GC

I. General Purchase Conditions

 

 

§ 1 General, Scope

 

(1)   The following General Purchase Conditions (“GPC”) apply to all business relationships with our business partners and suppliers (“Seller”). The terms within these GPC’s apply only if the Seller is an entrepreneur (§ 14 German Buergerliches Gesetzbuch; abbr. BGB), a legal entity or special fund under public law.

(2)   The GPC’s apply particularly to contracts for the sale and/or the delivery of goods to us, without regard to whether the goods were produced originally or purchased from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, these GPC’s are generally in force at any point after which an order is placed, or in any case in which the Seller has agreed to a framework for similar contracts in the future without the need of further reference in each individual case.

(3)   These GPC’s apply exclusively. Differing, conflicting, or additional terms and conditions of the Seller shall only apply to contracts concluded with us if we have agreed to their validity in writing. This requirement applies in any case, even if, for example, we unconditionally accept a delivery knowing the Seller’s General Terms and Conditions.

(4)   The terms of one case-by-case basis, individual agreements made with the Seller (including collateral agreements, supplements, and amendments) shall take precedence over the terms within these GPC’s. The content of such agreements is determined by written contract or our written confirmation, subject to proof of the contrary.

(5)   Legally relevant declarations and notifications which are to be delivered (i.e. setting of deadlines, warnings, rescissions) shall only be effective in writing.

(6)   References to the application of statutory provisions may only serve for the purpose of clarification. Even in the absence of such clarification, statutory provisions shall only apply to the extent they are not modified or excluded by the GPC.

 

§ Conclusion of Contract

 

(1)   Our order is binding at the earliest with written submission. In the case of obvious errors (i.e. typographical errors or miscalculations) or omissions in the order including supporting documentation the Seller is obliged to give notice before acceptance for correction or completion purposes; otherwise the contract shall be deemed invalid.

(2)   The Seller is obliged to confirm our order in writing within a period of 10 days or unconditionally execute the delivery of goods for acceptance. 

(3)   Late acceptance constitutes a new offer by the Seller that must be expressly accepted by us.

 


§ Delivery Period and Delays

 

(1)   The delivery time specified by us in the order is binding. If the delivery time is not indicated or otherwise agreed, it will be deemed as two weeks from the conclusion of contract. The Seller is obliged to inform us in writing immediately, if a delivery cannot be made within the agreed delivery period regardless of which reason.

(2)   If the Seller does not perform the delivery within the agreed period, the Seller will be considered in default. Our rights for recourse, including rescission and claims for damage, are ruled by statutory provisions. The provisions laid forth in Paragraph (3) shall remain unaffected.

(3)   In case of default we retain the right to charge liquidated damages amounting to 1% of the net price of the delayed goods per week, not exceeding 5% in total. We are entitled to demand contractual penalty in addition to fulfillment and as minimum damages owed by the Seller under statutory provisions. Further additional claims for damages remain unaffected. In case that we accept the delayed delivery, the penalty will be charged at latest in conjunction with the final payment.


§ Performance, Delivery, Risk Transfer, and Acceptance Delay

 

(1)   The Seller is not entitled to assign the fulfillment of an order to any third party (i.e. subcontractors) without our prior written consent. The Seller bears the sole risk of procurement of respective goods unless otherwise agreed (e.g. restriction of stock).

(2)   Delivery costs within Germany will be borne by the Seller. The Seller will provide the delivery at the address specified on the order. If the destination is not otherwise specified, delivery will be made at our business location in Ganderkesee, Lower Saxony. The delivery destination is also the respective place of fulfillment.

(3)   A delivery receipt stating the date (receipt and dispatch), our order number and the content of the delivery (product number and quantity) shall accompany each delivered order. If the delivery receipt is incomplete or not attached, we are in no way accountable for any resulting delay in processing and payment. A copy containing all respective details of the delivery receipt shall also be sent separately.

(4)   Dangerous goods must be packaged, labeled and shipped by the Seller in accordance with all relevant national and international rules and regulations. The Seller shall in particular be responsible for compliance with the obligations imposed on suppliers within the meaning of Article 3, paragraph 32 of Regulation (EC) No 1907/2006 (hereinafter “REACH”). The Seller shall provide us specifically with a safety data sheet in German in all cases where this is required pursuant to Article 31, paragraph 1 through 3 REACH.

(5)   The risk of loss and deterioration of delivered goods is transferred to us at the place of fulfillment. If acceptance of performance is agreed, the time of acceptance is decisive. Regarding the acceptance of performance the statutory provisions for contracts of manufacture shall apply. Default in acceptance will be deemed as acceptance.

