General Business Terms

Status: III/2015

I.Scope

  1. The deliveries, services and offers of HE­WI­TECH (Supplier) are exclusively carried out owing to these business terms if the orderer is a merchant, entrepreneur, a legal entity under public law or special assets under public law.
  2. The General Business Terms of the Supplier shall apply exclusively; contradictory terms and conditions of the orderer or terms and conditions which deviate from these General Business Terms will not be recognised unless their validity is explicitly approved. The General Business Terms shall also apply if the Supplier carries out the deliveries and services without reservation in the knowledge of contradictory terms and conditions of the orderer or terms and conditions which deviate from his General Business Terms.
  3. Collateral agreements and assurances as well as supplements to the contract require a written form. The written form requirement serves as provision of proof.

II. Offer, conclusion of contract and service 

  1. The agreed delivery clauses according to the applicable IN­CO­TERMS 2000 are to be interpreted for pure purchase contracts.
  2. Tech­ni­cal details and service specifications in brochures, data sheets, samples or the documents belonging to the offer are, insofar as they are not explicitly agreed as binding as per contract, only approximately decisive, in case of only customary deviations from these properties with the object of delivery.
  3. The Supplier reserves the right to make changes owing to tech­nical innovations, new regulations or similar developments, through which the object of delivery as well as its functions are not altered in a disadvantageous manner and the usability for the purpose envisaged as per contract is not impaired. A change to the price will not occur hereby.
  4. The Supplier reserves all property rights and copyrights to diagrams, drawings, calculations, samples and similar in­for­ma­tio­n of a physical and non-physical kind – also in an elect­ro­nic form; they may only be made accessible to third parties with the Supplier’s written consent and are to be returned to it immediately upon request if the order is not placed with the Supplier.  
  5. In case of deliveries overseas the obligations of the Supplier are subject to the reservation that if applicable necessary export licences are granted.
  6. Contractual claims are not transferrable on the part of the orderer without the Supplier’s written consent if the regulation of § 354 a HGB [German Commercial Code] does not apply. 

III. Prices and payment

  1. Al­l prices are deemed in euros if not stated otherwise. They shall apply – insofar as not otherwise agreed in the contract - "ex works" (EXW) excluding packaging. 
  2. Value added tax is not included in the prices; it is disclosed separately in the invoice in the statutory amount on the day of the invoicing.
  3. The deduction of cash discount requires a written agreement. 
  4. If not otherwise agreed the purchase price is due and payable within 30 days from the date of the invoice.
  5. In case of deliveries overseas the delivery of the goods – if not otherwise agreed in writing – is subject to the reservation of the provision of an irrevocable letter of credit by the orderer for the benefit of the Supplier and confirmed by a German bank.
  6. In the event of partial payments or other instalment payments permitted by law or agreed as per contract the Supplier can terminate the contractual relationship extraordinarily without notice if the orderer
    • is in default with the partial payment or the other instalment for two consecutive dates or
    • is in default with a partial payment or payment of any other instalment in an amount, which achieves the partial payment or the instalment for two due dates in a period of time, which covers more than two date
  7. The orderer is not entitled to a right of retention. 
  8. The orderer can only assert a right to offsetting against the Supplier’s claims if the claim that is to be offset is undisputed or has been declared final and binding. 
  9. The prices of the Supplier are based on the cost situation applicable at the time when the offer is created. Should the delivery be postponed by more than four months from the conclusion of the contract and should the costs for wages, ma­te­rials, packaging material, freight, taxes or duties have increased in the meantime then the agreed price can be adjusted in line with the influence of the afore-mentioned cost factors. If the price changes accordingly by more than 5 per cent compared with the contractually agreed price, the orderer is entitled to cancel the contract insofar as the Supplier adheres to a request for a price increase despite an announcement of the orderer’s intention to cancel the contract. 

