1. The scope of the deliveries or services (hereinafter: deliveries) shall be determined by the written declarations of both parties. However, general terms and conditions of the purchaser shall only apply to the extent that the supplier or service provider (hereinafter: supplier) has expressly agreed to them in writing.
2. The supplier shall reserve its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter: documents). The documents may only be made accessible to third parties with the prior consent of the supplier and, if the order is not placed with the supplier, shall be returned to the supplier immediately upon request. Sentences 1 and 2 shall apply accordingly to documents of the purchaser; these may, however, be made accessible to third parties to whom the supplier has permissibly transferred deliveries.
3. Partial deliveries shall be permissible as far as they are reasonable for the purchaser.
1. The prices shall be ex works, excluding packaging, plus the applicable statutory value added tax unless otherwise agreed with the purchaser.
2. If the supplier has assumed responsibility for assembly or erection and unless otherwise agreed, the purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs of transporting the hand tools and personal luggage as well as allowances.
3. Payments shall be made free of charge to the supplier's paying agent.
4. The purchaser may only offset such claims that are undisputed or have been legally established.
The following simple and extended retention of title is agreed:
1. The items of the deliveries (reserved goods) shall remain the property of the supplier until all claims against the purchaser to which he is entitled from the business relationship have been fulfilled. If the value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 20 %, the supplier shall release a corresponding part of the security interests at the request of the purchaser.
2. For the duration of the retention of title, the purchaser shall not be permitted to pledge the goods or assign them by way of security, and resale shall only be permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that title shall not pass to the customer until the customer has fulfilled his payment obligations.
3. a) If the purchaser resells reserved goods, he hereby assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - to the supplier by way of security, without the need for any later special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the purchaser shall assign to the supplier, with priority over the remaining claim, that part of the total claim which corresponds to the price of the reserved goods invoiced by the supplier.
b) If a justified interest is substantiated, the purchaser must provide the supplier with the information required to assert its rights against the customer and hand over the necessary documents.
c) Until revocation, the purchaser shall be authorised to collect the assigned claims from the resale. In the event of good cause, in particular default of payment, suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the purchaser, the supplier shall be entitled to revoke the purchaser's right to collect. In addition, the supplier may, after prior warning and observing a reasonable period of notice, disclose the assignment of security, exploit the assigned claims and demand that the purchaser discloses the assignment of security to the customer.
4. a) The purchaser shall be permitted to process the reserved goods or to mix or combine them with other objects. The processing, mixing or combining (hereinafter: processing) shall be carried out for the supplier. The purchaser shall store the new item for the supplier with the care of a prudent businessman. The new item shall be deemed to be reserved goods.
b) In the event of processing with other objects not belonging to the supplier, the supplier shall be entitled to co-ownership of the new object in the amount of the share resulting from the ratio of the value of the processed, mixed or combined (hereinafter: processed) reserved goods to the value of the other processed goods at the time of processing. If the purchaser acquires sole ownership of the new item, the supplier and purchaser agree that the purchaser shall grant the supplier co-ownership of the new item created by processing in the ratio of the value of the processed reserved goods to the other processed goods at the time of processing.
c) In the event of the sale of the new item, the purchaser hereby assigns his claim from the resale against the customer with all ancillary rights to the supplier by way of security, without the need for further special declarations. However, the assignment shall only apply to the amount which corresponds to the value of the processed reserved goods invoiced by the supplier. The portion of the claim assigned to the supplier is to be satisfied with priority. No. 3.c) shall apply mutatis mutandis with regard to the collection authorisation and the condition for its revocation.
d) If the purchaser combines the reserved goods with real estate or movable objects, he shall, without the need for further special declarations, also assign to the supplier by way of security his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, to the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of combination.
5. In the event of seizure, confiscation or other dispositions or interventions by third parties, the purchaser must inform the supplier immediately.
6. If the purchaser violates his obligations, in particular if he is in default of payment, the supplier shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable period of grace granted to the purchaser for performance; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The purchaser shall be obliged to surrender the goods.
1. The observance of deadlines for deliveries presupposes the timely receipt of all documents, necessary permits and releases to be supplied by the purchaser, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the purchaser. If these conditions are not fulfilled in time, the deadlines shall be extended appropriately; this shall not apply if the supplier is responsible for the delay.
2. If non-observance of the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly.
3. Should the supplier fail to deliver on time, the customer may - if he can credibly demonstrate that he has suffered a loss as a result - claim compensation for each completed week of delay of 0.5%, but in no case more than a total of 5% of the price of that part of the deliveries which could not be put into appropriate operation due to the delay.
4. Purchaser's claims for damages due to delayed delivery as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed delivery, even upon expiry of a time set to the supplier to effect delivery. This shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, body or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions insofar as the delay in delivery is attributable to the supplier. A change in the burden of proof to the disadvantage of the purchaser shall not be associated with the above provisions.
5. At the request of the supplier, the purchaser shall be obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or insist on delivery.
6. If dispatch or delivery is delayed at the request of the purchaser by more than one month after notification of readiness for dispatch, the purchaser may be charged, for each month commenced, storage costs of 0.5% of the price of the items of the supplies, but in no case more than a total of 5%. The contracting parties shall be at liberty to prove higher or lower storage costs.
