Article I: General provisions

1. The legal relationship between the Supplier and the Purchaser in connection with the Supplier’s deliveries and/or services (hereinafter referred to as “Deliveries”) shall be governed exclusively by these GTC. The Purchaser’s general terms and conditions shall only apply insofar as the Supplier has expressly agreed to them in writing. The scope of the deliveries shall be determined by the mutually agreed written declarations.
2. The Supplier reserves its unrestricted rights of use and exploitation under property and copyright law to cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply accordingly to the Purchaser’s documents; however, these may be made accessible to third parties to whom the Supplier has permissibly transferred deliveries.
3. The customer has the non-exclusive right to use the standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The customer may make a backup copy of the standard software without express agreement.
4. Partial deliveries are permissible insofar as they are reasonable for the customer.
5. The term “claims for damages” in these GTC also includes claims for reimbursement of futile expenses.

 

Article II: Prices, terms of payment and offsetting

1. Prices are ex works excluding packaging plus the applicable statutory value added tax.
2. If the Supplier is responsible for installation or assembly and unless otherwise agreed, the Purchaser shall bear all necessary ancillary costs such as travel and transportation costs and allowances in addition to the agreed remuneration.
3. Payments shall be made free Supplier’s paying agent.
4. The customer may only offset claims that are undisputed or have been legally established.

 

Article III: Retention of title

1. The objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests for the release.
2. For the duration of the retention of title, the purchaser is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is not transferred to the customer until the customer has fulfilled its payment obligations.
3. If the Purchaser resells goods subject to retention of title, it hereby assigns to the Supplier by way of security its future claims against its customers arising from the resale, together with all ancillary rights – including any balance claims – without the need for any further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the Customer shall assign to the Supplier that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the Supplier.
4. The customer is permitted to process the reserved goods or to mix or combine them with other items. The processing is carried out for the supplier. The Purchaser shall store the resulting new item for the Supplier with the care of a prudent businessman. The new item is deemed to be reserved goods.
5. The Supplier and the Purchaser hereby agree that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. In this respect, the new item is deemed to be reserved goods.
6. The provision on the assignment of claims under No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the supplier.
7. If the Buyer combines the goods subject to retention of title with real estate or movable property, he shall also assign to the Supplier by way of security his claim to which he is entitled as remuneration for the combination, including all ancillary rights, in the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination, without the need for any further special declarations.
8. Until revoked, the purchaser is authorized to collect assigned claims from the resale. In the event of good cause, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser’s authorization to collect. In addition, the Supplier may, after prior warning and subject to a reasonable period of notice, disclose the assignment by way of security, realize the assigned claims and demand disclosure of the assignment by way of security by the Purchaser to the Customer.
9. In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform the supplier immediately. If a legitimate interest is substantiated, the Purchaser shall immediately provide the Supplier with the information required to assert its rights against the customer and hand over the necessary documents.
10. In the event of breaches of duty by the Purchaser, in particular default in payment, the Supplier shall be entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the Purchaser; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by the Supplier shall not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.

 

Article IV: Time limits for deliveries; delay

1. Compliance with deadlines for deliveries requires the timely receipt of all documents to be supplied by the Purchaser, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these conditions are not fulfilled in good time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
2. If non-compliance with the deadlines is due to
   a) force majeure, e.g. mobilization, war, acts of terrorism, riots or similar events (e.g. strike, lockout), b) virus and other attacks by third parties on the Supplier’s IT system, insofar as these occurred despite (e.g. strike, lockout),
   b) virus and other attacks by third parties on the Supplier’s IT system, insofar as these occurred despite compliance with the usual care in protective measures,
   c) obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the Supplier is not responsible, or
   d) late or improper delivery to the Supplier, the deadlines shall be extended accordingly.

3. If the Supplier is in default, the Purchaser may – provided it can credibly demonstrate that it has suffered a loss as a result – demand compensation of 0.5% for each completed week of default, but no more than a total of 5% of the price for that part of the deliveries which could not be used for the intended purpose due to the default.
4. Both claims for damages by the Purchaser due to delayed delivery and claims for damages in lieu of performance exceeding the limits specified in No. 3 shall be excluded in all cases of delayed delivery, even after expiry of any deadline set to the Supplier for delivery. This shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health. The Purchaser may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
5. At the Supplier’s request, the Customer shall be obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
6. If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the request of the Purchaser, the Purchaser may be charged a storage fee of 0.5% of the price of the items of the Supplies for each additional month or part thereof, but not more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.

 

Article V: Transfer of risk

1. the risk shall pass to the customer as follows, even in the case of carriage paid delivery:

1. in the case of delivery without installation or assembly, if it has been dispatched or collected. At the request and expense of the Customer, the Supplier shall insure the delivery against the usual transportation risks;
2. in the case of delivery with installation or assembly on the day of acceptance at the customer’s own premises or, if agreed, after successful trial operation.
3. If dispatch, delivery, the start or performance of installation or assembly, acceptance in the customer’s own plant or trial operation is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.