IV. Deadlines for deliveries and services – liability in case of default 

  1. Binding dates for deliveries or services require the written confirmation by the Supplier for purposes of proof. Insofar as it is necessary for the orderer to fulfil an obligation to provide assistance, an agreed service deadline will not begin to apply before the orderer has fulfilled this obligation. The compliance with payment agreements shall also represent an obligation to provide assistance in this respect. 
  2. If the Supplier does not receive, not correctly receive or not receive in time, deliveries or services of its sub-suppliers or from subcontractors for reasons for which it is not responsible despite a proper coverage, or if events of force majeure occur then the Supplier shall inform the orderer in time. In this case the Supplier is entitled to postpone the delivery or service by the duration of the impediment or to cancel the contract in full or in part owing to the part which has not yet been fulfilled, insofar as it has satisfied its afore-mentioned in­for­ma­ti­on obligation and has not taken over the procurement risk or production risk. Strike, lock-out, official interventions, shortage of energy and raw materials, transport bottlenecks without a fault, impediments to operation without fault e.g. by fire, water and machine damages and al­l other impediments, which with an ob­jec­ti­ve approach were not caused culpably by the Supplier shall be deemed equivalent to force majeure.
  3. If a delivery or service date or a delivery or service deadline has been agreed binding or if, owing to events according to Par. 2 above, the agreed delivery or service date or the agreed delivery or service deadline is exceeded by more than four weeks or, if in case of a non-binding service date, the adherence to the contract is objectively unreasonable for the orderer then the orderer is entitled to cancel the contract owing to the part, which has not yet been fulfilled. Further rights of the orderer, in particular claims for damages, shall not exist in this case. 
  4. The duration of a final deadline that is to be set by the orderer is fixed at three weeks, which shall begin with the receipt of the stipulation of the final deadline by the Supplier.
  5. If the Supplier is in default then its liability for damages is limited to 5 per cent of the purchase price in the event of simple negligence. Further claims of the orderer shall remain unaffected. 

V. Assumption of responsibility in case of cancellation and generic obligation

  1. The orderer can only cancel the contract within the framework of the statutory provisions if the Supplier is responsible for the breach of duty.
  2. Insofar as the object that is to be delivered is only determined according to generic features the Supplier will only be liable for compensation for damages if it does not prove that it is not responsible for the lack of service, the delay in the delivery or the bad service. The regulations of Section X. of the General Business Terms shall apply in addition. 

VI. Passing of risk – acceptance

  1. The delivery "ex works" (EXW) shall apply.
  2. The risk shall pass to the orderer as soon as the goods have been handed over to the freight forwarder or carrier or have left the Supplier’s plant for the purpose of shipment irrespective of whether the hand-over or shipment is carried out from the place of performance, who bears the freight costs and who carries out the trans­port.
  3. If the goods are ready for shipment and if the shipment or acceptance is delayed for reasons, for which the Supplier is not responsible then the risk shall pass to the orderer with the receipt of the notification that the goods are ready for shipment.
  4. If the shipment or the service is delayed at the orderer’s request by more than one month after the notification that the goods are ready for shipment, the orderer can be charged storage costs in the amount of 0.5 % of the invoice amount, a maximum however 5 % for each started month. The orderer reserves the right to prove that no or lower storage costs or expenses were incurred.
  5. If the Supplier owes the assembly of the object of delivery the risk shall pass to the orderer as soon as the plant service leaves the sole scope of risks and influence of the Supplier.
  6. For the event that the Supplier’s service is to be accepted it shall be deemed as accepted by no later than if and insofar as
    • the objects delivered by the Supplier are sold or are handed over for use to a third party by the orderer after the delivery
    • the objects delivered by the Supplier are processed or mixed or connected with other objects with the orderer’s consent,
    • the objects delivered by the Supplier are used beyond a testing either by the orderer or by a third party with the orderer’s consent or
    • the service is accepted by the customer of the orderer towards the orderer.

