Terminos Generales. Condiciones de venta y suministro.
For commercial business transactions based on the conditions recommended by the German Machinery and Plant Manufacturers’ Association.
I. General, Scope of Application
1.The present General Terms and Conditions of Sale and Delivery (hereinafter referred to as “Conditions”) shall apply exclusively to all present and future sales and deliveries and associated transactions between us (hereinafter also referred to as “Supplier”) and the Purchaser. These Conditions shall thus also apply to all future business relations, even if not expressly agreed upon again.
2. Purchasers within the meaning of the Conditions are exclusively entrepreneurs. An entrepreneur is a natural person or legal entity or a partnership with legal capacity, which at the conclusion of a legal transaction with the Supplier acts with the purpose of exercising their commercial or independent professional activity. A consumer, on the other hand, is any natural person, who concludes a legal transaction for a purpose which can be attributed neither to his commercial nor to his independent professional activity.
3. The Supplier shall not recognize Conditions of the Purchaser opposed to or deviating from these conditions. These Conditions shall also apply when the Supplier carries out the delivery to the Purchaser without reservation in awareness of conditions opposed to or deviating from these Conditions.
4. Any regulations deviating from these Conditions shall apply only with the explicit written consent of the Supplier.
5. Las referencias a la validez de las disposiciones legales tendrán sólo un significado aclaratorio. Por lo tanto, las disposiciones legales se aplicarán sin hacer relación a esa aclaración a menos que sean modificadas directamente en estas Condiciones o se excluyan explícitamente.
II. Offer and Conclusion of Contract
1. Offers of any type and form of the Supplier are merely requests to the Purchaser to submit offers. An offer to conclude a contract within the meaning of these Conditions is the written (by letter, e-mail, fax) or oral order of the Purchaser. The Purchaser shall be bound by his order for fourteen days.
2. A contract will come into existence through the acceptance of the order by written acknowledgement of order.
III. Price and Payment
1. In the absence of a special agreement, the prices shall be ex works including loading at the works, but excluding packaging and unloading. The value-added tax is added to the prices in the applicable legal amount.
2. Unless otherwise agreed in writing, payment shall be made strictly net immediately after transfer of risk (see Section V) and receipt of the invoice.
3. The Purchaser shall be entitled to withhold payments or to offset with counterclaims only if his counterclaims are uncontested and have been determined to be legally binding.
4. A payment is not deemed to have been made until the Supplier is able to dispose of the amount. In the event of bank transfers or checks, payment is only deemed to have been made on the day the amount has been credited without reservation to the Supplier’s business account.
5. The Supplier reserves the right to credit incoming payments to the oldest claim plus incurred expenses and interest.
IV. Delivery, Delay in Delivery, Default, Impossibility
1. The delivery deadline shall arise from the written agreements of the contracting parties. Compliance by the Supplier shall imply that all commercial and technical questions are clarified between the parties and the Purchaser has fulfilled all obligations for which he is responsible, such as the procurement of the required official certificates or permits, or the making of a down payment. If this is not the case, the delivery deadline shall be extended appropriately. This shall not apply if the Supplier is responsible for the delay.
2. Compliance with the delivery deadline shall be subject to correct and timely delivery of the Supplier by his suppliers, provided the Supplier has concluded a congruent hedging transaction with a supplier and the Supplier is not responsible for the non-arrival or lateness of the delivery of his supplier. The Supplier shall notify the Purchaser immediately of the non-arrival or of the lateness of the delivery of a supplier. Likewise, the Supplier shall advise the Purchaser immediately of the expected new delivery date. If a delivery to the Supplier can no longer be counted on (for example, by conduct in breach of contract, insolvency or destruction of the production facility of the Supplier) or if the merchandise is not available even after expiration of a new delivery deadline, the Supplier shall be entitled to withdraw from the contract and will immediately reimburse any considerations of the Purchaser.
3. The delivery deadline shall be deemed complied with if the delivery item has left the plant of the Supplier by its expiration or readiness for dispatch is reported to the Purchaser. If acceptance has to take place, the acceptance date, except for justified rejection of acceptance, shall be decisive; alternatively, the notification of the readiness for acceptance.
4. If the shipment or the acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs arising due to the delay shall be charged to the Purchaser.
5. If non-compliance with the delivery deadline is due to force majeure, labour disputes or other events for which the Supplier is not responsible, the delivery deadline shall be extended appropriately. The Supplier shall immediately advise the Purchaser of the commencement and the end of such circumstances.
6. Partial deliveries shall be permitted as long as as they can be expected to be reasonably acceptable to the Purchaser.
7. The Purchaser may withdraw from the contract without setting a deadline if the entire service becomes definitively impossible for the Supplier prior to the transfer of risk. Moreover, the Purchaser may withdraw from the contract if in the case of an order a portion of the delivery becomes impossible and he has a justified interest in rejecting the partial delivery. If this is not the case, the Purchaser is to pay the contractual price apportionable to the partial delivery. The same shall apply in the event of the incapacity of the Supplier. If the impossibility or the incapacity occurs during the delay in acceptance of the Purchaser or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obligated to provide consideration.
