- All products and services supplied by Vendor shall be governed by the present Terms of Delivery as well as any specific contractual agreement that is concluded. The integration of any terms and conditions of any Purchaser into any contract that differ from the present Terms of Delivery shall be excluded, including on acceptance of an order by Vendor. Unless otherwise agreed, any contract between Vendor and Purchaser shall become effective on receipt by the Purchaser of a written order confirmation from Vendor.
- Vendor shall retain intellectual and industrial property rights to all samples, quotes, drawings, and any other physical or non-physical information of any kind, including electronic information. No such information may be disclosed and/or made available to any third party. Vendor shall be prohibited from disclosing any Purchaser information and/or documentation to any third party without Purchaser's authorization, insofar as Purchaser expressly indicates that such information or documentation is confidential.
II. Prices and payment
- Insofar as not otherwise agreed, the prices indicated shall be ex works including loading at the factory, exclusive of packaging and unloading. All prices shall be subject to sales tax (VAT).
- Insofar as not otherwise agreed, payment shall be transferred to Vendor's account, as follows:
1/3 advance payment following receipt of the order confirmation
1/3 immediately upon Purchaser's receipt of notification that the consignment concerned is ready for delivery
The remaining amount shall be payable within one month of the passage of risk.
- Purchaser shall only be entitled to withhold payments or offset them against counterclaims insofar as such counterclaim is uncontested or legally enforceable.
III. Delivery period; delivery delays
- The delivery period shall be that specified in the Agreement between the parties. Vendor shall adhere to the delivery period insofar as all commercial and technical issues have been resolved between the contractual partners and insofar as Purchaser has met all obligations accruing to him such as furnishing required official certifications and authorizations and effecting advance payments. Where this is not the case, the delivery period shall be extended by a reasonable amount of time. The aforestated shall not apply insofar as any delay in delivery is attributable to Vendor.
- Compliance with delivery dates shall be subject to timely availability of the relevant materials.
- The delivery date shall be deemed to have been adhered to insofar as the goods are dispatched from Vendor's production facility by the delivery date, or where Vendor has notified Purchaser that the goods are ready to be shipped. Where acceptance of delivery is required, either the acceptance date (insofar as acceptance has not been declined for reasonable cause) or the date of the notification of readiness to accept delivery shall apply.
- Insofar as the delivery and/or acceptance of any consignment is delayed for reasons attributable to Purchaser, as from one month following issuance of the notification of readiness to ship/readiness to accept delivery, Purchaser shall be charged a minimum of 1% per month of the relevant invoice amount for any cost resulting from storage at Vendor's factory. Where a reasonable deadline for acceptance of delivery has been set without being met, Vendor shall be entitled to dispose of the contractual deliverables by other means and to supply Purchaser within a reasonable extended period.
- Insofar as any default on any delivery date is attributable to force majeure, labor strikes or any other event that is beyond Vendor's control, the delivery date shall be extended to a reasonable extent. Vendor shall notify Purchaser of the beginning and end of any such event.
- Purchaser shall be entitled to terminate the contract without notice insofar as performance of the agreement as a whole becomes definitively unfeasible prior to the passage of risk. Purchaser shall also be entitled to terminate the contract insofar as the fulfillment of any part of an order becomes unfeasible and Purchaser has reasonable cause to refuse partial fulfillment of such order. Where this is not the case, Purchaser shall pay the contractually agreed price accruing to partial performance of the order. The aforestated also applies where Vendor is unable to perform the agreement. Section VII(2) shall also apply in this regard. Where, during a period of delay in acceptance of delivery, the contract cannot be performed, or where Purchaser is solely or largely responsible for the occurrence of such circumstances, his duty of counterperformance shall remain enforceable.
- Insofar as Purchaser sustains any loss or injury as the result of any Vendor default on any delivery date results, Purchaser shall be entitled to require that Vendor indemnify Purchaser for said loss or injury. Said indemnification shall amount to, for each full week of default, 0.5% of the value of the element of the consignment that Purchaser was unable to use in good time or in the contractually specified manner owing to said default, subject to an aggregate maximum of 5% of said value. Insofar as, following such default, Purchaser grants Vendor a reasonable cure period (insofar as allowed by law) that Vendor fails to comply with, Purchaser shall be entitled to terminate the contract, insofar as allowed by law. Any further claims arising from any default on any delivery date shall be governed exclusively by the provisions of section VII(2) hereof.
IV. Passage of risk; formal acceptance of delivery
- Risk shall pass to Purchaser on dispatch of the consignment from the factory, including in the event of any partial delivery or if Vendor has assumed any additional costs such as shipping costs, or if Vendor has agreed to provide any additional products or services. Where acceptance of delivery is required, risk shall be deemed to have been transferred upon such acceptance. The consignment shall be accepted on the acceptance date or following notification from Vendor of readiness to accept delivery. Any refusal of delivery by Purchaser on the grounds of a minor defect shall be excluded.
