General terms and conditions

§ 1 General
1) The conditions regarding the scope, manner and timing of delivery and/or service (hereinafter referred to as “Supplies”) are set forth in our written order confirmation issued for each order. General Terms and Conditions of the Purchaser shall apply only if and when expressly accepted by the supplier or the providerof services (hereinafter referred to as “Supplier”) in writing.

2) The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply accordingly to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier may rightfully transfer Supplies. All measurements in Documents with regard to size and weight shall only be estimations unless specifically confirmed in writing by the Supplier.

3) In case of software Supplies, the Purchaser is entitled to use such software with the agreed performance parameters in unchanged form on the agreed computers. The Purchaser is prohibited from installing the software more than one time as well from reproducing or using the software on not agreed computers or hardware systems. The Purchaser may, however, produce one copy for backup reasons. 

4) Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.

 

 

1) If not set forth differently in the Supplier’s order confirmation, all contracts shall be subject to the Supplier’s applicable sales prices as per order confirmation date.

2) All prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate. Supplies below a value of €100 shall be charged at an extra €20,00 minimum charge. 

3) All payments shall be made within 30 days as from invoice date without deductions and notwithstanding the receipt of Supplies. Should the payment
not be made within the above 30 day period the Purchaser shall automatically be deemed to have defaulted on the payment without further notice. As from this time the Purchaser shall be obliged to pay interest at the legally applicable rate. The Supplier may claim higher default damages. All payments shall be made to the Supplier’s paying office free of charges.

4) In cases of default of payment and/or reasonable doubts regarding the solvency or creditability of the Purchaser, the Supplier shall be entitled - regardless of its other rights - to fulfil outstanding Supplies only against an advance payment or other forms of security to be supplied by the Purchaser and to immediately fix a due date for all claims. In this case the Supplier, until furnish of advance payment or posting of a security by the Purchaser, shall be released from carrying out any further Supplies as well as other contractual duties, if applicable.

5) The retention of payments by the Purchaser due to counterclaims or alleged product failures shall only be permissible if the counterclaims are undisputed or has become res judicata.

§ 3 Retention of title
1) Items pertaining to the Supplies (“Retained Goods”) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.

2) If the Purchaser does not fulfil its payment obligations or if the Purchaser violates other contractual obligations, the Supplier shall be entitled to reclaim delivered goods. The Purchaser shall be obliged to return such goods. The enforcement of title retention as well as levying or reclaiming goods delivered by the Supplier shall not be deemed as a withdrawal from the contract unless specifically stated by the Supplier. In cases of levying or other comparable action by third parties the Purchaser must immediately inform the Supplier in writing so that a claim according to section 771 German Code of Civil Procedure (ZPO) may be filed. The Purchaser shall acts as a surety should the levying third party not be able to reimburse the Supplier for its expenses under section 771 ZPO.

3) For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security. The Purchaser may only sell the Retained Goods in the ordinary course of business against payment or reservation of ownership. The Purchaser hereby already assigns to the Supplier all claims arising from the sale of the goods to customers or other third parties. Above sentence shall apply notwithstanding if the goods sold have been sold prior or after processing the goods . Notwithstanding the foregoing the Purchaser shall have authority to collect the assigned claims. This shall leave unaffected the Supplier’s authority to collect the assigned claims itself; the Supplier shall, however, be obliged to collect the claims only if the Purchaser has violated its payment duties and is in default. In such case the Purchaser shall inform the Supplier regarding the assigned claims and the debtor, to provide all information necessary for collecting the assigned claims and to duly inform the debtor (third party) about the assignment.

4) All processing and reconstruction done by the Purchaser for goods being supplied shall be made on the Supplier’s account. Should the goods being supplied be combined with other goods that do not belong to the Supplier, the Supplier shall acquire a joint ownership in the new goods commensurate to the value of the goods being supplied in comparison to the other goods at the time of combination. The stipulations on Retained Goods shall accordingly apply to combined goods. Should the combination of goods occur in a way that the Purchaser’s goods appear to be the main good, the Purchaser hereby conveys to the Supplier a joint ownership on the main good. The Purchaser shall safeguard the sole ownership or the joint ownership on behalf of the Supplier.