If the Purchaser, taking into account the statutory exceptions, grants the Supplier who is in default a reasonable period of time for performance and if the deadline is not complied with, the Purchaser shall be entitled to withdraw within the scope of the statutory provisions.
8. Claims of the Purchaser for damages due to delay or impossibility, including such claims which arose prior to declaration of a withdrawal, may only be asserted within the scope of the provisions in Section VIII.
V. Transfer of Risk, Acceptance
1. The risk shall be transferred to the Purchaser if the delivery item has left the plant of the Supplier, and that even when partial deliveries take place or the Supplier has assumed other services, for example, the shipping costs or delivery and installation. In the case of a partial delivery, however, only the risk for this partial delivery as such and not for the entire contractually agreed upon delivery shall be transferred. If acceptance is to take place, this shall be decisive for the transfer of risk. It must take place on the agreed acceptance date; alternatively, immediately after notification by the Supplier of the readiness for acceptance. The Purchaser may not refuse acceptance in the event of a non-essential defect.
2. If the shipment or acceptance is delayed or does not take place due to circumstances which cannot be attributed to the Supplier, the risk shall be transferred to the Purchaser on the day of notification of readiness for shipment or acceptance.
3. The Supplier undertakes to take out any insurance policies the Purchaser demands, at the cost of the latter.
VI. Title Retention
1. The Supplier shall retain the ownership of the delivery item up to payment of all receivables in full, including those arising in future from the purchase contract or contract for work and materials and the ongoing business relationship (hereinafter referred to as “Secured Receivables”). In the case of a current account, the retained title shall be regarded as security for the balance claim of the Supplier.
Upon written request by the Purchaser, the Supplier shall be obligated to transfer the ownership retained by him or to which he is entitled, or other means of providing security if and to the extent to which the estimated value of the merchandise subject to retention and/or other means of providing security exceeds his total receivables to be secured in each case by 50%.
2. The Supplier shall be entitled to insure the delivery item at the cost of the Purchaser against theft, breakage, fire, water and other damage, unless the Purchaser himself has demonstrably taken out the insurance. If the Purchaser himself has taken out the insurance, he shall assign claims against the insurance company due to destruction, damage, loss or theft of the delivery item to the Supplier. The Supplier hereby accepts the assignment.
3. The Purchaser may neither sell nor pledge the delivery item subject to retention of title nor transfer it as security prior to payment in full of the Secured Receivables. In the case of pledges and seizures or other orders by third parties, the Purchaser is to point out the ownership of the Supplier and shall immediately advise the Supplier thereof, so that the Supplier may assert his right of ownership.
4. The Supplier shall be entitled within the framework of the statutory provisions to withdraw from the contract and demand return of the delivery item in the event of conduct in breach of contract by the Purchaser, particularly in the event of delayed payment. This shall also apply if an application has been filed for the initiation of insolvency proceedings concerning the Purchaser’s assets.
5. The Supplier reserves proprietary rights and copyrights to designs, cost estimates, drawings, and similar information, be it tangible or intangible, including in electronic form; they may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential accessible to third parties only with the Purchaser’s consent.
1. The rights of the Purchaser relating to defects shall require that the Purchaser has met his obligations of inspection and notification of defects according to Section 377 of the German Commercial Code. If a defect appears during the inspection or later, such defect it to be reported immediately in writing to the Supplier.
2. If a defect of the delivery item exists, the Supplier may either rectify (rectification) the defect by means of subsequent fulfillment at his own option or supply a new non-defective delivery item (subsequent delivery). The Supplier, if a defect exists in the delivery item, is to bear the expenditures required for the purpose of the subsequent fulfillment, in particular transport, travel, labour and material costs. The costs shall also include the costs of the replacement of defective parts (installation and removal) and also the costs of any required provision of assemblers and assistants of the Supplier.
3. To carry out the subsequent fulfillment after consultation with the Supplier, the Purchaser is to provide the required time and opportunity; otherwise the Supplier shall be released from any liability for the consequences arising therefrom. Only in urgent cases of risk to operational safety or to prevent disproportionately large damage shall the Purchaser be entitled to have the defect rectified himself or by a third party and to demand reimbursement of the objectively required expenses from the Supplier. The Purchaser is to notify the Supplier immediately, as far as possible in advance, of such self-remedy.
4. If the subsequent fulfillment fails or a reasonable deadline to be set by the Purchaser for subsequent fulfillment has expired without success or is dispensable in accordance with the statutory provisions, the Purchaser may withdraw from the contract or reduce the contractual price. In the event of a non-essential defect, however, no right of withdrawal shall exist.