- Insofar as any delivery or acceptance thereof is delayed or unfeasible for reasons that are not attributable to Vendor, risk shall pass to Purchaser on the date of notification of readiness to dispatch/accept delivery. Vendor shall, at Purchaser's expense, obtain insurance insofar as so requested by Purchaser.
- Partial deliveries shall be allowable insofar as they are reasonable for Purchaser.
V. Retention of title
- All goods shall remain Vendor's property until such time as all payments arising from the supply contract have been received.
- Vendor shall be entitled to ensure the deliverables, at Purchaser's cost, against theft, fracture, fire, water damage and any other loss or damage, insofar as Purchaser has not obtained such insurance and provided proof thereof.
- Any sale/pledging of the deliverables or use of the deliverables as security by Purchaser shall be subject to Vendor's prior written authorization. Purchaser shall inform Vendor promptly in the event any deliverables are seized, attached or otherwise disposed of by a third party.
- Any contractual breach by Purchaser, particularly any late payment, shall entitle Vendor to take back the deliverables concerned, subject to prior issuance of a warning. In such a case, Purchaser shall surrender the deliverables to Vendor. Any assertion of the right to retain title and/or any pledging of the contractual deliverables by Vendor shall not constitute termination of the contract.
- Insofar as Purchaser duly resells the contractual deliverables, Purchaser hereby assigns the final invoiced amount (including sales tax (VAT)) arising from the sale of such receivables to any party whatsoever, irrespective of whether the deliverables are resold under the terms of a contract. Purchaser shall also be entitled to collect such receivables following said assignment, without prejudice to Vendor's right to collect such receivables. However, Vendor shall refrain from any such collection insofar as Purchaser (a) has met Purchaser's payment obligations in respect to the proceeds of such resale; (b) is not in arrears on any payment due; and in particular (c) has not filed for bankruptcy and has not suspended payments. If the Purchaser suspends payments, Vendor shall be entitled to require Purchaser to (a) report the assigned receivables to Vendor and Vendor's debtors; (b) provide all information that is needed for collection of such receivables; and (c) notify any relevant third party debtors of such assignment.
- Any Purchaser modification or processing of any deliverable shall be realized solely on Vendor' behalf. If any deliverable is modified or processed in conjunction with any product that does not originate from Vendor, Vendor shall acquire partial title to the resulting product in proportion to the ratio, at the time such modification/processing is performed, between the value of the deliverables as a whole and the deliverables that were modified/processed. The terms and conditions of this paragraph 6 shall likewise apply to any deliverable that is accepted with reservations.
- If any deliverable is combined non-separably with any non-Vendor item, Vendor shall acquire partial title to the resulting product in proportion to the ratio, at the time such combining was realized, between the value of the deliverables as a whole and the items that were combined. If said combining is realized in such a way that Purchaser's elements can be justifiably regarded as the principal elements, Purchaser shall assign shared title to Vendor proportionately. Purchaser shall act as custodian for Vendor for the shared or sole title thus engendered.
- Purchaser shall assign to Vendor any receivable in respect to any guarantee for Vendor's receivables, insofar as such receivable arises from any linkage of said deliverable with any real estate for a third party beneficiary.
- Vendor shall release any guarantee accruing to Vendor at Purchaser's request insofar as the value of such guarantee exceeds the value of the guaranteed receivables by more than 20%. The decision as to which guarantee is to be released shall be made by Vendor alone.
- Vendor shall be entitled to terminate the contract and require that Purchaser return all deliverables promptly insofar as Purchaser files for bankruptcy.
Vendor shall be liable for quality defects and deficiencies in title (hereinafter: "Defects" or "Defect") in regard to goods supplied as follows, to the exclusion of any further claim and subject to the provisions of section VII:
Defects in new deliverables:
- Any new element in which a Defect is detected within 12 months shall be either repaired or replaced, in Vendor's discretion, insofar as such Defect existed prior to the passage of risk. Vendor shall be notified promptly in writing of the detection of any such Defect. Any replaced parts shall become Vendor's property.
- By mutual agreement with Vendor, Purchaser shall afford Vendor the requisite time and opportunity to realize all repairs and/or replacement deliveries that are deemed necessary. Insofar as Purchaser fails to afford Vendor such time and opportunity, Vendor shall be held harmless against any loss or injury resulting from or in connection with such failure. Purchaser shall be entitled to rectify defects himself or have such defects rectified by a third party and to request reimbursement of any costs incurred therefrom only insofar as such rectification is urgently needed in order to avoid substantial loss or injury and any reduction in operational safety.
