I. General remarks
1. All deliveries and services shall be based on these conditions plus any separate contractual agreements. Divergent purchasing conditions of the Purchaser shall not become a part of the contract even upon acceptance of the order. In the absence of a separate agreement, a contract shall come into being only with the Supplier’s written order confirmation.
2. The Supplier shall retain title and copyright to samples, cost estimates, drawings, and similar information in physical and non-physical (including electronic) form; they must not be made accessible to third parties. The Supplier undertakes to make accessible to third parties information and documents designated as confidential by the Purchaser only with the latter’s permission.
3. All the particulars provided by the Supplier on the item sold in the catalogue or during the contractual negotiations are descriptions of characteristics, not warranties in a legal sense. Unless expressly stated or referred to otherwise in the sales contract, the Supplier has not issued any warranties.
4. The interpretation of trade clauses shall in the event of doubt be governed by Incoterms 2000.
II. Price and payment
1. Unless otherwise agreed, the prices shall apply ex works, including loading in the works, but not including packing and unloading. Value added tax at the current statutory rate will be added to the prices. If after the contract has been signed there is a change in the levies or other outside costs included in the agreed price, or if new ones materialise, the Supplier shall be entitled to alter the price to a corresponding extent. On request, the Supplier shall substantiate this cost increase with documentary evidence for the Purchaser.
2. Unless otherwise agreed, payment must be made without any deduction to the Supplier’s account, net cash within 30 days from the date of invoice. Payment must be made in such a way that the Supplier is able to dispose of the amount on the due date. Costs of payment transactions shall be borne by the Purchaser.
3. The Purchaser shall be entitled to withhold payments or offset them against counter-claims only insofar as his counter-claims are undisputed or have been confirmed by an unappealable declaratory judgement.
4. The Purchaser shall be in default when a reminder is sent after the due date, but at the latest 30 days after the due date and receipt of an invoice or an equivalent demand for payment from the Supplier. If the Purchaser is in default, the Supplier shall be entitled to invoice interest at the level of the bank rates applying for overdrafts as from the due date, with a minimum rate of eight per cent above the prime lending rate of the European Central Bank, unless the Purchaser provides evidence that the Supplier’s loss is lower. The right is reserved to charge for further loss or damage, particularly additional expenses in connection with exchange rate shifts and hedging transactions.
5. All claims by the Supplier shall become due for payment immediately, irrespective of the term of any discounted and irrevocably credited bills, if the conditions of payment are not complied with or if the Supplier learns of circumstances of a kind liable to downgrade the Purchaser’s creditworthiness. In this case, the Supplier shall be entitled to perform outstanding deliveries only against payment in advance.
6. If the Purchaser defaults on his payments, the Supplier shall additionally be entitled to withdraw from the contract and also to demand damages. Moreover, the Supplier shall be entitled to require that the Purchaser refrains from selling and installing goods delivered, and can demand their return or transfer of indirect ownership of the goods delivered at the Purchaser’s expense. The Purchaser already authorises the Supplier to enter his premises in the above-mentioned cases, and to remove the goods delivered; their removal shall not be construed as a withdrawal from the contract.
7. The Purchaser can avert the legal consequences specified in Paras. 4 to 6 above by providing security to the amount of the Supplier’s endangered payment claim.
III. Delivery time, delay in delivery
1. The delivery time shall be specified in the agreements between the contracting parties. Compliance with the deadline by the Supplier shall be conditional upon all commercial and technical questions between the contracting parties having been clarified and upon the Purchaser having fulfilled all his obligatory duties, such as providing the requisite certificates from government agencies or approvals or making a down payment. If this is not the case, the delivery time shall be extended by a reasonable period. This shall not apply insofar as the Supplier is to blame for the delay concerned. If the order is subsequently altered by the Purchaser, the Supplier shall be entitled to extend the delivery time.
2. Compliance with the delivery deadline shall be subject to the proviso of correct and punctual deliveries to the Supplier himself. The Supplier shall notify the Purchaser as soon as possible of any imminent delays.
3. The delivery deadline shall be construed as met when the delivery item has left the Supplier’s facility before it has expired or the Purchaser has been notified of its readiness for dispatch. If an acceptance test has to be conducted, then (except in cases of justified refusal to accept) the date of the acceptance test shall be determinant, alternatively notification of readiness for acceptance-testing.
