Terms and Conditions

§ 1 General provisions

  1. The scope of the supplies and services ("the Supplies") shall be governed by the written declarations of both sides. General business terms of the customer shall apply only insofar as the supplier or service provider ("the Supplier") has expressly consented to them in writing.
  2. The Supplier reserves without restriction the right to exploit title and copyright to cost proposals, drawings and other documents ("Documents"). The Documents may only be made available to third parties with the prior consent of the Supplier and shall be returned immediately to the Supplier on request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply analogously for documents of the customer; however, these may be made available to those third parties to whom the Supplier has legitimately transferred Supplies.
  3. Part deliveries shall be permitted provided that this is acceptable to the customer.

§ 2 Prices and terms of payment

  1. Prices are ex works exclusive of packaging and exclusive of sales tax at the applicable statutory rate.
  2. Payments shall be made free domicile of the Supplier. In the absence of any special arrangements, the invoice may be paid with a deduction of 2 % within 14 days of receipt.
  3. The customer may only set off against claims which are undisputed or have been declared final and absolute.

§ 3 Reservation of title

  1. The items of the Supplies (reserved goods) shall remain the property of the Supplier until all claims accruing to him against the customer on account of the business relations have been satisfied. If the value of all securities accruing to the Supplier exceeds the amount of all secured claims by more than 20 %, the Supplier will release a corresponding portion of the securities at the request of the customer. 2. For as long as the reservation of title exists the Customer shall be prohibited from pledging or transfer by way of security and shall only be permitted to sell on to resellers within the ordinary course of business and subject to the condition that the reseller receives payment from his buyer or issues the proviso that title will not pass to the buyer until the latter has satisfied his payment obligations.
  2. Während des Bestehens des Eigentumsvorbehalts ist dem Besteller eine Verpfändung oder Sicherungsübereignung untersagt und die Weiterveräußerung nur Wiederverkäufern im gewöhnlichen Geschäftsgang und nur unter der Bedingung gestattet, dass der Wiederverkäufer von seinem Kunden Bezahlung erhält oder den Vorbehalt macht, dass das Eigentum auf den Kunden erst übergeht, wenn dieser seine Zahlungsverpflichtungen erfüllt hat.
  3. The customer shall inform the Supplier immediately of any attachments, seizures or other dispositions or encroachments of third parties.
  4. Should the customer be in breach of duty, and particularly in the case of default in payment, the Supplier shall be entitled, after a reasonable period of grace set for the customer has elapsed without success, to rescind the contract and take back the goods; this shall not affect the statutory conditions concerning the dispensability of setting a period of grace. The customer shall be bound to surrender the goods.

§ 4 Delivery periods; delay

  1. The observance of delivery periods presupposes the timely receipt of all documents to be supplied by the customer, the necessary permits and approvals, in particular for plans, and the observance by the customer of the agreed payment terms and other obligations. If these conditions are not met in timely fashion, the time limits shall be extended accordingly; this shall not apply if the Supplier was responsible for the delay.
  2. If non-observance of the periods is due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike or lock-out, the time limits shall be extended accordingly.
  3. If the Supplier is in default, the customer may – provided that he credibly demonstrates that he has suffered loss thereby – demand compensation for each complete week of delay of 0.5 %, but no more than 5 % in total, of the price for that part of the Supplies which could not be taken into proper service on account of the delay.
  4. Both claims to compensation brought by the customer on account of delay in delivery and claims to compensation in place of performance going beyond the limits set out in No. 3 shall be excluded in all cases of delayed delivery, even after any period of grace set for the Supplier has expired. This shall not apply if liability is mandatory in cases of intent or gross negligence or on account of loss of life, physical harm or damage to health. The customer may only withdraw from the contract within the scope allowed by law if the delay in delivery is the fault of the Supplier. These provisions do not imply any change in the burden of proof to the disadvantage of the customer.
  5. The customer shall be bound, at the request of the Supplier, to declare within a reasonable period of time whether he is withdrawing from the contract on account of the delay in delivery or is insisting on delivery.
  6. If shipping or delivery is delayed at the request of the customer by more than one month following notification of readiness for dispatch, the customer may be charged storage fees amounting to 0.5 % of the price of the items of the Supplies for each commenced month, but no more than 5 % in total. The parties hereto are entitled to demonstrate greater or lower storage costs.