(6)   Statutory provisions apply for our delay in acceptance. The Seller has to provide ordered goods explicitly, yet if we are obliged to perform a supporting act on a determined or determinable date. In case we fall into default of acceptance, the Seller may seek reimbursement for additional expenses as outlined in § 304 BGB. In case the contract pertains to irreplaceable custom-made goods, the Seller is granted further rights only if we are obliged to cooperate and liable for the failure to cooperate.

 

§ Prices and Payment

 

(1)   The price listed in the order is binding. All prices include any statutory VAT if not respectively listed.

(2)   If not otherwise agreed, the price shall include all ancillary services of the Seller (e.g. assembly, installation, etc.) and all other costs relating to proper packaging, transport and potential applicable transport or liability insurances.

(3)   The agreed price is payable within 30 calendar days after complete delivery and performance (including an agreed acceptance) and receipt of a proper invoice. If payment is made within 14 calendar days, we are entitled to discount of 3% off of the net sum of the invoice amount. For bank transfers, payment is considered made on time when payment is initiated by us through our respective bank. We are not responsible for any delays on the part of any processing financial institution.

(4)   We are not obliged to pay any default interest. For late payments, only statutory provisions apply.

(5)   We retain the right of setoff and retention in addition to the defense of unfulfilled obligation to any statutory extent. We are entitled to retain any payments as long as we are granted any demands towards the Seller out of incomplete performance.

(6)   The Seller has the right of setoff and retention only in the case of indefeasible or undisputed counterclaims.

 

§ Confidentiality and Retention of Title

 

(1)   We retain title, ownership and copyrights to any and all illustrations, diagrams, drawings, calculations, instructions for implementation, product descriptions and other respective documentation. Such documentation is to be used exclusively for contract performance and be returned to us after completion of the contract. Documents supplied for the completion of a contract are considered confidential, and may not be shared with any third party even after contract completion. The obligation of confidentiality only expires if and when the data contained within becomes generally known.

(2)   The provisions above shall apply to all substances and materials (e.g. software, finished and unfinished products, etc.), tools, templates, samples or other respective items provided to the Seller for the use of manufacturing. Before processing, such items must be stored separately and be reasonably insured against loss or destruction at the expense of the Seller.

(3)   Further processing, intermingling or combination of provided items by the Seller shall be made on our behalf. This also applies to the processing of delivered goods by us. Therefore we will be considered manufacturer and will gain property at latest with the processing of the products in accordance to the statutory provisions.

(4)   The transfer of ownership of any goods to us must be made without consideration of payment. However, if we agree with a contingent offer of transfer of ownership on individual basis, we will gain property in the delivered goods at latest with the payment of the purchase price. Nonetheless, we will remain entitled to resale goods under advance assignment of any claim arising therein before payment of the purchase price with regard to a proper course of business (alternatively in application of an extended retention of title on resale). All other forms of retention in title are excluded, particularly the advanced retention of title with its expansion on further processing.

 

§ Delivery Defects

 

(1)   In regard to our rights for material and legal defects of delivered goods (including mistaken or short delivery as well as improper installation or insufficient assembly, operation or usage manuals) and any other neglect of duty by the Seller, statutory provisions apply to the extent they are not modified or excluded by these GPC’s.

(2)   In particular, the Seller is obliged to deliver goods with the agreed quality at the time of fulfillment as defined in Section 4 Paragraph (4). At all events, as agreed quality is deemed at least those product descriptions that are part of the respective contract or are included in the contract like these GPC´s, in particular by nomination or reference in the order. Thereby it is insignificant, whether the product description has been supplied by the Seller or the manufacturer.

(3)   The Seller must ensure that all substances contained in the goods are validly pre-registered, registered and  where applicable  authorized according to the relevant requirements under REACH for the applications specified by us. If the goods are articles within the meaning of Article 7 REACH, the preceding sentence shall apply with regard to the substances released by such article. Sentences 1 and 2 above shall not apply to the substances and materials provided by us in accordance with Clause 6 (2) and (3) hereof.

(4)   The Seller shall fulfill all obligations incumbent upon the manufacturer within the meaning of Sec. 3 No. 9 of the Act Governing the Placing on the Market, Return, and Environmentally Sound Disposal of Electrical and Electronic Equipment (“Electrical and Electronic Equipment Act”). The Seller shall guarantee in particular compliance with its duty of registration pursuant to Sec. 6 (1) Electrical and Electronic Equipment Act with regard to the goods delivered to us. 

(5)   Despite § 442 Section 1 Paragraph 2 BGB, we retain all claims of warranty without limitation if we lack information of defects due to gross negligence at the time of the conclusion of the contract.

