I. For use in respect to:
- A person acting in a commercial capacity or as a self-employed professional (entrepreneur) at the time of signature of the agreement;
- A corporate body or special fund under public law.
II. General Information
- All products and services shall be governed by these terms and conditions as well as any special contractual agreements. Even upon acceptance of an order, the agreement shall exclude any terms and conditions of the purchaser that are in conflict with these terms and conditions. Unless otherwise agreed, an agreement shall only enter into force subject to the written order confirmation from the supplier.
- The supplier retains title and the copyright to the samples, quotations, drawings, and other such information of a material or immaterial nature – including in electronic form – and these shall not be divulged to any third party. The supplier undertakes not to divulge to any third party any information or documentation that is classified as confidential by the purchaser unless with the express permission of the latter.
III. Pricing and Payment
- Unless otherwise agreed, all prices shall be ex works, including loading at the factory, but excluding packaging and unloading. The prices shall also be subject to the respective rate of VAT in force.
- Unless otherwise agreed, payment shall be transferred in full onto the account of the supplier as follows:
- 1/3 deposit upon receipt of the order confirmation
- 1/3 as soon as the purchaser has been informed that the main consignment is ready for despatch
- The outstanding amount within one month from the date of delivery.
- The purchaser shall only have the right to withhold payment, if their counterclaims have been established as undisputed and legally enforceable.
- The purchaser shall only have the right to offset payments against counterclaims from other legal relationships, if their counterclaims have been established as undisputed and legally enforceable.
IV. Delivery Date, Delivery Delays
- The delivery date shall be as agreed by the contractual parties. The supplier shall comply with the delivery date providing all the commercial and technical issues between the contractual parties have been settled, and providing the purchaser has fulfilled all of his obligations, such as supplying all the necessary licences or permits, and has paid the deposit. If this is not the case, the delivery date shall be postponed accordingly. This shall not apply if the delay is attributable to the supplier.
- Compliance with the delivery date shall be subject to the supplier themselves receiving the correct supplies at the correct time. The supplier shall warn the purchaser as soon as possible of any potential delays.
- The supplier shall have complied with the delivery date if the completed consignment of goods has left the works of the supplier or when it is reported as ready for despatch. If the consignment is to be collected – and excluding a justified refusal to collect – the time of collection agreed shall be the decisive factor, or alternatively notification from the purchaser that they are ready to collect.
- If the despatch or collection of the consignment of goods is delayed for reasons attributable to the purchaser, any costs incurred by that delay shall be charged to the purchaser with effect from one month from the notification of the readiness to despatch or collect.
- If the delivery is delayed due to force majeure, industrial action or other such circumstances beyond the control of the supplier, the delivery date shall be postponed accordingly. The supplier shall inform the purchaser of the start and end date of any such circumstances as soon as possible.
V. Transfer of Risk, Collection
- The purchaser shall become liable for all risks as soon as the consignment of goods has left the works, even if subsequent partial deliveries are still to follow, or if the supplier has included other services, such as the transport costs or delivery and installation. Collection shall take place immediately upon the agreed time of collection, or alternatively as soon as the supplier has notified the purchaser that the consignment is ready for collection. The purchaser shall not refuse to collect in the event of an insignificant defect.
- If despatch or collection of the consignment is delayed or fails to take place due to circumstances not attributable to the supplier, the purchaser shall become liable for the risks as soon as the purchaser is notified that the consignment is ready for despatch or collection. The supplier undertakes to take out the insurance policies requested by the purchaser at the latter’s expense.
- Partial deliveries shall be permitted providing these are deemed reasonable by the purchaser.
VI. Retention of Title
- The supplier retains title to the goods until full payment has been received - including for potential additional services supplied – as stipulated in the sale agreement.
- The supplier shall be entitled to insure the goods against theft, breakage, fire, water and other types of damage at the expense of the purchaser, providing the purchaser has not subscribed to the insurance themselves and can provide a certificate of insurance.
- The purchaser shall not sell, pledge or transfer the ownership of the goods for the purpose of securing a debt. In the event of the goods being pledged or seized or other such types of disposal by a third party, the purchaser shall immediately inform the supplier of this fact.
- If the purchaser is in breach of contract, especially in the event of late payment, the supplier shall be entitled to recover the goods following a notice of default and the purchaser shall be obliged to return them.
- Due to retention of title the supplier can only reclaim the goods supplied if the latter has withdrawn from the agreement.
- The application for bringing insolvency proceedings shall entitle the supplier to withdraw from the agreement and to claim the immediate return of the goods supplied.
VII. Claims for Defects
- The supplier warrants the goods supplied against material defects and defects of title to the exclusion of all other claims - subject to the Chapter ‘Liability’ - as follows:
VIII. Material Defects
- The supplier, at their discretion, shall either repair or provide a replacement free of any defects for any parts found to be faulty due to circumstances prior to the transfer of risk. Such defects shall immediately be reported to the supplier in writing. The supplier shall become the legal owner of any parts replaced.
