Terms of Delivery and Payment
Version of March 2013
The present Terms of Delivery and Payment are valid in conjunction with the „General Terms of Delivery for Products and Services of the Electrical Industry“ (state as per June 2011), which are enclosed to the present Terms of Delivery and Payment. Should individual clauses of the present Terms of Delivery and Payment contradict the „General Terms of Delivery for Products and Services of the Electrical Industry“ solely ours are binding. Terms of purchase or procurement deviating from those terms are only obligatory if accepted by us as binding in writing. We herewith expressly contradict contrary terms of procurement of our customers. The customer acknowledges our Terms of Delivery and Payment as solely binding on acceptance of the order confirmation.
2. Quotation, Conclusion of Contract, Scope of Supply
Unless limited for a certain period, quotations are submitted without engagement. Orders require a written confirmation to become effective. Our order confirmation is decisive for the scope of supply. The documentation, such as illustrations, drawings, weight and dimensional specifications referring to our quotation, are subject to technical modification.
3. Prices and Payment
Unless otherwise agreed, prices are to be understood ex works, excluding packing. In the event of price alterations, we reserve the right to adjust the agreed prices. Invoice amounts are due for payment within 30 days from date of invoice, net. Different periods of payment can be agreed upon. Should payment be delayed, the statutory interest rates specified in the German Civil Code (BGB) will be charged. We reserve to accept or not bills of exchange. This is done without engagement regarding timely supply of protest and under invoicing of collection fees. Discount charges are to be borne by the customer. Retention of payment is not admissible, unless the customer raised counterclaims resulting from the respective order, which were expressly acknowledged by us or the validity of which has been established. Payments have to be made in Euros, unless otherwise agreed upon.
The time of delivery is simply reasonably extended on occurrence of unforeseen impediments – at our company or at a sub-supplier – e.g. caused by breakdown, delayed supply of raw and other materials as far as these are required for production of the goods to be supplied. Unforeseen impediments are also strike, lockout, accident damage, etc. Unforeseen events for which we are not liable and which render timely execution of accepted orders impossible entitle us to either cancel the order or postpone delivery by the period of impediment – under exclusion of customers’ damages claims. This exclusion of liability is not applicable for fatal and physical injuries and health defects. Partial shipments are admissible. In case of delayed delivery, the customer can determine a reasonable period for performance. After expiry of this period, the purchaser may cancel the order fully or partially and claim indemnification instead of performance. The limitations of liability mentioned in “IV. Times of Delivery, Delayed Delivery” of the “General Terms of Delivery for Products and Services of the Electrical Industry“ remain unchanged. On our request, the customer is obliged to declare whether he cancels the contract or insists on delivery due to delayed performance. This is inquiry has to be made during the period according to no. 5, paragraph 6, clause 1 and observing a reasonable period before its expiry. The supplier’s right to perform is maintained until he receives a response.
5. Transfer of Risk, Receipt
Shipment of the goods to be delivered is done for the customer’s or consignee’s account and risk. The risk is transferred to the customer on despatch of the goods at the latest, even if we exceptionally bear the shipping costs.
6. Retention of Title
The goods supplied remain our property until full payment of all accounts receivable resulting from the business relation with the customer, including all accessory claims and until honouring of bills of exchange and cashing of cheques. The customer making default in his payment obligations, we are authorized to demand restitution of the goods supplied. Claiming the retention of title cannot be considered as cancellation of contract. The customer has the right to process the goods delivered with retention of title within the scope of his regular business operation. However, the retained title for the goods delivered by us will not expire by processing, connection/combination and mixing with other parts. The contracting parties rather agree that we become proprietor or co-proprietor respectively of the new goods created by transformation in relation of the value of the goods provided with title retention to the new unit and that the customer guards the new unit regarding our co-proprietorship for us free of charge. As long as the retention of title exists, the purchaser must neither give in security nor pledge the goods provided with title retention or the goods created from these. Should the aforementioned articles be levied or confiscated at the customer, he has to immediately notify us in writing. The customer has the right to sell the delivered goods provided with retention of title or the goods manufactured from them within the scope of his regular business operation. The customer transfers us now the accounts receivable from his customers obtained by this sale until full payment of our outstanding debts against the customer, actually amounting to the invoice value of our goods provided with title retention contained in the sold articles. We herewith accept the assignment. If the security from simple, increased and extended retention of title exceeds our claims to be secured by 20 %, in individual cases, we will release fully paid deliveries from the security at our discretion.
