I. General provisions
1. The legal relationships between supplier and purchaser in the context of the supplier's deliveries and/or services (referred to hereinafter as deliveries) are subject solely to these general terms and conditions of delivery. The purchaser's general terms and conditions of business only apply if the supplier has given corresponding explicit written consent. The mutually corresponding written declarations are authoritative with regard to the scope of the deliveries.
2. The supplier reserves unlimited ownership and copyrights to cost estimates, drawings and other documents (referred to hereinafter as documents). The documents may only be made accessible to third parties after obtaining the supplier's prior consent and must be returned to the supplier straightaway at his request if the order is not placed with the supplier. Sentences 1 and 2 apply accordingly to the purchaser's documents; however, these may be made accessible to those third parties to whom the supplier has permissibly outsourced deliveries.
3. Partial deliveries are permissible insofar as reasonably acceptable to the purchaser.
4. 'Claims for compensation' as used in these general terms and conditions of delivery also cover compensation claims for expenditure made in vain.
II. Prices, conditions of payment and set-off
1. The prices are to be understood ex works excluding packaging; statutory value added tax is to be added to the prices at the currently valid rate which at present amounts to 19%.
2. Payments shall be made free of transaction charges to the supplier's designated account.
3. The purchaser may only set off those claims that are undisputed or legally determined as final and absolute.
III. Reservation of title
1. The items of deliveries (conditional goods) remain the property of the supplier until satisfaction of all his claims on the purchaser 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 purchaser's request; the supplier is entitled to choose from the various items of collateral security for release.
2. While the reservation of title applies, the purchaser is prohibited from pledging or transfer by way of security; resale is only permitted for resellers in normal business transactions and on condition that the reseller receives payment from his customers or makes the proviso that ownership shall not pass to the customer until he has fulfilled his payment obligations.
3. The purchaser shall inform the supplier immediately in the event of seizure, confiscation or other respective court orders or third-party intervention.
4. If the purchaser fails to fulfil his duties, including in particular default in payment, the supplier shall be entitled not only to recover the goods but also to withdraw from the contract in the event of continued failure following expiry of a reasonable period of grace granted to the purchaser; this shall not affect the statutory provisions that a time limit is not needed. The purchaser is obliged to surrender the goods. Recovery or assertion of the title or seizure of the conditional goods by the supplier shall not constitute a withdrawal from the contract unless this has been explicitly declared by the supplier.
IV. Delivery periods; default
1. Compliance with deadlines for delivery is conditional on punctual receipt of all documents to be provided by the purchaser, necessary permits and releases, including in particular plans and drawings, and on compliance with the agreed conditions of payment and other obligations on the part of the purchaser. If these conditions are not fulfilled on time, the deadlines are extended accordingly: this shall not apply when the supplier is answerable for the delay.
2. 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.
3. If he supplier is in default with delivery, the purchaser can demand compensation, insofar as the purchaser can show credibly that he has incurred corresponding damage, amounting to 0.5% for every completed week of delay but maximum 5% of the price for the deliveries that could not be commissioned for the intended purpose on account of the delay.
4. Any compensation claims from the purchaser on account of delayed delivery together with compensation claims instead of the service that go beyond the limits named in 3. above are ruled out in all cases of delayed delivery, even after expiry of any period of grace for delivery that has been granted to the supplier. This shall not apply in cases of mandatory liability for wilful intent, gross negligence or injuries to life, limb or health. The purchaser can only withdraw from the contract within the framework of the statutory provision insofar as the supplier is answerable for the delayed delivery. These provisions are not associated with a change in the burden of proof to the detriment of the purchaser.
5. At the supplier's request, the purchaser is obliged to declare within an appropriate period whether he is going to withdraw from the contract because of the delayed delivery or whether he insists on receiving the delivery.
6. If shipment or delivery at the purchaser's request is delayed for more than one month after indicating that the goods are ready for shipment, the purchaser can be charged with storage charges per month or part thereof amounting to 0.5% of the price for the items to be delivered, but maximum altogether 5%. The parties are free to provide evidence of higher or lower storage costs.
V. Passing of risk
1. Risk passes to the purchaser as follows, also for freight-free delivery:
a) for deliveries without erection or assembly, on being made available for shipment or on collection. At the purchaser's request and costs, the supplier shall insure the deliveries against the normal transport risks;
b) for deliveries with erection or assembly, on the day of take-over into own operation, or after faultless trial operation, as agreed.
2. If delays are caused for which the purchaser is answerable to shipment, delivery, commencement, the erection or assembly procedure, take-over into own operation or trial operation, or if the purchaser is delayed in acceptance for any other reasons, the risk shall pass to the purchaser.
VI. Acceptance
The purchaser may not refuse acceptance of deliveries for minor faults.