(6)  For the commercial examination and notification, the statutory provisions lain forth by §§ 377, 381 of the German Commercial Code (abbr. HGB) apply with the following conditions: Our obligation for inspection is limited to defects that are apparent under external evaluation including the evaluation of the shipping documentation and our quality control sampling procedures (i.e. transport damages, mistaken or short deliveries). There is no obligation of inspection if acceptance of goods has been agreed. Moreover, the scope of inspection depends on how far an examination is doable in regard to a proper course of business under the individual circumstances.

Our obligation to make complaint in respect of a defect discovered later remains unaffected. In all cases, our objection (notification of defects) is considered timely if it is received by the Seller within 10 working days. 


(7)   Any costs of examining or subsequent performance incurred by the Seller (including removal and installation costs) are borne by the Seller even in the event that no actual defect is found. Our liability for unjustified desires for remedy remains unaffected inasmuch as we have known that there was no defect or have failed to do so by gross negligence.

(8)   If the Seller does not fulfill his obligation for subsequent performance at our choice by repairing the defect goods or delivering a defect-free replacement inside a set and reasonable time period, we are entitled to repair the defect goods and demand compensation and advance payment from the. If the subsequent performance by the Seller is not sufficient or unreasonable (i.e. due to special urgency, operational safety or impending occurrence of unreasonable risk of damage) no deadline is required. We will inform the Seller immediately or, if possible, in advance.

(9)   Additionally, we are entitled to reduce the purchase price or to rescind the contract in regard to a material or legal defect according to legal statutes. We also have the statutory right to seek compensation or reimbursement.

 

§ 8 Property Rights 

 

(1)   The Seller is accountable to ensure, that no protected privileges of third parties are violated by the delivered goods in the European Union or anywhere else the Seller may do business in accordance to Paragraph (2).

(2)   The Seller has to indemnify us and hold us harmless from all claims of any third party under Paragraph (1). We may also seek reimbursement for all necessary costs related to respective claims. This entitlement does not apply if the Seller can prove that he is not liable for the infringement nor must had known about the infringement in application of due diligence at the time of delivery.

(3)   Further legal claims based on defects of delivered products remains unaffected.

 

§ Replacement Components 

 

(1)   The Seller is obligated to maintain stock of replacement parts for any product delivered for a period of at least 10 years starting at the time of delivery.

(2)   Should the Seller intend to cease or discontinue the production of replacement parts for products delivered to us, he shall notify us immediately. This notification must be made to us at least 12 months prior to cessation and is subject to the terms of Paragraph (1).


 

§ 10 Confidentiality 

 

(1)   The Seller is required to maintain all supplied data and documentation confidential (with the exception of those publicly available). Order documentation must be maintained in a confidential and secure manner for a period lasting 3 years after contract conclusion. These data may only be used for the implementation of the contract to necessary extent. The Seller must return the aforementioned documentation and data immediately to us upon request or after performance of contract.

(2)   The Seller may not disclose his business relationship with us in any way (including promotional materials, brochures, etc.) or exhibit ordered items without our prior written consent.

(3)   The Seller is responsible for maintaining this confidentiality through any subcontractor in accordance to this section. 

 

 

§ 11 Product Liability

 

(1)   If the Seller is responsible for a product defect, he is obliged to indemnify us from all damages or claims of a third party, when the cause of defect emanates from within his organization and he is liable to the third party in person.

(2)   The Seller is obligated to indemnify us from all expenses arising from or in connection with any claims from a third party pursuant to §§ 683, 670 BGB. The content and scope of any recall measures, will be notified to the Seller. If reasonable and possible, the Seller will be given the opportunity to comment on the recall measures. Further legal claims remain unaffected.

(3)   The Seller shall conclude and maintain a product liability insurance with a benefit of at least 3 million EUR per personal injury or loss of property.


 

§ 12 Limitations

 

(1)   The reciprocal claims of the contract parties fall under the legal statute of limitation unless otherwise agreed.

(2)   Diverging from § 438 Paragraph 1 Number 3 BGB the general statute of limitations is 3 years, beginning with the time of transfer of risk. When acceptance has been agreed, limitation begins at that time. The three-year period of limitation also applies to claims arising from legal defects, while the stated limitation period for claims by third parties (§ 438 Paragraph 1 Number 1 BGB) remains unaffected. Claims based on legal defects do not fall under the statute of limitations, as long as the right of a third party may be asserted against us.

(3)   The limitation period of commercial laws including projecting extension apply for all contractual claims to legal extent. Insofar as we are entitled to non-contractual damages associated with aforementioned defect the claims become state barred according to §§195, 199 of the German BGB, if the application of limitation in commercial law does not lead to a longer limitation period on an individual basis.


 

§ 13 Governing Law and Jurisdiction

 

(1)   These GPC’s and the contractual relationship between us and the Seller shall be governed by the Laws of the Federal Republic of Germany, excluding international uniform law, particularly the United Nations Convention on Contracts for the International Sale of Goods.

