Terms and Conditions for Purchasing
1. Validity
1.1 The following terms and conditions of business apply for all our orders and contracts concerning deliveries and services that a contractual partner is to provide to us or for us. They are the sole valid contract conditions and take precedence over other provisions in so far as we have not ourselves specified or confirmed such provisions in writing. The terms and conditions of business of the contractual partner have no validity.
1.2 For work on buildings (construction works in the sense of §1 VOB/A), the General Contractual Conditions for the Execution of Construction Works (Allgemeinen Vertragsbedingungen für die Ausführung von Bauleistungen = VOB/B DIN 1961) apply in so far as these terms and conditions of business do not specify some other provision.
1.3 Otherwise, the legal relationship between us and the contractual partner is subject to the law of the Federal Republic of Germany. The regulations contained in the UN Convention on Contracts for the International Sale of Goods of 11th. April 1980 do not apply unless they correspond to our terms and conditions
2. Order and conclusion of contract
2.1 Our orders or contracts will only be binding on us when we issue them in writing. This applies also to prior agreements made verbally or on the telephone. Supplementary agreements and changes also require the written form.
2.2 The contract is concluded if the contractual partner executes our order or issue of contract in accordance with the terms of the contract and without material deviations, or confirms acceptance in writing, within 14 days of the date of order. Otherwise, we have the right to cancel our order or issue of contract without the contractual partner being able to construe any claim whatsoever against us.
2.3 We reserve the right to correct any mistakes or errors in our orders or issues of contract even after conclusion of the contract. In so far as that may cause substantial changes in performance of the contract to the disadvantage of the contractual partner, that partner has the right to withdraw from the contract, but not if the mistake or error was self-evident for him.
3. Object of the contract
3.1 The content of the contract, in particular the object of the delivery or service obligation of the contractual partner, will be determined by our order or issue of contract. For shipping orders, only the contents of the particular individual order determine our obligation to acceptance.
3.2 Adherence to and compliance with our technical specifications and quality requirements are obligations of our partner. Assurances demanded of the contractual partner in our order or issue of contract are considered to have been accepted by him if he does not notify us in writing of his refusal to give them within 14 days.
3.3 If the contractual partner is to process material or parts that we have had supplied to him, he must, immediately after they have been delivered, inspect the delivery and, if any defects or deviations in quality or quantity are found, notify us of them without delay, and simultaneously notify the supplier on our behalf.
3.4 Material or parts that we have supplied remain our property. They may only be used for the intended purpose in the measure that the processing or assembly are carried out for us and that we thus acquire co-ownership of the products so produced in the ratio of the value of our contribution to the value of the complete product, which is to be kept safe for us by the contractual partner.
3.5 All property rights and rights to exploitation of copyright for technical documents such as drawings, samples, data carriers and other documentation remain ours; they may not be made available to third parties without our consent, and are to be returned to us without delay as soon as the contract has been fulfilled or prematurely terminated.
4. Prices
4.1 The agreed prices (contractual prices) are fixed prices and cover all the services of the contractual partner which are necessary for him to fulfil his delivery and service obligations in accordance with the contract.
4.2 Price increases during the period of validity of a contract are excluded no matter what the reason. Price reductions are to be applied in so far as the agreed contractual prices were dependent on certain raw-material prices and these have fallen before our order has been executed.
4.3 The contractual prices are, unless another agreement has been reached, always free to a particular place of performance specified by us; costs for shipping, delivery, transport insurance, and packing and its disposal are included in them and cannot be invoiced in addition. If the disposal of packaging material cannot be ensured by the contractual partner, we can dispose of it at his cost.
5. Invoicing and payment
5.1 The contractual partner's invoices are to be written and sent to us in duplicate on completion of his delivery or acceptance of his service. In content, they must correspond with our order and contain precise, verifiable data; value-added tax must be shown separately.
5.2 In so far as no other agreement has been reached, payment will be made within 60 days net; on payments made within 14 days, we have the right to deduct 3% discount, and on payments made within 30 days, 2% discount. We may make the payment either by a bank transfer or by sending a cheque at our choice; the risks of transmission of the payment sum are borne by the contractual partner. The time limits for payments and discounts are considered complied with if the bank transfer order or cheque were sent punctually.
