ceded claims and the debtors thereof, provides all information necessary for collection, furnishes the appropriate documents and notifies the debtors (third parties) of the cession. We are also entitled in this case to revoke the Buyer’s authorization to sell or process the goods under retention of title.
- (d) Should the marketable value of the securities exceed our claims by more than ten (10) percent, we will release securities at our discretion upon the Buyer’s request.
(5) Insofar as the aforementioned retention of title clauses be invalid or unenforceable in the country in which the goods are located, the security considered equivalent in that country is hereby deemed stipulated.
§ 8 Buyer Claims for Defects (excluding Software)
(1) The products delivered by us meet the applicable German regulations and standards at the time of delivery or service. We do not guarantee compliance with other national regulations. The Buyer is obliged, to the extent the products are used in another country, to verify the conformity of the products with the authoritative laws and standards and make any modifications.
(2) Unless otherwise stipulated subsequently, the Buyer's rights in the event of material defects or defects of title (including incorrect delivery, underdelivery, improper assembly and deficient assembly instructions) are subject to law.
(3) In order for the Buyer to assert claims for any defects, the Buyer must have first inspected the goods and reported the defect as required by law (§§ 377, 381 German Commercial Code). Should a defect be discovered upon or after inspection, we must be notified in writing without delay, however no later than one (1) week. The posting date of such notification being within the aforementioned period is regarded as sufficient to preserve the Buyer's rights. This obligation of inspection and notification notwithstanding, the Buyer must, in all instances, report obvious defects (including incorrect delivery and underdelivery) in writing without delay, however no later than one (1) week, with the posting date of such notification being within this period regarded as sufficient. Should the Buyer fail to duly inspect the goods and/or report any defects, we are not liable for the unreported defects.
(4) Should the delivered item be defective, we may, at our discretion, either replace or repair the item (supplementary performance). To this end, the Buyer must grant us a reasonable period of time of no fewer than fifteen (15) business days. The Buyer must give the claimed item over to us for testing purposes. In the event of replacement, the Buyer must return the defective item to us as required by law. Supplementary performance does not include the removal of the defective item nor the installation of the replacement, provided we were not originally obligated to install the item.
(5) Should a defect actually exist, we will bear or reimburse the expenses necessary for testing and supplementary performance, in particular shipping, infrastructure, labor and material costs as well as any removal and installation costs to the extent required by law.
(6) Insofar as expenses increase as a result of the item subsequently being delivered to a location other than the original delivery location, the Buyer bears the additional expenses unless such delivery corresponds to the intended use of the item. Should no defect actually exist, we may demand from the Buyer compensation for the costs incurred from the Buyer’s unjustified claim (in particular testing and shipping costs), unless the Buyer was unable to discern that the defect did not actually exist.
(7) Should supplementary performance be unsatisfactory, the Buyer may reduce compensation or withdraw from the contract. However, withdrawal is only acceptable when the Buyer first indicates an intention to do so in writing after another reasonable extension period. The Buyer has no right of withdrawal for insignificant defects.
(8) Buyer claims for damages or reimbursement of wasted expenditures, including for defects, are only permitted pursuant to § 9 and are otherwise excluded.
§ 9 Other Liability
(1) Unless otherwise provided in these T&CS, including the provisions below, we are liable for breaches of contractual and non-contractual obligations under the law.
(2) Our liability for damages under fault-based liability, regardless of legal grounds, is limited to gross negligence and intent. For ordinary negligence, we are liable under the law as follows:
- (a) for damages arising from death, bodily injury or harm to health,
- (b) for damages arising from the breach of an essential contractual obligation (an obligation, the fulfillment of which essentially facilitates the due performance of the contract and on the fulfillment of which the other contracting party routinely relies and may rely); in such case, however, our liability is limited to compensation of the foreseeable damage that typically occurs.
- (c) In all other cases, not for damages not incurred by the goods themselves, in particular not for loss of profit or other financial losses incurred by the Buyer.