1. The risk shall pass to the purchaser as follows, even in the case of carriage paid delivery:
a) in the case of deliveries without installation or assembly, when they have been brought to dispatch or collected. At the request and expense of the customer, the supplier shall insure deliveries against the usual transport risks;
b) for deliveries involving assembly or installation, on the day of acceptance at the purchaser's own premises or, if agreed, after a faultless trial run.
2. If dispatch, delivery, the start or performance of assembly or installation, the handover at the purchaser's own premises or the trial run is delayed for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for other reasons, the risk shall transfer to the purchaser.
The customer may not refuse to accept deliveries due to minor defects.
The supplier shall be liable for material defects as follows:
1. All those parts or services which show a material defect within the limitation period - irrespective of the operating time - shall, at the discretion of the supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for material defects shall become time-barred after 12 months.
3. The purchaser must notify the supplier of material defects in writing without delay.
4. In the event of notices of defects, payments by the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser may only withhold payments if a notice of defects is asserted, the justification of which is beyond doubt. If the notification of defects is unjustified, the supplier shall be entitled to demand reimbursement of the expenses incurred by him from the purchaser.
5. Initially, the supplier must be given the opportunity for subsequent performance within a reasonable period of time.
6. If the subsequent performance fails, the purchaser may - without prejudice to any claims for damages according to Art. X - withdraw from the contract or reduce the remuneration.
7. There shall be no claims based on defects in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment or from particular external influences not assumed under the contract, or from non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the resulting consequences.
8. Claims of the purchaser due to expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the purchaser's premises, unless the transfer corresponds to its intended use.
9. The purchaser's right of recourse against the supplier pursuant to § 478 of the German Civil Code or “BGB” (recourse of the entrepreneur) shall only exist insofar as the purchaser has not entered into any agreements with his own customers that go beyond the statutory claims for defects. Furthermore, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the purchaser has against the supplier pursuant to § 478 para.2 BGB.
10. For claims for damages Art. X (Other claims for damages) shall also apply. Any further claims of the purchaser against the supplier and his vicarious agents on account of a material defect or claims other than those regulated in this Art. VII shall be excluded.
1. Unless otherwise agreed, the supplier is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party asserts a justified claim against the purchaser based on an infringement of an IPR by the deliveries made by the supplier and used in conformity with the contract, the supplier shall be liable to the purchaser within the time period stipulated in Art. VII No. 2 as follows:
a) The supplier shall, at his discretion and expense, either obtain a right of use for the delivery in question, modify it so that the property right is not infringed, or replace it. If this is not possible for the supplier under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or reduction.
b) The obligation of the supplier to pay damages is governed by Art. X.
c) The above obligations of the supplier shall only apply if the purchaser immediately notifies the supplier in writing of any claims asserted by the third party, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of the supplier. If the purchaser ceases to use the delivery for reasons of damage reduction or other important reasons, he shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of an infringement of property rights.
2. Claims of the purchaser shall be excluded insofar as he is responsible for the infringement of property rights.
3. Claims of the purchaser shall also be excluded if the infringement of the property right is caused by special specifications of the purchaser, by an application not foreseeable by the supplier or by the fact that the delivery is modified by the purchaser or used together with products not supplied by the supplier.
4. In the event of infringements of industrial property rights, the claims of the customer regulated in No. 1 a) shall apply, otherwise the provisions of Art. VII No. 4, 5 and 6 shall apply accordingly.
5. In the event of other defects of title, the provisions of Art. VII shall apply accordingly.
6. Any more far-reaching or other claims of the purchaser against the supplier and his vicarious agents due to a defect of title than those regulated in this Art. VIII shall be excluded.
1. Insofar as the delivery is impossible, the purchaser is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages shall be limited to 10 % of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This limitation shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the purchaser.
2. If unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the delivery or considerably affect the supplier's business, the contract shall be amended appropriately in good faith. If this is not economically justifiable, the supplier shall be entitled to withdraw from the contract. If he wishes to make use of this right of withdrawal, he must inform the purchaser of this immediately after recognising the consequences of the event, even if an extension of the delivery period had initially been agreed with the purchaser.
1. Claims for damages and reimbursement of expenses by the purchaser (hereinafter: claims for damages), irrespective of the legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, shall be excluded.
2. This shall not apply in cases of mandatory liability, e.g. under the German Product Liability Act in cases of intent, gross negligence or breach of material contractual obligations. However, the claim for damages for the violation of essential contractual obligations shall be limited to the foreseeable damage typical for this type of contract, unless there is intent or gross negligence or liability for injury to life, body or health. A change in the burden of proof to the disadvantage of the purchaser shall not be associated with the above provisions.
3. Insofar as the purchaser is entitled to claims for damages under this Art. X, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects pursuant to Art. VII No. 2. In the event of claims for damages under the German Product Liability Act, the statutory limitation regulations shall apply.
1. If the purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. However, the supplier shall also be entitled to bring an action at the headquarters of the purchaser.
2. Legal relations in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).XII. Binding force of the contract.
The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.