Terms of Delivery
Here you will find our Terms of Delivery - 2018 as pdf file for download.
Terms of Delivery - 2018
As at: 2018-06
The following Terms shall apply to all goods supplied and services rendered by Hans Pregler GmbH & Co. KG, Deggendorf, Germany, hereinafter also referred to as the “Seller” or “we”, and to all our offers and contracts and agreements regarding goods to be supplied by us (hereinafter also referred to as “Goods”, “Product” or “Products”) and services to be rendered except as has been expressly otherwise agreed upon in writing. These Terms shall also apply to all our future statements, quotations, offers, contracts and agreements. Any commercial terms and conditions or purchase conditions on the part of the Purchaser (= “Client”; “Customer”, “Purchaser”) which we do not expressly acknowledge in writing shall have no binding force upon us whatsoever and shall not become part of the contract regardless of whether we explicitly object thereto or not.
Project work, design work, assembly and commissioning work, servicing and repair work shall be subject to separate, additional terms and conditions. (see from page 18 onwards)
Training programs, seminars and courses shall be additionally subject to our terms and conditions for events, which are available on our website under the following link: www.pregler.de/Veranstaltungsbedingungen
1. Offer, conclusion of contact, definition of obligations under the contract, written form
All our quotations shall be without obligation and subject to confirmation.
Any declarations of acceptance and purchase orders shall not be legally effective unless confirmed by us in writing or unless we declare our acceptance by complying with our obligations from the purchase order. Transmission by telecommunications, particularly by fax or email, shall be sufficient for complying with the written form requirement provided that a copy of the declaration is transmitted.
Each quotation or, as applicable, cost estimate is a coherent whole; the removal of individual items or the modification of any types, quantities or places of delivery requires our consent; freight charges quoted by us are always non-binding.
Any dimensions, pack sizes, weights, illustrations, simulation results and drawings shall only be binding for the execution of an order if expressly confirmed in writing.
The required condition of the goods or services provided by us shall be governed exclusively by the agreements explicitly made in the contract. If an item is listed solely or together with our product designation and/or type code in a quotation or contract, it is thereby declared that the condition of the item owed by us is laid down in our general product or type description valid on the date of submission of our statement for the item concerned, and that the information provided therein is subject to compliance by the buyer with the information contained in our operating instructions. Information provided by third parties, including information in advertisements or other publications of third parties, shall not create any contractual claims against us for performance, warranty or damages in any respect.
Provided that the intended use or serviceability remain unaffected thereby, the value is preserved or increased and such changes are reasonable for the Purchaser, we are entitled to modify the object of our delivery or service as compared to the sample, quotation or contract description so as to improve our goods or service in the interests of product advancement or technological progress or because such a modification is due to customary deviations in weights, quantities, dimensions, material composition, material build-up, structure, surface and colour or due to the nature of the materials used.
We only assume any warranty or guarantee regarding the condition of goods and services provided and regarding the risk of their procurement if and to the extent that this has been expressly agreed upon in writing.
Our obligations shall be subject to the proviso that we receive correct and timely supplies from a matching coverage transaction concluded by us in the individual case, including products for further processing or bought-in products, raw materials, auxiliary materials and operating resources or services rendered by third parties which we require for our manufacturing process or readiness to deliver, except as expressly otherwise agreed upon; (= trade clause: “reservation as to ourselves obtaining correct and timely supplies”).
If we purchase any goods or services which we use for fulfilling our contractual obligations towards our Customers, we will conduct receiving inspections or other checks only in our own interests and based on our own requirements.
Any contracts and requests for performance as well as any modifications and amendments thereto and all other agreements relating to a contract or its implementation shall be made in written form. Transmission by telecommunications, particularly by fax or email, shall be sufficient for complying with the written form requirement provided that a copy of the declaration is transmitted.
Oral agreements are only effective if confirmed in writing by either party without delay.
If no written contractual document is executed, any order placed with us shall not be binding upon us unless and until confirmed by us in writing. If we commence with the execution of a delivery of goods or services without an explicit written agreement or confirmation, a contractual relationship will not be created until we have completed the delivery of goods or services. Our obligation is finally described by the contractual document signed by both parties or, in the absence thereof, the contents of our order acknowledgement.
