I. General information
1. All deliveries and services are based on these terms and conditions and any separate contractual agreements. Any deviating terms and conditions of purchase of the purchaser shall not become part of the contract, even if the order is accepted. In the absence of a special agreement, a contract shall be concluded upon written confirmation of the order by the supplier.
2. The supplier reserves ownership rights and copyrights to samples, cost estimates, drawings, and similar information of a physical and non-physical nature, including in electronic form; they may not be made accessible to third parties. The supplier undertakes to make information and documents designated as confidential by the purchaser accessible to third parties only with the purchaser's consent.
II. Price and payment
1. Unless otherwise agreed, prices are ex works including loading at the factory, but excluding packaging and unloading. Value added tax at the applicable statutory rate shall be added to the prices.
2. Unless otherwise agreed, payment shall be made without any deductions to the supplier's account within 10 days.
3. The customer shall only be entitled to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established.
III. Delivery time, delivery delay
1. The delivery time shall be determined by the agreements between the contracting parties. Compliance with this delivery time by the supplier shall be subject to all commercial and technical questions between the contracting parties having been clarified and the purchaser having fulfilled all obligations incumbent upon him, such as providing the necessary official certificates or approvals or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the supplier is responsible for the delay.
2. Compliance with the delivery period is subject to correct and timely delivery to the supplier. The supplier shall notify the customer of any foreseeable delays as soon as possible.
3. The delivery period shall be deemed to have been met if the delivery item has left the supplier's factory by the end of the delivery period or readiness for shipment has been notified. If acceptance is required, the acceptance date shall be decisive, except in cases of justified refusal of acceptance, or alternatively the notification of readiness for acceptance.
4. If shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, beginning one month after notification of readiness for shipment or acceptance.
5. If non-compliance with the delivery time is due to force majeure, labor disputes, or other events beyond the supplier's control, the delivery time shall be extended accordingly. The supplier shall notify the customer of the beginning and end of such circumstances as soon as possible.
6. The purchaser may withdraw from the contract without setting a deadline if the supplier is definitively unable to perform the entire service before the transfer of risk. The purchaser may also withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and he has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of the supplier's inability to perform. In all other respects, Section VII.2 shall apply. If the impossibility or inability occurs during the delay in acceptance, or if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to pay consideration.
7. If the supplier is in default and the customer incurs damage as a result, the customer shall be entitled to demand lump-sum compensation for the delay. This shall amount to 0.5% for each full month of delay, but in total no more than 5% of the value of that part of the total delivery which cannot be used in time or in accordance with the contract as a result of the delay. If the customer sets the supplier a reasonable deadline for performance after the due date, taking into account the statutory exceptions, and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. Further claims arising from delay in delivery shall be determined exclusively in accordance with Section VII.2 of these terms and conditions.
IV. Transfer of risk, acceptance
1. The risk shall pass to the purchaser when the delivery item has left the factory, even if partial deliveries are made or the supplier has assumed other services, e.g., shipping costs or delivery and installation. If acceptance is required, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, or alternatively after notification by the supplier that the goods are ready for acceptance. The purchaser may not refuse acceptance in the event of a minor defect.
2. If shipment or acceptance is delayed or does not take place due to circumstances for which the supplier is not responsible, the risk shall pass to the purchaser on the day of notification of readiness for shipment or acceptance. The supplier undertakes to take out the insurance required by the purchaser at the purchaser's expense.
3. Partial deliveries are permissible insofar as they are reasonable for the purchaser.
V. Extended retention of title with processing clause
The supplier retains ownership of the delivery item until all payments under the delivery contract have been received. In the event of default in payment, the supplier is entitled to take back the delivery item after issuing a reminder, and the purchaser is obliged to surrender it. This also applies in the event of other conduct by the purchaser in breach of contract. Due to the retention of title, the supplier can only demand the return of the delivery item if it has withdrawn from the contract. In the event of seizures or other interventions by third parties, the customer must notify the supplier immediately. The application to open insolvency proceedings against the purchaser's assets entitles the supplier to withdraw from the contract with immediate effect and to demand the immediate return of the delivery item. The purchaser is entitled to resell the delivery item in the ordinary course of business. However, it hereby assigns to the supplier all claims against the purchaser or third parties arising from the resale. The purchaser shall remain authorized to collect these claims even after the assignment. The supplier's authority to collect the claims itself remains unaffected by this. However, the supplier undertakes not to collect the claims as long as
• the customer duly meets its payment obligations, or
• the collection authorization has not been revoked, or
• no application for the opening of insolvency proceedings has been filed.
Otherwise, the supplier may demand that the customer
- disclose the assigned claims and their debtors,
- provide all information necessary for collection,
- notify the debtors of the assignment, unless this has already been done by the supplier.