5.3 The time limits for payments and discounts start with receipt of the contractual partner's correct invoice, but not before receipt of his delivery or acceptance of his service. If our order is executed as several partial deliveries, then the time limits for payments and discounts for partial invoices sent to us only start with receipt of the last delivery and invoice. If we have the right to delay payment due to defects in the delivery or service, the time limits for discounts also run from the day on which the reason for delaying payment is eliminated.
5.4 We have the right to offset our own counterclaims, even if these are not yet due. From the point of view of justifying a discount, offsetting is the equivalent of making a payment.
5.5 A cession of claims of the contractual partner against us to a third party is only effective with our written approval.
6. Place of performance and acceptance
6.1 The contractual partner has to comply with his duty of performance and delivery obligation at a place specified by us; in so far as our order or issue of contract does not specify anywhere else, the place of performance is our works in Schopfheim. Agreed production samples or test certificates must be presented in Schopfheim in all cases.
6.2 The dispatch of goods to be supplied to the place of performance, transport to that place, and delivery, including proper unloading and the disposal of packaging material, are an obligation of the contractual partner; that also applies to proper loading if, in a special agreement, it is specified that we will collect the goods. In all cases, the risks of loss, degradation, or damage are only transferred to us with acceptance of the goods at the place of performance.
6.3 An easily-recognisable delivery note, which makes reference to our order and enables rapid verification, is to be attached to every delivery; we reserve the right to reject deliveries that do not have a delivery note attached. Partial deliveries and services partially performed must be marked as such and are only permissible with our approval.
6.4 Construction works and services require formal acceptance; a notice of completion or notice of taking into service (§13 No. 5 VOB/B) is not a substitute for formal acceptance. If the contractual partner carries out construction works or services for us, which we are required to provide at a construction site belonging to a third party, the contractual partner can only request acceptance by us when the unequivocal acceptance of the site owner has been obtained.
7. Delivery deadline, delay
7.1Particular delivery or performance deadlines (period for performance) and dates specified in our order are binding for the contractual partner. The periods for performance start from the date of the order. If periods or schedules are specified in weeks or months, then the latest completion date is the last working day of the relevant calendar week or month. When an agreed service or delivery is to be provided "on call", then the last working day of the week following our call is the binding latest completion date.
7.2 The period for performance is complied with when the delivery or completion of service at the place of performance and transfer to us take place before the end of the normal working period on the day of the latest completion date. We are not obliged to accept deliveries or services outside normal working hours; if we do so, the contractual partner has to bear any additional costs we incur. When collection by us has been agreed, we must be notified that the goods are ready for dispatch at least one day before the end of the period.
7.3 If the delivery period is not complied with, without the delay being the responsibility of the contractual partner, then we can extend a period measured in months by one additional month, otherwise by one additional week, and cancel the contract if completion does not take place within that period. That does not apply if the reasons for the delay are our responsibility.
7.4 If the contractual partner is late with delivery, we have the right, without prejudice to further legal claims, and without further evidence to a delay penalty of 1% of the value of the goods to be delivered or services per complete week late, but not more than 10%; the contractual partner is entitled to show that we have suffered less damage or none at all. We have the right to withdraw from the contract without setting a new completion date if, as a result of a delay due to the contractual partner, the delivery or service can no longer be used by us as originally intended.
7.5 In all cases, the contractual partner has the duty to notify us in writing without delay and state the reason for probable failure to comply with a completion date as soon as this is recognisable for him. If this notification is not made, by the completion date at the latest, then the failure to comply becomes the responsibility of the contractual partner. At the same time as the delay notification, the contractual partner should set a new, certain completion date. We are not obliged to agree to the new date, but if we do so, the new date becomes binding. Our further claims arising from the delay remain thereby unaffected.
8. Acceptance and complaint deadlines
8.1 The acceptance of deliveries by us takes place only at the contractual place of performance. This applies also when it has been agreed that we will collect the goods.
8.2 The contractual partner has to transfer the contractual object of delivery to our ownership free of the rights of third parties and of his own reservations.
8.3 If we have complaints about deviations of the delivery from our order or defects, the time limit for us to issue such complaints is 10 working days. If our complaint is made in writing, it will comply with the deadline if it is sent within the time limit.
8.4 For obvious deviations or defects, the time limit for complaints expires the day after we have accepted the delivery. If the delivery is made to a construction site, we have first just to check for deviations in type and quantity, for transport damage or damage to packing and to complain about these problems. If the goods are intended for further processing, installation or similar, and defects will only become evident thereby or after taking into service, and in the case of hidden material defects, the complaint period starts only when the defect is discovered.