Any subsequent agreements made with the Purchaser in an individual case (including ancillary agreements, amendments and modifications) shall in each case take precedence over these General Terms and Conditions. The contents of such agreements shall be subject to the written contract or, as applicable, our written confirmation.
Legally relevant declarations and notices to be made or given to us by the Purchaser following conclusion of the contract (e.g. setting of time limits, notices of defects, declarations of termination of the contract or reduction of the purchase price) shall not be effective unless made in written form.
Any documents, such as cost estimates, drawings, illustrations, dimensions, weights or other performance data, shall not be binding unless this is expressly agreed in writing. We reserve the ownership rights and copyrights relating to cost estimates, drawings, plans and other documents (e.g. including for invitations to tender) subject to art. 10.
We process and use the Purchaser’s personal data only for the purpose of contract implementation, customer support, our own market and public opinion research and our own promotional campaigns. The Purchaser notes that its data are stored, processed and used by us in our IT systems for our aforesaid operational purposes. The Purchaser also notes that the said data will be disclosed as required to third parties who grant us loans or insure our claims against the Purchaser if necessary for our contract performance.
Our prices shall be in EUR ex works, excluding value added tax and excluding any other public charges imposed on the delivery or movement of goods, excluding packing, insurance, freight, assembly and excluding commissioning except as expressly otherwise agreed upon.
If during the period between the conclusion of the contract and the provision of the goods or, as applicable, services, any of the following factors increase(s), such as energy costs and/or costs of raw materials or primary materials and/or auxiliary materials and operating resources and/or costs of the procurement of the delivery item if purchased from subcontractors or upstream suppliers and/or wage costs, we are entitled to adjust prices by that amount by which the acquisition costs or manufacturing costs of the delivery have increased. For the purposes of the said adjustment, however, costs stated in sentence 1 which have decreased in the period of time referred to in sentence 1 shall be deducted. In the event of any price increase, we will set forth cost increases and cost reductions by type and amount. In the event that a price increase exceeds 5% of the price originally agreed upon, the Purchaser has a right to cancel the contract.
For products which are not fully available from stock upon conclusion of the contract, we are entitled to request prepayment of one third of the contract amount following receipt of the order acknowledgement and another third following the notice of readiness for dispatch, except as expressly otherwise agreed upon.
We may invoice for goods or services actually delivered by us at any time and declare the claim for payment due and payable.
We are entitled to offer the conclusion of a current account agreement to the Purchaser, incl. by allocating all mutual invoices to an account held by us for the Purchaser and sending the Purchaser an account statement. Our offer is deemed to have been accepted unless the Purchaser notifies us in writing of its objection no later than within one month after the receipt of the first account statement.
If this is explicitly indicated in our account statements, quantity and mass bills or confirmations of account balance, these are deemed accepted and binding regarding mutual claims unless the Purchaser objects thereto in writing within a period of six weeks as of receipt.
3. Supply of goods, rendering of services, delays, exercise of option rights by the Purchaser, liquidated damages
Any delivery periods for goods or services are only binding if agreed upon in writing. In case of doubt, the delivery periods indicated in the order acknowledgement shall apply. The said periods commence upon conclusion of the contract, however, no earlier than upon the performance of existing duties of the Purchaser to cooperate, in particular, by submitting the documents to be obtained by the Purchaser, providing materials, approvals, releases, authorisations or agreed down payments or furnishing other collateral for the performance of its contractual duties. Our rights arising from any delay on the part of the Purchaser shall remain unaffected thereby. Delivery periods for goods or services are also deemed to have been observed if the shipment is dispatched or readiness for dispatch has been announced no later than on the 15th calendar day after the delivery date. This shall apply accordingly to any services to be rendered by us.
It is hereby clarified that the delivery period shall not commence until all details regarding execution have been agreed.