7. Warranty for Defects and Delivery
We deliver the goods to the customer free from defects. An insignificant defect of quality is inconsequential. Performance specifications and other described characteristics of the goods do not represent a warranty of quality or durability in compliance with § 443 of the German Civil Code. The customer will not be granted warranty in a legal sense. Manufacturer’s warranties will not be affected. A pre-requisite for warranty claims is the reproducibility or determinability of defects. The warranty period amounts to 12 months from delivery or acceptance. The warranty period regarding defects of subsequent performance also ends with expiry of the warranty period in the preceding phrase. We may remedy the defect at our choice, either by immediate removal or by a new delivery. Should we not successfully eliminate the defect within a reasonable period, the customer has the right to set an extension of time. After expiry of the extension of time, the customer has the right to demand a price reduction or cancellation of contract and – if legal pre-requisites are met – also claim damages. The limitations of liability mentioned in “VIII. Defects” of the “General Terms of Delivery for Products and Services of the Electrical Industry“ remain unchanged. We have to be immediately notified in writing of the detection of defects for which we are liable. If the customer makes use of his warranty right, he has to remit us each rejected device exactly indicating the detected fault. Replaced parts are transferred into our property.
8. Place of Delivery and Jurisdiction
Place of delivery and jurisdiction is Hanover. For any dispute arising from the contract, the jurisdiction is Hanover. German law is applicable.
Any amendment of our Terms of Delivery and Payment requires our written confirmation to become effective. Exclusively the present terms are decisive for deliveries made by us. Should the present Terms of Delivery and Payment be partially altered by written agreements, our other terms will remain unchanged.
Terms of Purchase
Version of March 2013
Purchase orders are only binding for us, if done in writing and on a form expressly headed with “Purchase Order” and duly signed. To become effective, verbal agreements require our written on confirmation. Exclusively our Terms of Purchase mentioned hereunder are applicable, even if the supplier expressly excludes the applicability of our Terms of Purchase in his offer or order confirmation and we do not raise an objection. The terms of delivery attached to the supplier’s offer or order confirmation are not considered to have any validity for us.
2. Order Confirmation
The order confirmation has to be forwarded immediately on receipt of order. It must include price and rebate information, the earliest possible, binding delivery date as well as all numbers and references indicated in our purchase order. Acceptance of the order is done in compliance with the placed order, irrespective of whether the supplier repeats or not the wording in his order confirmation. Deviations of the prices, rebates and delivery periods specified by us in writing require our written consent. Otherwise, they are not binding for us.
3. Time of Delivery
It is imperative that the time of delivery be abided by. In particular, also the reservation of timely own supply is excluded. In the event of delayed delivery, the supplier will be granted an appropriate extension of time. Should he even not carry out delivery within the set extension of time, we are entitled to cancel the contract. Furthermore, we have the right to claim damages in compliance with the German Civil Code (BGB), in particular paragraphs 280 and following of the Civil Code. Our claim regarding payment of a penalty eventually agreed upon will not be affected. If we raise a claim, the penalty eventually agreed upon is to be set off in accordance with paragraphs 341, clause 2, 340, clause 1 of the Civil Code. Should the supplier be unable to keep to the time of delivery due to Force Majeure, he has to advise us immediately upon obtaining knowledge of the obstacle. In this event, we have the right either to postpone the date of receipt or, if our interest in taking delivery is considerably reduced, to cancel the contract fully or partially and to claim damages in accordance with the Civil Code regulations. The supplier cannot derive any claims therefrom. In particular, the supplier is not entitled to cancel the contract or increase prices at his own discretion in case of Force Majeure or similar events.
