1. All deliveries and services are based on these conditions as well as possible separate contractual agreements. Differing purchase conditions of the orderer do not become contents of contract, even after the order is affirmed. A contract is valid, without any further agreement, with the written confirmation of the order by the supplier.
2. The supplier reserves all rights of information of physical and insubstantial kind, also in electronic form, of property and author rights at patterns, cost estimates, drawings and similar things. Meaning no third party is allowed to gain access to it. The supplier is obligated to treat all information and documents given by the orderer as confidential and only to make them accessible to third parties if accepted by the orderer.
II. Price and payment
1. The prices are valid, for lack of special agreements, ex works including loading ex factory, however excluding packaging and discharge. For the prices the sales tax comes in the respective legal height.
2. For lack of special agreement the payment without any withdrawal is to be transferred to the account of the supplier :
- 1/3 deposit after receiving the confirmation of the order
- 1/3 as soon as the orderer is informed of the competition of the main parts being dispatch- ready the remaining amount within a month after danger crossing.
3. The right, to restrain payments or to add with counter-claims, is entitled to the orderer only in this respect when his counter-claims are indisputably or legally found.
III. Delivery time, delivery delay
1. The delivery time results from the agreements of the contracting parties. Their compliance through the supplier presupposes, that all financial and technical questions have been dealt with between the contracting parties and the orderer has been taken care of all necessary obligations that are incumbent upon him, as for example the infliction of the necessary official certifications or permission or the transfer of a deposit. If this is not the case, the delivery time is postponed appropriately. This is not valid as far as the supplier is responsible for the delay.
2. The adherence of the stipulated delivery period depends on correct and punctual self supply.
Emerging delays are subject to be informed about as soon as as possible by the supplier.
3. The delivery period is maintained, if the delivering-object has left the factory of the supplier or if the readiness of dispatch is announced by the stipulated time. As far as an absorption has to occur as contracted, except for legit mate rejection, the absorption date is decisive, alternatively the announcement of readiness of dispatch.
4. If the dispatch or delivery is delayed due to any reasons caused by the orderer, beginning a month after the sit plated date of absorption, all costs arisen by the delay are to be payed by the orderer.
5. If the delivery time is delayed at cause of force majeure, onto labour struggles or other events that lie outside of the sphere of influence of the supplier, the delivery time is prolonged so appropriated. The supplier will inform the orderer of the beginning and the end of such circumstances as soon as possible.
6. The orderer can resign from the contract without deadline if the entire achievement becomes finally impossible to the supplier before danger crossing. In addition the orderer can resign from
the contract if the carrying out of a part of the delivery becomes impossible and he has an entitled interest at the refusal of the partial delivery. If this is not the case, the orderer has to pay so the contract price being allotted to the partial delivery. The same is valid in case of inability of the supplier. By the way section VI is valid.
7. If the supplier caused a delay in delivery, the orderer is able to demand a compensation for the delay if this arose a damage. It is 0,5 % for every full week of the delay, as a whole, however, at most 5 % of the value of that part of the package, that can not be used punctual due to the delay. Does the orderer set an appropriate time limit for the supplier, considering the legal exceptions, after the due date of the delivery, if the time is not kept to, the orderer is within the framework of the legal rules entitled to the resignation.
Further claims from delay in delivery are determined exclusively by section VI of these conditions’.
IV. Danger crossing, absorption
1. The danger passes onto the orderer, when the delivering-object has left the factory, also then, if partial deliveries occur or the supplier has still taken over other services, for example the shipping notes or delivery and installation. As far as an absorption has to occur, this is decisive for the danger crossing. The absorption must be carried on immediately to the deadline or temporarily according to the announcement of the supplier about the absorption. The orderer must not refuse the absorption with presence of a defect which is not essential.
2. If the delivery is delayed or the dispatch and/or the absorption due to circumstances that are not to be assigned to the supplier , the danger goes from the day of the announcement of dispatch onto the orderer above. The supplier commits itself to finishing the insurances which the demands of the orderer to his expenses.
3. Partial deliveries are acceptable as far as reasonable for the orderer.
V. Reserved ownership
1. The supplier reserves the property at the delivering-object up to the entry of all payments from the supply con tract.
2. The supplier is entitled, to insure all the delivering-objects at the expense of the orderer against theft, break-in, Fire-, Water- and to insure other damages provided that the orderer itself did not finish the ins durance demonstrable.
3. Neither is the orderer allowed to dispose of the delivering-object, pawn or to assign for back-up. In the case of garnishment as well as confiscation or other acts of disposal through third party, he has to inform the supplier of that immediately.
4.With behaviour contrary to contract of the orderer, in particular with default, the supplier is entitled to the withdrawal of the delivering-object, after reminder, and the orderer is obliged to hand it out.
5.Due to the reserved ownership the supplier can only demand the delivering-object if he has resigned from the contract.
6. The request for opening of the insolvency procedure entitles the supplier to step back from the contract and to demand the immediate return of the delivering-object.