We shall not be liable for the impossibility of delivery of goods/services or for delays in deliveries of goods/services if caused by force majeure or other events which were not foreseeable upon conclusion of the contract and which are beyond our control (e.g. plant interruptions of all types, difficulties in obtaining materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining any required official permits or approvals, measures by public authorities, virus attacks and other attacks by third parties on our IT system if such attacks occurred despite compliance with the due diligence customary for protective measures, or impediments due to German, US-American or other applicable national, EU or international regulations under foreign trade and payments legislation). If the delivery of goods or services is rendered materially more difficult or impossible by such events and the said impediment is not only temporary, we are entitled to terminate the contract. Temporary impediments shall extend the delivery periods for goods or services or postpone the delivery dates of goods or services for the duration of such impediment plus an adequate lead time. If the Purchaser cannot be reasonably expected to accept the goods/services due to the said delay, the Purchaser may terminate the contract by written notice given to us without delay.
If for any reason other than those referred to in paragraph 3.2, we fail to comply with a binding delivery period for a product or service, thereby being in breach of our obligation, the Purchaser may terminate the contract after granting an adequate extension of time of no less than 14 calendar days in writing during which we fail to render the service or, as applicable, the goods have not been advised as being ready for dispatch; the granting of an extension is not necessary if this is not required by law. The same shall apply in the event of partial default or partial impossibility.
If we are responsible for non-compliance with set periods or dates to which we have made a binding commitment or if we are in default, the Purchaser is entitled to claim compensation for loss caused by default at a rate of 0.5% of the invoice value for each complete week of default, however, no more than 5% in total of the invoice value of the goods and services concerned by such default. Any claims exceeding the above shall be excluded, unless we are responsible for such default at least due to gross negligence on our part or if the relevant damage arises from any injury to life, limb or health for which we are responsible at least by negligence on our part.
Partial deliveries of goods/services are permissible to a reasonable extent and are separately invoiceable provided that the Purchaser’s interests are safeguarded, in particular, that the scope of the goods or services delivered is not changed and that the partial delivery of the goods/services at intervals is reasonable for the Purchaser with regard to the type of the subject of the contract and its typical use.
If, due to any breach of contract on our part, the Purchaser has the option to assert claims for performance, supplementary performance, termination and/or damages or, as applicable, refund of expenses, we may request the Purchaser to exercise its rights within an adequate period of time. If the Purchaser fails to make any statement thereafter, it may not claim damages in lieu of performance and/or declare the termination of the contract unless and until a further adequate period of time to be set by it has expired without success.
We are entitled to subcontract.
If the goods or the delivery item is/are not collected by the Purchaser at the agreed date or time, if shipping is postponed at the Purchaser’s request or if the Purchaser fails to collect the goods or delivery item after notice has been given of its/their availability incl. one reminder, the Purchaser shall be charged for the costs incurred as a result of storage and financing as of the expiry of the agreed time limit, notification of readiness for dispatch or the receipt of the reminder, however, such charge shall be no less than 0.5% of the invoice value of the goods and services concerned for each month or part of a month of delayed acceptance of delivery, and no more than 5% in total, unless the Purchaser demonstrates that the actual costs are lower. The right to assert a higher loss is expressly reserved.
However, after a time limit has been set and expired without results, we are entitled to otherwise dispose of the delivery item and supply the Purchaser with another delivery item subject to an adequate extension of time.
If any additional or follow-up orders are agreed which lead to a delay in the shipment of the delivery item, the aforesaid conditions apply accordingly.
In the event that we terminate the contract due to a delay in taking delivery or default in payment or any other reasons for which the Purchaser is responsible, we are at our option entitled to claim damages for non-performance without prejudice to any of our other rights. In this event we are entitled to claim 25% of the net value of the goods/services by way of liquidated damages, notwithstanding the right to claim a higher actual amount of damages. The Purchaser may demonstrate that we have not incurred any damage or that the actual damage incurred is materially lower than the aforesaid fixed amount.
Without prejudice to the Purchaser’s rights under art. 5, the Purchaser shall also accept any items delivered if such items differ from the agreed condition only insignificantly or if their fitness for use is restricted only insignificantly.
If we purchase any goods or services which we use for fulfilling our contractual obligations to the Purchaser, we will conduct receiving inspections or other checks only in our own interests and based on our own requirements.
4. Passing of risks; dispatch, duty to examine goods and requirement to make a complaint in respect of a defect immediately on receipt of goods
We owe our Customer the delivery of the goods or services at our place of business (= EXW / EX WORKS pursuant to Incoterms 2010) from which we have concluded the contract. The risk of accidental loss and accidental deterioration of the goods passes to the Purchaser upon delivery.