- Insofar as any Purchaser complaint requiring any repair/replacement turns out to be justified, Vendor shall assume the cost and expense of said repair/replacement, including shipping costs and any reasonable mounting and dismantling costs, as well as any reasonable labor costs (according to the circumstances of the individual case) incurred by Vendor for any necessary work performed by any Vendor employee and/or fitter.
- Purchaser shall be entitled to terminate the contract (within the limits prescribed by law) insofar as Vendor defaults on any reasonable cure period set by Purchaser for replacement or repair. Where the Defect is immaterial, Purchaser shall only be entitled to a reduction in the contractual price. Any other right to a reduction in the contractual price shall be excluded.
- The product warranty shall be voided in the presence of any of the following factors or events, insofar as such factors or events are not attributable to Vendor: unsuitable or improper use; improper mounting and/or commissioning by Purchaser or any third party; normal wear and tear; improper or negligent handling; improper maintenance; the user of improper operating materials; defective construction work; inadequate subsoil; chemical, electrochemical or electrical factors.
- Insofar as Purchaser or any third party repairs any Defect improperly, or if any deliverable is modified without Vendor's prior authorization, Vendor shall not be responsible for the consequences of such improper repair or modification.
Terms and conditions governing used deliverables:
- Contrary to the provisions of section VI(1-6), any warranty for any Defect in any used deliverable shall be excluded, except in the event of any willfully concealed Defect or any breach of a warranty. The foregoing shall be without prejudice to any other Purchaser contractual rights in respect to used deliverables.
Deficiency in title:
- Where use of a contractual deliverable results in any breach of third party industrial property rights or copyright enforceable in Germany, Vendor shall, at his expense, obtain for Purchaser the right to continued use of such deliverable or shall modify it in a manner acceptable to Purchaser such that the breach of industrial property rights is eliminated. Where the aforestated cannot be carried out at reasonable expense or within a reasonable period, either party shall be entitled to terminate the contract. In addition, Vendor shall hold Purchaser harmless against undisputed or legally enforceable claims lodged by the owners of such property rights.
The Vendor duties referred to in section VI(8) shall also apply to any breach of intellectual property rights or copyright, subject to the provisions of section VII(2), and shall only be enforceable insofar as
- purchaser immediately notifies Vendor of any asserted breach of industrial property rights or copyright;
- purchaser provides Vendor with adequate support to defend himself against any asserted claims and/or enables Vendor to perform modifications as provided in section VI(8)
- vendor retains the right to take all measures in his own defense including out of court settlements;
- the deficiency in title is not attributable to any instruction issued by Purchaser;
- the infringement of rights is not attributable to Purchaser having modified any deliverable without authorization or having used it in a non-contractual manner.
- Where, through any culpable act on the part of Vendor, Purchaser is unable to use a deliverable as stipulated in the contract due to (1) any omission or error in implementing any suggestion or advice that was provided prior to or following conclusion of the contract; or (2) any breach of any contractual obligation such as the obligation to provide operating and maintenance instructions for a deliverable, the provisions of sections VI and VII(2) hereof shall apply and all other Purchaser claims shall be excluded.
- Insofar as any loss or injury incurred is not directly attributable to a deliverable, Vendor's liability, regardless of its cause in law, shall be limited to that occasioned by the following:
- willful misconduct
- gross negligence on the part of any Vendor owner, organ, manager and/or executive
- any culpable injury or danger to life, limb or health
- any willfully concealed Defect, or any Defect whose absence was guaranteed by Vendor
- any Defect in any deliverables, insofar as, under product liability law, Vendor is liable for property damage or personal injury resulting from such Defect
In connection with any wrongful breach of any material contractual duty, Vendor shall also be liable for any gross negligence and/or minor negligence on the part of any non-managerial employee. In the case of minor negligence, Vendor's liability shall be limited to any loss or injury that was foreseeable for and is characteristic of the contractual obligations concerned.
The lodging of any other claim shall be excluded.
VII. Statutory limitations
Any Purchaser claim, irrespective of the legal grounds therefore, shall become statute-barred 12 months after being lodged. The statute-barred periods prescribed by law shall apply to the following: any fraud or willful misconduct; any liability claim under product liability law; any Defect in any construction or deliverable that is used in a standard manner for any construction and that gives rise to any liability for Defects.
VIII. Applicable law; place of jurisdiction
- All legal relationships between Vendor and Purchaser shall be governed solely by the laws of Germany that apply to the legal relationships between domestic parties.
- Insofar as Purchaser has the status of a Vollkaufmann (businessman) in Germany or is a legal person or Öffentlich-rechtliches Sondervermögen (special fund) under public law, the place of jurisdiction for any dispute arising from the contract shall be the court with jurisdiction over Vendor's head office or the Vendor affiliate that realized the delivery concerned. Vendor shall also be entitled to take legal action at the location of Purchaser's head office