- Legal Validity and Conclusion of Contract
All deliveries and services are made and rendered exclusively on the basis of these terms and conditions. These terms and conditions form an essential part of the delivery contracts and shall be considered to have been accepted when an order is placed. In the case of ongoing business relationships, these terms and conditions shall also apply to future contracts. Any terms and conditions other than these terms and conditions shall be considered to be valid only if the Seller has explicitly in writing agreed to such validity. If the Purchaser should not agree to this, the Seller is to be immediately advised of such disagreement in writing. In such cases, the Seller shall be entitled to withdraw and abandon all quotations without being obliged to the Purchaser in any way whatsoever. Samples/specimens left to the Purchaser shall be considered to be demonstration pieces for dimensions, weight, make, quality, color/tones. Such pieces shall not oblige the Seller in any way whatsoever even if the order is placed with reference to such pieces. This shall apply to all documents, figures/drawings made available to the Purchaser unless such documents, figures/drawings have been explicitly described as being binding. The Seller shall have the right to deviations/ modifications according to DIN, RAL, RL/VDI, VDE, common practice.
- Scope of Delivery and Delivery Time/Default/Impossibility of Performance
Only the written order confirmation shall be binding for the scope/content of the delivery. The Seller shall have the right to (minor) technical modifications up to the delivery. In particular, this shall apply to technical modifications which were not foreseeable on the date of the conclusion of the contract and which have a positive effect on the performance. Delivery times are approximate. The Seller shall only be obliged to meet the delivery date if all business and technical issues have been clarified and if the Purchaser has met all his obligations such as providing the necessary certificates/approvals, making the agreed down payments, supplying the required material. If the Purchase fails to do so, the delivery time shall be prolonged by a reasonable period. This shall not apply if the Seller is responsible for the delay. Meeting of the delivery date shall be subject to correct/timely supply to the Seller. In the case of delays caused by vendors of the Seller, the Seller shall not be bound to the agreed delivery time. This presupposes correct and timely orders placed by the Seller with his vendors. The delivery date shall be considered to have been met if at the end of the delivery period the goods have left the factory of the Seller or if the Seller has advised the Purchaser that the goods are ready to be shipped. If acceptance is required, the date of acceptance shall be considered to be material; or the date on which the Seller advises the Purchaser of the fact that the goods are ready to be accepted. If the shipment or the acceptance are delayed for reasons caused by the Purchaser, the Purchaser shall bear all costs resulting from such delays. If the delivery time is not met for reasons of force majeur (including, but not limited to, acts of riot/war/terrorism, strike, lockout, lack of supply of raw materials or shortages) or for other reasons beyond the control of the Seller, the delivery period shall be prolonged by a reasonable period, at least by the period required to remedy the cause of the delay. The Seller shall advise the Purchaser of the beginning and end of such disturbances. In the case of permanent disturbances caused by any of the above reasons or in the case that the Seller is not supplied without the Seller being responsible for this, the Seller shall be entitled to withdraw from the contract partially or completely without being liable to the Purchaser in any way whatsoever. In case of the non-availability of the service, the Seller shall immediately advise the Purchaser of such circumstances. If, in such a case, the Seller withdraws from the contract, any services received up to that point shall immediately be returned to the other party. The Purchaser shall be entitled to withdraw from the contract without notice if the Purchaser can definitely not perform prior to the passage of risk. The Purchaser shall also be entitled to withdraw from the contract if the performance of a part of the delivery becomes impossible and if he has a vital interest in the rejection of the partial delivery. If this is not the case, the Purchaser shall be obliged to pay the portion of the contract price due for the partial delivery. This shall also apply in the case of inability to perform. Articles 5, 6, and 7 shall also apply. Any other claims are excluded. If impossibility or inability occur while the Purchaser defaults in accepting the delivery or if the Purchaser is fully or primarily responsible for such circumstances, the Purchaser shall remain obliged to perform his part of the contract. If the Seller defaults and if such default results in damages to the Purchaser, the Purchaser shall be entitled to compensation. The compensation shall amount to 0.5% for each full week of delay of the value of the part of the delivery which cannot be used on time or that cannot be used as per contract. However, the maximum compensation shall be limited to 5% of the above amount. If, under consideration of the legal exceptions, the Purchaser grants the defaulting Seller a reasonable period to perform and if this period is not met, the Purchaser shall be entitled to withdraw from the contract under consideration of the pertinent German laws. Liability claims of the Purchaser for delayed delivery or instead of delivery which go beyond the limitations specified in these terms and conditions shall be excluded in all cases of delayed deliveries. This shall also apply to cases of the expiration of an extra period granted by the Purchaser under consideration of articles 5, 6, and 7 hereto. Partial deliveries shall be permitted.