If the goods are shipped to a different destination at the Purchaser’s request, the method of shipment is at our discretion, except as otherwise specified by the Purchaser. Transport insurance shall only be taken out at the instruction and expense of the Purchaser. The risk shall pass to the forwarding agent, the carrier or any other person or institution authorised to carry out shipment upon delivery, regardless of whether the goods are shipped by our own or third-party means of transport. The same shall apply in the event of delivery freight prepaid.
If delivery or dispatch is delayed due to any circumstances beyond our control, the risk shall pass to the Purchaser on the date of notification of readiness for delivery or dispatch. However, at the Purchaser’s request and expense, we are obliged to effect such insurance as the Purchaser requires.
The Purchaser shall thoroughly examine the goods without delay after their receipt, while the goods are still in the condition in which they have been delivered, or upon collection and shall give notice of defects in writing without delay, no later than one week after receipt of the delivery item. If the aforesaid notice period is not observed, the assertion of any warranty claims or claims based on defects shall be excluded and the delivery of the goods or services shall be deemed approved. If any such defect becomes apparent at a later time (hidden defect), the Purchaser is obliged to notify us thereof without delay after discovering such hidden defect; failing which the aforesaid sentence 2 shall apply accordingly. For the timeliness of such notice, it is sufficient for the notice to have been sent in due time by the Purchaser. Any defective items shall be kept ready for inspection by us in the condition in which they are upon discovery of the defect. Any excess or shortage of weight/shipments within customary limits shall not give a right to give notice of defects or receive a price reduction.
Any further duties of the merchant subject to section 377 of the German Commercial Code (HGB) towards us and the obligation to notify the carrier of any obvious transport damage and shortages upon delivery shall remain unaffected thereby.
5. Defects, warranty, statute of limitations
If the item supplied or the service rendered by us is defective and if the Purchaser demands our supplementary performance, we shall, at our option, either rectify the defect (rectification) or supply an item or render a service which is free of defects (replacement). We shall inform the Purchaser of our decision without delay. If we choose rectification, the rejected goods shall be sent to us for repair. The costs of appropriate, most favourably priced outward and return shipments from/to the Purchaser’s domestic shipping address agreed for the original shipment of the products shall be paid by us provided that the complaint proves to be justified; this provision shall apply mutatis mutandis if we travel to the address to rectify the goods. The Purchaser shall grant us, or a third party designated by us, adequate time and opportunity to carry out the warranty work. Only in urgent cases of hazard and industrial safety or defence against extremely severe damage, whereof we shall be notified immediately, or in the event that we default on rectifying a defect, the Purchaser is entitled to rectify the defect itself or instruct third parties to do so and request a refund for expenses required therefor from us. If we supply a replacement, we may request that, at our option and on our account, the Purchaser either disposes of or realises the defective goods, accounts for such goods to us and pays out any proceeds to us less the Purchaser’s realisation costs, whichever is best, if the Purchaser itself trades in such or similar goods or can be reasonably expected to realise or dispose of such goods for other reasons.
Claims based on defects shall not apply if the relevant goods differ from the agreed condition only insignificantly or if their fitness for use is restricted only insignificantly.
Our warranty obligation and liability shall expire if our goods are modified – incl. by the installation of parts of third-party or unknown origin – unless there is no causal connection between the defect or damage and the modifications, and if any regulations regarding dispatch, packing, installation, treatment, handling, use, operation and maintenance are not complied with or if incorrect assembly and/or commissioning or modifications or repair work have been conducted by the Purchaser or by third parties. EC declarations of conformity, manufacturer’s declarations or other related declarations made and documents provided by us shall become invalid if any modifications are carried out in the product without our prior approval and/or any safety device has been modified or made ineffective.
Natural wear and tear is excluded from the warranty. We shall also not be liable for any changes in the condition or operating mode of our products by improper use or use in deviation from the instructions, incorrect combination with other objects, incorrect storage, unsuitable operating resources and climatic or other effects which are not provided for by the contact. The warranty shall not cover any defects based on design faults or the choice of inappropriate material if the Purchaser has required such design or material despite having been alerted by us in advance. We do not give any warranty for parts supplied by the Purchaser. We are not obliged to check supplied parts for their suitability.