VII. Reservation of title

  1. The Supplier reserves the property to the objects of delivery until the receipt of all payments from the business relationship with the orderer. The reservation of title shall also cover the recognised balance insofar as the Supplier books receivables due from the orderer in a current account.
  2. After taking the object of contract back the Supplier is authorised to the further sale, whereby the sales proceeds – minus reasonable costs for the resale – are to be offset against the liabilities. In case of an attachment of the object of delivery the Supplier is entitled to cancel the contract without setting a deadline. In case of attachments or other interventions of third parties the Orderer has to inform the Supplier immediately in writing so that it can file an action according to § 771 ZPO [German Code of Civil Procedure].
  3. The delivered goods, to which the Supplier is entitled to the reservation of title, may only be sold by the orderer within the framework of an ordinary course of business; it hereby now already assigns all claims to the Supplier in the volume of the final invoice amount including value added tax, which are accrued to him from the resale against his buyers or against third parties, irrespective of whether the object of delivery has been resold without or after processing. The authorisation of the Supplier to collect the claim itself shall remain unaffected hereby.
  4. In case of suspension of payments by the orderer the entitlement to sell shall lapse. The orderer is not permitted to pledge reserved goods or to assign these as security.
  5. If the object of delivery is inseparably mixed with other objects not belonging to the Supplier then the Supplier shall acquire the co-ownership to the new object in the ratio of the value of the object of delivery to the other mixed objects at the time of the mixing. This shall also apply to the extent that the orderer’s object is to be seen as the main object.
  6. The orderer shall keep the sole ownership or the co-ownership in safekeeping for the Supplier. He has to insure it to a normal extent against the customary risks such as e.g. fire, theft, water and similar risks. This shall also apply to the trans­port of the reserved goods. The orderer hereby now already assigns his claims for damages to the Supplier, to which he is entitled against insurers or other third parties from damages of the stated kind, in the amount of the invoice value. The orderer shall inform the Supplier immediately in case of loss, deterioration or damage to the reserved goods and make the damage documents and expert damage opinion concerned available to it together with the insurance policy and cover note.
  7. At the orderer’s request the Supplier undertakes to release the collateral to which it is entitled to the extent that their value exceeds the claims which are to be secured by more than 10%.
  8. For the event that these terms of delivery have not been effectively agreed the goods shall respectively be assigned subject to the condition precedent of the full payment of the invoice amount. 

VIII. Warranty for defects

  1. No further guarantees shall exist with the exception of the guarantees explicitly taken over in the contract. In particular descriptions of the object of contract or the scope of delivery and service, stipulations of properties and technical data are no guaranteed characteristics, but descriptions or markings of the delivery and service.
  2. The orderer has to comply with the responsibilities of § 377 HGB. Defects, which are recognisable upon delivery, must moreover be reported to the transport company and the recording of the defects arranged for by said transport company. Reports of defects must include a description of the defect that is to be specified in detail as far as possible. A report that is not made within the deadline shall exclude all claims of the orderer.
  3. The Supplier will not assume any liability for public statements, promotions or advertising of a manufacturer or other third party which deviate from the Supplier; they do not represent any details of the condition of the goods as per contract.
  4. With the start of the finishing, processing, connection or mixing with other objects the delivered goods shall be deemed as approved by the orderer as per contract. The same shall apply in the event of the further shipment from the original place of destination.
  5. The liability of the Supplier for breaches of duty owing to defects of quality is excluded insofar as the defects and thus associated damages are not as proven due to faulty ma­te­ri­al, faulty con­struc­ti­on or faulty execution or faulty assembly instructions. The warranty and liability is in particular excluded for the consequences of faulty use (in particular in case of assembly that does not correspond with the status of technology or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable equipment as well as the consequences of phy­sical, che­mical or elect­rical influences, which do not correspond with the envisaged, average stan­dar­d influences.
  6. Claims of the orderer owing to the expenses that are necessary for the purpose of subsequent fulfilment, in particular transport, route, labour and material costs, are excluded insofar as the expenses are increased, because the goods delivered by the Supplier have been subsequently taken to another location than the branch of the orderer, unless the transport corresponds with their use as intended. The application of § 478 BGB [German Civil Code] (claims for recourse of the entrepreneur) shall remain unaffected.
  7. Possible claims for recourse of the orderer in the event of the resale of the goods will only exist against the Supplier to the extent that the orderer has not reached any agreements with his buyer beyond the statutory claims for defects.
  8. The statute-of-limitations for claims for defects is 12 months. This shall not apply with building contracts, with objects, which have been used for a building in line with their customary use and caused its faulty condition, with claims owing to the injury to life, the body and the health as well as in the event of the grossly negligent conduct of the Supplier.
  9. The afore-mentioned regulations of Par. No. 8 shall not apply to the sale of already used objects; these shall be delivered under the exclusion of all claims for defects. The afore-mentioned restriction to the statute-of-limitations with used objects shall not apply in case of claims owing to the injury to life, the body and the health as well as in the event of the grossly negligent conduct of the Supplier. 