(2)   If the Seller is a merchant in the sense of the German Commercial Code, a legal entity under public law, or a public fund, the exclusive place of jurisdiction for all disputes arising from this contractual relationship lies in the jurisdiction of Oldenburg (Oldbg.), Germany. This also applies if the Seller is considered an entrepreneur in the sense of §14 of the German Civil Code. However, we are in any case also entitled to bring action at the place of delivery under the terms of these GPC’s or subsequent agreement, or within the general legal jurisdiction of the Seller. Overriding provisions, especially for exclusive powers remain unaffected.

(3)   The terms set forth herein have been translated for convenience only. In the event of any claim or dispute, only the current German version of this document (our Allgemeine Einkaufsbedingungen) shall apply. 

 

Stand 11/2016

 

 

I. General Delivery Terms

 

§ 1 Validity

 

(1)   All deliveries, services, and offers by the Supplier are solely based on these General Delivery Terms. These Terms are an integral component of all agreements the Supplier enters into with his contractual partners (known hereafter as “Customers”) concerning the deliveries or services offered by him.  They are also effective for all future deliveries, services, or offers to the Customer, even if they are not again agreed separately.

 

(2)   The General Terms and Conditions of the Customer or a third party do not apply, even if the Supplier does not particularly object to their application in a specific instance. Even if the Supplier refers to a written document containing the Customer’s General Terms and Conditions, or those of a third party, or referring to them, this does not imply his agreement to those General Terms and Conditions.

 

§ 2 Offer and Conclusion of Contract

 

(1)   All offers by the Supplier are subject to change and non-binding, unless they are expressly marked as binding, or they include a certain acceptance period.

 

(2)   The sole authoritative document for the legal relationships between the Supplier and the Customer is the purchasing agreement, concluded in writing, including these General Delivery Terms. It reflects all agreements between the contractual parties concerning the object of the agreement in their entirety. Any oral assurances by the Supplier prior to concluding this agreement are legally non-binding, and any oral agreements by the contractual parties are replaced by the written contract, unless it is expressly stipulated that they will be binding in each case.

 

(3)   Any additions and amendments to the agreements made, including these General Delivery Terms, must be made in writing in order to be valid. Apart from the managing directors or their authorized signatories with statutory power of attorney (“Prokuristen”), the Supplier’s employees are not authorized to negotiate oral agreements that differ from these terms. Electronic transmissions, especially via fax or e-mail, are sufficient to meet the requirement of the written form, as long as a copy of the signed declaration is transmitted.

 

(4)   The Supplier’s information about the object of the delivery or service (e.g. weights, dimensions, utility values, load bearing capacity, tolerances, and technical data) as well as any depictions thereof (e.g. drawings and illustrations) are only approximations, unless the use for the contractually intended purpose requires exact conformity. Such information given by the Supplier does not constitute guaranteed characteristics, but describes or designates the delivery or service. Customary variances, or variances based on legal regulations or technical improvements, as well as substitutions of components with parts of equal value are permissible as long as they do not impair their use for the contractually intended purpose.

 

(5)   The Supplier retains ownership or copyright for all offers and cost estimates made as well as any drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and resources provided to the Customer. Without written permission by the Supplier, the Customer is not permitted to make these items accessible to third parties, neither physically or their contents, nor is he allowed to publish, copy, or use them, on his own or via third parties. At the Supplier’s request, the Customer must return these items to him in full and destroy any copies he may have made, if he no longer needs them in the ordinary course of business, or if negotiations do not result in the conclusion of a contract.

 

 

 

 

 

      


§ 3 Prices, Payment, and Default

 

(1)   The prices apply to the scope of service and delivery stated in the order confirmations. The prices are to be understood as denominated in EUROS, ex works, and plus packaging, statutory Value Added Tax, and in case of exports, tariffs as well as fees and any other public dues.

 

(2)   As far as the agreed prices are based on the Supplier’s list prices, and the delivery is to occur more than six months after the contract has been concluded, the Supplier’s list prices current at the time of delivery (in each case less a negotiated percentage based or fixed rebate) are applicable.

 

(3)   Invoice amounts must be paid without any deduction within thirty days, unless other terms have been agreed in writing. After expiration of the above payment period, the Customer is in default. While in arrears, any outstanding amounts are subject to default interest at a rate of seven percentage points above the three-month EURIBOR rate. We reserve the right to assert our claims for any additional damages caused by default. The relevant date of payment is the date payment is received by the Supplier. Checks are considered payment only after they have cleared.

 

(4)   The setoff with counter claims by the Customer or withholding of payments because of such claims is only permissible, if these counter claims are not disputed or have been determined by a final and legally binding decision.