If the Purchaser has not received assembly instructions or directions for use, or has received assembly instructions but these do not enable correct assembly or if the directions for use are incorrect, the Purchaser’s claims for defects of quality shall be restricted to the provision of correct assembly instructions or directions for use. Claims for damages shall be governed by art. 7.
If supplementary performance fails or if we finally and seriously refuse supplementary performance or if we may refuse supplementary performance subject to section 439 paragraph 3 German Civil Code (BGB) or if the Purchaser cannot be reasonably expected to accept supplementary performance or if a case as specified in section 323 para. 2 German Civil Code (BGB) applies, the Purchaser may terminate the contract or reduce the consideration, without prejudice to any claims for damages subject to art. 7.
Any rights due to a defect beyond or other than the claims stipulated in this art. 5 shall be excluded, except for any contractual or non-contractual claims for damages subject to art. 7. However, if a defect is immaterial, the related claim for damages of the Purchaser shall not comprise the purchase price paid but only the loss to its assets caused by the fact that the object is not free of defects.
If a notice of a defect proves to be unjustified, we are entitled to charge the Purchaser for any expenses incurred by us as a result.
Any rights arising from defects of quality become statute-barred after 12 months for newly manufactured products or work performance. This shall apply unless the law requires longer periods of time pursuant to section 438 para. 1 no. 2 (a building or a thing that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building), sections 445 a, 478 (right of recourse) and section 634 a para. 1 no. 2 (building defects) of the German Civil Code (BGB). If used goods are supplied, any rights arising from defects of quality shall be excluded, except as required by mandatory statutory regulations or as otherwise agreed upon. The shortened limitation period and the exclusion of liability shall not apply in cases of intentional or negligent injury to life, limb or health, intentional or grossly negligent breach of duty on our part, fraudulent concealment of a defect, a pertinent warranty of the condition of the goods or claims under the product liability act (Produkthaftungsgesetz). The statutory regulations regarding the commencement, expiry, suspension and recommencement of limitation periods shall remain unaffected except as otherwise agreed upon.
While supplementary performance is rendered, the warranty period shall be suspended. In addition, the performance of work covered by warranty shall not give rise to any extension of the warranty period unless any additional specific circumstances occur which cause the limitation period to recommence. Precautionary replacement of equipment parts is normally only carried out to rectify any defects of which notice has been given and without acknowledgement of the warranty claim in any other manner as defined by section 212 paragraph 1 no. 1 German Civil Code (BGB).
We do not assume any liability for defect claims that the delivery item complies with any regulations outside the territory of the Federal Republic of Germany which exceed the German regulations.
Rights of recourse of the Purchaser against us pursuant to sections 445 a, 478 German Civil Code (BGB) (recourse of the entrepreneur) only exist to the extent that the Purchaser has not made any agreements with its customer which exceed the statutory claims for defects. Paragraph 5.7 hereafter shall apply accordingly to the scope of the Purchaser’s right of recourse against us pursuant to section 445 a paragraph 1 German Civil Code (BGB).
Any rights of recourse of the Purchaser shall be excluded if the defective delivery item has been further processed by the Purchaser or any other company.
The provisions of this paragraph shall apply accordingly to legal defects (which are not based on an infringement of third-party property rights or copyrights) and in the event that the products or services actually delivered or rendered by us are different to or less than those owed.
6. Third-party property rights, third-party intangible rights
Except as expressly otherwise agreed by contract, we are only obliged to supply the goods in the country of the place of delivery free of any industrial property rights and copyrights.
If our goods infringe any property right or copyright or if such an infringement is alleged, we are entitled at our option either to obtain a licence for the Purchaser for the infringing products or to modify such products so that they cease to infringe such property right or, as applicable, copyright or to replace the relevant product with a like product which no longer infringes the property right or copyright. For this purpose, the Purchaser shall make the goods including any software available to us at our request and at our expense.
We shall not be liable if an item has been manufactured in accordance with the Purchaser’s specifications or if the alleged infringement of a property right or copyright results from its use in conjunction with another item not provided by us or if the item is used in a manner unforeseeable by us.
We are solely entitled but not obliged to safeguard or defend ourselves against any industrial property rights or copyrights for our goods.