VI. Shortcoming claims
For material defect and defect of title of the delivery the supplier issues, under exclusion of further claims, subject to VII th section, guarantee as follows:
1. Material defect
a. All those parts are to improve free of charge after choice of the supplier that turn out as defective due to a circumstance caused during the danger crossing or to replace. The determination of such shortcomings is to be announced to the supplier in writing immediately. Replaced parts become property of the supplier.
b. For the undertaking of all repairs and replacement deliveries appearing necessary to the supplier the orderer has to give after communication with the supplier the necessary time and occasion, otherwise the supplier is ex empted from the liability for the consequences arising from that. Only in urgent cases of danger of the reliability and/or to the defence of disproportionately great damages, with which the supplier is to be notified immediately, the orderer is allowed to dispose with the damage by himself or the damage to be eliminated through third party and to demand substitute of the necessary expenditures from the supplier.
c. From the immediate costs arising through the repair and replacement delivery, the supplier is in charge of all costs including the dispatch, as far as the complaint turns out as being entitled. In addition the supplier bears the costs of the dismount and reconstruction as well as the costs of the necessary presentation to customs of the necessary mechanics and assistants including travel expenses, as far as no disproportionate load of the supplier sets in through this.
d. The orderer has a right for the resignation of the contract within the framework of the legal rules if the supplier, considering the legal exceptions, does not meet the reasonable deadline for the repair or replacement delivery. If there is only an unimportant lack, the orderer is entitled only to a right for the decrease of the contract price.
The right to decrease the settled price is impossible apart from that.
Further claims are determined by section VI. 2. of these conditions’.
e. No guarantee is taken over in particular cases as follows:
- Ungeeignete oder unsachgemäße Verwendung, fehlerhafte Montage bzw. Inbetriebsetzung
- Unsuitable or inappropriate use, inaccurate construction and/or setting-up through the orderer or third party, wear and tear, inaccurate or careless treatment
- not proper maintenance
- unsuitable resources and operating material
- inadequate construction works
- unsuitable ground chemical, electrochemical or electric influences, provided that they are not to be accounted for by the supplier.
f. If the orderer or a third party retouch the delivery object inappropriately, the supplier does not take any liabilities of the consequences arising from that. Same is valid for changes of the delivering-object made without previous approval of the supplier.
2. Defect of title
a. If the use of the delivering-object leads to the infringement of commercial industrial property rights or national copyrights, the supplier will provide the orderer with the right for the further use onto his costs or modify the delivering- object in such a way , reasonable for the orderer, that the delivering object does not infringe the industrial property rights any further.
Is this is not possible to economically appropriate conditions or in adequate period of time, the orderer is entitled to the resignation of the contract. Under the mentioned conditions the supplier has also the right for the resignation of the contract. Furthermore the supplier will exempt the orderer of undisputed or legal claims of the affecting industrial property rights holders.
b. The in section VI. 7. mentioned obligations of the supplier subject to section VI are terminal for the case of the protection or copyright infringement.
They only exist if the orderer informs the supplier immediately of asserted protection or copyright infringement .The orderer supports the supplier in adequate extent during the defence of the asserted claims and/or the supplier the realization of the modification measures according to section VI. 7. makes possible, the supplier all protective measures including extra judicial regulations reserve stay and when:
- defect of title is not based on command of the orderer and
- the violation of law was not caused by the act of the orderer’s authority to change the delivering-object arbitrarily or used the delivering-object in a manner not being contract- appropriate.
- by intent
- with coarse negligence of the owner and/or the executive
- in the case of culpable injury of lives, body, health
- with shortcomings, that the supplier concealed guilefully or those which their absence has been guaranteed
- in the case of shortcomings of the delivering-object, as far as according to product liability law, person or material damages, at privately used objects, are been liable for.
1.If the delivering-object can not be used by the orderer on account of the supplier due to refrained or inaccurate carrying out, occurred before or after conclusion of contract and consultations or through the injury of other contractual secondary obligations, in particular instruction for service and maintenance of the delivering- object, contract-appropriately, the regulations of the sections mean for VI so under exclusion of further claims of the orderer. and VII. 2. corresponding.
2. The supplier is only liable for damages that did not arise at the delivering-object itself, for whatever reasons:
In the case of culpable infringement of essential contract duties the supplier has to adhere confined, also by coarse negligence of minor executives and with easy negligence in latter case to the contract-typical, reasonable for foreseeable damage.
Further claims are impossible.
All claims of the orderer, for whatever reasons, become invalid by prescription in 12 months.
For claims for compensation to section VI. the legal periods of time are valid. They are also valid for shortcomings of a construction or for delivering-objects that were used for an edifice according to their usual use and caused their defectiveness.
IX. Software use
As far as the scope of delivery contains any kind of software, a not exclusive right is granted to use the given soft ware including their documentation. The software will be left for the use on the specific delivering-object. A use of the software on more than one system is forbidden.
The orderer is only entitled to duplicate, translate or convert the software into the source code from the object code in the by law permissible extent (§ 69 a ff. UrhG). The orderer is obligated to keep all copyright notices, and not to remove or to change without previous explicit approval of the supplier manufacturer’s specifications .
All remaining rights at the software and the documentation including the copies are property of the supplier or the software provider. The allocation of sub concessions is not permissible.
X. Applicable right, legal venue
For all right relationships between the supplier and the orderer the right relationships of domestic parties under each other are authoritative based on the right of the Federal Republic of Germany.
Legal venue is the court responsible for that of the supplier. The supplier is, however, entitled, to raise complaint at the head office of the orderer.
Schermbeck, July 2010