(3) The limitations of liability arising from § 9 (2) also apply to breaches of obligation on the part or for the benefit of persons for whose culpability we are responsible under the law. They do not apply insofar as we have guaranteed the quality of the goods and claims from the Buyer pursuant to the German Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract for a breach of obligation not arising from a defect insofar as we are responsible for such breach. Such withdrawal or termination must be stated in writing and may not be submitted via e-mail or fax. Statutory requirements and legal consequences otherwise apply.
(5) The aforementioned provisions apply mutatis mutandis to claims by the Buyer for compensation of wasted expenditures.
§ 10 Limitation Period
The limitation period for claims for defects in our goods and services as well as for claims under our tort liability is one (1) year from delivery or, if necessary, acceptance. Excluded from this are cases involving death, bodily injury and harm to health as well as to intentional or grossly negligent breach of obligation on our part and claims for damages under the German Product Liability Act.
§ 11 Industrial Property Rights, Copyrights
(1) Delivery of goods and rendering of services on our part generally are not associated with the transfer of rights of use to our industrial property rights or copyrights. Any such transfer requires a separate agreement.
(2) In case of infringement of an industrial property right, we are entitled to, at our discretion, obtain the necessary industrial property rights within a reasonable period or supply the Buyer with a reliable alternative.
§ 12 Material Provisions
(1) Should the Buyer agree to provide materials, the Buyer provides such materials in the proper quality, in a timely manner and at no charge. The same applies to the documentation, with technical requirements and specifications, that is required for us to render our services. Any provided materials and documentation remain the property of the Buyer.
(2) We are not liable for material defects, or claims arising from product liability or delays insofar as such defects or claims are due to provisions, requirements or specifications from the Buyer that are not obviously deficient, or due to provisions that are delayed despite a timely request having been made for the same. The same limitation of liability applies when the Buyer requires us to acquire precursor materials according to the Buyer’s specifications and/or from specific suppliers chosen by the Buyer, including when we are bound by contract to order said goods ourselves at our own cost.
§ 13 Performance of Assembly Work
(1) Any assembly work contracted requires open access to the assembly sites. Should this not be provided, the Buyer will be charged any additional costs incurred as a result.
(2) Where assembly work is contracted, we are entitled to employ subcontractors.
(3) The Buyer, at own cost, assumes responsibility for the timely provision of all earthworks, construction and other related work from other industries, including the necessary skilled and unskilled workers, construction materials and tools, implements and materials needed for assembly and startup, such as scaffolding, lifting equipment and other equipment, fuels and lubricants as well as energy and water at the place of use, including connections, heating and lighting.
(4) The Buyer ensures storage of machine parts, equipment, materials, tools, etc. at the assembly site. The Buyer is obliged to provide adequately sized, suitable, dry and locking rooms, and, for the assembly personnel, reasonable work and break areas, including reasonable sanitary facilities. Otherwise, the Buyer must safeguard and treat our property and assembly personnel as well as possible.
(5) The Buyer must provide protective any clothing and guards required due to special circumstances at the assembly site. Furthermore, the buyer is obliged to ensure adequate working conditions and safety at the assembly site.
(6) Before assembly commences, the Buyer must provide, unsolicited, the necessary information on the locations of any hidden power, gas and water lines or similar systems as well as the necessary structural information.
(7) Prior to the commencement of setup or assembly, the provisions and items required to perform the work must be at the setup or assembly site, and all preparatory work must, prior to the commencement of setup, be completed to such an extent that setup or assembly can be commenced as stipulated and completed without interruption. Access routes to the setup or assembly site must be leveled and cleared.
(8) Should setup, assembly or acceptance be delayed due to circumstances for which we are not responsible, the Buyer bears, to a reasonable extent, the costs for the delay as well as additional travel required by us or our assembly personnel.
(9) The Buyer must certify weekly the work hours of the assembly personnel as well as the end of setup, assembly or startup.
(10) Any additional material or work required that was not foreseeable at the time the order was issued will be invoiced separately, unless otherwise stipulated.