5) The Purchaser hereby conveys to the Supplier for security reasons the claims resulting from combining the goods being supplied with real estate.
6.) Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods. 

§ 4 Assembly and erection
1) If the Supplier is also responsible for assembly or erection and unless otherwise  agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e.g. travel costs, costs for the transport of tools and equipment, and personal luggage as well as allowances.
Unless otherwise agreed in writing, assembly/erection shall be subject to the following provisions:

2) The Purchaser shall provide at its own expense and in good time: 

 

a) all earth and construction work and other ancillary work outside the scope of the Supplier, including the necessary skilled and unskilled labour, construction materials and tools,
b) the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants, 
c) energy and water at the point of use including connections, heating and ligh ting,
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances. Furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of erection personnel at the site,
e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site.

3) Before the erection works starts, the Purchaser shall make available of its own accord any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.

4) Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on site of assembly/erection and any preparatory work must have advanced to such a degree that assembly/erection can be started as agreed and carried out without interruption. Access roads and the assembly/erection site itself must be level and clear.

5) If assembly, erection or commissioning is delayed due to circumstances forwhich the Supplier is not responsible, the Purchaser shall bear the reasonablecosts incurred for idle times and any additional travelling of the Supplier or theerection personnel.

6) The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in writing if assembly, erection or commissioning has been completed.

7) If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the Supplies are put to use, after completion of an agreed test phase, if any.

§ 5 Transfer of risk
1) Even where delivery has been agreed freight free, the risk shall pass to the Purchaser at the time when the Supplies are shipped or picked up by the carrier. Upon request of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport at the expense of the Purchaser.

2) If the Supplies include assembly or erection the risk shall pass to the Purchaser at the day of taking over the works on site of the Supplier or, if so agreed, after a fault-free trail run on site of the Supplier. 

3) The risk shall pass to the Purchaser if dispatch, shipping, the start or performance of assembly or erection, the taking over the works or the trail run is
delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies. 

4) Should the Supplies be taken back by the Supplier for any reason being not responsible for, the risk of accidental damage or loss remains with the Purchaser until receipt of the Supplies by the Supplier. The costs involved with the return of Supplies shall be borne by the Purchaser.

 

§ 6 Time for supplies; delay; impossibility of performance
1) Times set for Supplies can only be observed if all Documents to be supplied by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.

2) Supplies and, if applicable, assembly or erection shall take place at the dates specified in the order confirmation and, if necessary after technical review. All times set are subject to reservation and refer to delivery ex works. Should times set be agreed on it shall be prolonged if the delivery is delayed for reasons beyond the Supplier’s control. The foregoing does specifically apply to any delay of Supplies from Pre-Supplier’s. If non-observance of the times set is due to force majeure such as mobilisation, war, rebellion or similar events, e.g. strike or lokkout, such times set shall be extended accordingly. Any agreed time set commences upon receipt of the order confirmation by the Purchaser, at the earliest.

3) If the Supplier is responsible for the delay of the Supplies or in case the Supplies are impossible to execute due to reasons the Supplier is responsible for, the Purchaser may, after granting a reasonable additional time to cure, withdraw from the contract. At the Supplier’s request the Purchaser shall declare within a reasonable period of time whether the Purchaser withdraw from the contract due to delayed Supplies or insists on the Supplies to be carried out. Other Purchaser’s claims (for damages due to delayed Supplies as well as claims for damages in lieu of performance) shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health. 

 

4) Should the Supplies or, if agreed on in the contract, the assembly or erection be delayed due to reasons for which the Purchaser is responsible for, the Purchaser shall be under the obligation to reimburse the Supplier for all cost incurred in connection with reasonable waiting periods and travel expenses of the Supplier or the erection personnel. If dispatch or shipment is delayed at the Purchaser’s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5%. The parties of the contract may prove that higher or, as the case may be, lower storage costs have been incurred. 

5) The Purchaser shall not refuse to receive Supplies due to minor defects.