                         

(5)   The Supplier is entitled to execute any outstanding deliveries or services only against payment in advance or after securities have been executed or provided, if he learns after conclusion of the contract of circumstances that would favor conditions which may significantly impair the Customer’s credit worthiness and which would jeopardize the Supplier’s outstanding demands for payment from the Customer in the respective contractual relationship (including other individual orders subject to the same master agreement).

 

§ 4 Shipments and Delivery Time

 

(1)   All deliveries are ex works.

 

(2)   Deadlines and delivery dates for shipments and services projected by the Supplier must always be understood as approximate, unless a fixed deadline or date has been expressly assured or agreed. Insofar as shipment was agreed, the shipping periods and delivery deadlines refer to the date the goods were handed over to the freight forwarder, carrier, shipper or any other third party hired to ship them.

 

(3)   Without prejudice to its rights resulting from the default by the Customer, the Supplier may demand an extension or postponement of the period for the delivery of goods and services for the time during which the Customer does not meet his contractual obligations towards the Supplier. This applies, without limitation, if the Customer does not deliver plans to be provided by him or other documents, permits, or approvals.

 

(4)   The Supplier is not liable if the delivery is not possible or for delays in delivery, if they are caused by force majeure or other events that were not foreseeable at the time of conclusion of contract (e.g. operational interruptions of any kind, difficulties during the procurement of materials or energy, transport delays, strikes, legal lockouts, lack of workforce, energy or raw materials, difficulties in the procurement of the necessary official permissions, official and legal measures, or non-delivery or incorrect or late delivery by Suppliers) that are not within the Supplier’s responsibility. If such events make the delivery or services impossible for the Supplier or significantly impede the performance of services or the delivery, and this impediment is not of a temporary nature, the Supplier is entitled to withdraw from the agreement. In case of temporary impediments, the periods for deliveries and services are extended, or the delivery and service deadlines are postponed for a period equal to time of the impediment plus a reasonable start-up period. If the Customer cannot reasonably be expected to accept the delivery or service due to the delay, he can withdraw from the contract by way of an immediate written declaration to the Supplier.

 

 

 

 

(5)   The Supplier is only entitled to partial deliveries, if

 

•           the partial delivery can be used by the Customer in light of the contractual purpose,

•           the delivery of the remaining ordered goods is secured, and

•           this does not cause any significant additional expenses or additional costs to the Customer (unless the Supplier agrees to bear these costs).

 

(6)   If the Supplier is in default with a delivery or service or if it becomes impossible for him to execute a delivery or service, whatever the reason may be, the Supplier’s liability for damages is limited as stated in § 8 of these General Delivery Terms.

 

§ 5 Place of Fulfillment, Shipping, Packaging, Transfer of Risk, Acceptance, Installation

 

(1)   The place of fulfillment for all obligations arising from this contractual relationship is Ganderkesee, Germany, unless stated otherwise. If the Supplier is also responsible for installation and commissioning, the place of fulfillment is the location where the installation and commissioning must be performed.

 

(2)   The method of shipping and packaging are subject to the duly exercised discretion of the Supplier.

 

(3)   The risk passes to the Customer no later than the transfer of the shipped goods (here the beginning of the loading procedure is the determining factor) to the freight forwarder, shipper, carrier, or other third party hired to ship the goods. This applies also to partial deliveries or if the Supplier also handles other services (e.g. shipping or installation and commissioning). If the shipping or handover is delayed for reasons caused by the Customer, the risk passes to the Customer on the date the goods to be shipped are ready for delivery and the Supplier has communicated this to the Customer.

 

(4)   After the transfer of risk, the Customer is responsible for any storage costs. For storage by the Supplier, the storage costs are 0.25% of the amount invoiced for the stored shipping goods per completed week. The right to claim and furnish proof of additional or lower storage costs remains reserved.

 

(5)   The Supplier insures the shipment for theft, breakage, transport, fire, and water damages or other insurable risks only at the Customer’s express desire and at the Customer’s expense.

 

(6)   Insofar as an acceptance must be conducted, the delivery item is considered accepted, if and when

 

•           the delivery and, if the Supplier is also responsible for installation and/or commissioning, the installation and/or commissioning has been completed,

•           the Supplier has communicated this to the Customer with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the acceptance from him,

•           twelve business days have passed since the delivery, installation, or commissioning or the Customer has begun to use the purchased goods (e.g. has started operating the delivered system) and in this case, six business days have passed since the delivery, or the installation or commissioning, and

•           the Customer has failed to perform the acceptance in this time frame for a reason other than a defect notified to the Supplier by the Customer that makes it impossible to use the purchased goods or significantly impedes their use.