§ 14 Acceptance of Works
(1) Where acceptance of works is stipulated, we are entitled upon completion—or, if necessary, prior to the expiration of the stipulated execution period—to request acceptance of the works. In such case, the Buyer will perform acceptance within twelve (12) business days; a different period can be stipulated. Upon request, self-contained portions of the works must be accepted separately. Acceptance can be refused due to a significant deficiency only until such deficiency is corrected.
(2) Should acceptance not be requested, the works are deemed accepted twelve (12) business days after written notification of the completion of the works. Should acceptance not be requested and the Buyer have utilized the works or a portion thereof, acceptance is considered given six (6) business days after the initial utilization, unless otherwise stipulated. Utilization of parts of a physical structure to continue work does not constitute acceptance.
(3) The Buyer must assert any reservations for known defects or penalties no later than the times specified in (1) and (2) above.
(4) Risk is transferred to the Buyer upon acceptance to the extent the Buyer does not already bear said risk pursuant to § 3.
§ 15 Nondisclosure
(1) Both parties will preserve the secrecy of confidential information, in particular prototypes, quotes, drawings, documents, business intentions, personal information, problems, data and/or solutions and other know-how, regardless of content, as well as information obtained visually through visits to plants/facilities (hereafter collectively “Information”), of which one of the parties obtains knowledge as part of the business relationship between the parties during and after the end of the contractual relationship, in particular both parties will refrain from disclosing such Information to third parties or exploiting the same for their own business purposes without permission. The parties will impose this obligation on their employees and agents.
(2) This duty of nondisclosure does not apply to Information that:
- Is previously known outside of the contractual relationship at the time it is disclosed to the other party.
- Has been deduced or lawfully obtained from third parties.
- Is common knowledge or the state of the art.
- Has been released by the originating party.
(3) Upon the end of the contractual relationship, the parties must return or destroy—insofar as this information must be kept as part of a legal documentation or—insofar as technically feasible without unreasonable effort—irretrievably erase all confidential Information from the other party, whether in physical or digital form. The measure taken must then be reported or confirmed to the other party immediately and without renewed request.
(4) The parties comply with data protection rules, in particular, when given access to the other party’s premises or IT facilities. The parties take suitable actions to ensure their employees and agents also comply with these provisions.
§ 16 Custom-made Products
(1) For custom-made products ordered by the Buyer, the Buyer is only entitled to terminate the contract for cause for which we are responsible.
(2) In case of non-acceptance of goods manufactured to the Buyer’s specifications, we are entitled to dispose of the items at the Buyer’s cost after the fruitless lapse of a reasonable pickup period communicated to the Buyer in writing.
§ 17 Choice of Law and Legal Venue
(1) These T&CS and the contractual relationship between us and the Buyer are subject to non-unified German law, in particular the German Civil Code and German Commercial Code. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(2) If the Buyer is a merchant as defined in the German Commercial Code, a legal person under public law or a special fund under public law, the legal venue for all disputes arising directly or indirectly from the contractual relationship is the location of our headquarters. However, in any case we are entitled to file suit at the place of performance of the delivery obligation pursuant to these T&CS or an overriding separate agreement, or at the Buyer’s general legal venue.
(3) Should the Buyer’s headquarters be located outside the European Union, all disputes will be finally settled by a court of arbitration, with no recourse to ordinary courts of law. The court of arbitration will be convened pursuant to the rules of arbitration of the German Arbitration Institute (DIS). The location of the court of arbitration is Frankfurt am Main, Germany. Proceedings will be conducted in English.
II. Terms for Licensing Standard Software
§ 1 Scope of Software License, Documentation
(1) The following licensing terms apply to the licensing of standard software that we supply to the Buyer either by itself or with corresponding hardware (hereafter “Software”). They do not apply to the supply of hardware.
(2) Firmware is not considered “Software” under the terms of this license.
(3) This license applies as a supplement to any other agreements between the parties.
(4) Software services are not covered under this license. The rendering of such services requires a separate agreement.
(5) Our supply obligations to not include the supply of documentation, unless expressly stipulated in writing. In the case of such an agreement, the term “Software” as follows includes documentation.
