General delivery conditions for use in business transactions with entrepreneurs
I. General Conditions 1. The two-page written declarations are decisive for the scope of the deliveries and services (called "deliveries" in the following). The general business conditions of the customer, however, only apply to the extent that the Supplier or service provider (called "Supplier" in the following) has expressly agreed to them in writing. 2. The Supplier reserves his ownership-law and copyright-law exploitation rights to quotations, drawings and other documents (called "documents" in the following) without restriction. The documents may only be made accessible to third parties after the prior agreement of the Supplier and are to be returned to the Supplier without delay if the order is not made to the Supplier. Clauses 1 and 2 apply accordingly to documents of the Customer, but these may be made available to third parties to which the Supplier has permissibly transferred deliveries. 3.The Customer does not have exclusive right of use to standard software with the agreed performance characteristics in unchanged form upon the agreed devices. The Customer may produce a backup copy without express agreement. 4. Partial deliveries are permissible insofar as they are reasonable for the Customer.
II. Prices and Terms of Payment 1. The prices are ex-works excluding packing plus the respectively applicable legal VAT. 2. If the Supplier has taken over the setting-up or installation and if nothing to the contrary is agreed, then the Customer is to pay for all necessary additional costs, such as travelling costs, costs for transportation of the tools and of personal luggage, and daily allowance, in addition to the agreed remuneration. 3. Payments are to be made free of transaction charges to the Supplier's designated account. 4. The Customer can only offset payment claims against the Supplier that are undisputed or legally established.
III. Reservation of title 1. The objects of the deliveries (goods subject to retention of title) remain the property of the Supplier until the fulfilment of all claims against the Customer to which he is entitled due to the business relationship. Insofar as the value of all security interests to which the Supplier is entitled exceed the extent of all secured claims by more than 20%, a corresponding part of the security interests is released to the Supplier at the request of the Customer. 2. While the reservation of title exists, the Customer is forbidden to pledge the goods in question as collateral or impose a securing condition, and is only entitled to sell on to re-sellers in the normal course of business and only on the condition that the reseller receives payment from his customers or imposes the condition that ownership only passes to the Customer if he has fulfilled his payment obligations. 3. In cases of seizure, confiscation or other dispositions or interventions by third parties, the Customer is to inform the Supplier immediately. 4. If the Customer violates his obligations, especially in the case of delay in payment, the Supplier is entitled, after the fruitless elapsing of an appropriate respite period set for the Customer, to withdraw from the contract; the legal conditions concerning the dispensability of the setting of a respite period remain unaffected. The Customer is obliged to surrender the goods in question.
IV. Delivery Periods; Delay 1. Adherence to delivery periods requires as a condition the prompt receipt of all documents to be provided by the Customer, necessary permits and releases, especially of plans, and adherence to the agreed terms of payment and other obligations by the Customer. If these requirements are not promptly fulfilled, then the deadlines are extended as appropriate, but this does not apply if the delay is the fault of the Supplier. 2. If non-adherence to the deadlines is due to force majeure, e.g. mobilisation, war, unrest, or similar events, e.g. strike, lock-out, the periods are extended as appropriate. 3. If the Supplier falls behind, the Customer - insofar as he makes it credible that a loss has occurred to him because of this - can demand compensation of 0.5% for every full week of the delay, to a maximum of 5% of the price of the part of the deliveries that could not be put into proper operation because of the delay. 4. Compensation claims by the Customer due to delay in delivery as well as claims for compensation, in addition to insurance benefits, that exceed the limits named in No. 3 are ruled out in all cases of delayed delivery, even after the elapsing of any time-limit for delivery set for the Supplier. This does not apply if there is compelling liability in cases of intent, gross negligence or loss of life, physical injury or damage to health. In the framework of the legal regulations, the Customer can only withdraw from the contract if the delay in the delivery is the fault of the Supplier. The above conditions do not cause an alteration in the burden of proof to the disadvantage of the Customer. 5. The Customer is obliged to declare, upon the Supplier's request within an appropriate period of time, whether he is withdrawing from the contract because of the delay in the delivery or is insisting upon the delivery. 6. If the sending or delivery are delayed at the request of the Customer by more than a month after the stating of readiness for shipment, the Customer can be charged a warehouse fee for every month started of 0.5% of the price of the objects of the deliveries, to a total maximum of 5%. The parties to the contract are free to prove higher or lower warehouse costs.
V. Passing of Risk 1. Even with freight-free delivery, the risk passes to the Customer as follows: a) In the case of deliveries without setting-up or installation, when they are brought to the forwarders or are collected. Upon the request and at the expense of the Customer, deliveries are insured by the Supplier against the usual transport risks; b) In the case of deliveries with setting-up or installation, on the day of acceptance at the Customer's site or, if this is agreed, after perfect trial operation. 2. If the delivery, start, carrying-out of setting-up or installation, acceptance at the Customer's site or trial operation is delayed for reasons that are the fault of the Customer or the Customer falls behind with acceptance for other reasons then the risk passes to the Customer.