IX. Property rights

  1. SInsofar as a third party asserts justified claims against the orderer owing to the infringement of property rights through the delivery provided by the Supplier as per contract, the Supplier will be liable towards the orderer within the deadline determined in Section VIII. 8. as follows:
    • The Supplier shall as its own choice and at its costs either obtain a right of use, modify the object of delivery to the extent that the property right is not infringed or replace it. 
    • Should this not be possible for the Supplier at reasonable conditions, the orderer is entitled to the statutory rights to cancellation or reduction. The orderer cannot request reimbursement of fruitless expenses.
    • Claims for damages exist according to Section X.
    • The afore-mentioned obligations of the Supplier will only exist if the orderer informs the Supplier about the claims asserted by the third party immediately, does not recognise an infringement and all counter-measures and settlement negotiations are reserved for the Supplier. If the use of the delivery is suspended by the orderer due to reasons for minimising the damages or other important reasons the orderer undertakes to ensure that the suspension of use is not associated with a recognition of the infringement of a property right.
  2. Claims of the orderer are excluded,
    • if he is responsible for the infringement of property right, or
    • if the infringement of property right is caused by special stipulations of the orderer, by an application not foreseeably by the Supplier or by the fact that the delivery is changed by the orderer or is used together with products not delivered by the Supplier. 

X. Claims for damages

  1. The Supplier shall be liable for damages – no matter for what legal grounds – to an un limited extent
    • in case of wilful intent,
    • in case of a culpable injury to life, the body or the health,
    • in case of defects, which we maliciously failed to disclose or we guaranteed their absence,
    • in case of defects to the object of delivery insofar as liability is assumed for physical damages or property damages to privately used objects according to the Product Liability Act.
  2. he Supplier will also be liable in case of a culpable breach of essential contractual duties, in the event of simple negligence however limited to the damages, which it foresaw upon conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen by applying the customary care and attention and which are typically to be expected with the use of the object of delivery as intended. Essential contractual duties are such duties, which protect legal positions of the orderer that are essential for the contract, which the contract particularly has to grant him according to its contents and purpose and such obligations of which the fulfilment makes the proper execution the contract possible at all and the compliance with which the orderer as a rule relied and may rely upon.
  3. The Supplier will also be liable for damages, which are caused by gross negligence. If however other contractual duties than essential contractual duties have been breached and other legal interests than the life, body or the health have also been affected, then its liability is also limited in the event of gross negligence to the damages, which it foresaw as a possible consequence of a breach of contract upon conclusion of the contract or which it should have foreseen when applying the customary care and attention and which are typically to be expected with the use of the object of delivery as intended.
  4. Further claims are excluded.
  5. The exclusions of or limitations to liability stated in Paragraphs No. 1 to No. 4 shall also apply to corresponding breaches of duty of the vicarious agents of the Supplier.
  6. Insofar as the liability for damages is excluded or limited towards the Supplier this shall also apply with regard to the personal liability for damages of its bodies, legal representatives, employees and other vicarious agents.
  7. A reversal of the burden of proof is not associated with the afore-mentioned regulations of this section.  

XI. Place of jurisdiction

  1. The place of jurisdiction and place of performance for all legal relationships from this contract is the registered seat of the Supplier. It is however entitled to also file action at the registered seat of the orderer.
  2. German law shall apply under the exclusion of its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
  3. Insofar as individual points of this contract are legally invalid, the contract shall remain effective in its other points; unless the adherence to the contract represents an unreasonable hardship for another party.

General Business Terms and Conditions

Status: V/2011

I. Scope

  1. The deliveries, services and offers of HEWITECH (Supplier) are carried out exclusively based on these business terms and conditions provided that the orderer is a merchant, a legal entity under public law or special assets under public law. Counter-confirmations of the orderer with reference to its business terms or terms of purchase are hereby objected to.
  2. By no later than with the acceptance of our delivery by the orderer these business terms shall be deemed as accepted even if the orderer previously made reference to its terms and conditions.
  3. Collateral agreements and assurances as well as addendums to the contract require a written form. The written form requirement serves as provision of proof.