§ 5 Passage of risk

  1. Risk shall pass to the customer as follows, even in the case of delivery carriage paid:
    a) in the case of Supplies without erection or assembly, when they have been brought for shipping or collected. The Supplier will insure the Supplies against the usual transport risks at the request and expense of the customer; b) in the case of Supplies with erection or assembly, on the day of transfer to the customer's own operation or, if agreed, after a perfect trial operation.
  2. If shipping, delivery, the commencement or performance of erection or assembly, transfer to the customer's own operating facility or trial operation are delayed for reasons within the control of the customer or the customer defaults in acceptance for some other reason, the risk shall pass to the customer.

§ 6 Acceptance

  1. The customer may not refuse to accept Supplies on the basis of minor defects.

§ 7 Material defects

  1. The Supplier shall be liable for material defects as follows:
    All those parts or services which evidence a material defect within the limitation period – regardless of the length of service – shall, at the option of the Supplier, be improved, delivered again or performed again at no charge, provided that the cause thereof already existed at the time of the passage of risk.
  2. Claims based on material defects shall become time-barred in 12 months. This shall not apply if the law under §§ 438 Para. 1 No. 2 (Structures and objects for structures), 479 Para. 1 (Right of recourse) and 634a Para. 1 No. 2 (Deficiencies in construction) BGB [German Civil Code] prescribes longer periods and in cases of loss of life, physical harm or damage to health, in the event of a willful or grossly negligent breach of duty by the Supplier and in the event of the malicious non-disclosure of a defect. This does not affect the statutory regulations governing the suspension of expiration of prescription, the interruption and the recommencement of the time limits.
  3. The customer shall notify the Supplier of material defects immediately and in writing.
  4. In the event that defects are notified, the customer may withhold payments to an extent appropriate to the material defects that occurred. The customer may only withhold payments if there is no doubt as to the justification for the notification of defects. If defects are notified unjustifiably, the Supplier shall be entitled to demand that the customer reimburse him for the expenses incurred.
  5. The Supplier must initially be given opportunity to effect subsequent performance within a reasonable period of time.
  6. Should the subsequent performance fail, the customer may withdraw from the contract or demand a reduction in the consideration, notwithstanding any claims to compensation in accordance with Art. X.
  7. Claims based on defects shall not exist in the event of only minor deviations from the agreed quality, only minor impairments of fitness for use, natural wear and tear or damage occurring after the passage of risk as a result of faulty or negligent treatment, excessive strain, unsuitable operating resources, deficient construction works or unsuitable foundations or which occur because of particular external influences which are not provided for under the contract, and in the case of non-reproducible software errors. If the customer or third parties have carried out modifications or repair work inexpertly, claims based on defects shall likewise not exist for these and the ensuing consequences.
  8. Claims of the customer on account of the necessary expenses incurred for the purposes of subsequent performance, in particular transport costs, tolls, labor and material costs, shall be excluded if the expenses are increased because the object of delivery was taken to a place other than the branch establishment of the customer, unless this was done in accordance with its intended use.
  9. The customer shall only have rights of recourse against the Supplier pursuant to § 478 BGB (Recourse of the entrepreneur) if and insofar as the customer has not reached any agreements with his buyer which extend beyond the statutory claims based on defects. No. 8 shall apply analogously for the scope of the customer's right of recourse against the Supplier under § 478 Para. 2 BGB.
  10. Claims for compensation shall otherwise be governed by Art. X (Other claims for compensation). The customer may not bring further claims, or claims other than those regulated in this Art. VII, against the Supplier and his vicarious agents on account of a material defect.