VI. Setting-Up and Installation The following conditions apply to setting-up and installation, insofar as nothing to the contrary is agreed in writing: 1. The Customer is to perform and provide the following at his own expense: a) all earthworks, building work and other additional work outside the industry of the Supplier, including the necessary skilled and auxiliary personnel, building materials and tools, b) the objects and materials required for installation and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants, c) electricity and water at the place of use including the connections, heating and lighting, d) at the place of installation for the safekeeping of the machine parts, equipment, materials, tools etc.. Sufficiently large, suitable, dry and lockable rooms and appropriate working and accommodation rooms for the installation personnel including sanitary facilities appropriate to the circumstances; furthermore, the Customer is to take measures at the construction site for the protection of the property of the Supplier and installation personnel that he would take for the protection of his own property, e) Safety clothing and safety arrangements and equipment that are necessary due to special circumstances at the construction site. 2. Before the start of the installation work, the Customer is to make available the necessary information about the location of hidden electricity, gas and water lines or similar features and the necessary statistical data, without having to be requested to do so. 3. Before the start of the setting-up or installation, the supplies and objects necessary for starting work must be at the place at which setting-up or installation is to be carried out, and all preparatory work must have progressed sufficiently far before the start of setting-up that the setting-up or installation can be started as agreed and carried out without interruption. Access routes and the place of setting-up or installation must be made level and cleaned. 4. If the setting-up, installation or commissioning are delayed by circumstances that are not the fault of the Supplier, then the Customer is - to an appropriate extent - to bear the costs for waiting time and additional necessary travel by the Supplier or the installation personnel. 5. Every week, the Customer is to certify to the Supplier the duration of the working hours of the installation personnel and the ending of the setting-up, installation or commissioning, without delay. 6. If the Supplier demands acceptance of the delivery after completion, then the Customer is to carry this out within two weeks. If this does not take place, the acceptance counts as having occurred. Acceptance also counts as having occurred if the delivery - if applicable, after the completion of an agreed test phase - has been put into use.
VII. Acceptance The Customer may not refuse to accept the deliveries because of insignificant deficiencies.
VIII. Material Defects The Supplier is liable for material defects as follows: 1. All those parts or services which show a material defect within the period of limitation - regardless of the period of time for which they have been in use - are to be repaired, delivered anew or rendered anew as the Supplier chooses, free of charge, insofar as the cause of these material defects already existed at the point in time of the passing of risk. 2. Claims based on material defects become time-barred in 12 months. This does not apply if the law stipulates longer periods, in accordance with §§ 438 Para. 1 No. 2 (construction sites and items for construction sites), 479 Para. 1 (right of recourse) and 634a Para. 1 No. 2 (deficiencies in construction) BGB [German Civil Code], or in cases of loss of life, physical injury or damage to health, in cases where there is deliberate or grossly negligent violation of the duties of the Supplier and where the Supplier wilfully fails to inform the Customer about a deficiency. The legal regulations about suspension or interruption of the statute of limitations and restarting of the time limits remain unaffected. 3. The Customer is to notify the Supplier of material defects without delay, in writing. 4. In the case of notices of defects, payments by the Customer can be held back to an extent that is appropriately in proportion with the material defect that has occurred. The Customer can only hold back payments if a notice of defect is asserted concerning which there can be no doubt. If the notice of defect was unjustified, the Supplier is entitled to demand compensation from the Customer for the expenses that have arisen for him. 5. First, the Supplier is to be given a further opportunity to fulfil the order, within a reasonable time limit. 6. If the further attempt fails, the Customer can withdraw from the contract or reduce the remuneration according to Art. XI - without prejudice to any damages claims. 7. Defects claims do not exist where there is only insignificant deviation from the agreed nature of the delivery, only insignificant impairment of usability, natural wear or losses that occur after the passing of risk due to incorrect or negligent treatment, excessive strain, unsuitable operating materials, deficient constructional work, unsuitable floor/ground, or which arise due to special outside influences that are not assumed by the contract, and in the case of non-reproducible software faults. If incorrect alterations or maintenance work are carried out by the Customer or by third parties, then no defect claims exist for these or for any consequences arising from them. 8. Claims of the Customer based on costs necessary for later fulfilment of the contract, especially transport, travel, labour and material costs, are ruled out to the extent that the costs increase because the object of the delivery has been brought to a place other than the branch of the Customer, unless the bringing to that place corresponds to its intended use. 9. Recourse actions of the Customer against the Supplier in accordance with § 478 BGB (recourse of the entrepreneur) only exist insofar as the Customer has not made any agreements with his buyer that go beyond legal defect claims. For the scope of the right to recourse of the Customer against the Suppliers in accordance with § 478 para. 2 BGB, No. 8 also applies as appropriate. 10. For the rest, Art XI. (other claims for damages) also applies for claims for damages. Claims of the Customer against the Supplier and auxiliary persons due to a material defect that are not governed in this Art. VIII or are further to them are ruled out.
