General Terms and Conditions
Dated 03/2006
Section 1 Scope of Application of the Provisions
(1) Seller’s deliveries, services and offers shall exclusively be based on these General Terms and Conditions. Accordingly, they shall also apply to all future business relationships, even if the parties do not expressly agree upon them again. Upon acceptance of the goods or the services at the latest, these General Terms and Conditions shall be considered as accepted. Purchaser’s acknowledgements referring to their own General Terms and Conditions and/or purchase conditions are hereby rejected.
(2) All agreements concluded between Seller and Purchaser for the purpose of executing this agreement must be made in writing.
Section 2 Offer and Contract Conclusion
(1) Seller’s offers shall be subject to change and non-binding. Declarations of acceptance and all sales orders must be confirmed by Seller in writing or by telex in order to have legal validity.
(2) Drawings, images, dimensions, weights and other performance data shall only be binding if this was expressly agreed upon in writing.
Section 3 Prices
Unless otherwise indicated, Seller consider themselves to be bound to the prices contained in their offers for a period of 30 days beginning on the date of offer. In all other cases, the prices listed in Seller’s order confirmation plus applicable statutory value added tax shall be authoritative. Additional deliveries and services shall be invoiced separately (EXW INCOTERMS 2000). If and to the extent to which nothing deviating was expressly agreed upon, all prices relating to a delivery shall be considered EXW (INCOTERMS 2000 rev.), as all deliveries to us will be performed EXW (INCOTERMS 2000 rev.).
Section 4 Delivery and Services Times
(1) Binding or non-binding delivery dates or deadlines, which may be agreed upon, must be determined in writing.
(2) Delivery schedules contrary to delivery deadlines agreed upon shall have no validity or effectiveness, even if Seller complies with such delivery schedule and/or does not object to it.
(3) Even in the case of binding deadlines and dates agreed upon, Seller shall not be responsible for delays in deliveries and services due to reasons of force majeure and due to events which, not only temporarily, make deliveries or the provision of services substantially more difficult or impossible for Seller; this shall in particular include without restrictions strikes, lockouts and official orders, even if they occur at Seller’s suppliers or their sub-contractors. On their occasion, Seller shall have the right to postpone the delivery and/or service by the time his event occurs, plus a reasonable preparatory time, or to totally or partially withdraw from the contract in relation to the part which has not yet been executed.
(4) If such obstruction lasts for more than three months, Purchaser shall have the right, after having granted a reasonable grace period, to withdraw from the contract in relation to the part which has not yet been executed. If the delivery period is extended or if Seller is exempted from their obligations, Purchaser shall have no right to take this as a basis for a claim for damages. Only if they immediately inform Purchaser may Seller revoke the situations mentioned above.
(5) If Seller is responsible for the non-compliance with binding deadlines and dates agreed upon or if Seller is in arrears, Purchaser shall have a claim for penalty compensation to the amount of …% for each completed week of delay, however, this shall in general be limited to 5% of the invoice value of the deliveries and services affected by such delay. Any claims beyond this shall be excluded, unless this delay is based on at least gross negligence by Seller.
(6) Seller shall have the right, at any time, to perform partial deliveries and provide partial services, unless such partial delivery or partial provision of services is not in the interest of Purchaser.
(7) Only if Seller complies with all of their delivery and service conditions shall Purchaser be obligated to properly fulfil their obligations.
(8) If Purchaser is in default of acceptance, Seller shall be entitled to request compensation for the resulting damage; upon the beginning of default of acceptance, the risk of accidental deterioration and of accidental loss shall pass to Purchaser.
Section 5 Passing of Risk
The risk shall pass to Purchaser once the goods to be delivered were handed over to the person being responsible for the transport or once they left Seller’s warehouse to be delivered. If the delivery is postponed upon Purchaser’s request, the risk shall pass to them once Purchaser was notified that the goods are ready for shipment.
Section 6 Purchaser’s Rights relating to Defects
(1) All products will be delivered free from manufacturing or material defects; the term for asserting warranty claims shall be one year from the delivery of goods.