8.5 We are not obliged to carry out investigations to determine what is impairing the substance or function of goods supplied, nor to take samples. In the same way, we are not obliged to carry out repeat testing in so far as the contractual partner has to carry out quality and production controls and to present test certificates detailing the results.
9. Warranty
9.1 The contractual partner warrants that the object of his delivery or service is manufactured from flawless material, corresponds to our order and the relevant, available technical data and quality guidelines, generally complies with the recognised state of the art, has the agreed properties, and is entirely suitable for the intended purpose.
9.2 If the delivery or service does not comply with these requirements, then our warranty claims will be determined by the subsequent conditions, for construction works and services, to VOB/B, and generally according to the statutory regulations.
9.3 In the event of defects in construction works or delivered goods, which the contractual partner is to produce for us as a non-fungible (provision of works and material), we can, at our choice, demand remedy or replacement, which the contractual partner shall carry out in each case at the place of performance and at his cost. If the remedy or replacement has not been carried out within a new deadline set by us, or if it was not carried out successfully, we can, at our choice, withdraw from the contract, reduce the contractual price, or demand damages for non-fulfilment; in particularly urgent cases, we have these rights without setting a new deadline.
9.4 For defects in other deliveries, we can, at our choice, demand remedy or replacement, or withdraw from the contract or reduce the contractual price even without setting a new deadline, or, if the defects relate to a guaranteed property, demand damages.
9.5 In urgent cases, we also have the right, at the expense of the contractual partner, to correct the defects ourselves, to have them corrected by a third party, or in some other way to obtain replacement. In particular, a case can be considered urgent if a demanded remedy or replacement has not been made within one week, or if the defect in the object of delivery or service would lead to further damage, such as a loss of production or warranty claims of a third party against us.
9.6 For any remedy, replacement delivery or repurchase, the contractual partner has to compensate us for all incurred costs, including the costs of inspection, and removal and re-installation by us or a third party, and, in so far as further materials are required for replacements, their costs.
9.7 The warranty period for construction works is 5 years; that applies also to other deliveries and services of the contractual partner that are intended for a particular construction project and designated as such in a way that it is recognisable for him (in particular by giving the construction project as the delivery address in our order). Otherwise, our warranty claims do not expire until at least 12 months after acceptance of the delivery or service. If our order is executed as several partial deliveries, then the expiry deadline for the warranty for the entire delivery does not start until the last partial delivery has been accepted.
10. Further liabilities of the contractual partner
10.1 The contractual partner accepts unlimited liability for all damages suffered by us or third parties as a result of a defect for which he is responsible in one of his deliveries or services, or as a result of negligent conduct by him or one of his assistants.
10.2 The contractual partner indemnifies us fully against claims for damages by third parties. This also applies to claims resulting from the infringement of commercial intellectual property rights, copyrights, and other rights of third parties by his deliveries or services and their use by us.
10.3 In so far as we are liable under product liability regulations for damage in connection with delivered goods or services which we have processed or used or sold on, the contractual partner is liable, in proportion, to us alone, unless he can show that the damage was not caused by a fault in his delivery or service.
11. Court of jurisdiction
11.1 For all disputes arising from the contractual relationship or about its existence, legal action is to be taken at the court responsible for Schopfheim, the location of our works.
11.2 We also have the right to pursue a complaint at another place or at the seat of the contractual partner.
Terms and Conditions for Deliveries and Payments
Article I: General Provisions
1. The terms of delivery and payment set forth below shall be an integral part of all offers and contracts with Seller concerning the delivery of goods, even those especially manufactured, for all current or future business relations.
2. Contracts with Seller shall be concluded only under these terms and conditions. Purchasing terms and any other contrary business terms of Purchaser are excluded, also in form of a confirmation to deviating contractual terms. These confirmations and conditions are herewith expressly rejected.
3. Supplier reserves, without any restrictions, all rights of exploitation under his ownership rights and copyrights to cost estimates, drawings and any other documentation. The documents in question may be made accessible to any third party only after having obtained Supplier‘s consent and are to be returned immediately to Supplier at his request if the order is not placed with Supplier.
4. Partial deliveries shall be admissible and are invoiced accordingly.
5. Purchaser shall have the non-exclusive right to use standard software and firmware with the agreed features without any changes on the agreed devices. Purchaser shall be entitled to make a backup copy of the standard software without an explicit agreement being required.