4. If the dispatch or the acceptance of the delivery item is delayed for reasons within the Purchaser’s responsibility, then he shall be invoiced with the costs incurred by the delay, beginning one month after notification of readiness for dispatch or acceptance-testing.
5. If non-compliance with the delivery deadline is attributable to force majeure, to labour disputes or other events which are beyond the Supplier’s capacity to influence, the delivery time shall be extended by a reasonable period. The Supplier shall inform the Purchaser as soon as possible of the beginning and end of such circumstances.
6. The Purchaser may withdraw from the contract without giving notice if the entire work becomes definitively impossible for the Supplier prior to passage of risk. The Purchaser may in addition withdraw from the contract if in the case of a particular order it becomes impossible to carry out part of the delivery and he has a justified interest in declining the part-delivery. If this is not the case, the Purchaser must pay the contractual price accounted for by the part-delivery concerned. The same shall apply in the event of incapacity. Otherwise Section VII. 2 shall apply. If the impossibility or incapacity occurs during delay of acceptance, or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obligated to provide a quid pro quo.
7. If the Supplier defaults, and if the Purchaser suffers loss or damage thereby, he shall be entitled to demand a lump-sum compensation for such default. This shall amount to 0.5 % for each full week of delay, but in total not more than 5 % of the value of that part of the overall delivery which as a result of the delay cannot be utilised in good time or not in accordance with the contract. If the Purchaser (taking into account the legal exceptions) sets the Supplier a reasonable deadline after the due date to perform the work, and if this deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the framework of the statutory provisions applying. Further claims arising from default on delivery shall be governed solely by Section VII. 2 of these conditions.
8. If the Purchaser annuls his order or if he declines to accept the delivery for reasons lying within his own responsibility, the Supplier shall be entitled, in place of his claim to performance of the contract, without any further evidence being required, to demand cancellation costs amounting to ten per cent of the order value instead of damages. Besides the cancellation costs, the Purchaser must, at the Supplier’s request, pay for the delivery item equipment manufactured specially for him, which in this case will be made available to him on request.
IV. Passage of risk, acceptance
1. Unless otherwise agreed, the Supplier shall decide on the method and route of dispatch, plus the forwarding agent and carrier.
2. The risk shall pass to the Purchaser when the delivery item has left the Supplier’s facility, even in cases when part-deliveries are made or the Supplier has also contracted to perform other work, e.g. bearing the dispatch costs, or delivery and erection. If an acceptance test has to be conducted, this shall be determinant for the passage of risk. It must be carried out immediately on the acceptance date, alternatively after the Supplier’s notification of readiness for acceptance-testing. The Purchaser may not refuse acceptance if a non-essential defect is found.
3. If dispatch or acceptance is delayed or does not occur as a consequence of circumstances outside the Supplier’s control, the risk shall pass to the Purchaser from the day on which notification is made of readiness for dispatch or acceptance-testing. The Supplier undertakes, at the Purchaser’s expense, to take out the insurance cover which the latter demands.
4. If without culpability on the part of the Supplier transport on the intended route or to the intended place in the intended time is impossible, the Supplier shall be entitled to deliver on a different route or to a different place; the additional costs thus incurred shall be borne by the Purchaser. The Purchaser shall be given an opportunity to comment beforehand.
5. Part-deliveries shall be permissible, insofar as these are acceptable for the Purchaser. Shipments of greater or lesser quantities than the agreed level shall be permissible to the extent customary in the sector.
6. In the event of damage in transit, the Purchaser must immediately arrange for the agencies responsible to ascertain the facts involved.
7. Items delivered must, even if they exhibit non-essential defects, be accepted by the Purchaser, without prejudice to his rights under Section VI of these conditions.
8. The goods are supplied without packing and not protected against rust. If and insofar as this is customary in the trade, the Supplier will deliver the goods in packed condition. The Supplier will provide packing, protection and/or transportation aids on the basis of his own experience and at the Purchaser’s expense. Transport packing and all other packaging as covered by the German Packing Ordinance will not be taken back by the Supplier.
V. Retention of title
1. The Supplier shall retain title in the delivery item until all payments specified in the delivery contract have been received.
2. The Supplier shall be entitled to insure the delivery item at the Purchaser’s expense against theft, breakage, fire, water and other damage, unless the Purchaser can provide proof that he has taken out such insurance cover himself.
3. The Purchaser may neither sell nor pledge the delivery item, nor assign it as security. In the event of attachments, confiscations or other dispositions by third parties, he must notify the Supplier thereof immediately.
