I. General, Scope, Definition of Terms
- All agreements on deliveries and services that we conclude with companies, public law bodies or public special funds after 15.11.2010 shall be governed by the following terms and conditions.
- Our terms and conditions of business shall apply exclusively. Any conflicting terms and conditions of the Purchaser and any supplementary terms and conditions of the Purchaser that are unfavourable to us shall not form a part of the contents of the agreement, even if we do not separately oppose such terms and conditions.
- The contents of the agreement shall be based on the written agreements. No further agreements have been entered into. Amendments or additions to the agreement shall only be valid if they are confirmed by us in writing.
- Our terms and conditions of business shall also apply to future transactions with the Purchaser.
- In the case of relationships involving continuing obligations, changes to the terms and conditions shall in each case be notified to the Purchaser in writing with the amended terms and conditions duly marked, and such changes shall be deemed to have been agreed if the Purchaser continues
the relationship of continuing obligations without expressing any objection within an appropriate period.
- Within the meaning of this agreement, the term "goods" shall refer to all items to be delivered to the Purchaser in accordance with the agreement.
II. Offer, Offer Documents, Cost Estimate
- Our offers shall be without obligation. Offers by the Purchaser shall have been accepted if we have confirmed them in writing or if we have executed delivery or provided the service.
- We shall retain rights of ownership, patent rights and copyrights to all documents handed over to the Purchaser, including in particular data carriers, documentation, illustrations, drawings, calculations. They may not be used for any purposes other than the contractual purposes and may not be made accessible to third parties. They must be returned to us immediately franco domicile if the agreement has ended or if the useful contractual purpose has been fulfilled. This shall in particular apply to any documents and information marked as confidential. We shall be entitled to
demand the return of documents at any time if confidentiality is not guaranteed.
- We shall be entitled to issue subcontracting orders.
III. Quality of the goods or services
- The information on properties contained in our external communications such as catalogues, advertising and price lists shall only constitute part of the quality of the goods or services if such information has been made a component part of the agreement. Public statements made by a third-party manufacturer or his vicarious agent shall only constitute part of the quality of the goods if this has been stipulated in the agreement or if we have expressly adopted such statements in writing in public communications.
- Until delivery, we reserve the right to make technical amendments - including in particular improvements – in accordance with normal business practice if this results in only minor changes to the quality of the goods and the Purchaser is not unreasonably prejudiced as a result.
- If we have not expressly assumed such guarantee in writing, information on the quality or durability of goods or services shall not contain any warranty (guarantee) within the meaning of § 276 para. 1 of the German Civil Code [Bürgerliches Gesetzbuch, BGB] nor any guarantees in respect of quality or durability within the meaning of § 443 of the German Civil Code [BGB].
- If goods are produced or modified on the basis of specifications supplied by the Purchaser, we shall not be obliged to verify such specifications unless a special agreement has been reached in this respect. The Purchaser shall not be entitled to assert any claims for defects attributable to such specifications or to goods used by the Purchaser and supplied by third parties.
IV. Prices and Terms of Payment
- Our prices are ex place of delivery plus the respective applicable statutory rate of value added tax. Proportionate delivery costs including postage, packaging and loading within the works shall be added to all orders.
- All payments must be effected free of charge to our appointed payment office, without any deductions, and provided that no special agreements have been concluded, shall be effected as follows:
- 30% after order against bank guarantee for the net payment amount. Bank guarantee limited in time up to 6 weeks after the agreed delivery date. If the delivery date is delayed by BLEICHERT then the bank guarantee is extended to our cost.
- 30 % after delivery
- 30 % after assembly and commissioning
- 10% after final acceptance, latest 3 months after delivery
- If the payment date is exceeded we shall charge interest at the rate we have to pay our company banks for unsecured overdraft facilities; we shall not be required to give formal notice of default. If the Purchaser defaults on payments or if circumstances become known after the agreement has been concluded that raise doubts about the Purchaser's credit-worthiness, we
shall be entitled to declare all outstanding receivables - including those for which bills have been issued - immediately payable and we shall be entitled to abandon payment periods for outstanding deliveries, executing them only against advance payment or adequate collateral. This shall not affect any more far-reaching claims to which we may be entitled.