Article II: Conclusion and subject matter of the contract
1. Our offers are subject to confirmation. An order is only considered to be accepted when we have confirmed it in writing; this shall also apply to orders placed with our sales representatives. Solely the text in our order confirmation shall be binding. Purchaser must check the confirmation carefully. Any revisions and subsidiary agreements must be agreed in writing.
2. Our obligation to perform is conditional on adequate protection against the risk of non-payment. As far as this is not covered or is revoked by the credit insurance, we shall be entitled, even after conclusion of the contract, to request advance payment or any other kind of security; otherwise we shall have the right to withdraw from the contract.
3. The subject matter of our delivery obligation shall be defined in the order confirmation. The contractually agreed properties of the items to be delivered shall correspond to our technical terms of delivery unless anything else has been agreed in writing. Any specimens and samples shall provide only an approximate example of quality, dimensions and colour; they shall not constitute any warranted properties.
4. We retain all property and copyright exploitation rights relating to our sales and contract documentation, such as catalogues, lists and drawings, even when we hand them over to Purchaser. The data and information contained therein have been compiled diligently. However, we reserve the right to correct mistakes and errors even after conclusion of the contract; the same shall apply to technical changes as far as they serve technical progress. Should this entail any substantial changes in price or delivery schedule to the disadvantage of Purchaser, the latter shall have the right to withdraw from the contract; this shall not apply if the mistake or error had been evident for him.
5. If e.g. special ceiling parts, special luminaires or special colours have been agreed for order-related products, we shall have the right to over/under deliveries of ±10%, at least however 1 unit, without an explicit further agreement being required.
Article III: Delivery deadlines, default
1. Compliance with delivery deadlines shall require that all documentation to be supplied by Purchaser, all approvals and releases, in particular of plans, are received in due time and that Purchaser complies with the agreed terms of payments and his other obligations. If these conditions are not fulfilled in due time, the deadlines shall be extended accordingly for an adequate period of time. This shall not apply if Supplier is responsible for the delay.
2. If noncompliance with the deadlines is due to
a) Force Majeure, e.g. mobilization, war, acts of terror, riot or similar events [e.g. strike, lockout],
b) virus or other kind of attacks by a third party to Supplier‘s IT system, as far as they occur despite Supplier‘s due diligence with respect to protective measures,
c) obstacles due to German, US American or any other applicable national, EU or international provisions of Foreign Trade Law or due to any other circumstances for which Supplier is not responsible, or
d) the fact that deliveries to Supplier have not been made in time or not in the agreed form,
the deadlines shall be extended accordingly.
3. If Supplier is in default with deliveries, Purchaser – provided that there is sufficient evidence that he has suffered a damage therefrom – may request for each full week of delay damages of 0.5%, but not more than 5% in total, of the price for the part of the delivery which could not be used according to plan as a result of the delay.
4. Claims for damages on the part of Purchaser due to delayed delivery as well as claims for damages in lieu of performance which exceed the limits specified in No. 3 above shall be excluded in all cases of delayed delivery, even after expiry of any additional period granted to Supplier for delivery. This shall not apply in cases of liability for deliberate action, gross negligence or for injury to life, limb or health. Purchaser shall be entitled to withdraw from the contract within the framework of legal provisions only if Supplier is responsible for the delay of delivery. The preceding provision shall not imply any modification of the burden of proof to the disadvantage of Purchaser.
5. At Supplier‘s request, Purchaser shall be obliged to declare, within an appropriate period of time, whether he withdraws from the contract due to the delay in delivery or whether he insists on delivery of the goods.
6. If the contract is a time bargain in the sense of Section 376 of the German Commercial Code [HGB], Purchaser shall grant an additional period for subsequent performance in case of a delivery delay. Only after Supplier has also failed to deliver within this additional period shall Purchaser be entitled to withdraw from the contract in writing, any further rights being excluded.
Article IV: Passing of the risk, packaging
1. We shall fulfil our obligation to deliver generally at our place of production even if freight-free delivery has been agreed. The risk shall pass to Purchaser when the goods have left the factory or the delivery warehouse; this shall apply also to par- tial deliveries. If the delivery is delayed at Purchaser‘s request, the risk shall pass to Purchaser when a ready-for-dispatch note has been issued. The goods as well as any costs for storing the goods, etc. shall be invoiced.