4. Shipping, Transfer of Risk
Delivery is always made free place of use. On receipt of delivery. The supplier is liable for all damages, charges, demurrage, etc. caused by non-observation of the afore-mentioned stipulations. Partial deliveries are only admissible, if expressly requested by us in writing. Otherwise, we have the right to refuse acceptance. In no circumstance will partial deliveries be considered as independent contracts and have to be identified as partial delivery.
Invoices have to be sent in duplicate, immediately on delivery and separately for each purchase order. The invoice must always include the date, reference, numbers of the purchase order as well as all references and numbers of the packing used. Payment is carried out at our choice within two weeks with 3 % discount or after 90 days, net, either by transfer, cheque or by 3 months’ bill of acceptance. The delays indicated above start to run on the day we receive the invoice. Freight charges, customs duties, packing charges, taxes and miscellaneous charges have to be shown separately on the invoice.
The supplier provides the goods ordered free from any fault. The supplier guarantees the use of material that best suits the purpose, correct and appropriate execution, suitable, perfect mounting for power requirements, performance and efficiency: Furthermore, he grants express warranty of quality for the goods supplied. The supplier can remedy faults by immediate elimination or new delivery as per our choice. Should the supplier not successfully complete remedy of the fault within an appropriate period, we can determine an extension of time. After expiry of the extension of time, we can demand either a price reduction or cancellation of contract and claim damages in both cases. The warranty period amounts to 24 months from delivery or acceptance. The warranty period for constructions is in correspondence with paragraph 634a, no. 2 of the Civil Code.
7. General Liability Clause
The supplier is liable for malicious intent and negligence in accordance with the respective legal regulations. The supplier discharges us from consequential third parties’ claims, which these raise against us due to faulty performance rendered by the supplier. The supplier also discharges us from product liability claims for which he is liable in the scope of the manufacturers liability.
8. Third-Party Property Rights, Public Rules
The supplier assumes full guarantee for the goods delivered by him to be free from any thirdparty rights and that third-party property rights, in particular patents or copyrights in designs, will not be violated. He further guarantees that the goods supplied fulfill all legal regulations and governmental requirements. In case of violation of private law or public regulations, the supplier discharges us from any third-party damage claims and reimburses us for any resulting damage, actually during the entire validity of the property right. Furthermore, we are entitled to obtain approval from the holder of the respective property right for delivery, putting into operation and use of the goods supplied at the supplier’s expense. Regarding of the deliveries, the supplier has to guarantee to achieve the requirements by the law of the Federal Republic of Germany concerning environmental protection and safety of work.
Our data regarding manufacture of goods ordered by us as well as drawings produced in accordance with information rendered by us and our own drawings must neither be used for any other purpose nor made accessible to third parties. They have to be immediately returned to us after completion of the order and without particular request. The supplier has to render us any benefit he has gained from violation of this obligation as well as to reimburse us for any resulting damage.
10. Exclusion of Assignment
Supplier’s claims against us may only be assigned with our express written consent.
11. Place of Delivery/Jurisdiction
For any dispute between the parties arising from the contract, our headquarters’ domicile is relevant if the supplier is a general merchant, legal entity of public law or a public special property.
12. Governing Law
The law of the Federal Republic of Germany is applicable, under exclusion of the United Nations Convention concerning Contracts on the International Sale of Goods (CISG).
13. Data Protection
Our company stores data within the scope of our mutual business relations in accordance with the Federal Data Protection Act (BDSG). The supplier ensures that any person entrusted by him with the processing or completion of contract will follow the legal stipulations on data protection. The supplier’s obligation of informing his employees as mentioned above on data confidentiality as required by the Data Protection Act has to be met before initial taking up of the activity at the latest and has to be proved as requested by us. We have the right to cancel the contract fully or partially, if the supplier can be blamed for not having met his liability as per the stipulation indicated in no. 13 within a set reasonable period or violates data protection regulations with intent or gross negligence. The supplier is obliged to confidentially treat all restricted information, trade and industrial secrets obtained during the course of the contract, in particular to not make them available to third parties or use them but for contractual purposes.