(2) If Seller’s operation or maintenance instructions are not complied with, if changes are made to the products, if parts are substituted or if consumables are used which do not fulfil the original specifications, Purchaser shall have no right to assert any warranty claims if they do not disprove a respective substantiated statement that one of the circumstances mentioned above caused the defect.
(3) Purchaser shall be obligated to immediately inform Seller’s after-sales department about any defects, however, within one week after the receipt of the delivered goods at the latest. Defects, which could not be detected within this period even after a diligent examination, must be notified to Seller immediately after these have been detected.
(4) In the case of a notification by Purchaser stating that the products show defects, Seller – at their own discretion and at their own costs – shall request that
a) the defective part and/or the defective equipment be sent to Seller for the purpose of repairing and subsequently returning it to Purchaser; or that
b) Purchaser make the defective part and/or equipment available and that a Seller’s service technician be sent to Purchaser’s site to perform a repair. If Purchaser requests that the defects be rectified at a place specified by them, Seller shall have the right to meet this request; in this case, substituted parts shall not be invoiced, however, the standard rates for Seller’s working hours and travelling expenses shall be paid by Purchaser.
(5) If the rectification of defects fails after a reasonable period of time, Purchaser shall have the right, at their own discretion, to request a reduction of the remuneration or to withdraw from the contract.
(6) Liability for normal wear and tear shall be excluded.
(7) Only the direct purchaser shall have a claim towards Seller in relation to defects; such claims may not be assigned.
Section 7 Reservation of Ownership
(1) All delivered goods shall remain in the property of etm until all due payments resulting from business transactions with Purchaser (including, but not limited to payments in arrears) have been fully effected.
(2) Purchaser shall be obligated to treat the goods with due care. In the case that maintenance and inspection works are required, Purchaser shall perform these on a regular basis at their own expense.
(3) Purchaser shall be obligated to immediately inform etm about the access to the goods by third parties, such as in the case of a seizure, as well as about any other damage to or the destruction of the goods. A change of possession relating to the goods as well as a change of Purchaser’s own place of business must be immediately notified by them.
(4) If Purchaser violates the conditions under this contract, in particular in the case of payments in arrears, etm shall have the right to reclaim all delivered goods; Purchaser shall be obligated to return the goods and to send them back to etm at their own costs. A reclaim or the acceptance of returned goods shall not be considered a withdrawal from the contract. /.. -2 .
(5) etm shall have the right, in their own name, to utilize all accepted returned goods. Any proceeds of sale, minus warehousing and utilization costs, must be set off against Purchaser’s liabilities towards etm.
(6) Purchaser shall have the right to resell the goods to third parties in the course of ordinary business. Purchaser shall assign all accrued claims or claims accruing to them in the future towards third parties which result from a resale of the delivered goods to etm, to the amount of the payable consideration / contractual price (including value added tax). In terms of this provision, third parties shall also comprise companies in which Purchaser have a share.
(7) etm shall have the right to disclose such assignment and to collect all receivables assigned to them by themselves. Only if they notified Purchaser in advance will they make use of this right. In the framework of collecting receivables, etm will consider Purchaser’s interests to the largest extent possible. Upon request, Purchaser shall provide etm with information about their debtors which etm needs to immediately and properly claim and collect all receivables assigned to them.
(8) If third parties claim rights in the delivered goods (such as seizures or security rights of an execution order), Purchaser shall immediately notify etm about this and provide all information about a third party asserting such rights. If etm incurs costs in relation to the execution of their rights towards third parties on the basis of the reservation of ownership, these costs must be borne by Purchaser.
(9) If the goods delivered by etm are processed or changed by Purchaser, such processing or change is performed for etm. If the goods delivered by etm are totally or partially turned into or changed to another good by making use of goods in the property of third parties or Purchaser, etm shall acquire co-ownership in relation to the new good in the ratio of the value of the goods (ratio of the purchase price for the goods delivered by etm to the value of the new good). In the case of mixing, the above provision shall apply accordingly. The provision as to the reservation of ownership shall apply accordingly in relation to the new goods resulting from processing, change or mixing and/or in the case of a combination.