2. We shall select the mode and route of transport, however without guaranteeing that the cheapest dispatch option, full use of the payload or the desired carriage or container sizes will be provided. The dispatch shall be made on behalf of Purchaser, FCA free carrier according to INCOTERM®2010.
3. We shall charge a share of freight and insurance costs [EVA] of 2% of the net value of the goods [abroad TKA 3.5%]. This includes proportionally the costs for freight and packaging of raw materials sent to our factory, the packaging material for dispatch from our factory, a transport insurance for the dispatch of the ordered goods, a disposal contribution according to the packaging regulation, and customs clearance fees where applicable.The transport insurance shall be taken out irrespective of who pays for the freight.
The delivery must always be checked upon receipt and a note of receipt must be signed by the addressee, if necessary with certain restrictions.
Article V: Prices, terms of payment and offsetting
1. Prices are quoted ex factory without packaging and without the applicable VAT.
2. Payments shall be made without any deductions and free of transaction charges to Seller‘s account.
3. Purchaser may offset payments only against such claims that are undisputed or have been found to be final and conclusive by a court order.
Article VI: Retention of title
1. The items delivered [goods subject to retention of title] shall remain the property of Supplier until all and any claims towards Purchaser from the business relationship have been entirely fulfilled. As far as the value of all security rights to which Supplier is entitled exceeds the amount of all claims secured by more than 20%, Supplier, at Purchaser‘s request, shall release a corresponding part of the security rights; Supplier may decide at his own discretion what kind of security rights are to be released.
2. As long as this retention of title exists, Purchaser shall not be allowed to pledge or assign the goods by way of security, and reselling of the goods shall be admissible only for resellers in the ordinary course of business and only conditional on the fact that the reseller receives payment from his customer or makes the transfer of ownership to the customer dependent on the settlement of the payment obligations by the customer.
3. If Purchaser resells the goods subject to retention of title, he already now assigns by way of security to Supplier his future claims from the resale to his customers with any ancillary rights, including any current account balance claims, without the necessity of any further statement with respect thereto. If the goods subject to retention of title are resold together with other objects without an individual price having been agreed for the goods delivered with retention of title, Purchaser assigns to Supplier the part of the total amount of the price which corresponds to the price invoiced by Supplier for the goods subject to retention of title.
4. a) Purchaser shall be entitled to process or to combine or mix the goods subject to retention of title with other objects. The processing is made for Supplier. Purchaser shall preserve the new object resulting from the processing for Supplier with the due diligence of a merchant. In this respect, the new objects shall be considered as goods subject to retention of title.
b) Supplier and Purchaser agree already now that, in case of a combination or mixing with other objects not belong- ing to Supplier, the latter shall be in any case entitled to a co-ownership share in the new object proportionally to the value of the combined or mixed goods subject to retention of title as against the other goods at the moment when the objects were combined or mixed. In this respect, the new objects shall be considered as goods subject to retention of title.
c) The provision concerning the assignment of claims set forth in No. 3 shall also be applicable to the new objects. The assignment shall, however, concern only the amount corresponding to the amount invoiced by Supplier for the value of the processed, combined or mixed goods subject to retention of title.
d) If Purchaser combines the goods subject to retention of title with landed property or movables, he also assigns by way of security to Supplier his claims for a remuneration for the combination with any ancillary rights in the proportion of the value of the combined goods subject to retention of title as against the other combined goods at the moment of the combining, without a separate statement being required to this respect.
5. Until revocation of this authorization, Purchaser shall be entitled to collect the claims from the resale assigned to Supplier. In case of a material reason, in particular in case of delay of payments, stop of payments, opening of insolvency proceeding, protest of a bill or justified indications for indebtedness or threatening insolvency of Purchaser, Supplier shall be entitled to revoke this authorization to collect claims. Furthermore, Supplier may disclose the assignment for security, after he threatened to do so and an appropriate period of time has lapsed; he shall also be entitled to realize the assigned claims and request from Purchaser that the latter should disclose the assignment for security to his customer.
6. In case of seizures, confiscations or any other dispositions or interventions of a third party, Purchaser must inform Supplier immediately. If evidence for a justified interest can be provided, Purchaser shall provide to Supplier all information required for asserting his rights vis-à-vis the customer and to submit all required documents.