- Passage of Risk/Acceptance
Risk shall pass to the Purchaser when the goods to be delivered leave the factory of the Seller. This shall also apply if partial deliveries are made or the Seller has undertaken other obligations, e.g. shipping costs or delivery and installation. If the goods have to be accepted, the date of acceptance shall determine the passage of risk. Acceptance shall be performed on the agreed date or on the date when the Seller advises the Purchaser that the goods are ready to be accepted. The Purchaser shall not be entitled to refuse acceptance for non-essential defects. If the Purchaser does not accept the delivery within a reasonable period, the goods shall be considered to have been accepted. If the delivery or the acceptance is delayed due to circumstances beyond the control of the Seller, risk shall pass to the Purchaser on the day the Purchaser is advised that the goods are ready to be delivered/accepted.
- Retention of Title
- The Seller retains the title to the goods (goods under retention of title) until payment has been made in full. If the value of receivables due to the Seller exceeds the total claim against the Purchaser by more than 20%, the Seller shall automatically waive his right to this excess value.
- The Purchaser shall be entitled to process and resell the goods within the course of regular business unless he is defaulting in his payment obligations to the Seller. The following applies: If the goods under retention of title are processed, this is done on behalf of the Seller as a manufacturer according to § 950 German Civil Code without obliging the Seller. By processing the goods under retention of title, the Purchaser shall not become the owner of the new product according to § 950 German Civil Code. If the goods under retention of title are sold together with other goods, the Seller shall hold the title to the new product to a share that corresponds to the ratio of the invoice value of the goods under retention of title to the total value. The co-ownership of new products generated this way shall be subject to the same provisions applying to goods under retention of title. The Purchaser hereby assigns the claims and all other rights resulting from the resale or any other type of sale to the Seller corresponding to the proportion to which the goods under retention have been processed. The Purchaser shall only be entitled to resell if he retains the title to the goods under retention of title until payment of his claims resulting from the resale has been made in full. Pledging of the goods under retention of title/assignments of accounts receivable shall not be permitted. The Seller shall be immediately notified of any execution/attachment proceedings, including the name of the attaching creditor.
- Any institution of bankruptcy proceedings against the Purchaser shall entitle the Seller to withdraw from the contract and demand that the Purchaser return the delivered goods.
- Defect of Quality
- In the case of defects of quality, the Seller shall, at his discretion, repair, deliver again or renew free of charge those parts of the delivery which are defective, provided such defect was already present when the risk passed to the Purchaser.
- For the purpose of undertaking any repairs or replacement deliveries which, at the Seller's reasonable discretion seem necessary, the Purchaser shall afford the needed time and opportunity. The parties shall make the appropriate arrangements. If the Seller is not granted such opportunity, the Seller shall be relieved from the liability for defects and the resulting consequences. The Purchaser shall only be entitled to repair the defect himself or have the defect repaired by third parties at the cost of the Seller in the case of imminent danger to operational safety or to prevent disproportionately great damages, in which cases the Seller is to be notified immediately. If the repair fails, the Purchaser shall be entitled to withdraw from the contract, notwithstanding any other compensation claims, provided the Seller fails to repair or deliver a replacement within a reasonable period granted to him by the Purchaser under consideration of the legal exceptions. If the defect is of a trivial nature, the Purchase shall only be entitled to reduce the price. The right to reduce the price shall be excluded in all other cases whatsoever. Claims for defects shall also be excluded in the case of damages which were caused after the passage of risk due to incorrect/negligent treatment, excessive loads, usage of unsuitable media, defective mounting, incorrect maintenance, chemical/electrochemical/electrical influences, unsuitable installation site, lack of stability, unsuitable securing measures as well as natural or environmental influences and other external influences provided such influences were not part of the contract. All claims whatsoever shall be excluded if the Purchaser or third parties or any other persons tamper with the delivered goods in an unauthorized way.
- If the expenses required for repair or replacement deliveries are increased due to the fact that the delivered goods were moved to a location other than the representation of the Purchaser, such expenses shall be borne by the Purchaser.
- Any costs/expenses incurred in repairs/replacement deliveries shall be borne by the Purchaser if a defect can be proven not to be present. This shall also apply if claims are barred by the statute of limitations or time-barred (according to § 377 German Commercial Code). The Seller shall be entitled to determine the prices for his goods and services (§ 315 ff German Civil Code).
- Any further liability claims or compensation claims or other claims whatsoever of the Purchaser shall be excluded, notwithstanding articles 6, 7.
- Defect in Title/Industrial Property Rights/Copyrights
- If no other agreements are made, the Seller shall only be obliged to deliver the goods free of industrial property rights of third parties in the country of the place of delivery. If a third party raises legitimate claims against the Purchaser for the infringement of industrial property rights caused by the Purchaser's contractual usage of a delivery made by the Seller, the Seller shall be liable as follows:
- At his discretion and his expense, the Seller shall either acquire the right to use the delivery in question or modify the delivery in question in such a way that the industrial property right is no longer infringed or replace the delivery. If this is impossible under reasonable conditions, the Purchaser shall have the legal withdrawal/reduction rights.