4. In the event of a breach of contract on the part of the Purchaser, particularly default of payment, the Supplier shall be entitled to take back the delivery item after prior warning, and the Purchaser shall be obligated to surrender it.
5. Due to the retention of title, the Supplier can demand surrender of the delivery item only if he has withdrawn from the contract.
6. The Purchaser shall be obligated to notify the Supplier immediately of all execution measures against an item covered by retention of title, and to send us copies of garnishee orders and bailiff’s returns. In addition, he must make every effort to avert execution proceedings.
7. An application to open insolvency proceedings regarding the Purchaser’s assets shall entitle the Supplier to withdraw from the contract and to demand the immediate return of the delivery item.
8. If the conditional goods are processed, linked to and mixed with other goods by the Purchaser, the Supplier shall have joint title to the new item in the ratio of the conditional goods’ invoice value to the invoice value of the other goods used, or in the absence of this to the cost of production. If the Supplier’s title expires due to linkage or mixing, the Purchaser already upon signing of the contract transfers to the Supplier title to the new stock or item to the extent of the invoice value of the conditional goods, and shall keep them safe for the Supplier free of charge. The joint ownership rights thus created shall be construed as conditional goods within the meaning of Section V.1.
9. The Purchaser may sell the conditional goods only in the normal course of business at his standard business conditions and as long as he is not in default, provided that he agrees retention of title with his customer and that the claims arising from the resale pass to the Supplier as laid down in Sections V. 10. to V. 12. He shall not be entitled to make any other dispositions regarding the conditional goods.
10. The Purchaser’s claims arising from the resale are already assigned to the Supplier upon the signing of this contract. The Supplier hereby accepts this assignment.
11. If the conditional goods are sold by the Purchaser together with other goods not purchased from the Supplier, the assignment of the claim arising from the resale shall apply only to the amount of the invoice value of the conditional goods sold in each case. If the resold goods are ones to which the Supplier has joint title in accordance with Section V. 8., the assignment of the claim shall apply to the amount of these co-ownership proportions.
12. If the conditional goods are used by the Purchaser to perform a manufacturing contract, then Sections V. 10. and V. 11. shall apply correspondingly for the claim arising from this contract.
13. The Purchaser shall be entitled to collect claims from resale in accordance with Sections V. 9. to V. 12. until revocation, to which Supplier shall be entitled at any time. The Supplier shall exercise his right of revocation only in the cases specified in Section II. 4.
14. The Purchaser shall in no case be empowered to assign the claims. On request by the Supplier, he shall be obligated to inform his customers immediately of the assignment to the Supplier, and to provide him with the information and documents required for purposes of collection.
15. If the value of the securities granted to the Supplier exceeds the secured claims by a total of more than 25 %, then the Supplier shall be obligated on request by the Purchaser to release securities of his own choice to the amount involved.
16. If the retention of title or the assignment is not operative under the laws applying in the area where the goods are located, then the security corresponding to the retention of title or assignment in this area shall be construed as agreed. If the involvement of the Purchaser is necessary for this purpose, he must take all measures at his own expense that are required for substantiating and maintaining such rights.
VI. Warranty claims
For redhibitory defects in and deficiencies in title to the work, the Supplier shall, to the exclusion of all other claims, subject to Section VII, guarantee as follows:
Redhibitory defects
1. All those parts must be reworked or replaced by faultless ones free of charge, at the Supplier’s discretion, which due to a circumstance occurring before the passage of risk prove to be defective. The Supplier must be notified immediately in writing if any such defects are discovered. Replaced parts shall become the property of the Supplier.
2. After consulting with the Supplier, the Purchaser must provide him with the requisite time and opportunity for the reworking and replacement deliveries deemed necessary by the Supplier; otherwise the Supplier shall be released from liability for the resultant consequences. Only in urgent cases (of which the Supplier must be informed immediately) involving a risk to the safety of operations or in order to avert unacceptable high loss or damage, shall the Purchaser be entitled to remedy the defect himself or have it remedied by third parties, and to demand that the Supplier reimburse him for the expenditure required.
3. Of the direct costs entailed by the reworking or replacement delivery, the Supplier shall bear, insofar as the complaint proves to be justified, the costs of the replacement piece including dispatch. The Supplier shall also bear the direct costs of removal and installation of the replacement piece, plus the costs for any necessary provision of the requisite fitters and assistants including travel costs, insofar as this does not entail an unreasonable burden for the Supplier. The Supplier shall not bear any further costs, particularly indirect ones (e.g. erection and dismantling work, modifications, scaffolds, safety and security measures).