§ 2 Rights of Use
(1) We grant the Buyer a perpetual, non-exclusive right to use the Software for the Buyer’s own use. Should the Software be acquired for use with specific hardware, the Buyer may only use the Software with the hardware specified in the contract documents (e.g., software product certificate). Where no hardware is listed, use of the Software is limited to the corresponding hardware that is supplied. Use of the Software with other hardware is only permitted on the basis of a separate agreement and against reasonable additional compensation. Temporary use on other hardware (replacement device) is permitted insofar as necessitated by a fault in the authorized hardware and until such fault is rectified.
(2) Where use on multiple devices is authorized, rights of use generally apply on an alternating basis, i.e., the Buyer may only use the Software on one of these devices at a given time (single license). Where there are multiple workstations on one device on which the Software can be independently used, the single license extends to one workstation only. Where a multi-use license is stipulated, the provisions under 3 (I) apply.
(3) The Software is licensed exclusively in machine-readable form (object code). The Buyer has no claim to access to the source code.
(4) The Buyer may only use the Software for the contractually stipulated purpose and for the Buyer’s own use. Commercial sublicensing is prohibited.
(5) The Software may only be reproduced insofar as is necessary for contractual use. The Buyer may produce state-of-the-art backup copies to the extent necessary. Backup copies on mobile data storage media must be labeled as such and bear the copyright notice of the original data storage medium.
(6) The Buyer is only authorized to modify, expand or otherwise alter the Software as defined in § 69 (c) German Copyright Act insofar as expressly permitted by law or by the contractual use of the Software.
(7) The Buyer is only authorized to decompile the Software within the bounds of § 69 (e) German Copyright Act and only where we have not provided within a reasonable period following a written request the necessary data and/or information to establish interoperability with other hardware and software.
(8) Should we license to the Buyer expansions (e.g., patches) as part of supplementary performance or maintenance (the latter exclusively on the basis of a separate agreement) or a new version of the contractual object (e.g., updates, upgrades) to replace the previously licensed contractual objects (“Old Software”), these are subject to these licensing terms. In the event we supply a new version of the contractual object, the Buyer’s permissions with regard to the Old Software under this agreement expire, including in the absence of an express request from us to return said Old Software, as soon as the Buyer productively utilizes the new Software.
(9) Subject to the foregoing, reproduction or alteration of the application documentation is prohibited.
(10) We grant the Buyer the right, subject to revocation for cause, to transfer the rights of use granted hereunder to third parties. However, the Buyer, to whom the Software is not licensed for commercial resale, may only transfer the rights of use to the Software in conjunction with the device with which the Buyer obtained the Software from us. In the event rights of use are transferred to a third party, the Buyer warrants that the third party will not be granted any additional rights of use to the Software other than those rights granted to the Buyer, and that the third party will be subject to, at minimum, the same obligations relating to the Software under the terms of this agreement. To this end, the Buyer may not retain any copies of the Software. The Buyer is not entitled to grant sublicenses to the Software. Should the Buyer license the Software to a third party, the Buyer becomes responsible for complying with any export requirements and indemnifies us against all obligations relating thereto.
(12) The use of the Software on multiple devices or multiple workstations simultaneously as well as the use of the Software on networks requires a separate written agreement. In case of such agreement (hereafter uniformly “Multi-Use License”), the following provisions apply and take precedence: i) The Buyer may only transfer Multi-Use Licenses to third parties in full and with all devices on which the Software may be used; ii) The Buyer must comply with the information regarding reproduction that is conveyed to the Buyer by us along with the Multi-Use License. The Buyer must maintain records on the whereabouts of any reproductions and submit said records to us at any time upon request.
§ 3 Other Buyer Obligations of Cooperation, Liability
(1) The Buyer takes reasonable precautions in the event that all or part of the Software supplied by us does not properly function. The Buyer will thoroughly examine the system environment to ensure compatibility with the requirements of the Software. The Buyer will also back up all data in accordance with the state the art and the sensitivity of the data, however once per day at minimum. The Buyer warrants that up-to-date data from databases maintained in machine-readable form are reproducible with reasonable effort. The Buyer takes reasonable steps to protect the Software against unauthorized access by third parties. The Buyer is obliged to conduct performance tests immediately before and after installation, and to notify us of the results.