In the event of single parts of the contract being legally invalid, all other conditions and the contract will remain effective. Instead of an invalid stipulation, such valid condition will be considered as agreed upon, the economic contents of which comes closest to the invalid stipulation. Should a stipulation of the present Terms of Purchase or of the contract be invalid due to binding foreign law, if requested, the supplier will agree upon with us such contract amendment and give third parties or authorities such declarations by which the validity of the respective regulations, or this not being possible, the economic contents will remain guaranteed even under foreign law.
The goods must be accompanied by a delivery note. On the day of despatch, a shipping advice has to be sent to our Purchase Department. Your invoice cannot substitute it. This saves us unnecessary inquiries and reminders and saves you their having to answer them.
Eckenerstraße 4-6, D-30179 Hanover: Cargo, express freight, parcels consignments
Hanover Main Station: Collection, express freight
Hanover Main Goods Station: Railway car loads, cargo
General Conditions for the Supply of Products and Services of the Electrical and Electronics Industry (“GL”) recommended by ZVEI – Zentralverband Elektrotechnik- und Elektronikindustrie e.V. as of June 2011
- Article I: General Provisions
- Article II: Prices, Terms of Payment, and Set-Off
- Article III: Retention of Title
- Article IV: Time for Supplies; Delay
- Article V: Passing of Risk
- Article VI: Assembly and Erection
- Article VII: Receiving Supplies
- Article VIII: Defects as to Quality
- Article IX: Industrial Property Rights and Copyrights;Defects in Title
- Article X: Conditional Performance
- Article XI: Impossibility of Performance; Adaptation of Contract
- Article XII: Other Claims for Damages
- Article XIII: Venue and Applicable law
- Article XIV: Severability Clause
Article I: General Provisions
- Legal relations between Supplier and Purchaser in connection with suppliesand/or services of the Supplier (hereinafter referred to as “Supplies”) shall besolely governed by the present GL. The Purchaser‘s general terms and conditionsshall apply only if expressly accepted by the Supplier in writing. The scopeof delivery shall be determined by the congruent mutual written declarations.
- The Supplier herewith reserves any industrial property rights and/or copyrightspertaining to its cost estimates, drawings and other documents (hereinafter referredto as “Documents”). The Documents shall not be made accessible to thirdparties without the Supplier‘s prior consent and shall, upon request, be returnedwithout undue delay to the Supplier if the contract is not awarded to the Supplier.Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser‘s Documents;these may, however, be made accessible to those third parties to whom theSupplier has rightfully subcontracted Supplies.
- The Purchaser has the non-exclusive right to use standard software and firmware,provided that it remains unchanged, is used within the agreed performanceparameters, and on the agreed equipment. Without express agreement thePurchaser may make one back-up copy of standard software.
- Partial deliveries are allowed, unless they are unreasonable to accept for thePurchaser.
- The term „claim for damages” used in the present GL also includes claims forindemnification for useless expenditure.
Article II: Prices, Terms of Payment, and Set-Off
- Prices are ex works and excluding packaging; value added tax shall be added atthe then applicable rate.
- If the Supplier is also responsible for assembly or erection and unless otherwiseagreed, the Purchaser shall pay the agreed remuneration and any incidentalcosts required, e. g. for traveling and transport as well as allowances.
- Payments shall be made free Supplier‘s paying office.
- The Purchaser may set off only those claims which are undisputed or nonappealable.
Article III: Retention of Title
- The items pertaining to the Supplies (“Retained Goods”) shall remain the Supplier‘sproperty until each and every claim the Supplier has against the Purchaseron account of the business relationship has been fulfilled. If the combinedvalue of the Supplier‘s security interests exceeds the value of all secured claimsby more than 20 %, the Supplier shall release a corresponding part of the securityinterest if so requested by the Purchaser; the Supplier shall be entitled tochoose which security interest it wishes to release.