5. In the following cases, in particular, the Purchaser shall have no rights relating to a defect:
Unsuitable or improper use, incorrect assembly or start-up by the Purchaser or a third party, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating supplies, defective construction work, unsuitable foundation soil, chemical, electrochemical or electrical influences, unless they are the responsibility of the Supplier.
6. If the Purchaser himself or a third party makes repairs in the case of a defect, the Supplier shall bear no liability for the consequences arising therefrom.
The same shall apply to modifications of the delivery item undertaken without the prior consent of the Supplier.
Defects of Title
7. If the use of the delivery item causes the infringement of industrial property rights and copyrights, the Supplier shall in any case procure at his cost the right to further use by the Purchaser or modify the delivery item in a manner acceptable to the Purchaser such that the infringement of property rights no longer exists.
If this is not possible at reasonable economic conditions or within a reasonable time period, the Purchaser shall be entitled to withdraw from the contract. Under the conditions referred to, the Supplier shall also be entitled to withdraw from the contract.
Furthermore, the Supplier shall indemnify the Purchaser from claims of the affected holders of property rights which are undisputed or determined to be legally binding.
8. The obligations of the Supplier mentioned in Section VII(7) shall be final subject to Section VIII in the event of the infringement of property rights or copyrights.
They exist only if
• the Purchaser notifies the Supplier immediately of any asserted property right or copyright infringements,
• the Purchaser assists the Supplier to a reasonable extent in defending against the asserted claims or allows the Supplier to undertake the modification measures according to Section VII(7),
• all defense measures including out-of-court settlements remain reserved to the Supplier,
• the defect of title is not based on an instruction of the Purchaser and
• the infringement was not caused by the fact that the Purchaser arbitrarily modified the delivery item or has used it in a manner not compliant with the contract.
9. Agreements on quality and availability of the delivery item are considered to be guarantees only when they are explicitly referred to as such.
10. Claims of the Purchaser for damages or reimbursement of expenses incurred may be made only in accordance with Section VIII and shall otherwise be excluded.
11. Otherwise the statutory material defect warranty claims apply.
1. Claims of the Purchaser for damages and reimbursement of expenses against the Supplier, his legal representatives and/or vicarious agents or assistants (hereinafter referred to collectively as “the Supplier”), irrespective of their legal basis, in particular due to infringement of a contractual obligation and/or due to an unlawful act, shall be excluded.
2. This shall not apply if the Supplier is proven to have acted with intent or gross negligence and/or in the event of a breach of essential contractual obligations. Essential contractual obligations are obligations the fulfillment of which is the very basis for the proper implementation of the contract and the observance of which the Purchaser regularly relies on and may rely on.
3. If an infringement of essential contractual obligations is not intentional and not grossly negligent, however, the extent of the liability shall be limited to compensation for damage typical of the contract and foreseeable.
4. The aforementioned liability limitations shall not apply, if the Supplier is mandatorily liable, for example under the German Product Liability Act, to damage arising from injury to life, physical injury or damage to health, in the case of claims due to fraudulent behaviour on the part of the Supplier as well as in the case of the assumption of a guarantee for the quality of the delivery item.
IX. Statute of Limitations
1. All claims of the Purchaser against the Supplier, irrespective of the legal basis, shall fall under the statute of limitations 12 months after delivery of the item to the Purchaser. If acceptance has taken place, the statute of limitations shall commence upon acceptance. Special statutory provisions for in rem restitution claims [dingliche Herausgabeansprüche] of third parties shall remain unaffected (Section 438(1)(1) of the German Civil Code), in the case of fraud by the Supplier (Section 438(3) of the German Civil Code) and in the event of action for recourse against a Supplier in case of final delivery to a consumer (Section 479 of the German Civil Code).
2. The aforementioned statute of limitations according to Section IX(1) sentence 1 shall not apply to damages claims for intent or gross negligence and for damages claims in the cases referred to under Section VIII(4) in which the Supplier is mandatorily liable. In these cases exclusively the statutory statute of limitations shall apply.
X. Uso del Software
1. If software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be granted for the use of the delivery item intended therefor. Any use of the software on more than one system shall be prohibited.
2. The Purchaser may only duplicate, revise, translate or convert the software from the object code into the source code to the extent permitted by law (Sections 69a et seq. German Copyright Act). The Purchaser undertakes not to remove manufacturer’s data, particularly copyright notices, or to alter them without the prior explicit consent of the Supplier.
3. All other rights to the software and the documentation including copies shall remain with the Supplier or with the software provider. The granting of sublicenses shall not be permitted.
XI. Applicable Law, Legal Venue
1. These Conditions and all legal relations between the Supplier and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany applicable to the legal relations between domestic parties. The applicability of the United Nations Convention on Contracts for the international Sale of Goods shall be excluded.
2. The place of jurisdiction shall be the court competent for the Supplier’s registered office. The Supplier shall, however, be entitled to bring an action at the location of the Purchaser’s registered office.