6) If the Purchaser partially, or at a whole, refuse to accept Supplies due to reasons under its control or should the Supplies not occur due to reasons the Purchaser is responsible for, the Supplier is entitled to withdraw from the contract and claim damages. The Supplier may claim damages in the amount of 20% of the order value or its respective part. The parties of the contract may prove that higher or, as the case may be, lower damage costs have been incurred.

§ 7 Returns
1) The return of Supplies will only be accepted in case of warranty and with the prior consent of the Supplier. The taking back of Supplies require as well that the goods are originally packaged. All returns made by the Purchaser shall be marked with a return identification number issued by the Supplier. Credits may only be granted up to a maximum of 80% of the applicable prices.

2) Supplies which are manufactured with specific deviations from standard goods shall be deemed to be individually manufactured.

3) Individually manufactured goods, painted, anodised and engraved goods as well as goods that may not be reused cannot be returned.

§ 8 Defects as to quality and liability
The Supplier shall be liable for defects (Sachmängel, hereinafter referred to as “Defects”) as follows:

1) All parts or services where a Defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the Defect had already existed at the time when the risk passed.

2) Claims based on Defects are subject to a limitation period of twelve months as from the time when the risk passed. This provision shall not apply where longer periods are described by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse) and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code (“BGB”), as well as in cases of injury of life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect.
The legal provisions regarding suspension of expiration (“Ablaufhemmung”), suspension (“Hemmung”) and recommencement of limitation periods remain unaffected. 

3) The Purchaser shall notify Defects to the Supplier in writing and without undue delay. The Supplier shall first be given the opportunity to supplement its performance (“Nacherfüllung”) within a reasonable period of time. If supplementary performance is unsuccessful, the Purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. 9 (Other claims for damages).
In case of notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defects occurred. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect occurred is justified beyond doubt. Unjustified notifications of Defect shall entitle the Supplier to have its expenses reimbursed by the Purchaser. 

 

4) There shall be no claims based on Defects in cases of insignificant deviations  from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded. 

5) The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subjectmatter of the Supplies was subsequently brought to another location than the Purchaser’s branch office, unless doing so complies with the intended use of the Supplies. 

6) The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover No. 5 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB. 

7) Furthermore, the provisions of Art. 9 (Other claims for damages) shall apply in respect of claims for damages. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. 8, based on Defect, shall be excluded.

 

8) Art. 8 shall apply mutatis mutandis to defects in rights. 

§ 9 Other claims for damages
1) Any claims for damages and reimbursement of expenses the Purchaser may  have (hereinafter referred to as “Claims for Damages”), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded. The above shall not apply in the case of manda tory liability, e.g. under the German Product Liability Act (“Produkthaftungsgesetz”), in case of intent, gross negligence, injury of life, body or health, or breach if a condition which goes to the root of the contract (“wesentliche Vertragspflichten”). However, Claims for Damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser. 

 

2) To the extent that the Purchaser has a valid Claim for Damages according to No. 1 of this Art., it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. 8 No. 2. In case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply. 

 

§ 10 Value added tax
The aforementioned payment stipulations are excluding Value added tax (VAT);  VAT will be added pursuant to the applicable statutory provisions.

 

§ 11 Written form
Modifications or supplements to this contract must be made in writing. Oral agreement must be confirmed in writing by the Supplier.

 

§ 12 Place of venue, transfer and applicable law
1) Should the conditions precedent for an agreement on the place of venue according to section 38 ZPO be present the place of venue for all existing and future disputes, including, but not limited to, claims with regard to negotiable documents, shall be Münster (Westphalia). The forgoing shall apply accordingly should the Purchaser have no general place of venue in Germany or, after conclusion of the contract, transfers its residence or its ordinary place of domicile outside of Germany or if the ordinary place of domicile is not known at the time of filing suit. The Supplier may also file a suit at the Purchaser’s place of venue.

2) The Purchaser hereby agrees that instead of the Supplier another company may act on the Supplier’s behalf.

3) Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG).

§ 13 Severability clause
Should individual provisions of these Terms and Conditions be or become partially or entirely invalid or impracticable, the effectiveness of the remaining provision parts and/or entire provisions shall not be affected thereby.