- For the duration of the retention of title, the Purchaser may not pledge theRetained Goods or use them as security, and resale shall be possible only forresellers in the ordinary course of their business and only on condition that thereseller receives payment from its customer or makes the transfer of property tothe customer dependent upon the customer fulfilling its obligation to effect payment.
- Should Purchaser resell Retained Goods, it assigns to the Supplier, alreadytoday, all claims it will have against its customers out of the resale, including anycollateral rights and all balance claims, as security, without any subsequent declarationsto this effect being necessary. If the Retained Goods are sold on togetherwith other items and no individual price has been agreed with respect tothe Retained Goods, Purchaser shall assign to the Supplier such fraction of thetotal price claim as is attributable to the price of the Retained Goods invoiced by Supplier.
- Purchaser may process, amalgamate or combine Retained Goods withother items. Processing is made for Supplier. Purchaser shall store the newitem thus created for Supplier, exercising the due care of a diligent businessperson. The new items are considered as Retained Goods.
- Already today, Supplier and Purchaser agree that if Retained Goods arecombined or amalgamated with other items that are not the property ofSupplier, Supplier shall acquire co-ownership in the new item in proportionof the value of the Retained Goods combined or amalgamated to the otheritems at the time of combination or amalgamation. In this respect, the newitems are considered as Retained Goods.
- The provisions on the assignment of claims according to No. 3 above shallalso apply to the new item. The assignment, however, shall only apply tothe amount corresponding to the value invoiced by Supplier for the RetainedGoods that have been processed, combined or amalgamated.
- Where Purchaser combines Retained Goods with real estate or movablegoods, it shall, without any further declaration being necessary to this effect,also assign to Supplier as security its claim to consideration for the combination,including all collateral rights for the prorata amount of the value thecombined Retained Goods have on the other combined items at the time ofthe combination.
- Until further notice, Purchaser may collect assigned claims relating to the resale.Supplier is entitled to withdraw Purchaser‘s permission to collect funds for goodreason, including, but not limited to delayed payment, suspension of payments,start of insolvency proceedings, protest or justified indications for overindebtednessor pending insolvency of Purchaser. In addition, Supplier may, upon expiryof an adequate period of notice disclose the assignment, realize the claims assignedand demand that Purchaser informs its customer of the assignment.
- The Purchaser shall inform the Supplier forthwith of any seizure or other act ofintervention by third parties. If a reasonable interest can be proven, Purchasershall, without undue delay, provide Supplier with the information and/or Documentsnecessary to assert the claims it has against its customers.
- Where the Purchaser fails to fulfill its duties, fails to make payment due, orotherwise violates its obligations the Supplier shall be entitled to rescind the contractand take back the Retained Goods in the case of continued failure followingexpiry of a reasonable remedy period set by the Supplier; the statutory provisionsproviding that a remedy period is not needed shall be unaffected. The Purchasershall be obliged to return the Retained Goods. The fact that the Suppliertakes back Retained Goods and/or exercises the retention of title, or has the RetainedGoods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.
Article IV: Time for Supplies; Delay
- Times set for Supplies shall only be binding if all Documents to be furnished bythe Purchaser, necessary permits and approvals, especially concerning plans,are received in time and if agreed terms of payment and other obligations of thePurchaser are fulfilled. If these conditions are not fulfilled in time, times set shallbe extended reasonably; this shall not apply if the Supplier is responsible for the delay.
- If non-observance of the times set is due to:
- force majeure, such as mobilization, war, terror attacks, rebellion or similarevents (e. g. strike or lockout);
- virus attacks or other attacks on the Supplier‘s IT systems occurring despiteprotective measures were in place that complied with the principles of propercare;
- hindrances attributable to German, US or otherwise applicable national, EUor international rules of foreign trade law or to other circumstances forwhich Supplier is not responsible; or
- the fact that Supplier does not receive its own supplies in due time or in dueform such times shall be extended accordingly.
- If the Supplier is responsible for the delay (hereinafter referred to as "Delay")and the Purchaser has demonstrably suffered a loss therefrom, the Purchasermay claim a compensation as liquidated damages of 0.5 % for every completedweek of Delay, but in no case more than a total of 5 % of the price of that part ofthe Supplies which due to the Delay could not be put to the intended use.