7. If Purchaser violates his obligations, in particular if he is in default of payment, Supplier shall be entitled not only to get back the goods but also to withdraw from the contract once an adequate period of time granted to Purchaser for fulfilling his obligations has lapsed without result; the statutory provisions regarding cases where the setting of a deadline is not required shall not be affected hereby. Purchaser shall be obliged to return the goods.Taking back the goods or assert- ing the claims of retention of title or seizing the goods subject to retention of title by Supplier shall not be considered as a withdrawal from the contract unless Supplier explicitly declares his withdrawal.
Article VII: Installation and assembly
Unless agreed otherwise in writing, the following provisions shall apply to installation and assembly.
1. Purchaser shall be responsible to provide at his own costs and in due time:
a) all earthwork, construction work as well as any other ancillary works outside our branch of business, including all skilled and auxiliary labour, materials and tools required for this purpose.
b) commodities and supplies required for the setting up and taking into operation, such as scaffolding, lifting tools as well as any other kind of appliances, fuels and lubricants.
c) electric power and water at the installation site, including connections, heating and illumination.
d) at the installation site, there must be appropriate, dry and lockable rooms of adequate size for storing the machine parts, apparatus, material, tools, etc. as well as adequate work and recreation rooms for the assembly personnel, including suitable sanitary facilities; furthermore, Purchaser must take the same measures to protect the property of Supplier and that of the assembly personnel on the installation site which he would take to protect his own property.
e) protective clothing and equipment which is required due to the particular circumstances at the installation site.
2. Before the installation works are started, Purchaser has to provide the necessary details regarding the location of hidden electricity, gas and water connections or similar systems as well as the required structural information without being requested to do so.
3. Before the installation or assembly work is started, the materials and items required for a start of the works must be available at the installation or assembly site and any preparatory works must have been completed to such an extent that the installation or assembly works can be started as agreed in the contract and without any interruptions.The access routes and the installation or assembly site must be levelled and cleared.
4. If the installation, assembly or taking into operation is delayed due to circumstances for which Supplier is not responsible, Purchaser shall bear the costs for the waiting time and any additional travels of Supplier or the assembly personnel up to a reasonable extent.
5. Purchaser must confirm the duration of the working hours of the assembly personnel on a weekly basis and report the completion of the installation, assembly or taking into operation immediately.
6. If Supplier requests acceptance of the delivery after completion, Purchaser shall carry out the acceptance procedure within two weeks. If Purchaser lets the two-weeks‘ period lapse or if he has started to use the delivery, possibly after the end of an agreed test phase, this shall also be deemed as acceptance of the delivery.
Article VIII: Accepting the delivery
Purchaser shall not be entitled to refuse to accept a delivery because of negligible defects.
Article IX: Material defects
Supplier shall be liable for material defects as set forth below:
1. Any parts or services showing a material defect shall be, at Supplier‘s discretion, repaired, replaced or newly provided free of charge, provided that the defect already existed at the moment of the passing of the risk.
2. Any claims for subsequent performance shall become time-barred after 12 months from the starting date of the statutory period of limitation; the same shall apply to withdrawal and reduction of price. This period of limitation shall not apply as far as longer periods are required by law pursuant to Sect. 438, Para. 1, No. 2 [buildings and objects for buildings], Sect. 479, Para. 1 [recourse claim] and Sect. 634 a, Para. 1, No. 2 [constructional defects] of the German Civil Code [BGB], in case of deliberate action, fraudulent concealment of the defect or noncompliance with a warranted property. The statutory regulations concerning suspension, suspension of expiration and recommencement of the limitation period shall remain unaffected.
3. Purchaser must report any defects in writing without delay.
4. In case of a notice of defects, payments of Purchaser may be retained to such an extent that these retentions are in an adequate proportion to the material defects that have occurred. Purchaser may retain payments only if the complaint about the defect is undoubtedly justified. Purchaser shall not be entitled to retain payments if his claims for defects are time-barred. If the complaint about the defect turns out to be unjustified, Supplier shall be entitled to request from Purchaser reimbursement of the expenses he incurred.
5. Supplier shall be given the opportunity to provide subsequent performance within an adequate period of time.
6. If the subsequent performance fails to produce the desired result, Purchaser – notwithstanding any claims for damages pursuant to No. 10 below – may withdraw from the contract or reduce the payment.
7. Claims for material defects shall not be admissible if there is only a minor deviation from the agreed quality, if the usability is only negligibly impaired, in case of natural wear or damage that is caused after the passing of the risk as a result of incorrect or negligent handling, excessive use, inappropriate operational equipment, defective constructional works, unsuitable construction ground, or that occurs because of special external influences not provided for by the contract as well as in case of software errors that cannot reproduced. Neither shall there be any liability of Supplier for modifications or repairs that have been carried out improperly by Purchaser or a third party nor for any results caused thereby.