 

II. Offer, conclusion of the contract and service

  1. The written order confirmation is decisive for the type and scope of the delivery. If such is not available the type and scope of the delivery will be determined according to the mutual, concurring written declarations of the contractual partners.
  2. The agreed delivery clauses are to be interpreted according to the applicable INCOTERMS 2000 for pure purchase contracts.
  3. Technical details and service specifications in brochures, datasheets, samples or the documents belonging to the offer are – provided that they have not been explicitly agreed as binding as per contract – only approximately decisive insofar as there are only customary deviations from these characteristics with the object of delivery.
  4. The supplier reserves the right to make changes owing to technical innovations, new regulations or similar developments, as long as the object of delivery and its functions are not changed to a disadvantage and the usability for the contractually envisaged purpose is not impaired. This will not lead to a change in the price.
  5. The supplier reserves the right to diagrams, drawings, calculations, samples and similar information of a physical and non-physical kind – also in an electronic form – all property rights and copyrights; they may only be made accessible to third parties with the written consent of the supplier and are to be returned to it, if the order is not placed with the supplier, immediately upon request.
  6. In case of deliveries overseas the obligations of the supplier are subject to the reservation that export licences are granted if applicable.
  7. Contractual claims are not transferable on the part of the orderer without the written consent of the supplier insofar as the regulation of § 354 a HGB [Commercial Code] does not apply.
  8. Insofar as the object which is to be delivered is only determined according to grade features the supplier will only be liable for compensation of damages if it does not prove that it was not responsible for the non-satisfaction, delay in the delivery or the faulty nature of the object.

 

III. Prices and payment

  1. All prices are given in Euro if not otherwise stated. They apply – insofar as not otherwise agreed in the contract – “ex works” (EXW) excluding packaging.
  2. Value added tax is not included in the prices; it is disclosed separately in the invoice in the applicable rate on the day of the invoicing.
  3. The deduction of cash discount requires a written agreement.
  4. Insofar as not otherwise agreed the purchase price is due and payable within 30 days from the date of invoice.
  5. With deliveries overseas the delivery of the goods – insofar as not otherwise agreed in writing – is subject to the provision of an irrevocable letter of credit by the orderer for the benefit of the supplier, confirmed by a German bank.
  6. In the event of payments on account or other instalments payments which are permitted by law or agreed as per contract the supplier can terminate the contractual relationship extraordinarily without notice if the orderer
    • is in default for two consecutive dates with the payment of the payment on account or the other instalment or
    • in a period which covers more than two dates is in default with the payment on account or another instalment in an amount which corresponds with the payment on account or the instalment for two due dates.
  7. The orderer is not entitled to a right of retention.
  8. The orderer can only assert a right to offsetting towards the claims of the supplier if the claim placed for offsetting is undisputed or has been declared final and binding.
  9. The prices of the supplier are based on the cost situation applicable at the time when the offer was created. Should the delivery be postponed by more than four months from conclusion of the contract and should the costs for wages, material, packaging material, freight, taxes or duties have increased in the meantime then the agreed price can be adjusted in line with the influence of the afore-mentioned cost factors. If the price changes accordingly by more than 5 per cent compared with the contractually agreed price the orderer is entitled to cancel the contract insofar as the supplier adheres to a request for a price increase despite the announcement of the intention to cancellation of the orderer.

 

IV. Deadlines for deliveries and services

  1. Liability of delivery dates or delivery deadlines only exists if an explicit declaration of the supplier has been given in this respect. This requires a written form for purposes of proof.
  2. If the supplier does not, not correctly or not in time, receive deliveries or services of its sub-suppliers or of subcontractors, for reasons for which it is not responsible, despite a proper coverage, or if events of force majeure occur the supplier will inform the orderer in time. In this case the supplier is entitled to postpone the delivery or service by the duration of the impediment or to cancel the contract in full or in part owing to the not-yet satisfied part insofar as it has satisfied its afore-mentioned information duty and has not taken over the procurement risk or production risk. Deemed equivalent to force majeure is strike, lock-out, official interventions, shortage of energy and raw materials, transport bottlenecks without a fault, impediments to operation with a fault e.g. through fire, water and machine damages and all other impediments, which with an objective consideration have not been culpably caused by the supplier.
  3. If a delivery or service date or a delivery or service deadline is agreed binding or if owing to events according to Par. No. 2 above the agreed delivery or service date or the agreed delivery or service deadline is exceeded by more than four weeks or with a non-binding service date the adherence to the contract is objectively deemed unreasonable for the orderer then the orderer is entitled to cancel the contract owing to the not-yet satisfied part. Other rights of the orderer, in particular claims for damages, do not exist in this case.
  4. The duration of a final deadline which is to be set by the orderer is fixed at three weeks which will begin with the receipt of the setting of a final deadline at the supplier.
  5. If the supplier is in default then its liability for damages is limited in the event of simple negligence to 5 per cent of the purchase price. Further claims of the orderer remain unaffected.