- The final liability obligations of the Seller are restricted to the provisions in articles 6 and 7 hereto. The Seller shall only be obliged if the Purchaser immediately notifies the Seller in writing of the claims of third parties, if the Purchaser does not admit to the infringement and leaves all protection measures and proceedings to the Seller. If the Purchaser ceases to use the delivery for reasons of mitigation of damages or for any other essential reason, the Purchaser shall be obliged to inform the third party that such cessation of usage does not imply an admittance to the infringement of rights. The Purchaser shall have the obligation to immediately notify the Seller appropriately.
- All claims of the Purchaser shall be excluded if the Purchaser is responsible for the infringement of the industrial property right. This shall apply in particular if the infringement is caused by special specifications/modifications of the Purchaser, by an application the Seller could not foresee or by the joint usage of the delivery and of products not supplied by the Seller.
- In the case of defects in title, the Purchaser shall be entitled to the claims as per Articles 5, 6, and 7 hereto. Any other claims whatsoever shall be excluded.
- Liability (Damages/Compensation)
- If the delivery cannot be used by the Purchaser as intended by the contract due to a fault of the Seller as a consequence of the failure to execute deliberations made before or after the closing of the contract or the defective execution of such deliberations or by the violation of other contractual duties, in particular instructions concerning the operation/maintenance of the delivered goods, the provisions of articles 6, and 7 hereto shall apply. Any other claims whatsoever of the Purchaser shall be excluded. The Seller shall neither be liable for any damages other than damages to the delivered goods, nor for damages/compensation claims, irrespective of the legal grounds, in particular, but not limited to, delay, impossibility, other violations of obligations, tortious acts. This shall not apply if the claim of the Purchaser arises from one of the following circumstances: injury to life, body or health or intentional or grossly negligent acts of the owner/the bodies/the management, or culpable breach of material contractual duties by non-managerial staff, or fraudulent concealment of defects, or defects that have been guaranteed to be absent, or defects in the delivered goods if the German product liability laws contain liability provisions for damages to persons or property. Liability for a negligent violation of an essential contractual obligation shall be limited to compensation for the typical foreseeable damage. This is the maximum order value.
- In the case of a violation of an obligation which does not consist of a defect, the Purchaser shall only be entitled to withdraw from the contract if the Seller, the legal representatives or vicarious agents are responsible for such violation and if the legal requirements for withdrawal are met. Claims to compensation for damages shall be excluded.
- Statute of Limitations
Claims of the Purchaser arising from defects shall be subject to a period of limitation of twelve months, starting on the statutory date. This shall not apply if the delivered good is a product that was used for a building or edifice according to its typical use and that caused the defectiveness of such building or edifice, or in the case of structural defects according to §§ 438 I 2, 634 a I 2 of the German Civil Code, or if the defect is caused by a willful violation through the Seller, his legal representatives or vicarious agents. This shall neither apply if the German product liability laws contain liability provisions in cases of injury to life, body or health or intentional or grossly negligent acts.
- Inspections/Notification of Defect/Technical Information
The Purchaser shall immediately inspect the delivered goods upon receipt and immediately notify the Seller of detectable defects. If the Purchaser fails to notify the Seller of such detectable defects in writing within a period of fourteen days upon receipt of the delivery, the delivered goods shall be deemed to be accepted. The Purchaser shall immediately notify of hidden defects. If the Purchaser fails to notify the Seller of such hidden defects in writing within a period of fourteen days after the detection of such defects, the delivered goods shall be deemed to be accepted. The Purchaser allows the Seller a suitable inspection of the defects and provides the Seller, free of charge and without a separate inquiry by the Seller, with all required technical information such as test/sequence/load protocols and inspection reports. If the Purchaser fails to do so, the delivered goods shall be deemed to be accepted.
- Applicable Law/Place of Performance/Place of Jurisdiction
All legal relations arising out of or in connection with the execution of this contract shall be governed by and construed and enforced in accordance with the laws of the Federal Republic of Germany. The parties hereto expressly exclude the application of the UN Purchase Provisions/CISG. Place of performance for all deliveries/payments shall be the location of the Seller, i.e. Heidenheim. The place of jurisdiction for all disputes arising out of or in connection with the execution of this contract as well as for all payments shall be Heidenheim. Notwithstanding this provision, the Seller shall be entitled to initiate proceedings at the location of the Purchaser.
This contract shall not be amended or modified except by an instrument in writing. This contract contains the entire agreement between the parties. Oral (deviating) agreements do not exist; they need to be made by an instrument in writing to become valid. The obligation to make all additional agreements by an instrument in writing can only be waived by an instrument in writing. Version November 2002.