(10) On the basis of the provisions as to the reservation of ownership or other provisions, upon Purchaser’s request etm shall release securities received from Purchaser if the long-term value of securities exceeds the nominal value of the receivables to be securitised by more than 20%.
Section 8 Payment
(1) Unless nothing deviating was agreed upon, all Seller invoices must be paid without deductions within 30 days after the invoice was issued.
(2) In spite of deviating provisions of Purchaser, Seller shall have the right to set off payments effected by Purchaser against older receivables; Seller shall inform Purchaser about the type of set-off. If costs and interests have already accrued, Seller shall have the right to set off payments first against such costs, subsequently against interests and finally against the principal.
(3) A payment shall only be considered effected when Seller is able to dispose of the money. In the case of payment by cheque, payment is considered to be effected after the respective cheque was honoured.
(4) If Seller becomes aware of situations which challenge Purchaser’s creditworthiness, in particular if a cheque cannot be honoured or if Purchaser no longer pays, or if Seller becomes aware of any other circumstances which challenge Purchaser’s creditworthiness, Seller shall have the right to accelerate maturity of the remaining receivables, even if they accepted cheques before that. In this case, Seller shall also have the right to request advance payments and the provision of a security.
(5) Only if such counterclaims were legally determined or if they are undisputable shall Purchaser have the right to set-offs, retentions or reductions – even in the case of notifications of defects and counterclaims. However, Purchaser shall also have a right to retention due to counterclaims resulting from the same contractual relationship.
Section 9 Construction Changes
Seller reserves the right to make changes to the construction at any time; however, they shall not be obligated to make such changes to any products which have already been delivered if the quality and the guaranteed properties of the goods are not affected by this.
Section 10 Patents
(1) Seller shall hold Purchaser and their clients harmless from any claims resulting from violations against copyrights, trademarks or patents, unless the draft of a delivery item was provided by Purchaser. Regarding the amount of money, Seller’s obligation to hold Purchaser harmless shall be limited to the foreseeable damage. Another condition for such exemption is that Seller will be the leading party in the case of legal proceedings and that the stated violation of rights can exclusively be attributed to the construction of Seller’s delivery goods without any connection or use with other products.
(2) At their own choice, Seller shall have the right to exempt themselves from the obligations assumed on the basis of sub-section 1 in the way that they either
a) procure all required licences in relation to the patents subject to the claim of infringement or
b) provide Purchaser with an altered delivery good and/or part of it which is able to eliminate the claim of violation in relation to the delivery good by substituting them against the infringing delivery good and/or its part.
Section 11 Confidentiality
If nothing deviating was expressly agreed upon, the information provided to Seller in relation to sales orders shall be considered confidential.
Section 12 Liability
(1) Claims for damages shall be excluded independent of the type of breach of duty, including unlawful acts, unless there is intentional or grossly negligent behaviour.
(2) In the case of violation against substantial contractual obligations, Seller shall be liable for each case of negligence, however, their liability shall be limited to the extent of the foreseeable damage. Claims for loss or earnings, saved expenses, claims resulting from third-party claims for damages as well as claims relating to other indirect or consequential damage may not be asserted, unless a characteristic of state guaranteed by Seller has the actual purpose of securing Purchaser against such damage.
(3) Limitations and exclusions of liability contained in sub-sections 1 and 2 shall not apply to claims resulting from fraudulent behaviour by Seller as well as in the case of liability for guaranteed characteristics of state, to claims on the basis of the German Product Liability Act as well as to damage from injuries to life, body or health.
(4) To the extent to which Seller’s liability is excluded or limited, this shall also apply to Seller’s employees, personnel, authorised representatives and vicarious agents.
Section 13 Governing Law, Place of Jurisdiction, Severability
(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and to the entire contractual relationship between Seller and Purchaser. The provisions on the basis of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
(2) If Purchaser is a businessperson, a legal person under public law or a public-law special fund, Seller’s place of business shall be the exclusive place of jurisdiction for all disputes directly or indirectly resulting from the contractual relationship.
(3) Should a provision in these General Terms and Conditions or a provision contained in any other agreement be or become ineffective, this shall not affect the effectiveness of all other provisions or agreements.