We shall only be liable for claims arising from an infringement of property rights or copyrights if the relevant property right or copyright is, or was in the past, not owned by the Purchaser or, as the case may be, by a company in which the Purchaser directly or indirectly holds a majority of the equity or voting rights, if the Purchaser informs us without delay of any risks of infringement and alleged cases of infringement when they become known and, at our request, if possible, leaves the conduct of litigation (in court or out of court) to our discretion and, regarding property rights, at least one property right from the family of property rights has been published either by the European Patent Office or in any of the states of the Federal Republic of Germany, France, Great Britain, Austria or USA.
If the Purchaser resells the goods, the Purchaser is obliged to make agreements with its buyer which comply with this art. 6 and from which we are directly entitled (contract for the benefit of a third party).
Paragraphs 6.1 to 6.6 conclusively govern the liability for the freedom of property rights and copyrights and shall apply accordingly to services rendered by us.
7. Any claims of the Purchaser in the event of a delay in delivery, impossibility and other breaches of duty and limitation of liability
Any claims for damages of the Purchaser due to delays in delivery, impossibility of delivery or other causes in law, in particular, due to any breach of duties arising from the underlying contractual relationship and from tort shall be excluded except as otherwise provided in paragraphs 7.2 to 7.7. This shall also apply to claims for reimbursement of expenses on the part of the Purchaser.
The aforesaid exclusion of liability shall not apply
- in cases of intent or gross negligence,
- to any damage arising from an injury to life, limb or health based on negligent breach of duty on our part, or on intentional or negligent breach of duty by any of our legal representatives or persons engaged by us in performing our obligations,
- to claims under the product liability act (Produkthaftungsgesetz),
- subject to any other mandatory statutory regulations or
- due to a violation of material contractual obligations for which we are responsible.
Material contractual obligations are such obligations without whose fulfilment the proper performance of the contract is impossible and upon whose fulfilment the Purchaser may normally rely; this includes, in particular, the obligation to deliver the products/render the services and effect installations in due time, the absence of defects or faults which impair the functionality or fitness for purpose of the subject of the contract to an extent which is not negligible, and duties to give proper advice, duties of protection and duties to exercise proper care which are to enable the Purchaser to use the products/services provided in accordance with the contract or which aim at the protection of life and limb of the Purchaser’s staff and customers or the protection of its property from material damage. Any claim for damages due to the violation of material contractual obligations shall be limited to such damage which is foreseeable and typical for the type of contract unless we are liable for other reasons. Damage which is foreseeable and typical for the type of contract shall mean the damage which we foresaw upon conclusion of the contract as a possible consequence of an occurrence of breach of contract or which we had to foresee with regard to the circumstances which were known to us or should have been known to us. Moreover, indirect damage and consequential damage resulting from any defect in a product/service delivered shall only be recoverable if such damage is typically expected if the product/service is used in accordance with the provisions. Provided that limitation of liability is permissible, liability for damage which is foreseeable and typical for the type of contract shall be limited to 7 times the net price of the individual subject of the contract from whose delivery or non-delivery the Purchaser’s claims have arisen, unless the maximum amount indicated hereafter is exceeded.
Notwithstanding the foregoing limitation of liability for damage which is foreseeable and typical for the type of contract, except for claims under the product liability act (Produkthaftungsgesetz), our obligation to provide compensation for damage to property and financial loss resulting therefrom shall be limited to a maximum amount of EUR 10.0 million per case of damage in cases of ordinary negligence (in accordance with the current amount of cover under our current product liability insurance or, as applicable, third-party liability insurance); this shall also apply to cases of violation of material contractual obligations.
The foregoing provisions shall not entail any change in the statutory onus of proof to the detriment of the Purchaser.
The aforesaid exclusion of liability and the aforesaid limitation of liability apply to the same extent in favour of our executive bodies, legal representatives, employees and other persons engaged by us in performing our obligations.
If the Purchaser has any claims for damages or reimbursement of expenses due to defects pursuant to paragraphs 7.1 to 7.3 above, such claims shall become statute-barred upon expiry of the limitation periods applicable for claims arising from defects of quality subject to the aforesaid paragraph 5.9. Claims for damages under the product liability act (Produkthaftungsgesetz) shall be subject to the statute of limitations.