- Purchaser‘s claims for damages due to delayed Supplies as well as claims fordamages in lieu of performance exceeding the limits specified in No. 3 above areexcluded in all cases of delayed Supplies, even upon expiry of a time set to theSupplier to effect the Supplies. This shall not apply in cases of liability based onintent, gross negligence, or due to loss of life, bodily injury or damage to health.Rescission of the contract by the Purchaser based on statute is limited to caseswhere the Supplier is responsible for the delay. The above provisions do not implya change in the burden of proof to the detriment of the Purchaser.
- At the Supplier‘s request, the Purchaser shall declare within a reasonable periodof time whether it, due to the delayed Supplies, rescinds the contract or insistson the delivery of the Supplies.
- If dispatch or delivery, due to Purchaser‘s request, is delayed by more than onemonth alter notification of the readiness for dispatch was given, the Purchasermay be charged, for every additional 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 parties to the contract may prove that higher or, as the case may be, lowerstorage costs have been incurred.
Article V: Passing of Risk
- Even where delivery has been agreed freight free, the risk shall pass to thePurchaser as follows:
- if the delivery does not include assembly or erection, at the time when it isshipped or picked up by the carrier. Upon the Purchaser‘s request, theSupplier shall insure the delivery against the usual risks of transport at thePurchaser‘s expense;
- if the delivery includes assembly or erection, at the day of taking over in thePurchaser‘s own works or, if so agreed, alter a successful trial run.
- The risk shall pass to the Purchaser if dispatch, delivery, the start or performanceof assembly or erection, the taking over in the Purchaser‘s own works, orthe trial run is delayed for reasons for which the Purchaser is responsible or ifthe Purchaser has otherwise failed to accept the Supplies.
Article VI: Assembly and Erection
Unless otherwise agreed in written form, assembly and erection shall be subject tothe following provisions:
- Purchaser shall provide at its own expense and in due time:
- all earth and construction work and other ancillary work outside the Supplier‘sscope, including the necessary skilled and unskilled labor, construction materials andtools;
- the equipment and materials necessary for assembly and commissioningsuch as scaffolds, lifting equipment and other devices as well as fuels andlubricants;
- energy and water at the point of use including connections, heating andlighting;
- suitable dry and lockable rooms of sufficient size adjacent to the site for thestorage of machine parts, apparatus, materials, tools, etc. and adequateworking and recreation rooms for the erection personnel, including sanitaryfacilities as are appropriate in the specific circumstances; furthermore, thePurchaser shall take all measures it would take for the protection of its ownpossessions to protect the possessions of the Supplier and of the erectionpersonnel at the site;
- protective clothing and protective devices needed due to particular conditionsprevailing on the specific site.
- Before the erection work starts, the Purchaser shall unsolicitedly make availableany information required concerning the location of concealed electric power,gas and water lines or of similar installations as well as the necessary structuraldata.
- Prior to assembly or erection, the materials and equipment necessary for thework to start must be available on the site of assembly or erection and any preparatorywork must have advanced to such a degree that assembly or erectioncan be started as agreed and carried out without interruption. Access roads andthe site of assembly or erection must be level and clear.
- If assembly, erection or commissioning is delayed due to circumstances forwhich the Supplier is not responsible, the Purchaser shall bear the reasonablecosts incurred for idle times and any additional traveling expenditure of the Supplieror the erection personnel.
- The Purchaser shall attest to the hours worked by the erection personnel towardsthe Supplier at weekly intervals and the Purchaser shall immediately confirmin written form if assembly, erection or commissioning has been completed.
- If, after completion, the Supplier demands acceptance of the Supplies, thePurchaser shall comply therewith within a period of two weeks. The same consequencesas upon acceptance arise if and when the Purchaser lets the two-week periodexpire or the Supplies are put to use after completion of agreed test phases, if any.