- The purchaser and the supplier shall come to an agreement in order to allow the necessary time and opportunity to enable the latter to perform all the repairs and replacement deliveries deemed necessary by the supplier. If not, the supplier shall decline all liability for any consequential loss or damage. Only in cases of emergency that pose a danger to operational safety or to prevent disproportionately greater loss or damage, of which the supplier must immediately be informed, the purchaser shall have the right to either repair the defect themselves or to have it repaired by a third party, and to claim back the expenditure incurred from the supplier.
- The supplier shall be liable – providing the claim is justified – for the immediate costs of the repair or replacement delivery, including the cost of the transport.
- Other claims shall only be determined based upon the chapter ‘Liability’ of these terms and conditions.
- The supplier particularly declines any liability in the following cases: Improper or inappropriate use, defective installation or commissioning by the purchaser or a third party, normal wear and tear, incorrect or negligent operation, incorrect maintenance, unsuitable operating equipment, defective construction, unsuitable foundations, chemical, electro-chemical or electrical interference – providing these are not attributable to the supplier.
- If the purchaser or a third party performs any improper improvement works, the supplier declines any liability for any consequential loss or damage. The same applies to any modification to the goods supplied without the prior permission of the supplier.
IX. Defects of Title
- If the use of the goods supplied breaches industrial rights or copyright, the supplier shall pay for the purchaser’s right to further use to be restored or shall modify the goods supplied in such a way that is deemed reasonable by the purchaser, in order not to breach any industrial rights. If this is not economically viable or not possible within a reasonable period of time, the purchaser shall be entitled to withdraw from the agreement. Subject to the aforementioned terms and conditions, the supplier shall also be entitled to withdraw from the agreement accordingly. In addition, the supplier shall indemnify the purchaser against any undisputed or legally enforceable claims from the respective holder of the rights.
- In the event of a breach of industrial rights or copyright, the supplier’s obligations listed under ‘Claims for Defects’ shall be final and conclusive.
They shall only apply if
- The purchaser immediately informs the supplier of an enforceable claim for a breach of industrial rights or copyright.
- The purchaser gives the supplier reasonable assistance with fighting the enforceable claims or allows the supplier to perform the modification measures in accordance with the chapter ‘Liability’.
- The supplier is able to make use of all possible types of recourse, including out-of-court settlements.
- The defect of title is not due to notification on the part of the purchaser.
- The violation of rights is not due to the fact that the purchaser has personally modified the goods supplied, or has used them in a non-contractual way.
Supplier Liability, Exclusion of Liability
If the purchaser cannot use the goods supplied as stipulated in the agreement due to recommendations or advice negligently provided by the supplier, either before or after signature of the agreement, or due to a negligent breach of other additional contractual obligations – particularly user and maintenance instructions for the goods supplied, the regulations of the chapters concerning ‘Claims for Defects’ shall apply to the exclusion of all other claims from the purchaser.
- In the event of damage caused, but not to the goods supplied themselves, the supplier shall only accept liability for the following – regardless of the legal grounds
- Damage caused with intent
- Damage due to gross negligence on the part of the owner/executive bodies or supervisory staff
- Negligent injury to life, limb and health
- Damage due to fraudulently concealed defects
- Damage within the context of warranty cover
- Damage due to defects to the goods supplied, providing liability is accepted in accordance with product liability legislation for personal or material loss or damage to commodities for private use.
In the event of a negligent breach of essential contractual obligations, the supplier shall accept liability, even in the event of gross negligence on the part of non-executive members of staff and in the event of minor negligence, the latter case being limited to typical contractual loss or damage that could reasonably be anticipated.
Any further claims shall be excluded.
X. Time Barring
Any claims from the purchaser – regardless of the legal grounds – shall become time-barred after a period of 12 months. For compensation claims based upon the chapter ‘Liability’, the statutory deadlines shall apply. They shall also apply to defects to buildings or for goods supplied, which are specifically designed to be used for buildings and have caused the latter to become defective.
XI. Use of Software
If the goods supplied also include software, the purchaser shall be granted a non-exclusive right to use the software supplied, including the accompanying documentation. The software is provided for use with the respective goods supplied. Use of the software on more than one system is prohibited.
The purchaser shall only reproduce, process, translate or convert the software from the object code to the source code within the scope permitted by law (Section 69a and following articles of the Act on Copyright and Related Rights). The purchaser undertakes not to remove any of the manufacturer’s details - especially copyright notices – and not to modify them without the prior express permission of the supplier.
The supplier or the software supplier retains title to all other rights to the software and to the documentation, including copies. The granting of sub-licences is not permitted.
XII. Applicable Law, Court of Jurisdiction
- All legal relationships between the supplier and the purchaser shall be governed exclusively by the respective law of the Federal Republic of Germany governing the legal relationships between the parties.
- The court of jurisdiction shall be the court located within the district of the head office of the supplier. However, the supplier shall be entitled to lodge a claim with the head office of the purchaser.