(2) The Buyer is obliged to inspect our deliveries without delay and to report defects in writing, specifying the exact errors and/or faults that have been discovered (§ 377 German Commercial Code). Where available and reasonable, the Buyer must also disclose to us of any automatically generated diagnostic data.
(3) Supplementary performance regarding defects requires reproducibility or verification of said defect. The defect claim must include information on the type of error/fault, in case of Software the module in which the error/fault occurred, as well as the work that was being performed when the error/fault occurred.
§ 4 Material Defects and Defects of Title
(1) We supply the Buyer with goods and services free of material defects and defects of title. Errors/faults that result only in an insignificant reduction in the usability of the goods or services are excluded. For deliveries of Software, impairments to function in particular resulting from the hardware and software environment provided by the Buyer, operating error, faulty external data, disruptions of computer networks or other causes originating within the Buyer’s scope of risk are not considered defects.
(2) We are not responsible for Software that has been modified by the Buyer, unless the Buyer can prove that the modification is not the cause of the reported defect.
(3) Insofar as our goods and services are defective and the Buyer reports such defects in writing in a timely manner pursuant to § 377 German Commercial Code, we will, at our discretion, either replace the object or rectify the defect (supplementary performance). To this end, the Buyer must grant us a reasonable period of time of no fewer than eight (8) days. For Software, supplementary performance in particular can take the form of a license for a new version of the program or of the identification of reasonable methods for avoiding the effects of the defect (workaround). The Buyer must then accept a new version of the program where such results in a reasonable degree of effort to adjust.
(4) Supplementary performance for defects of title is established when we provide the Buyer with a legally incontestable right of use to the Software. In so doing, we may exchange the Software in question with equivalent, contractually compliant software where this is deemed reasonable for the Buyer.
(5) Should third parties assert industrial property right claims against the Buyer, the Buyer must inform us immediately in writing. At our discretion and in consultation with the Buyer, we will either contest or satisfy the claim. We will contest third-party claims at our own cost and indemnify the Buyer against all costs and damages associated with contesting the claim insofar as said costs and damages are not the result of misconduct on the part of the Buyer. “Misconduct”, in this context, also refers in particular to when the Buyer acknowledges the claims of a third party without our prior written consent.
(6) Should supplementary performance be unsatisfactory, the Buyer may reduce compensation or withdraw from the contract. However, withdrawal is only acceptable when the Buyer first indicates an intention to do so in writing after another reasonable extension period.
§ 5 Compensation for Damages and Limitation Period
(1) The provisions in Article I §§ 9 and 10 apply mutatis mutandis.
General Terms and Conditions of Mahr Unipre GmbH
1. All business transactions of Mahr Unipre GmbH. (hereinafter „Supplier“) i.e. all contracts, supplies and other services shall be governed solely by the following General Terms and Conditions of Sale, whether or not they are expressly referenced.
2. Terms and conditions deviating from these General Terms and Conditions shall not be binding unless expressly agreed to in a written individual agreement between Mahr Unipre GmbH and Buyer.
3. Supplier objects to and rejects the General Terms and Conditions of Buyer. They shall not apply unless expressly agreed to in writing by Supplier.
1. All offers are subject to confirmation. Supplier shall only be obliged to perform delivery if a written order acknowledgement has been issued, subject to availability.
2. All documents forming part of the offer such as illustrations, drawings, weights and measurements are approximate only unless expressly stated as binding. Supplier reserves the right of ownership and copyright on all quotations, drawings and further documents; they must not be made available to any third parties. Supplier is not allowed to make drawings available to any third parties which Buyer has classified as confidential unless Buyer has given its consent.
III. Scope of Supply
1. The scope of delivery shall be as defined in Supplier´s written order acknowledgement. Any addition or modification must be accepted in writing by Supplier.