Article VII: Receiving Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
Article VIII: Defects as to Quality
The Supplier shall be liable for defects as to quality ("Sachmängel", hereinafterreferred to as "Defects",) as follows:
- Defective parts or defective services shall be, at the Supplier's discretion,repaired, replaced or provided again free of charge, provided that the reason forthe Defect had already existed at the time when the risk passed.
- Claims for repair or replacement are subject to a statute of limitations of 12months calculated from the start of the statutory statute of limitations; the sameshall apply mutatis mutandis in the case of rescission and reduction. This shallnot apply where longer periods are prescribed by law according to Sec. 438 para.1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right ofrecourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code(“Bürgerliches Gesetzbuch”), in the case of intent, fraudulent concealment ofthe Defect or non-compliance with guaranteed characteristics (“Beschaffenheitsgarantie”).The legal provisions regarding suspension of the statute of limitations(“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periodsshall be unaffected.
- Notifications of Defect by the Purchaser shall be given in written form withoutundue delay.
- In the case of notification of a Defect, the Purchaser may withhold payments toan amount that is in a reasonable proportion to the Defect. The Purchaser, however,may withhold payments only if the subject-matter of the notification of the Defect involved is justified and incontestable. The Purchaser has no right towithhold payments to the extent that its claim of a Defect is time-barred. Unjustifiednotifications of Defect shall entitle the Supplier to demand reimbursement ofits expenses by the Purchaser.
- The Supplier shall be given the opportunity to repair or to replace the defectivegood (“Nacherfüllung”) within a reasonable period of time.
- If repair or replacement is unsuccessful, the Purchaser is entitled to rescind thecontract or reduce the remuneration; any claims for damages the Purchaser mayhave according to No. 10 shall be unaffected.
- There shall be no claims based on Defect in cases of insignificant deviationsfrom the agreed quality, of only minor impairment of usability, of natural wearand tear, or damage arising after the passing of risk from faulty or negligenthandling, excessive strain, unsuitable equipment, defective civil works, inappropriatefoundation soil, or claims based on particular external influences not assumedunder the contract, or from non-reproducible software errors. Claimsbased on defects attributable to improper modifications or repair work carried outby the Purchaser or third parties and the consequences thereof are likewise excluded.
- The Purchaser shall have no claim with respect to expenses incurred in thecourse of supplementary performance, including costs of travel, transport, labor,and material, to the extent that expenses are increased because the subjectmatter of the Supplies has subsequently been brought to another location thanthe Purchaser‘s branch office, unless doing so complies with the normal use ofthe Supplies.
- The Purchaser‘s right of recourse against the Supplier pursuant to Sec. 478BGB is limited to cases where the Purchaser has not concluded an agreementwith its customers exceeding the scope of the statutory provisions governingclaims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis tothe scope of the right of recourse the Purchaser has against the Supplier pursuantto Sec. 478 para. 2 BGB.
- The Purchaser shall have no claim for damages based on Defects. This shall notapply to the extent that a Defect has been fraudulently concealed, the guaranteedcharacteristics are not complied with, in the case of loss of life, bodily injuryor damage to health, and/or intentionally or grossly negligent breach of contracton the part of the Supplier. The above provisions do not imply a change in theburden of proof to the detriment of the Purchaser. Any other or additional claimsof the Purchaser exceeding the claims provided for in this Article VIII, based on aDefect, are excluded.
Article IX: Industrial Property Rights and Copyrights; Defects in Title
- Unless otherwise agreed, the Supplier shall provide the Supplies free from thirdparties‘ industrial property rights and copyrights (hereinafter referred to as ”IPR“)with respect to the country of the place of delivery only. If a third party asserts ajustified claim against the Purchaser based on an infringement of an IPR by theSupplies made by the Supplier and used in conformity with the contract, theSupplier shall be liable to the Purchaser within the time period stipulated in ArticleVIII No. 2 as follows:
- The Supplier shall choose whether to acquire, at its own expense, the rightto use the IPR with respect to the Supplies concerned or whether to modifythe Supplies such that they no longer infringe the IPR or replace them. Ifthis would be impossible for the Supplier under reasonable conditions, thePurchaser may rescind the contract or reduce the remuneration pursuant tothe applicable statutory provisions;
- The Supplier's liability to pay damages is governed by Article XII;
- The above obligations of the Supplier shall apply only if the Purchaser (i)immediately notifies the Supplier of any such claim asserted by the thirdparty in written form, (ii) does not concede the existence of an infringementand (iii) leaves any protective measures and settlement negotiations to theSupplier‘s discretion. If the Purchaser stops using the Supplies in order toreduce the damage or for other good reason, it shall be obliged to point outto the third party that no acknowledgement of the alleged infringement maybe inferred from the fast that the use has been discontinued.