VII. Material defects
The supplier is liable for material defects as follows:
1. In the case of all those parts or services showing material defects, the supplier shall repair them free of charge, or proceed with a replacement delivery or replacement provision of service at his own choice insofar as the defect was caused already at the point in time of the passage of risk.
2. Claims to supplementary performance become time-barred within 12 months from the start of the statutory period of limitations; the same also applies to the right to withdraw or reduce the purchase price. This period shall not apply insofar as Section 479 (1) German Civil Code (limitation of resource claims) provides for longer periods in the event of wilful intent, fraudulent concealment of the defect and failure to comply with warranted properties. The statutory provisions pertaining to suspension of expiration, suspension and recommencement of limitation periods remain unaffected.
3. Notices of defects from the purchaser must be submitted straightaway in writing.
4. In the case of notices of defects, the purchaser may withhold payment up to an appropriate scope in relation to the occurred material defects. The purchaser may only withhold payment if a notice of defects has been asserted whose justification is without any doubt. The purchaser has no withholding rights if the notices of defects become time barred under the statutory period of limitations. If the notices of defects are unsubstantiated, the supplier is entitled to demand compensation from the purchaser for any expenditure incurred.
5. The supplier shall be granted an opportunity for supplementary performance within an appropriate period of time.
6. If the supplementary performance fails, the purchaser may withdraw from the contract or reduce payment without prejudicing any compensation claims pursuant to 10. below.
7. No claims for defects can be asserted in the case of only minor deviation from the agreed property, only minor impairment of usability, natural wear or damage caused after the passage of risk as a result or faulty or negligent handling, excessive loads, inappropriate operation facilities, defective construction work, unsuitable subsoil or on account of special outside influences that were not assumed under the contract, together with not reproducible software errors. If the purchaser or a third party proceeds with inappropriate modifications or maintenance work, similarly no claims for defects can be asserted for any resulting consequences.
8. Claims from the purchaser on account of expenditure incurred for the purpose of supplementary performance, including in particular transport, toll fees, labour and material costs are ruled out insofar as the expenditure is increased because the item that was delivered has been brought to another location than the purchaser's branch, unless such relocation corresponds to the respective intended use.
9. The purchaser only has any recourse on the supplier pursuant to Section 478 German Civil Code (recourse of the entrepreneur) insofar as the purchaser has not reached any agreements with his purchasers going over and beyond the statutory claims for defects. Furthermore, Section 478 Subsection 2 (8) applies accordingly to the scope of the purchaser's recourse claim.
10. Compensation claims from the purchaser for material defects are ruled out. This does not apply to fraudulent concealment of the fault, failure to comply with warranted properties, injuries to life, limb and health, violation of freedom and breach on the part of the supplier in wilful intent or gross negligence. These provisions are not associated with a change in the burden of proof to the detriment of the purchaser. Any further or other claims than those stipulated in this Section VIII for material defects are ruled out.
VIII. Impossibility; contract amendment
1. Insofar as the delivery is impossible, the purchaser is entitled to demand compensation unless the supplier is not answerable for the impossibility. However, the purchaser's compensation claim is limited to 10% of the value of that part of the delivery that cannot be commissioned for its intended purpose on account of the impossibility. This restriction does not apply in cases of mandatory liability for wilful intent, gross negligence or injuries to life, limb or health; this is not associated with a change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdraw from the contract remains unaffected.
2. Insofar as unforeseeable events in accordance with Section IV (2) considerably change the financial significance or the content of the delivery, or have a considerable influence on the supplier's operation, the contract shall be amended accordingly in compliance with the principles of good faith. If this is financially inappropriate, the supplier has the right to withdraw from the contract. If the supplier intends to use this right of withdrawal, he shall inform the purchaser as soon as he becomes aware of the scope of the event, even if an extended delivery date had been initially agreed with the purchaser.
IX. Other compensation claims; period of limitations
1. Compensation claims from the purchaser are ruled out for any legal reason whatsoever, particularly breach of duties arising from the obligations or from 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. These provisions are not associated with a change in the burden of proof to the detriment of the purchaser.
3. Insofar as the purchaser is entitled to make compensation claims, these are time-barred after the period of limitations stated in Section VIII (2). The same also applies to claims from the purchaser in the context of measures for prevention of damage (e.g. recalls). Compensation claims made under the Product Liability Law are subject to the statutory periods of limitations.
X. Place of jurisdiction and governable law
1. If the purchaser 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 is also entitled to take legal action at the purchaser's place of business.
2. The legal relationships in the context of this contract are subject to German substantive law, ruling out the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XI. Binding nature of the contract
Should individual provisions of the contract be legally invalid, the remainder of the contract shall still remain binding. This shall not apply if abiding by the contract would lead to unreasonable hardship for one of the parties.