 

Article VI: Receipt

The customer may not refuse to accept deliveries due to insignificant defects.

 

Article VII: Material defects

The supplier shall be liable for material defects as follows:

1. All those parts or services which have a material defect shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for subsequent performance shall lapse 12 months after the statutory limitation period begins; the same shall apply to withdrawal and reduction. This period shall not apply: – insofar as the law prescribes longer periods in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings) and 634a Para. 1 No. 2 (building defects) BGB,
   – in the event of intent,
   – in the event of fraudulent concealment of the defect, and
   – in the event of non-compliance with a guarantee of quality.
   Claims for reimbursement of expenses by the customer in accordance with § 445a BGB (recourse of the seller) also expire 12 months after the statutory limitation period begins, provided that the last contract in the supply chain is not a purchase of consumer goods. The statutory provisions on suspension of expiry, suspension and recommencement of the limitation periods shall remain unaffected.

3. Notification of defects by the customer must be made immediately in writing.
4. In the event of claims for defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser shall have no right of retention if its claims for defects are time-barred. If the notice of defects is unjustified, the Supplier shall be entitled to demand compensation from the Purchaser for the expenses incurred.
5. The Supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
6. If the subsequent performance fails, the customer may – without prejudice to any claims for damages in accordance with No. 10 – withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the event of non-reproducible software errors. If the customer or third parties carry out improper modifications, installation/removal or repair work, there shall also be no claims for defects for these and the resulting consequences.
8. Claims by the Purchaser for expenses incurred for the purpose of subsequent performance are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the Purchaser’s place of business, unless the relocation corresponds to its intended use. This shall apply mutatis mutandis to claims for reimbursement of expenses by the Purchaser pursuant to Section 445a BGB (recourse of the Seller), provided that the last contract in the supply chain is not a sale of consumer goods.
9. Recourse claims of the purchaser against the supplier in accordance with § 445a BGB (recourse of the seller) shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects.
10. Claims for damages by the customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. Further claims or claims other than those regulated in this Art. VII due to a material defect are excluded.

 

Article VIII: Industrial property rights and copyrights; defects of title

1. Unless otherwise agreed, the Supplier is obliged to make the delivery only in the country of the place of delivery without infringing the industrial property rights and copyrights of third parties (hereinafter: property rights). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the period stipulated in Art. VII No. 2 as follows:
2. a) The Supplier shall, at its own discretion and at its own expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the property right is not infringed, or replace them. If this is not possible for the Supplier under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal or reduction.
3. b) The Supplier’s obligation to pay damages shall be governed by Art. XI.
4. c) The aforementioned obligations of the Supplier shall only apply if the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to the Supplier’s discretion. If the Purchaser ceases to use the Supplies in order to minimize the damage or for other good cause, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of the infringement.
5. Claims of the customer are excluded insofar as he is responsible for the infringement of property rights.
6. Claims of the Purchaser shall also be excluded if the infringement of property rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Supplier or by the fact that the delivery is modified by the Purchaser or used together with products not supplied by the Supplier.
7. In the event of infringements of industrial property rights, the provisions of Art. VII No. 4, 5, 8 and 9 shall apply accordingly.
8. In the event of other defects of title, the provisions of Art. VII shall apply accordingly.
9. Further claims or claims other than those regulated in this Art. VIII against the Supplier and its vicarious agents due to a defect of title are excluded.

 

Article IX: Reservation of performance

1. The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions.
2. The customer is obliged to provide all information and documents required for the export, shipment or import.

 

Article X: Impossibility; contract adjustment

2. If delivery is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the customer. The right of the customer to withdraw from the contract remains unaffected

3. If events within the meaning of Art. IV No. 2 a) to c) significantly change the economic significance or the content of the delivery or have a significant effect on the supplier’s business, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, the Supplier shall be entitled to withdraw from the contract. The same shall apply if necessary export licenses are not granted or cannot be used. If the Supplier wishes to exercise this right of withdrawal, it must inform the Buyer immediately after realizing the consequences of the event, even if an extension of the delivery period was initially agreed with the Buyer.

 

Article XI: Other claims for damages

1. Unless otherwise stipulated in these GTC, claims for damages by the customer, regardless of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, are excluded.
2.  This does not apply if liability is as follows:

1. a) in accordance with the Product Liability Act,
2. b) in the case of intent,
3. c) in the event of gross negligence on the part of owners, legal representatives or executives,
4. d) in the event of fraudulent intent,
5. e) in the event of non-compliance with an assumed guarantee,
6. f) due to culpable injury to life, limb or health, or
7. g) due to the culpable breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.

3. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

 

Article XII: Jurisdiction and applicable law

1. If the Purchaser is a merchant, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Münster in Westphalia. However, the Supplier shall also be entitled to bring an action at the Purchaser’s registered office.
2. This contract, including its interpretation, shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

Article XIII: Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.