 

(7)   If, as a result of an express agreement to this effect, the Supplier is also responsible for installation and commissioning, the following terms apply, as long as nothing else has been agreed in writing:


 

(a)    The Customer must assume at his own expense and provide prior to commencement of the installation:

 

•           All ancillary services outside our industry, including the necessary specialist and auxiliary personnel, materials, and tools,

•           Protective clothing and safety measures that may be required due to the installation site’s particular circumstances.

 

(b)   Prior to commencement of any installation work, the Customer must furthermore and at his own expense

 

•           provide the Supplier with the required information about the locations of concealed power, gas, and water lines or similar installations on his own initiative,

•           ensure that the personnel working for the Supplier has authorization to access the location where the installation and commissioning is to occur,

•           ensure that the Supplier has access to the Internet at the location where the installation and commissioning is to take place, if this is necessary for implementing the installation and commissioning.

 

(c)    If the assembly, installation, mounting, or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Customer must bear the costs of the waiting times and any additional travel expenses of the Supplier or his personnel within a reasonable scope.

 

§ 6 Warranty, Material Defects

 

(1)   The warranty period is 24 months from the date of commissioning, but no more than 30 months after delivery. In the case of subsequent fulfillment due to a justified defect complaint, the warranty period is extended, but only with regard to the defect or defects requiring the subsequent fulfillment, and only up to a total of 12 months after the date of subsequent fulfillment. If the subsequent fulfillment is a goodwill gesture by the Supplier, this does not constitute any renewal or extension of the limitation period.

 

(2)   The delivered items must be duly examined without undue delay after delivery to the Customer or a designated third party. Concerning obvious defects or other defects which would have been recognized on an immediate and duly examination, the delivery is considered approved by the Customer if the Supplier does not receive a written defect complaint within seven business days after delivery. Concerning other defects, the delivered items are considered approved by the Customer, if the defect complaint is not sent to the Supplier within seven business days after the date the defect was detected; however, if the defect could have been noticed by the Customer at an earlier point during normal use, this earlier date is decisive for the start of the complaint period.

 

(3)   At the Supplier’s request, a delivered item which the Customers claim to have a defect must be sent back to the Supplier freight paid. The Supplier will provide the Customer with a return authorization number (RMA No.) for this purpose. The return shipment shall include the RMA No. as well as a completed return form, which is available via the Supplier’s website at any time. Within a reasonable period after receiving the delivery item with the alleged defect, the Supplier will examine whether or not the defect complaint is justified or not. If the defect complaint is justified, the Supplier reimburses the Customer for the cost of the least expensive delivery method; this does not apply, if and to the extent the costs increase because the delivery item is in a location other than that of the intended use.

                                      

(4)   If the defect complaint regarding the delivered items is justified, the Supplier is first obligated and entitled to rectification or replacement as he determines in his sole discretion within a reasonable period of time. The subsequent fulfillment includes neither the removal of the defect item nor its re-installation, if the Supplier was not originally required to install it. If the defect complaint is justified, the Supplier bears the costs of all required expenditures (other than removal and – if not assumed on exception – installation), especially transport, shipping, labor, and material costs. This does not apply if these expenditures are increased because the delivered item is subsequently in a location other that the original place of fulfillment and the subsequent fulfillment takes place at this location at the request of the Customer. The Customer is responsible for any cost increase arising for this reason.

 

(5)   In the event of failure, i.e. the impossibility, unsuitability, refusal, or inappropriate delay of the rectification or replacement, the Customer is entitled to withdraw from the agreement or reduce the purchase price appropriately. If a defect is based on the negligence or intent of the Supplier, the Customer can be entitled to compensation for damages subject to § 8 hereof.

                                                                                                          

(6)   In case of defects of components by other manufacturers which the Supplier cannot rectify due to licensing restrictions or actual reasons, the Supplier will choose either to assert his warranty claims against the manufacturers and suppliers on behalf of the Customer, or to assign these claims to the Customer. For such defects, warranty claims against the Supplier under the other terms and conditions and as specified in these General Delivery Terms exist only if the legal action against the manufacturer and suppliers was unsuccessful or is unlikely to succeed for reasons such as e.g. insolvency. During of the legal dispute, the period of limitation relating to these warranty claims by the Customer against the Supplier is suspended.

 

(7)   Claims as a result of defects are forfeited if the Customer modifies the delivered item on his own or through third parties without the Supplier’s prior consent and these modifications make correcting the defect impossible or unreasonably impedes it. In any case, the Customer must bear the increased costs for correcting the defects that have resulted from the modification.