4. The Purchaser has, within the framework of statute law, a right to withdraw from the contract if the Supplier – taking all due account of statutory exceptions – has permitted to expire fruitlessly a reasonable deadline, set for him to perform the reworking job or supply a replacement due to a redhibitory defect. If the defect concerned is merely an insignificant one, the Purchaser shall have only a right to reduction of the contractual price. The right to reduction of the contractual price shall otherwise remain ruled out. Further claims shall be governed solely by Section VII. 2 of these conditions.
5. No warranty will be given for the following cases in particular: unsuitable or improper use, faulty installation and/or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, inadequate maintenance, unsuitable equipment, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical influences – unless they fall within the Supplier’s sphere of responsibility.
6. If the Purchaser or a third party does not carry out the rework job with proper care, the Supplier shall bear no liability for the consequences arising therefrom. The same shall apply for changes to the delivery item made without the Supplier’s prior written permission.
Deficiencies in title
7. If the use of the delivery item leads to violations of industrial property rights or copyrights in the Federal Republic of Germany, the Supplier shall at his own expense in all cases either procure for the Purchaser the right to continue using it, or shall modify the delivery item in a manner acceptable to the Purchaser in such a way that the violation of the industrial property right concerned no longer applies. If this is not possible at financially reasonable conditions or within a reasonable period, the Purchaser shall be entitled to withdraw from the contract. Under the above-mentioned preconditions, the Supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against claims of the industrial property right owners involved which are undisputed or have been confirmed by an unappealable declaratory judgement.
8. The obligations as defined in Section VI. 7, subject to Section VII. 2, for the event of industrial property rights or copyrights being violated, shall be final.
They shall exist only if
VII. Liability
1. If the delivery item cannot be used by the Purchaser for the contractually agreed purpose, due to culpability on the part of the Supplier as a result of ignoring or faultily implementing proposals and advice put forward before or after signing of the contract, or to the violation of other additional contractual obligations, particularly instructions for operating and maintaining the delivery item, then the arrangements specified under Sections VI and VII. 2 shall apply correspondingly, with all further claims by the Purchaser being ruled out.
2. For loss or damage not suffered by the delivery item itself, the Supplier shall be liable (whatever the legal grounds involved) only a. in the event of wrongful intent, b. in the event of gross negligence on the part of the owner/the boards or senior executives, c. in the event of culpable injury to life, limb and human health, d. in the event of defects which the Supplier has maliciously failed to disclose or whose absence he has guaranteed, e. in the event of defects in the delivery item, insofar as liability exists under the German Product Liability Act for injury to persons or damage to privately used property.
In the event of culpable violation of significant contractual obligations, the Supplier shall also be liable in the event of gross negligence of non-senior executives and in the event of slight negligence; in the latter case, liability shall be limited to reasonably foreseeable loss or damage typical of the contract. No further claims will be accepted.
VIII. Statute of limitations
All claims of the Purchaser, whatever the legal grounds involved, shall become statute-barred in 12 months. Claims for damages under Section VII. 2.a – e shall be governed by the statutory deadlines. These shall also apply for defects in a structure or for delivery items which have been used for a structure in accordance with their customary manner of utilisation, and have caused the structure concerned to be defective.
IX. Software utilisation
If the scope of delivery includes software, the Purchaser shall be granted a non-exclusive right to utilise the software delivered, including its documentation. It is handed over for use on the delivery item intended for the purpose. Utilisation of the software on more than one system is prohibited. The Purchaser may duplicate, revise, translate the software, or convert it from the object code into the source code, only to the legally permissible extent (§§ 69 a ff. UrhG – German Copyright Act). The Purchaser undertakes not to remove manufacturer’s particulars (especially copyright details) or to alter them without the Supplier’s prior explicit permission. All other rights to the software and the documentation packages, including the copies, shall remain with the Supplier or with the software vendor. The granting of sublicences shall not be permissible.
X. Applicable law, place of jurisdiction
1. All legal relationships between the Supplier and the Purchaser shall be governed solely by the law of the Federal Republic of Germany which governs legal relationships between German parties.
2. Unless otherwise agreed, the place of performance shall be the Supplier’s plant, and the place of jurisdiction shall be Moers. The Supplier shall, however, be entitled to file a lawsuit at the Purchaser’s place of business.