2. Protective devices and switchgear will be delivered as far as agreed.
IV. Prices and Payments
1. All prices set forth in the valid price list, stated in Euro, are ex works Werl, packing not included. Supplier reserves the right to correct these prices if any factor in costs should change before delivery. In case of individual orders for spare parts, repair or special equipment, small-quantity surcharges will be charged. Packaging will be invoiced at cost price and will not be taken back.
2. Invoices for repair work, installation work, tools, development costs and patterns shall be payable at once, strictly net. All other invoices shall be payable within 10 days from date of invoice with a 2% cash discount or within one month without any deduction. Payment shall be regarded as fulfilled when the amount due is at Supplier´s disposal. Buyer shall only be permitted to deduct a cash discount if it is not culpably in arrears with any other payment obligations and provided that the invoice amount is credited to Supplier´s account within the agreed time limit. The following terms shall apply to more substantial orders: 1/3 down payment upon receipt of Order Acknowledgement 1/3 upon notification of Buyer that the major equipment parts are ready for dispatch balance within one further month.
3. If Buyer fails to pay within the stipulated time limit, i.e. within one month from date of invoice, it is put in default, even without reminder. If the date of receipt or receipt itself of an invoice is uncertain, payment shall be due at the latest 30 days after receipt of the counter-performance. Thus Buyer shall be in default at the latest from the 31st day on calculated from the receipt of the counter-performance.
4. If Buyer is in default, Supplier shall be entitled to charge interest for default at a rate of 8% p.a. above the currently valid basic interest rate according to § 247 BGB. This does not preclude Supplier´s right to claim any further damages.
5. Irrespective of any separately agreed individual payment terms, all claims which Supplier may have on Buyer shall be payable immediately if such circumstances occur in connection with Buyer that it cannot reasonably be expected from Supplier to stick to previously agreed payment terms. This would be the case if there are undoubted signs of a considerable deterioration in the financial situation of Buyer , especially if Buyer stops to pay, in the event of protest of a cheque or bill, or default in so far as this indicates that Supplier´s right to counter-performance is jeopardised by the lack in financial means of Buyer. In such cases Supplier shall furthermore be entitled to demand that Buyer performs pari passu with counter-performance or furnish further securities. Furthermore, Supplier shall have the right to fix an appropriate deadline by which Buyer has to perform pari passu with counter-performance or provide collateral, as Supplier chooses. If Buyer fails to meet the deadline Supplier shall have the right to withdraw from the contract.
6. If Buyer files a justified claim which falls within the scope of the statutory liabilities for defects, Buyer shall be entitled to withhold payment only in reasonable proportion to the recognised defect in quality. In all other cases the right of retention is excluded.
7. Buyer shall be entitled to offset due payments only against counterclaims which are undisputed or upheld by a final judgement.
V. Delivery Period
1. The stipulated delivery period commences when Confirmation of Order has been sent, however not before all documents, approvals, confirmations to be provided by Buyer have been furnished and not before any contractually agreed down-payment has been received.
2. The time of delivery is deemed to have been kept if the delivery item is dispatched from the factory or if Buyer is notified that the equipment is ready for dispatch before the delivery period expires.
3. The stipulated delivery date shall be extended by an appropriate time in the event of unforeseeable obstacles beyond Supplier´s control– whether in Supplier´s works or one of its Sub-suppliers – such as breakdown, strike, delays in the delivery of essential raw or construction materials , in so far as such obstacles have a substantial proven effect on the completion and delivery of the delivery item. Even if Supplier is already in default when such circumstances arise, it cannot be held responsible for them. In all instances of importance Supplier undertakes to inform Buyer as soon as possible of the commencement and the end of such obstacles.
4. If delivery is delayed at Buyer´s request, the storage costs will be charged as of the expiry of one month from notification that delivery item is ready for shipment; in case of storage in Supplier´s works, however, at least ½ percent of the invoice amount per month. Supplier is, however, entitled to use the delivery item for any other purpose after having set a reasonable deadline and after this deadline has expired fruitlessly and Supplier shall then have the right to deliver within a reasonably extended period of time.