 

(8)   If the defect complaint is not justified, the Supplier is entitled to demand reasonable compensation from the Customer for any expenses incurred in the context of examining and, where applicable, correcting the flaw incorrectly reported as defect. In this case, the Supplier will submit to the Customer on request an offer for repairing and/or replacing the defective item at the Customer’s expense at his discretion and to the extent that this is possible. If the Customer does not desire to obtain such an offer, or if he does not accept such an offer within the period of time stipulated in § 2 Para. 1 hereof, the Supplier returns the examined item to the Customer, whereby he must perform the return shipment only concurrently with compensation for his expenditures as stated in Sentence 1 and return shipment costs.

 

(9)   Defects or apparent deficiencies caused by improper storage, installation, mounting, commissioning, use, maintenance, repairs, or any other handling of the delivered items do not constitute defects and constitute not grounds for warranty claims.

 

(10)  Any delivery of used items that may have been agreed upon with the Customer on a case by case basis is done on the basis that any warranty for defects is excluded.

 

(11)  In case of material defects for delivered items that have been sold on to third parties by the Customer, warranty claims against the Supplier can still only be asserted by the Customer.

 

(12)  The following applies, if the Supplier provides the Customer with a replacement item or replacement device during the inspection according to Para. 3, Sentence 3, and/or during the subsequent fulfillment according to Para. 4 or repair or until the replacement according to Para. 8: If the defect complaint is justified, the Supplier provides the replacement item/device free of charge and bears the shipping costs for the replacement item/device (but not any costs for installing or uninstalling the replacement part/device). If the complaint is not justified, the Supplier is entitled to reasonable compensation for the use of the replacement item/device provided; furthermore, Para. 8 applies accordingly with regard to the expenditures connected with the provision and shipment of the replacement item/device.


 

 

§ 7 Trademark Property Rights

 

(1)   Pursuant to this § 7, the Supplier warrants that the delivered items are not encumbered with third party intellectual property rights or copyrights. Each contractual partner will immediately notify the other contractual partner in writing if any legal claims regarding the violation of such rights are asserted against him.

 

(2)   Should the delivered item infringe a third party’s intellectual property right or copyright, the Supplier will at his free discretion replace or modify the delivered item in such a manner that it no longer infringes the rights of third parties, but continues to fulfill the contractually agreed functions, or he will procure usage rights for the Customer by concluding a licensing agreement. If he is unable to achieve this within a reasonable time frame, the Customer is entitled to withdraw from the contract or reduce the purchase price by a reasonable amount. Any claims for damages by the Customer are subject to the limitations stated in § 8 of these General Delivery Terms.

 

(3)   In case of infringements by other manufacturers’ products delivered by the Supplier, the Supplier will at his discretion either assert his claims against the manufacturers and sub-suppliers on behalf of the Customer or assign such claims to the Customer. In these cases, claims against the Supplier pursuant to this § 7 exist only if the legal proceedings against the manufacturers and sub-suppliers were unsuccessful or are unlikely to succeed for reasons such as e.g. insolvency.

 

(4)   The Customer’s claims for infringements of intellectual property rights are excluded, if he is responsible for these infringements; this applies in particular, without limitation, if the infringement has been caused by the Customer’s specific instructions, in case of any use the Supplier was unable to anticipate, or if the delivered items are modified by the Customer, or used together with other products not delivered by the Customer in a manner the Supplier could not anticipate.

 

§ 8 Liability for Damages

 

(1)   The Supplier’s liability for damages, irrespective of the legal basis for such liability, in particular including (without limitation) any liability due to impossibility, delay, defective or incorrect delivery, breach of contract, violation of obligations during contract negotiations, or under tort law, is limited pursuant to this § 8.

 

(2)   The Supplier is not liable in the case of simple negligence by his directors, other organs, legal representatives, employees, or other agents, unless there is a violation of essential contractual obligations. Essential to the agreement are the obligations to deliver – and if so agreed – install, and commission the delivered item on time, to deliver the item free of defects which may impair its functionality and fitness for use to no more than an insignificant degree, as well as the consulting, protection and due care obligations allowing the Customer the contractually agreed use of the delivered item, or the protection of the health and life of the Customer’s personnel, and the protection from significant damage to his property.

 

(3)   If and to the extent that the Supplier is in principle liable for damages pursuant to § 8 (2), this liability is limited to damages the Supplier has anticipated as a possible consequence of a contractual violation at the time of contract signing or which he should have anticipated by applying customary due diligence. Furthermore, indirect and subsequent damages caused by any defect of the delivered items are eligible for compensation only if such damages can normally be expected in the course of the delivered items intended use.

 

(4)   In case of liability for simple negligence, the Supplier’s liability for damages is limited as follows:

 

•           in case of damages resulting from activities on vessels (property damage as well as any consequential financial loss) to an amount of EUR 1.000.000,00 per instance,

•           for damages resulting from defect spare parts delivered by the Supplier to an amount of EUR 500.000,00 per instance,

•           for any other property loss (Sachschaden) to an amount of EUR 10,000,000.00,

           

       The foregoing limitations apply also if the liability is based upon a violation of essential contractual obligations.