- If the agreement is a contract for services in which we are the contractor and if the Customer terminates them agreement pursuant to § 649 of the German Civil Code [BGB] before we have commenced provision of the service, we shall be entitled to a flat-rate remuneration amounting to 5% of the agreed overall remuneration. We shall be entitled to claim a higher, appropriate amount of remuneration.
- With transfers, the date on which funds become available to us shall be authoritative in determining if payments have been made on time. Acceptance of cheques and bills shall only be deemed payment after they have been honoured in the amount cashed less all charges. We shall not be obliged to present bills and cheques on time.
- Even where the Purchaser has conflicting terms of amortization, we shall be entitled to allocate payments in settlement of the oldest outstanding invoice.
V. Rights of Set off and Retention, Assignment, Partial Performance
- The Purchaser shall only be entitled to offset against claims that are undisputed or that have been established by a court of law. Rights of retention may not be asserted if they do not relate to the same contractual relationship. If a right of retention does exist the Purchaser shall only be entitled to exercise such right in respect of claims relating to the same contractual relationship that are undisputed or that have been established by a court of law.
- Claims asserted against us may not be assigned. This shall not apply within the scope of application of Article § 354 a of the German Commercial Code [Handelsgesetzbuch, HGB].
- Partial deliveries and partial performance of services as well as corresponding invoicing shall be permitted if these are not unreasonable for the Purchaser.
VI. Delivery, transfer of risk
- All deliveries shall be ex works. We shall not assume any guarantee regarding the cheapest form of transport.
- Irrespective of the provision on transport costs, risk of loss and deterioration shall pass to the Purchaser when the goods are handed over to the person or authority charged with dispatch, even if we dispatch the goods ourselves.
- If the Purchaser so requests, we shall at his expense insure the delivery under a transport insurance policy.
- The delivery date shall be extended by an appropriate period if we are prevented from fulfilling our delivery obligation due to force majeure, strike, lockout or unforeseen events that could not be avoided despite precautionary measures that could reasonably be expected - regardless of
whether such events occur at our company or at a supplier's - whereby such events shall include stoppages, intervention by the authorities, energy shortages or shortages in raw materials. If such events render subsequent delivery impossible or unreasonable for us, we shall be entitled to withdraw from the agreement either in whole or in part. The Buyer shall not be entitled to withdraw from the agreement in such cases.
- If dispatch is delayed at the request of the Buyer, the said Buyer shall be charged any costs arising in respect of warehousing, commencing one month after notification that the goods are ready for dispatch.
- Delivery shall be deemed to have been completed if the item to be delivered is manufactured, ready for dispatch, execution is in accordance with the contractual provisions and the Purchaser has been notified that the item is ready for dispatch.
- Modifications to the item that is to be delivered that are requested by the Purchaser after confirmation of the order may only be considered free of charge to the extent that no additional costs arise as a result of the modification. Without exception, we shall invoice any modifications that are carried out after completion at the request of the Purchaser.
VIII. Jeopardising of claims
- If, after conclusion of the agreement, it becomes discernible that our claim for counter-performance is jeopardised due to inability to perform on the part of the Purchaser, then even if an obligation to effect performance in advance does not otherwise exist, the Purchaser shall be obliged to effect
performance in advance if our contractual obligation consists in performing work, providing a service or delivery in respect of goods to be procured for the Purchaser that cannot be easily marketed elsewhere.
- In addition, § 321 of the German Civil Code [BGB] shall apply, subject to the proviso that we may also refuse to provide our performance if other claims from the same legal relationship within the meaning of § 273 of the German Civil Code [BGB] are jeopardised.
- If payment by instalments is agreed, payment of the entire residual claim shall be due if the Purchaser defaults either in whole or in part on at least two consecutive instalments. Extension agreements shall enter into effect if the Purchaser defaults on a performance or if the requirements of § 321 of the German Civil Code [BGB] are met in respect of a claim.
IX. Reservation of ownership
- We shall reserve ownership of the items delivered by us until receipt of all payments from the entire business relationship.