IX. Industrial Property Rights and Intellectual Property Rights; Defects of Title 1. Insofar as nothing to the contrary is agreed, the Supplier is only obliged to perform the delivery in the country of the place of delivery, free of industrial or intellectual property rights of third parties (called proprietary rights in the following). If a third party brings justified claims against the Customer, based upon the violation of proprietary rights by the deliveries made by the Supplier, used according to the contract, the Supplier is liable toward the customer as follows, within the time period determined in Art. VIII No. 2: a) The Supplier will - as he chooses and at his own expense - either obtain a right of use for the deliveries in question, change them so that the proprietary right is no longer violated or replace them. If this is not possible for the Supplier under appropriate conditions, the Customer is entitled to the legal rights of withdrawal or rights to reduction. b) The duty of the Supplier to pay damages is based upon Art. XI. c) The above-named obligations of the Supplier only exist insofar as the Customer informs the Supplier in writing, without delay, about the claims being asserted by third parties, does not acknowledge a violation, and the Supplier reserves the right to all defensive measures and settlement negotiations. If the Customer ceases to use the delivery for reasons of reducing damages or other important reasons, he is obliged to point out to the third party that the ceasing of use does not imply recognition of a violation of proprietary rights. 2. Claims of the Customer are ruled out insofar as the violation of proprietary rights is his fault. 3. Claims of the Customer are also ruled out insofar as the violation of proprietary rights is caused by special instructions of the Customer, by an application not to be expected by the Supplier, or has been caused by the Customer altering the delivery or using it together with products not supplied by the Supplier. 4. For the rest, the regulations of Art. VIII No. 4, 5 and 9 apply accordingly to the claims by the Customer that are regulated in No. 1 a), in the case of the violation of proprietary rights. 5. In the case of other defects of title, the conditions of Art. VIII apply accordingly. 6. Claims of the Customer against the Supplier and his auxiliary persons due to a defect of title that are further to or different from the claims regulated in Art. IX are ruled out.
X. Impossibility; Adaptation of the Contract 1. Insofar as the delivery is impossible, the Customer is entitled to demand the payment of damages, unless the impossibility is not the fault of the Supplier. The damages claim of the Customer is, however, limited to 10% of the value of the part of the delivery that cannot be put to its proper use due to the impossibility. This limitation does not apply in cases of intent, gross negligence or loss of life, physical injury or damage to health where liability is mandatory; this does not involve an alteration of the burden of proof to the disadvantage of the Customer. The right of the Customer to withdraw from the contract remains hereby unaffected. 2. Insofar as unpredictable events in the sense of Art. IV No. 2 substantially change the economic significance or content of the delivery or have a substantial effect on the operations of the Supplier, the contract will be adapted appropriately in good faith. If this is not economically justifiable, the Supplier has the right to withdraw from the contract. If he wants to make use of this right to withdraw, he is to notify the Customer of this without delay after learning of the consequences of the event, even if an extension of the delivery period has been agreed with the Customer.
XI. Other Compensation Claims 1. Damages and reimbursement of expenses claims of the Customer (called compensation claims in the following), regardless of the legal reason, especially based upon violation of duties stemming from the contractual obligation and from unlawful acts, are ruled out. 2. This does not apply if liability is compulsory, e.g. according to the product liabilityact, in cases of intent, gross negligence, due to loss of life, physical injury or damage to health, due to the violation of important contractual duties. The compensation claim for the violation of important contractual duties is, however, limited to the contract-typical, predictable losses insofar as there is no intent or gross negligence and liability is not compulsory due to loss of life, physical injury or damage to health. This does not involve an alteration of the burden of proof to the disadvantage of the Customer. 3. Insofar as the Customer is entitled to compensation claims according to this Art. XI, these become time-barred with the elapsing of the limitation period applicable for compensation claims based upon material defects according to Art. VIII No. 2. The legal limitation regulations apply in the case of compensation claims according to the product liability act.
XII. Place of Jurisdiction and Applicable Law 1. The sole place of jurisdiction, if the Customer is a businessman, for all conflicts arising directly or indirectly from the contractual relationship is the domicile of the Supplier. The Supplier is however also entitled to bring a complaint at the domicile of the Customer. 2. The legal relationships connected with this contract are governed by German substantive law, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding Character of the Contract If individual stipulations of the contract become ineffective, this does not affect the binding character of the other parts of the contract. This does not apply if adhering to the contract would present an unreasonable hardship for a party.