§ 8 Industrial property rights and copyrights; deficiencies in title

  1. Unless otherwise agreed, the Supplier shall be bound to effect delivery only in the destination country free of industrial property rights and copyrights of third parts ("Property Rights"). If a third party files justified claims against the customer on account of an infringement of Property Rights by Supplies effected by the Supplier and used in accordance with the contract, the Supplier shall be answerable to the customer within the time limits set out in Art. VIII No. 2 as follows:
    a) The Supplier shall at his option and expense either bring about a right of utilization for the relevant Supplies, modify them so that the Property Rights are not infringed or exchange the Supplies. If this is not possible for the Supplier under reasonable conditions, the customer shall have the statutory rights of rescission or reduction in cost.
    b) The duty of the Supplier to pay compensation shall be governed by Art. X.
    c) The above obligations on the Supplier shall only exist if the customer has informed the Supplier immediately and in writing of the claims asserted by the third party, does not admit the infringement and reserves to the Supplier all defenses and settlement negotiations. Should the customer suspend utilization of the Supplies in order to reduce the loss or for other good cause, he shall be bound to advise the third party that suspension of the utilization does not imply any recognition of an infringement of Property Rights.
  2. Claims of the customer shall be excluded if he is responsible for the infringement of the Property Rights.
  3. Claims of the customer shall further be excluded if the infringement of the Property Rights is caused by special stipulations of the customer, by an application that the Supplier could not foresee or because the Supplies are used in modified form or together with other products not delivered by the Supplier.
  4. In the case that Property Rights are infringed, the claims of the customer regulated in No. 1 a) shall otherwise be governed analogously by the provisions of Art. VII Nos. 4, 5 and 9.
  5. If other deficiencies in title exist, the provisions of Art. VII shall apply analogously.
  6. The customer may not bring further claims, or claims other than those regulated in this Art. VIII, against the Supplier and his vicarious agents on account of a deficiency in title.

§ 9 Impossibility; amendment of the contract

  1. If delivery is impossible, the customer shall be entitled to demand compensation unless the Supplier is not responsible for the impossibility. However, the claim of the customer to compensation shall be limited to 10 % of the value of that part of the delivery which cannot be taken into proper service on account of the impossibility. This limitation shall not apply if liability is mandatory in cases of intent or gross negligence or on account of loss of life, physical harm or damage to health. The customer may only withdraw from the contract within the scope allowed by law if the delay in delivery is the fault of the Supplier. These provisions do not imply any change in the burden of proof to the disadvantage of the customer. This does not affect the right of the customer to withdraw from the contract.
  2. If unforeseeable events within the meaning of Art. IV No. 2 considerably change the economic importance or the content of the Supplies or have a considerable effect on the operation of the Supplier, the contract shall be amended appropriately in good faith. Should this not be economically justifiable, the Supplier shall have the right to withdraw from the contract. If he makes use of this right of withdrawal, he shall inform the customer immediately after discovering the implications of the event, even if an extension of the delivery period had initially been agreed with the customer.

§ 10 Other claims for compensation

  1. Regardless of their legal foundation, claims brought by the customer for compensation and the reimbursement of expenses ("Compensation Claims") on account of a breach of obligations or tortious act shall be excluded.
  2. This shall not apply if liability is mandatory, e.g. under product liability laws, in cases of intent or gross negligence, on account of loss of life, physical harm or damage to health or on the basis of a breach of substantive contractual obligations. However, the Compensation Claim for the breach of substantive contractual obligations shall be limited to the foreseeable loss typical for the contract, except in the case of intent or gross negligence or of liability on account of loss of life, physical harm or damage to health. These provisions do not imply any change in the burden of proof to the disadvantage of the customer.
  3. If the customer accrues Compensation Claims under this Art. X, these shall become time-barred upon expiry of the limitation period applicable for claims based on material defects as set out in Art. VII No. 2. Compensation Claims under product liability laws shall be governed by the statute of limitations.

§ 11 Electrical and Electronic Equipment Act (ElektroG)

  1. The purchaser assumes responsibility for the proper disposal of the supplied goods in accordance with the legal provisions at the end of the service life at their own expense.
  2. The purchaser releases the supplier from the duty pursuant to §10 Para. 2 Electrical and Electronic Equipment Act (ElektroG) and thus any associated claims of third parties.

§ 12 Jurisdiction and applicable law

  1. If the customer is a merchant, the sole jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the Supplier. However, the Supplier shall be entitled to pursue legal action at the registered office of the customer.
  2. German material law shall apply for the legal relations in connection with this contract, to the exclusion of the United Nations Convention on the International Sale of Goods (CISG).

§ 13 Binding nature of the contract

  1. 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 represent an unconscionable burden on one party.

Status: November 2008

to the top