- The Purchaser shall be obliged to treat the goods with care; in particular, he shall be obliged to take out adequate replacement value insurance to cover the goods against damage caused by fire, water, theft and vandalism. If maintenance and inspection work is necessary, the Purchaser must carry out such work on time and at his own costs.
- The Purchaser must inform us immediately in the event of any attachment or other forms of intervention by third parties, in order to enable us to bring an action pursuant to § 771 of the Code of Civil Procedure [Zivilprozeßordnung, ZPO]. If the third party is not in a position to reimburse us with the court costs and out of court costs of an action pursuant to § 771 of the Code of Civil Procedure [ZPO], then the Purchaser shall be liable or any loss incurred by us.
- The Purchaser shall be entitled to sell on the item delivered within the ordinary course of business. However, the Purchaser here and now assigns to us all claims in the amount of the final invoice amount including value added tax accruing to him against his buyers and third parties as a result of selling on the item delivered. Even after such assignment, the Purchaser shall remain entitled to collect such claim provided that he has established the conditions for forwarding the amounts collected to us and provided that the conditions of the provision on jeopardising of claims (§ 321 of the German Civil Code [BGB]) do not exist. This shall not affect our authority to collect the claim ourselves. At our request, the Purchaser shall be obliged to disclose the assignment and to supply us with the documents and information necessary to assert the claim.
- If assembly is to be performed by us, such assembly shall be governed by our special terms and conditions of assembly.
XI. Limitation of Liability: Claims for Compensation, Reimbursement of Unnecessary Expenses
- Limitation of liability based on grounds
Only in the following cases shall the Purchaser be entitled to claims for compensation or claims for reimbursement of unnecessary expenses due to infringements of obligations or due to the performance that is owing not being provided by us or not being provided by us as owed
because of delay or because of defects:
a: in the event of damages resulting from death, injury to body or health that are due to at least a negligent infringement of an obligation on our part or to an intentional or negligent infringement of an obligation by one of our legal representatives or vicarious agents,
b: in the event of other damages that are caused by us or are due to at least a grossly negligent infringement of an obligation on the part of one of our legal representatives, senior managers or vicarious agents or that are due to at least negligent infringement of an important
contractual obligation (cardinal obligation) on our part or to at least a negligent infringement of an obligation on the part of one of our legal representatives, senior managers or vicarious agents and
c: in the event of damages categorised as being protected by a warranty satisfied by us (guarantee § 276 para. 1 of the German Civil Code [BGB]) or warranty as to quality or durability (§ 443 of the German Civil Code [BGB]).
- Limitation of liability based on amount
Where our liability for simple negligence and our liability for grossly negligent conduct on the part of our vicarious agents who are not legal representatives or senior managers is not excluded pursuant to No. 1 above, we shall be liable only for damages that could typically be
anticipated at the time of conclusion of the agreement and shall be liable only for reimbursement of unnecessary expenses up to the amount of the interest in the performance of the agreement. In the case of loss of or damage to data, we shall be liable only up to the amount of the cost of
restoring such data where proper backup copies exist.
- Liability resulting from obligations and business contacts established prior to
conclusion of the agreement.
The above paragraphs shall also apply to the Purchaser's claims for damages arising as a result of obligations established by the assumption of contractual negotiations, preparations undertaken with a view to concluding an agreement, or similar business contacts.
- Claims based on a devolved right
The above provisions shall also apply to claims asserted by the Purchaser based on a devolved right. The Purchaser may only rely on foreign law if the claim would also be justified if the above provisions and these General Terms and Conditions for Agreements were applied.
- Product Liability Act
The above provisions shall not apply to claims pursuant to §§ 1, 4 of the Product Liability Act [Produkthaftungsgesetz, ProdHaftG]. The same shall apply to the initial of impossibility or our justifiable inability.
- Limitation of liability in favour of third parties
Where our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff members, representatives and vicarious agents.
XII. Purchaser's Claims in the Event of Defects (Material Defects and Defects of Title)
- Verification obligation and requirement to issue a complaint
The Purchaser's rights in respect of material defects shall be subject to due verification and submission of a complaint (§ 377 of the German commercial Code, [HGB]).