 

V. Passing of risk, acceptance

  1. The delivery “ex works” (EXW) applies.
  2. The risk shall pass to the orderer as soon as the goods have been handed over to the freight forwarder or carrier or have left the supplier’s plant for the purpose of shipment irrespective of whether the hand-over or shipment is carried out from the place of performance, who bears the freight costs and who carries out the transport.
  3. If the goods are ready for shipment and if the shipment or acceptance is delayed for reasons for which the supplier is not responsible then the risk shall pass to the orderer with the receipt of the notification that the goods are ready for shipment.
  4. If the shipment or the service is delayed by more than one month after notification that the goods are ready for shipment at the orderer’s request, the orderer can be charged a storage fee in the amount of 0.5 % of the invoice amount, however a maximum of 5% for each started months. The orderer remains permitted to provide the proof that no or lower storage costs or expenses have been incurred.
  5. If the supplier owes the assembly of the object of delivery it will only bear the risk until acceptance of the service if the work service is located in its sole scope of risk and influence.
  6. For the event that the supplier’s service is to be accepted it will be deemed as accepted by no later than if and as far as
    • the objects delivered by the supplier are sold by the orderer after the delivery or handed over for use to a third party
    • the objects delivered by the supplier are processed or mixed or combined with other objects with the orderer’s consent,
    • the objects delivered by the supplier beyond a test are used either by the orderer or by a third party with the orderer’s consent or
    • the service is accepted by the orderer’s customer towards the orderer.

 

VI. Reservation of title

  1. The supplier reserves the title to the delivered objects until the receipt of all payments from the business relationship with the orderer. The reservation of title shall also cover the recognised balance insofar as the supplier books receivables against the orderer in current account.
  2. The taking back of the delivered object by the supplier represents a cancellation of the contract. After the object of contract has been taken back the supplier is authorized to the further sale whereby the sales proceeds – minus reasonable costs for the resale – are to be offset against the liabilities. In case of attachment of the object of delivery the supplier is entitled to cancel the contract with setting a deadline. In case of attachments or other interventions of third parties the orderer has to inform the supplier immediately in writing so that it can file action according to § 771 ZPO [Code of Civil Procedure].
  3. The delivered goods, to which the supplier is entitled to the reserved title, may only be sold by the orderer within the framework of a proper course of business; he hereby now already assigns to the supplier all receivables in the volume of the final invoice amount including value added tax, to which it is entitled from the resale against its buyers or against third parties irrespective of whether the object of delivery has been resold without or after processing. The authorization of the supplier to collect the receivable itself remains unaffected hereby.
  4. With suspension of payment by the orderer the entitlement to sale shall lapse. The orderer is not permitted to pledge or assign as collateral reserved goods.
  5. If the object of delivery is inseparably mixed with other objects not belonging to the supplier then the supplier acquires the co-ownership to the new object in the ratio of the value of the delivered object to the other mixed objects at the time of mixing. This shall also apply to the extent that the object of the orders is to be seen as the main object.
  6. The orderer shall keep the sole ownership or the co-ownership in safekeeping for the supplier. It has to insure it against the customary dangers such as e.g. fire, theft, water and similar risks to the customary extent. This shall also apply to the transport of the reserved goods. The orderer hereby now already assigns its claims for compensation to the supplier to which it is entitled from damages of the stated kind against insurers or other third parties in the amount of the invoice value. The orderer shall inform the supplier in case of loss, deterioration or damage to the reserved goods immediately and make the relevant damage documents and claims expert’s opinion together with insurance policy and security certificate available to it.
  7. The supplier undertakes to insofar release the collateral to which it is entitled at the orderer’s request to the extent that their value exceeds the receivables which are to be secured by more than 10%.
  8. For the event that these delivery terms and conditions have not been effectively agreed the assignment of the goods shall respectively be carried out subject to the condition subsequent of the full payment of the invoice amount.