8. Any claims of Purchaser regarding the expenses required for the subsequent performance, in particular transport, travel, labour and material costs, shall be excluded as far as the expenses increase due to the fact that the delivered item has been subsequently relocated to another place than the subsidiary of Purchaser unless the relocation complies with the intended use of the item.
9. Recourse claims of Purchaser towards Supplier pursuant to Section 478 of the German Civil Code BGB [businessperson’s right of recourse] shall exist only as far as Purchaser and his customer have not made any agreements beyond the statutory claims for defects. With respect to the scope of the recourse claim of Purchaser towards Supplier pursuant to Section 478, Para. 2 of the German Civil Code, the provision of No. 8 above shall be applicable accordingly.
10. Any claims for damages of Purchaser because a material defect shall be excluded.This shall not apply in case of fraudulent concealment of the defect, noncompliance with a warranted quality, injury to life, limb or health or if Supplier violates his obligations by deliberate action or gross negligence. The preceding provision shall not imply any modification of the burden of proof to the disadvantage of Purchaser. Any further claims or any other claims than those provided for in this Article IX on the part of Purchaser for a material defect shall be excluded.
Article X: Industrial and intellectual property rights; defects in title
1. Unless otherwise agreed, Supplier shall be obliged to provide the delivery free from any industrial and intellectual property rights of a third party [hereinafter referred to as „property rights“] only in the country of the place of delivery. If a third party raises any justified claims towards Purchaser due to a violation of property rights in connection with deliveries provided by Supplier and used in accordance with the contract, Supplier shall be liable vis-à-vis Purchaser within the period of time specified in Art. IX, No. 2 as follows:
a) Supplier, at his discretion and at his costs, shall either obtain a right of use for the delivery concerned, modify the delivery in such a way that the property right is not violated or provide a replacement delivery. If this is not possible for Supplier under reasonable conditions, Purchaser shall be entitled to make use of his statutory rights of withdrawal or reduction of the price.
b) Supplier‘s obligation to pay damages shall be determined on the basis of Art. IX.
c) Supplier‘s obligations as set forth above shall exist only as far as Purchaser immediately informs Supplier in writing about any claims raised by a third party, does not acknowledge any violation and leaves any protective measures and settlement negotiations to the discretion of Supplier. If Purchaser ceases to use the delivery for reasons of minimizing the damage or for any other important reason, he shall be obliged to point out to the third party that the cessation of use is not connected to any acknowledgement of a violation of property rights.
2. Claims of Purchaser shall be excluded as far as he is responsible himself for the violation of property rights.
3. Any claims of Purchaser shall also be excluded as far as the violation of property rights is caused by special directives of Purchaser, a kind of use not foreseeable for Supplier or by the fact that the delivery is modified by Purchaser or is used together with products not delivered by Supplier.
4. In case of a violation of property rights, the provisions set forth in Art. IX, No. 4, 5 and 9 shall apply accordingly to the claims provided for in No. 1 a.
5. In case of any other defects in title, the provisions of Art. IX shall apply accordingly.
6. Any further claims or any other claims than those provided for in this Article X on the part of Purchaser towards Supplier and his authorized agents for a defect in title shall be excluded.
Article XI: Conditions for fulfilment
1. The fulfilment of the contract shall be conditional on the fact that there are no German, US American or any other applicable national, EU or international provisions of Foreign Trade Law or no embargos or any other sanctions opposing such fulfilment.
2. Purchaser shall be obliged to provide all information and documentation that is required for export, transfer or import.
Article XII: Legal venue and applicable law
1. The legal venue for all claims from this contractual relationship, in particular for claims with respect to the purchase price, shall be Schopfheim. However, we reserve the right to take legal action against Purchaser also before a court at his place of business.
2. In general, German law shall be applicable also to export contracts. The provisions of the Convention on Contracts for the International Sale of Goods [CCISG] shall be excluded as far as they do not correspond to the provisions set forth above.
Article XIII: Binding force of the contract
1. If individual provisions of the contract are legally invalid, the binding force of the other provisions shall be maintained.This shall not apply if a continuation of the contract meant an unreasonable hardship for one of the Parties.
Updated 27.09.2012