I. General provisions
– December 2010 –
1. This GL applies exclusively to the legal relationships between the supplier and the customer in connection with the deliveries and/or services provided by the supplier (hereinafter: deliveries). General terms and conditions of the customer only apply to the extent that the supplier has expressly agreed to them in writing. The mutually corresponding written declarations are authoritative with regard to the scope of the deliveries.
2. The supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “documents”). The documents shall not be made accessible to third parties without the supplier’s prior consent and shall, upon request, be returned without undue delay to the supplier if the contract is not awarded to the supplier. Paragraphs 1 and 2 apply accordingly to the customer’s documents. However, these may be made accessible to third parties whom the supplier has permissibly assigned to perform deliveries.
II. Prices, conditions of payment and set-off
1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.
2. If the supplier is also responsible for assembly or installation and unless otherwise agreed, the customer shall pay the agreed remuneration and any incidental costs required, e. g. for travelling and transport as well as allowances.
3. Payments are to be paid ex paying agent of supplier.
4. The customer may only offset such liabilities which are undisputed and which have been legally determined.
III. Retention of title
1. The items of deliveries (conditional goods) remain the property of the supplier until satisfaction of all their claims on the customer arising out of the business relationship. Insofar as the value of all collateral security to which the supplier is entitled exceeds the amount of all secured claims by more than 10%, the supplier shall release a corresponding part of the collateral security at the customer’s request; the supplier is entitled to choose from the various items of collateral security for release.
IV: Delivery periods; default
Times set for deliveries shall only be binding if all documents to be furnished by the customer, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations on the customer are met. If these deadlines are not met punctually, the deadlines are extended as appropriate; this shall not apply if the supplier is responsible for the delay.
1. If failure to comply with the deadlines is caused by force majeure, e.g. mobilisation, war, uprising or similar events, e.g. strikes or lock-outs, the deadlines shall be extended accordingly. The same applies in the event of unpunctual or incorrect deliveries to the supplier.
2. If the supplier causes a delay in delivery, the customer shall – as far as they satisfactorily prove that they have suffered damage therefrom – be entitled to claim a compensation for the delay in the amount of 0.5 % per full week of delay, to a maximum of 5 % of the value of that part of the deliveries, which could not be appropriately put into operation due to the delay. Any further claims for damages are excluded insofar as liability is mandatory in cases of wilful intent, gross negligence or due to injury to life, limb or health. Rescission of the contract by the customer based on statute is limited to cases where the supplier is responsible for the delay. The above provisions do not imply a change in the customer’s burden of proof.
3. At the supplier’s request, the customer shall declare within a reasonable period of time whether they wish to withdraw from or await fulfilment of the contract.
4. If the shipping or the delivery of the goods is delayed upon the customer’s request by more than one month after the notification of readiness for shipping, the customer may be charged the shortage fee for each commenced month, but no more than a total of 5%. Either party may provide proof of higher or lower storage costs.
V. Transfer of Risk
1. Even where delivery has been agreed freight-free, the risk shall pass to the customer:
a) if the supplies do not include assembly or installation, at the time when they are sent for shipping or collected. At the customer’s request and costs, the supplier shall insure the deliveries against the normal transport risks;
b) for deliveries with installation or assembly, on the day of take-over into own operation, or after faultless trial operation, as agreed.
2. If the shipping, delivery, the start, the execution of the setup or installation, the handover or start of operation at the supplier’s premises or a test is delayed due to reasons for which the customer is responsible or if the customer’s acceptance is delayed due to other reasons, the risk immediately transfers to the customer from the start of the delay.
VI. Material defects
The supplier accepts liability for material defects as follows:
1. Defective parts or defective services shall be, at the supplier’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 12 months; the same shall apply mutatis mutandis in the case of rescission and reduction. This period does not apply if the law according to §§ 438 Para. 1 no. 2 (building structures and components for structures), § 479 para. 1 of the German Civil Code (BGB) (right of recourse) and § 634a Abs. 1 No. 2 (construction defects) BGB prescribes longer periods in the event of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The legal provisions regarding the commencement, suspension and recommencement of limitation periods remain unaffected.
3. Notices of defects from the customer must be submitted straightaway in writing.
4. The supplier shall be given the opportunity to repair or to replace the defective good within a reasonable period of time.
5. No claims because of defects may be asserted in case of an only insignificant deviation from the quality agreed upon, in case of an only insignificant impairment of serviceability, in case of natural wear and tear or in case of damages incurred after the time of the passage of risk due to faulty or neglectful treatment, excessive stress and strain, unsuitable material, poor construction work, unsuitable building ground or in cases where the defect arises from special outside influences that are not presupposed by the contract, as well as in case of nonreproducible software faults. Claims based on defects attributable to improper modifications or repair work carried out by the customer or third parties and the consequences thereof are likewise excluded.
VII. Claims for damages; Statute of limitations
1. Compensation claims from the customer are ruled out for any legal reason whatsoever, particularly breach of duties arising from the contractual obligations or unlawful acts.
2. This shall not apply to mandatory liability e.g. under the Product Liability Law in cases of wilful intent or gross negligence on account of injuries to life, limb or health or breach of material contractual obligations. However, the compensation claim for breach of material contractual obligations shall be limited to the predictable damage typical for the respective contract, insofar as wilful intent or gross negligence does not apply or liability for injuries to life, limb or health. The above provisions do not imply a change in the customer’s burden of proof.
3. If the customer is entitled to claims for damages, these shall expire upon expiry of the period specified in Art. VIII No. 2. The same applies to claims of the customer in connection with measures to prevent damage (e.g. recall campaigns). 2. The same shall apply to the customer’s claims in connection with
VIII. Jurisdiction and applicable law
1. If the customer is a merchant, the sole place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationships shall be the supplier’s place of business. However, the supplier may also bring an action at the customer’s place of business.
2. All legal relations resulting out of or in connection with this contract are subject to the substantive law of the Federal Republic of Germany, subject to the exclusion of the United Nations‘ Convention on Contracts for the International Sale of Goods (CISG).