 

VII. Warranty for defects

  1. The orderer has to comply with the responsibilities of § 377 HGB [Commercial Code]. Defects which are recognisable upon delivery must moreover be reported towards the transport company and the recording of the defects arranged for by it. Reports of defects must include a description of the defect in as much detail as possible. A report which is not made in time excludes all claims of the orderer.
  2. The delivered goods shall be deemed as approved by the orderer as per contract with the start of the processing, connection or mixing with other objects. The same shall apply in the event of the further shipment from the original place of destination.
  3. Our liability for breaches of duty owing to defects of quality is excluded insofar as defects and thus associated damages are not as proven due to faulty material, faulty construction or faulty design or faulty assembly instructions. The warranty and liability is in particular excluded for the consequences of faulty use (in particular with assembly which does not comply with the status of technology or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable operating equipment as well as the consequences of physical, chemical or electrical influences, which do no correspond with the envisaged, average standard influences.
  4. Possible claims for recourse of the orderer in the event of the resale of the goods shall only exist against the supplier to the extent that the orderer has not reached any agreements with its buyer which go beyond the statutory claims for defects.
  5. The statute-of-limitations for claims for defects is 12 months. This shall not apply with building contracts, with objects which have been used for a building in line with their customer intended use and caused its faulty condition, with claims owing to the injury to life, the body and health as well as in the event of the grossly negligent conduct of the supplier. The statute-of-limitations for claims for defects will begin for the delivered part with the passing of risk, for the assembly service with the executed acceptance or which is deemed as executed.
  6. The afore-mentioned regulations of Section VII.5. shall not apply to the sale of already used objects; these will be delivered under the exclusion of all claims for defects. The afore-mentioned restriction to the statute-of-limitations with used objects shall not apply with claims owing to the injury to life, the body and health as well as in the event of the grossly negligent conduct of the supplier.

 

VIII. Property rights

  1. Insofar as a third party asserts justified claims against the orderer owing to the infringement of property rights through the delivery provided by the supplier as per contract the supplier shall be liable towards the orderer within the deadline determined in Section VII.5 as follows:
    • The Supplier shall at its own choice and at its costs either obtain a right of use,change thedelivered object to the extent that the property right is not infringed or exchange it.
    • Should this not be possible for the supplier at reasonable conditions the orderer shall be entitled to the statutory cancellation or reduction rights. The orderer cannot request compensation for fruitless expenses.
    • Claims for damages exist according to Section IX.
    • The afore-mentioned obligations of the supplier shall only exist to the extent that the orderer informs the supplier about the claims asserted by third party immediately, does not recognise an infringement and reserves all counter-measures and settlement negotiations towards the supplier. If the use of the delivery is suspended by the orderer for reasons to minimise damages or other important reasons the orderer is obliged that the suspension of use is not connected with a recognition of the infringement of property right.
  2. Claims of the orderer are excluded
    • if it is responsible for the infringement of property right or
    • if the infringement of property right is caused by special stipulations of the orderer, by a application not foreseeable by the supplier or by the fact that the delivery is changed by the orderer or is used together with products not delivered by the supplier.

 

IX. Claims for damages

  1. Claims of the orderer against the supplier and its vicarious agents for damages are excluded; this shall not apply to damages from the injury to life, the body or the health. Incidentally the liability exclusion shall not apply if the damages are based on a grossly negligent breach of duty of the supplier or one of its legal representatives or vicarious agents. 
  2. The liability exclusion shall finally not apply for the event that damages are a result of the breach of essential duties of the supplier. In this case the supplier shall however only be liable for damages up to the amount as these were foreseeable as a possible consequence of the breach of duty with the conclusion of the contract or negotiation of the contract or were foreseeable by taking into consideration the circumstances which the supplier knew or should have known.
  3. Essential duties are such obligations which protect essential contractual legal positions of the orderer which the contract particularly has to grant it according to its contents and purpose. Essential are further those contractual duties the satisfaction of which makes the proper execution of the contract possible at all and upon the compliance with which the orderer can as a rule relied and may rely upon.
  4. The mandatory liability according to the provisions of the Product Liability Act also remains unaffected.
  5. A reversal of the burden of proof is not associated with the afore-mentioned regulations of Section XI.

 

X. Guarantees

  1. Guarantee promises are only effective in a written form.
  2. Details in brochures, datasheets and other printed matter as well as general advertising statements do not represent any offer for conclusion of a guarantee agreement.

 

XI. Place of jurisdiction

  1. The registered seat of the supplier is the place of jurisdiction for all legal relations from this contract. It is however entitled to also file action at the registered seat of the orderer.
  2. German law shall apply to all contractual relationships between the supplier and the orderer. The UN Convention on the International Sale of Goods (CISG) is excluded.
  3. Insofar as individual points of this contract are legally invalid the contract shall remain binding in the other points; unless the adherence to the contract means an unreasonable hardship for another party.

 

 

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