- Claims of the Purchaser shall be excluded if it is responsible for the infringementof an IPR.
- Claims of the Purchaser are also excluded if the infringement of the IPR iscaused by specifications made by the Purchaser, by a type of use not foreseeableby the Supplier or by the Supplies being modified by the Purchaser or beingused together with products not provided by the Supplier.
- In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above,Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringementof an IPR.
- Where other defects in title occur, Article VIII shall apply mutatis mutandis.
- Any other claims of the Purchaser against the Supplier or its agents or any suchclaims exceeding the claims provided for in this Article IX, based on a defect intitle, are excluded.
Article X: Conditional Performance
- The performance of this contract is conditional upon that no hindrances attributableto German, US or otherwise applicable national, EU or international rules offoreign trade law or any embargos or other sanctions exist.
- The Purchaser shall provide any information and Documents required for export,transport and import purposes.
Article XI: Impossibility of Performance; Adaptation of Contract
- To the extent that delivery is impossible, the Purchaser is entitled to claimdamages, unless the Supplier is not responsible for the impossibility. The Purchaser‘sclaim for damages is, however, limited to an amount of 10 % of thevalue of the part of the Supplies which, owing to the impossibility, cannot be putto the intended use. This limitation shall not apply in the case of liability based onintent, gross negligence or loss of life, bodily injury or damage to health; thisdoes not imply a change in the burden of proof to the detriment of the Purchaser.The Purchaser‘s right to rescind the contract shall be unaffected.
- Where events within the meaning of Article IV No. 2 (a) to (c) substantiallychange the economic importance or the contents of the Supplies or considerablyaffect the Supplier‘s business, the contract shall be adapted taking into accountthe principles of reasonableness and good faith. To the extent this is not justifiablefor economic reasons, the Supplier shall have the right to rescind the contract.The same applies if required export permits are not granted or cannot beused. If the Supplier intends to exercise its right to rescind the contract, it shallnotify the Purchaser thereof without undue delay after having realized the repercussionsof the event; this shall also apply even where an extension of the deliveryperiod has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
- Unless otherwise provided for in the present GL, the Purchaser has no claim fordamages based on whatever legal reason, including infringement of duties arisingin connection with the contract or tort.
- This does not apply if liability is based on:
- the German Product Liability Act (”Produkthaftungsgesetz”);(
- gross negligence on the part of the owners, legal representatives or executives;
- failure to comply with a guarantee granted;
- negligent injury to life, limb or health; or
- negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”). However, claims for damages arising from a breach of a fundamental condition ofcontract shall be limited to the foreseeable damage which is intrinsic to the contract,provided that no other of the above case applies.
- The above provision does not imply a change in the burden of proof to thedetriment of the Purchaser.
Article XIII: Venue and Applicable law
- If the Purchaser is a businessman, sole venue for all disputes arising directly orindirectly out of the contract shall be the Supplier‘s place of business. However,the Supplier may also bring an action at the Purchaser‘s place of business.
- This contract and its interpretation shall be governed by German law, to theexclusion of the United Nations Convention on contracts for the InternationalSale of Goods (CISG).
Article XIV: Severability Clause
- The legal invalidity of one or more provisions of this Agreement in no way affects thevalidity of the remaining provisions. This shall not apply if it would be unreasonablyonerous for one of the parties to be obligated to continue the contract.