- Material defects with second-hand items
The Purchaser's rights in respect of material defects shall be excluded where second-hand goods are purchased. This shall not apply to claims for compensation and claims arising under a warranty issued by us (guarantee, § 276 para. 1 of the German Civil Code [BGB]) or under warranties in
respect of quality or durability (§ 443 of the German Civil Code [BGB]).
- Subsequent performance
We shall be entitled to rectify the defect as we see fit, either by subsequent improvement or delivery of an item that is free of defects (subsequent performance). The Purchaser may reduce the purchase price if the attempt at subsequent performance fails. This shall not affect the Purchaser's right to compensation.
- Material defects in hardware and software supplied by auxiliary suppliers
In derogation of No. 3 above, in cases where hardware and standard software has been supplied by third-party manufacturers, we may, for the purposes of subsequent improvement or replacement delivery, assign our corresponding claims against our supplier or the manufacturer to the Purchaser. Before asserting his right to subsequent performance by us, the Purchaser must claim against us for compensation following self-repair, compensation in lieu of performance, rescission or reduction in price, against the supplier or the manufacturer (where necessary through the courts) for subsequent performance, compensation or reimbursement of
expenses following self-repair, unless this is unreasonable for the Purchaser.
- Interference by the Purchaser
In cases where the Purchaser interferes with the goods - and particularly with the program code - and such interference is not expressly permitted by the operating instructions or other instructions for use, the Purchaser shall not be entitled to any claims in respect of defects unless the Purchaser demonstrates and proves to us that the defect is not attributable to such
- Limitation period for claims in respect of defects, where not excluded by
these terms and conditions:
a: The statutory limitation period shall apply to claims for compensation in respect of defects and to claims in tort.
b: All other claims of the Purchaser in respect of material defects, including in particular for subsequent performance, reimbursement of expenses for self-repair, rescission, reduction in price and reimbursement of unnecessary expenses shall become time-barred within one year. Defects to parts designated as parts subject to wear in the documentation included in the scope of delivery shall be excluded from this provision.
c: The same shall apply to defects of title, subject to the following exception: Claims based on a defect involving a real right of a third party under which the surrender of the item purchased may be demanded shall become time-barred within 5 years.
XIII. Purchaser's Cooperation in the Event of Defects
- For any subsequent improvement, the Purchaser must provide us - where necessary following a request – with the information required to diagnose and rectify the fault and where subsequent improvement is effected by means of remote data transmission or telephone, the Purchaser must make a trained, suitably qualified employee available to us to assist with the subsequent improvement. Where subsequent performance is carried out on site, we must be allowed unrestricted access to the defective goods and where necessary other work on the Purchaser's hardware or network must be suspended.
- Any defects in hardware or software that are ascertained must be notified by the Purchaser in a way that is as detailed and as reproducible as possible.
- If the Purchaser claims subsequent performance against us and if it emerges that no claim for subsequent performance exists (e.g. user error, incorrect handling of the goods, absence of a defect), the Purchaser must reimburse us with all costs incurred in connection with inspection of the
goods and subsequent performance, unless he is not responsible for the claim made against us.
- In the event of a system failure due to an error for which we are responsible, we shall restore the data to the status established by the last data backup procedure carried out by the Purchaser before the failure. The Purchaser shall make the corresponding data available in machine readable form.
- The Purchaser must inform us immediately if a claim is made against him asserting infringement of third-party rights or demanding that he desists from further use of the item delivered.
Both parties shall be obliged to observe secrecy in respect of all business and operating secrets of the other party that become known during implementation of the agreement and also in respect of all unpublished information about the other party.
XV. Suspension of the Limitation Period in the event of Negotiations
Where negotiations are entered into, the limitation period for claims of the Purchaser shall only be suspended if we have given our written consent to negotiations. The suspension shall end 3 months after our last written statement.
XVI. Supplementary Provisions on the Quality of Software
- Software forming the subject-matter of the agreement shall be software that, unless otherwise expressly agreed elsewhere, is standard software that is not produced on a customised basis to meet specific requirements of the Purchaser. Delivery agreements for software are therefore purchase agreements. The parties agree that based on the state of the art, it is not possible to develop error-free standard software for all conditions of application.