5. Delivery shall be made within the time stipulated on condition that Buyer has fulfilled all contractual duties.
VI. Passing of Risk and Acceptance
1. The risk of accidental ruin and/or loss shall devolve on Buyer at the latest upon shipment of the delivery item(s) or delivery to the person in charge of transport. This does also apply if part deliveries are made or Supplier has taken on further obligations such as freight costs or transport and installation. At Buyer´s request, Supplier shall insure the consignment at Buyer´s costs against breakage, damage in transit, fire and water damage.
2. If delivery is delayed due to circumstances for which Supplier cannot be held responsible , all risks shall pass to Buyer as of the date when the equipment is ready for shipment. Supplier is, however, obliged, to take out all insurance policies which Buyer may demand at Buyer´s costs.
3. All delivered items have to be accepted by Buyer, even if they show minor defects, without prejudice to any rights according to chapter VIII.
4. Part deliveries shall be permitted.
5. Furthermore all risks shall devolve on Buyer as soon as Buyer defaults in acceptance after having received Supplier’s notification that the delivery item is ready for shipment.
VII. Reservation of Title
1. Supplier reserves title to all goods delivered until Buyer settles all payment obligations including any debit balances from former deliveries. The goods are subject to an extended reservation of title.
2. Supplier shall be entitled to insure the delivery item against fire and water damage and all other damage at Buyer´s costs, if Buyer cannot prove that itself has contracted insurance.
Buyer shall neither give the delivery item in pledge nor assign it for security. Buyer shall notify Supplier without delay of any seizure, confiscation or any other orders by any third party.
3. If Supplier enforces the right of reservation of title or seizes the delivery item this shall not be deemed as a rescission of contract.
VIII. Legal Liabilities for Defects of Goods when Delivered
1. The legal liabilities for defects shall not apply to any insignificant deviations from the agreed quality or insignificant impairments.
2. Supplier cannot be held liable for any defects resulting from one of the following: inadequate or improper use, faulty installation or setting into operation by Buyer or any third party, normal wear and tear, faulty or negligent handling – especially excessive use - , unsuitable operating materials, use of substitute materials, poor construction work, unsuitable construction ground , chemical, electrochemical or electrical influences, as far as these are not attributable to Supplier´s fault.
3. Buyer undertakes to check immediately whether the delivered goods are in proper condition and shall notify Supplier within 10 days from receipt of the goods in writing of any patent defects. The same period of notification applies to latent defects calculated from the time they are first detected.
4. If the notice of defect(s) is justified, i.e. if there are any material defects the cause of which was already existing at the time of transition of risks , Supplier shall be entitled to choose between subsequent improvement (removal of defects) or subsequent delivery (replacement delivery).
5.After having come to an understanding with Supplier, Buyer shall give the Supplier the required time and opportunity to take all remedial actions or effect all replacement deliveries which are deemed necessary at the Supplier’s reasonable discretion. Otherwise, Supplier shall be released from its liability for defects. Only in very urgent cases where safe working is endangered, whereof Supplier must be advised without delay, or if Supplier is in default with rectifying the defect, shall Buyer be entitled to remove the defect itself or engage a third party to do so and to demand of the Supplier an adequate compensation for the incurred costs.
6. Provided that the complaint proves to be justified and considering all immediate costs caused by such remedial measures or replacement deliveries , Supplier shall be obliged to bear the costs of the replacement part itself including transport as well as all adequate costs for dismantling and mounting and furthermore, as far as this can be reasonably expected, the costs of sending its engineers or assistants. All other costs shall be borne by the Buyer.
7. The same legal liabilities shall apply to the replacement part and the repair as for the delivery item itself. The validity period of the legal liabilities for defects of the delivery item shall be extended by the time during which operation had to be interrupted because of any remedial actions.
8. Supplier shall be entitled to refuse the removal of defects as long as Buyer does not fulfil its obligations.
9. Supplier shall not be liable for any consequences resulting from any modifications or repair work which Buyer or any third party may have executed without prior approval of Supplier.
10. Supplier´s responsibility that the delivered goods are suitable for the purposes for which the Buyer intends to use them shall be precluded. Likewise, Supplier rejects to make good for any damage which may occur in connection with the processing of the goods.