If the delivery item is resold together with other goods that do not belong to the supplier, the purchaser's claim against the buyer shall be deemed assigned in the amount of the delivery price agreed between the supplier and the purchaser. The processing or transformation of goods subject to retention of title shall always be carried out by the purchaser on behalf of the supplier. If the goods subject to retention of title are processed together with other items that do not belong to the supplier, the supplier shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items at the time of processing. The purchaser shall hold the new item in safe custody. the supplier shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing. The customer shall hold the property or co-ownership in safekeeping for the supplier. The same shall apply to the item created by processing or transformation as to the reserved goods.
VI. Claims for defects
The supplier shall provide warranty for material defects and defects of title in the delivery to the exclusion of further claims, subject to Section VII, as follows:
Material defects
1. All parts that prove to be defective as a result of circumstances occurring prior to the transfer of risk shall be repaired or replaced free of charge at the supplier's discretion. The supplier shall be notified in writing of any such defects without delay. Replaced parts shall become the property of the supplier.
2. The purchaser shall, after consultation with the supplier, allow the supplier the necessary time and opportunity to carry out all repairs and replacement deliveries deemed necessary by the supplier; otherwise, the supplier shall be released from liability for the consequences arising therefrom. Only in urgent cases where operational safety is at risk or to prevent disproportionately large damage, in which case the supplier must be notified immediately, shall the purchaser be entitled to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the supplier.
3. If the complaint proves to be justified, the supplier shall bear the expenses necessary for the purpose of subsequent performance, provided that this does not place a disproportionate burden on the supplier. In the case of the sale of a newly manufactured item, the supplier shall also reimburse the purchaser for the expenses incurred within the scope of recourse claims in the supply chain to the extent of its legal obligation.
4. The customer shall have the right to withdraw from the contract within the framework of the statutory provisions if the supplier, taking into account the statutory exceptions, allows a reasonable period set for him for repair or replacement delivery due to a material defect to elapse without result. If the defect is only minor, the customer shall only be entitled to a reduction in the contract price. The right to reduce the contract price is otherwise excluded. Further claims are determined in accordance with Section VII. 2 of these terms and conditions.
5. No warranty is provided in the following cases in particular: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical, or electrical influences—unless the supplier is responsible for them.
6. If the customer or a third party makes improper repairs, the supplier shall not be liable for the consequences thereof. The same applies to changes made to the delivery item without the prior consent of the supplier.
Legal defects
7. If the use of the delivery item leads to the infringement of industrial property rights or copyrights in the country, the supplier shall, at its own expense, procure the right for the customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer so that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, the supplier shall also be entitled to withdraw from the contract. In addition, the supplier shall indemnify the purchaser against any undisputed or legally established claims of the relevant property right holders.
8. Subject to Section VII.2, the obligations of the supplier specified in Section VI.7 are final in the event of an infringement of property rights or copyright. They shall only apply if
• the customer immediately informs the supplier of any asserted infringements of property rights or copyrights,
• the customer provides the supplier with reasonable support in defending against the asserted claims or enables the supplier to carry out the modification measures in accordance with Section VI. 7,
• the supplier reserves the right to take all defensive measures, including out-of-court settlements,
• the legal defect is not based on an instruction by the customer, and
• the infringement was not caused by the customer arbitrarily modifying the delivery item or using it in a manner not in accordance with the contract.
VII. Liability
1. If the delivery item cannot be used by the customer in accordance with the contract due to the supplier's fault as a result of omitted or incorrect execution of suggestions and advice given before or after conclusion of the contract or due to the breach of other ancillary contractual obligations—in particular instructions for operation and maintenance of the delivery item— the provisions of Sections VI and VII.2 shall apply accordingly, excluding any further claims by the customer.
2. The supplier shall only be liable for damage not caused to the delivery item itself, regardless of the legal grounds, if
a. in the event of intent,
b. in the event of gross negligence on the part of the owner/bodies or executive employees,
c. in the event of culpable injury to life, limb, or health,
d. in the event of defects that it has fraudulently concealed or whose absence it has guaranteed,
e. in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items. In the event of culpable breach of essential contractual obligations, the supplier shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to the reasonably foreseeable damage typical for this type of contract. Further claims are excluded.
VIII. Statute of limitations
All claims of the customer—regardless of their legal basis—shall become time-barred after 24 months; this also applies to the limitation period for recourse claims in the supply chain pursuant to Section 445b (1) of the German Civil Code (BGB), provided that the last contract in this supply chain is not a consumer goods purchase. The suspension of the limitation period under Section 445 b (2) BGB remains unaffected. The statutory limitation periods apply to claims for damages under Section VII. 2 a - d and f. They also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused its defectiveness.
IX. Software use
If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited. The customer may only reproduce, revise, translate, or convert the object code into source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer's information—in particular copyright notices—or to change it without the prior express consent of the supplier. All other rights to the software and documentation, including copies, remain with the supplier or software supplier. The granting of sublicenses is not permitted.
X. Applicable law, place of jurisdiction
1. All legal relationships between the supplier and the purchaser shall be governed exclusively by the laws of the Federal Republic of Germany applicable to legal relationships between domestic parties.
2. The place of jurisdiction shall be the court having jurisdiction over the supplier's registered office. However, the supplier shall be entitled to bring legal action at the purchaser's headquarters.