- Unless otherwise agreed, software shall be supplied in a version that is suitable for use with the Microsoft Windows operating system (Windows 95 or higher).
- With standard software produced by third-party manufacturers, we shall supply the Purchaser with the manufacturer's original user documentation. We shall not be obliged to supply any more extensive documentation. Even prior to conclusion of the agreement, the Purchaser may on request be given the opportunity to inspect the original user documentation to be supplied. In addition, the documentation shall be included as online help within the software. If the Purchaser requires more extensive written documentation he may notify us of this prior to conclusion of the agreement. We shall then make an offer for supplying such documentation.
- If software is to be supplied, we shall be obliged to hand over the object code on a data carrier. No entitlement shall exist regarding handing over or disclosure of the source code.
- If we are obliged to install software, the Purchaser shall ensure that prior to installation, the notified requirements have been met regarding hardware and the remaining environment and in particular connection to the computer network including all cabling.
- Where hardware is supplied by us, the client must ensure a suitable hardware and software environment to the extent that its own hardware and software or hardware and software acquired by third parties is to be connected.
- We shall not be responsible for or verify the installation of suitable VDU workstations - including in particular compliance with industrial safety legislation - as this shall be a matter for the Client.
- During test runs and during installation the Client shall ensure the presence of suitably qualified and trained employees and shall suspend other work on the computer system where necessary. Prior to each installation, the Client shall ensure that all his data have been secured.
XVII. Right of use
- If standard software of third-party manufacturers forms the object of delivery, usage shall be in accordance with the terms and conditions of use of the third-party manufacturers. Such terms and conditions shall be made available to the Purchaser on request and may even be made available prior to conclusion of the agreement.
- Unless otherwise provided for under the terms and conditions of use under No. 1 above, the following terms and conditions of use shall apply.
- The Purchaser shall have a non-exclusive licence to use the software; this licence shall not be limited in terms of time. It shall be non-transferable. The Purchaser may not grant rights of use to third parties. If a network licence (licence covering multiple workstations) is not acquired, the software may only be used on one individual computer. If the hardware is changed the software must be fully deleted from the hardware that was previously used. Simultaneously storing, keeping available or using the software on more than just one item of hardware shall not be permitted.
- Where a network licence is acquired, this right of use shall apply to the agreed individual workstations of the contractually defined local network. The Purchaser shall be obliged to prevent any usage by third parties. Branches, affiliated companies of the licensee, shareholders or organs of the same institution that are separate entities in terms of geography or organisation shall also be classed as third parties.
- Unless otherwise compellingly prescribed by law, the licensee shall not be authorised to modify, copy or duplicate the software or written material handed over to him.
- Existing copyright features or registration features including in particular registration numbers within the software may not be removed or amended.
- In the event that the Purchaser culpably infringes the above provisions, then irrespective of any other rights, we shall be entitled to demand a contractual penalty of € 20,000.00 for each infringement.
XVIII. Place of Performance, Choice of Law, Contractual Language, Legal Venue
- For both parties, the place of performance for agreements with merchants shall be the Company's registered office.
- These terms and conditions of business and the entire legal relationships between the parties shall be governed by the substantive law of Germany. The United Nations Convention Relating to a Uniform Law on Contracts for the International Sale of Goods shall be excluded.
- The contractual language is German.
- If the Purchaser is a merchant, public law body or public special fund, then the exclusive legal venue for all disputes arising under the contractual relationship shall be the Company's registered office, although we shall be entitled to bring an action against the Purchaser at another statutory legal venue. For all other Purchasers, our registered office shall be agreed as the legal venue for all disputes arising under the contractual relationship, in the event that, after conclusion of the agreement, the party against whom a claim is being made transfers his domicile or normal place of residence outside of Germany or that his domicile or normal place of residence is not known at the time the action is brought.
- The invalidity of provisions in these terms and conditions or of any other provision agreed between the parties shall not affect the validity of the remaining provisions of these General Terms and Conditions of Delivery and Performance or other agreements. Where other provisions are agreed between the parties, the parties shall be obliged to replace the invalid provisions with valid provisions that approximate as closely as possible to the intention of the invalid provisions.