11. Further claims of Buyer, especially a compensation for any damage where the delivery item itself is not involved, shall be excluded.
12. Buyer shall have a legal right of recourse against Supplier only in so far as all legal prerequisites are fulfilled. Thus the right of recourse shall not exist if Buyer has entered into any additional agreements by way of a guarantee or by way of goodwill with its own client that go beyond the rights stipulated by law.
13. If the legal regulations for consumer goods (§§ 474 ff BGB) especially with regard to the right of recourse (§§ 478 ff BGB) do not apply in the absence of the legally stipulated prerequisites, a liability period of one year shall apply.
14. The legal consequences of a violation of the commercial duty of examination and notice of non-conformity (§§ 377, 378 HGB) shall remain unaffected.
IX. Supplier´s Right of Withdrawal
Supplier shall have the right to withdraw from the contract in whole or in part if any unforeseen events in terms of chapter V of the Terms and Conditions of Sale should happen which have a considerable impact on the commercial significance or the substance of the performance or on the Supplier´s works or if it is later recognised that it will be impossible to perform.
Buyer shall not be entitled to claim any damages for such a rescission. If Supplier intends to make use of its right of withdrawal, it shall inform the Buyer as soon as the momentousness of the event is clear, also if at first an extension of the delivery period had been agreed between Buyer and Supplier.
Please refer to separate terms and conditions.
XI. Miscellaneous, Venue
For both parties, the place of performance and venue for all contractual duties as well as venue for any action arising out of a bill shall be Werl.
In all other respects, the sales and delivery terms of the Verein Deutscher Maschinenbauanstalten (VDMA) shall apply.
The contract is subject to German law.
Upon annulment of a provision of the General Terms and Conditions or a regulation of any further agreement, all other provisions shall remain valid. Any terms and conditions of Buyer which are in contradiction with these General Terms and Conditions of Sale shall not be binding on the Supplier even if the order is based on them and the Supplier has not contradicted them.
XII. Damages / Liability
1. The Buyer cannot claim any damages for whatever legal reason, especially on account of the violation of an obligation arising from the debt relationship or on account of a civil offence unless where the Product Liability Act (Produkthaftungsgesetz) provides mandatory liability such as liability for wilful or gross negligence or if a human being is killed, injured or affected in his health or if an essential contractual duty is violated.
2. The right to claim damages if an essential contractual duty is violated shall, however, be limited to the typically foreseeable damage unless where a limitation of liability is excluded for any other reason due to wilful and gross negligence or if a human being is killed, injured or affected in his health.
3. In case of non-performance due to reasons for which Supplier is responsible, Buyer’s right to claim damages shall be limited to 10% of the value of that part of the delivery which cannot be put into appropriate service because of the non-performance provided that Supplier has not acted with wilful and gross negligence and except where liability is imperative because a human being is killed, injured or affected in his health. The Supplier’s right to withdraw from the contract remains unaffected.
4. If one of Buyer´s clients or a client thereof rightfully claims post-performance, Buyer shall give Supplier within a reasonable period of time the opportunity to provide itself such post-performance before Buyer tries to find a “replacement”. Buyer shall impose this duty accordingly on its own client(s). If Buyer offends against this duty, Supplier shall be entitled to reimburse only such costs as would have been incurred when Supplier itself had provided post-performance- § 444 BGB remains unaffected.
5. Furthermore, Buyer shall not have any right of compensation for costs in connection with post-performance if Buyer has not availed itself of the right to refuse this kind of post-performance or both kinds of post-performance because of excessiveness of costs although it is obliged to loss mitigation.
6. Buyer shall not be entitled to claim compensation for any expenditure in connection with post-performance, especially transport, travel, labour and material costs if such expenditure is increased due to the fact that the delivery item was later transferred to a different place which is not identical with consignee´s address as indicated by the Buyer unless such transfer is coherent with the designated use of the delivery item. The same applies to the right of recourse.
7. The statutory limitation period for any claims for damages and the compensation of expenditure in connection with the non-conformance of goods shall apply.