 

 

 

(5)   The above stated exclusions and limitations of liability also apply to the same extent for the benefit of the Supplier’s directors, other organs, legal representatives, employees, and other agents.

 

(6)   Insofar as the Supplier provides technical information or acts in advisory capacity, and this information and/or advice is beyond his required contractually agreed scope of services, this is done free of charge and under exclusion of any liability.

 

(7)   The limitations to the Supplier’s liability pursuant to this § 8 do not apply in case of intent, guaranteed characteristics, loss of life or limb, injury to body and health, or in case of liability stipulated by product liability law.

 

§ 9 Retention of Title

 

(1)   The retention of title as agreed below serves to secure any currently existing and future claims of the Supplier against the Customer arising from the supply relationship that exists between the contractual partners (including payment claims from a possible current account relationship limited to this supply relationship).

 

(2)   The Supplier retains title to the goods delivered by the Supplier to the Customer until all secured claims have been satisfied in full. Such goods, as well as all goods that may be included into the retention of title pursuant to the following provisions in lieu of them, are known hereafter as “Reserved Goods.”

 

(3)   The Customer stores the Reserved Goods for the Supplier free of charge. He is required to handle the Reserved Goods with care and adequately insure them at his expense.

 

(4)   The Customer is entitled to process and sell the Reserved Goods in the ordinary course of business until an Enforcement Event (§ 9 Para. 9) occurs. He is not permitted to pledge or assign Reserved Goods as security.

 

(5)   If the Reserved Goods are processed by the Customer, it is agreed that such processing is done in the name and on behalf of the Supplier and that the Supplier directly acquires title to the newly created goods or – if the processing includes materials from several manufacturers or the value of the newly created  goods is greater than the value of the Reserved Goods – co-ownership (fractual ownership) of the newly created goods, in a ratio that is proportionate to the ratio between the value of the Reserved Goods and the value of the newly created goods. In case no such acquisition of title occurs for the Supplier, the Customer hereby transfers his future ownership rights or – in the above stated ratio – co-ownership rights in the newly created goods to the Supplier as security. If the Reserved Goods are combined with other objects to create an integral object, or if they are inseparably mixed and one of the other objects must be considered the main object, the Supplier, to the extent that he owns the main object, hereby transfers a fractional co-ownership of the integral object to the Supplier according to the ratio stated in Sentence 1.

 

(6)   In the event that the Reserved Goods are sold on, the Customer hereby assigns any resulting claims against the purchaser – in the case of the Customer’s co-ownership of the Reserved Goods, in proportion to his share in the co-owned goods – to the Supplier as security. The same applies to other claims that may take the place of the Reserved Goods or that may otherwise pertain to the Reserved Goods, such as e.g. insurance claims or claims arising from tort law in case of loss or destruction. The Supplier hereby authorizes the Customer on a revocable basis to collect any claims transferred to the Supplier on his own behalf. The Supplier may revoke this authorization to collect only in case of an Enforcement Event (§ 9 Para. 9).

 

(7)   Should third parties claim possession of the reserved goods, especially in the event of seizure, the Customer must immediately indicate the Supplier’s ownership and inform the Supplier, so that he can assert his rights of ownership. If the third party is unable to reimburse the Supplier for the ensuing legal and out-of-court costs, the Customer is liable to the Supplier for these costs.

 

(8)   The Supplier will immediately release the reserved goods as well as those goods taking their place or claims, once their value exceeds 50% of the secured claims. The Supplier chooses which items will be released thereafter.

 

(9)   If the Supplier withdraws from the agreement because the Customer behaves in a manner contrary to its terms – especially default in payment – (Enforcement Event), he is entitled to demand the return of the reserved goods.

 

§ 10 Final Terms

 

(1)   If the Customer is a business person (“Kaufmann”), a legal entity under public law, or a special fund under public law, or if he does not have a general legal venue in the Federal Republic of Germany, the legal venue for any disputes arising from the business relationship between the Supplier and the Customer is the registered office of the Supplier or the registered office of the Customer, as chosen by the Supplier in his free discretion. In such cases, however, the sole legal venue for legal actions brought against the Supplier is the Supplier’s registered office. Mandatory statutory legal provisions pertaining to exclusive legal venues remain unaffected by this clause.

 

(2)   The relationships between the Supplier and Customer are exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of April 1, 1980 (CISG) does not apply.

 

(3)   If these General Delivery Terms contain any loopholes, those legally binding provisions the contractual partners would have agreed in order to meet the commercial goal of this agreement and the purpose of these General Delivery Terms, had they been aware of this loophole, are considered agreed on.

 

Version 05/2014