The aforesaid exclusions of liability or, as applicable, limitations of liability shall not apply to the extent that stricter liability is provided by contract or stricter liability can be understood from the other contents of the underlying contractual relationship, particularly from the assumption of any warranty or risk of procurement.
The Purchaser is not permitted to claim damages in lieu of performance if the breach of duty on our part is negligible.
The aforesaid exclusions of liability or, as applicable, limitations of liability shall not apply to the extent that stricter liability is provided by contract or stricter liability can be understood from the other contents of the underlying contractual relationship, particularly from the assumption of any warranty or risk of procurement.
If we provide any technical instructions or any advice and such instructions or advice are not part of the contractually agreed scope of performance owed by us, the provision thereof shall be free of charge and subject to the exclusion of any liability except in the event of gross negligence or intent.
Without prejudice to the aforesaid limitations, any statutory right of the Purchaser to terminate the contract shall remain unaffected thereby. In the event of any breach of duty not consisting in a defect in the goods, however, this shall not apply unless we are responsible for such breach of duty.
8. Retention of title
We retain title to the delivery item (“goods subject to a retention of title”) until all accounts receivable have been settled (including all unsettled balances from current account and any refinancing or inverted bills) which the Purchaser owes to us now or in future, regardless of their cause in law.
The retention of title shall remain unaffected by the allocation of individual receivables to a current account and by the striking of a balance and its acknowledgement.
The Purchaser is obliged to treat goods which are subject to a retention of title with care; in particular, the Purchaser is obliged to adequately insure such goods at its own expense for their replacement value against damage caused by fire, water and theft. If any maintenance and inspection work is required, the Purchaser shall perform such work at its own expense and at regular intervals. Any damage to or destruction of the goods shall be reported without delay by the Purchaser.
The treatment or processing of goods which are subject to a retention of title shall be carried out for us as manufacturers as defined by section 950 German Civil Code (BGB) without creating any obligation on our part. Goods which have been treated and processed shall be deemed to be goods subject to a retention of title within the meaning of paragraph 8.1. If goods which are subject to a retention of title are processed, joined or mixed by the Purchaser with other goods not owned by us, we are entitled to proportionate co-ownership of the new object at the ratio of the invoice value of the goods which are subject to a retention of title to the other goods used.
If our ownership expires due to processing, joining or mixing, the Purchaser shall with immediate effect assign its rights of ownership of the new stock and the object at the invoice value of the goods subject to a retention of title.
The Purchaser shall keep such the (co-)owned property in custody for us free of charge.
Our co-ownership rights shall be deemed to be goods subject to a retention of title within the meaning of paragraph 8.1.
The purchaser may only sell the goods which are subject to a retention of title in the ordinary course of business and on terms which conform to normal business practice and while the Purchaser is not in default, provided that the claims from resale subject to paragraphs 8.4 to 8.6 are transferred to us. The Purchaser is not entitled to dispose of the goods which are subject to a retention of title in any other manner.
Furthermore, the Purchaser is authorised to assign receivables from resale by way of non-recourse factoring if we are notified of such assignment in advance and the consideration from factoring reaches at least the invoice value of the resold goods which are subject to a retention of title. The amounts owed by and other claims against the factor from the sale of the receivables assigned to us as security shall be assigned to us by the Customer as security for our claims with immediate effect; we accept the said assignment. Furthermore, the following paragraphs 4.4 to 4.6 apply.
The receivables arising from the resale or on any other legal basis (e.g. non-recourse factoring, insurance, tort) in relation to the goods which are subject to a retention of title (including all unsettled balances from current account) shall be fully assigned by the Purchaser to us with immediate effect. Such receivables shall serve as security for our receivables to the same extent as the goods subject to a retention of title pursuant to paragraph 8.1. If the goods which are subject to a retention of title are sold by the Purchaser together with other goods not sold by us, the account receivable from the resale shall be assigned to us at the ratio of the invoice value of the goods subject to a retention of title to the invoice values of the other goods used. In a resale of any goods in which we hold co-owner's shares pursuant to paragraph 8.2, the portion equalling our co-owner's share shall be assigned to us. If the goods which are subject to a retention of title are used by the Purchaser to perform a contract for work and services, the account receivable from the contract for work and services shall be assigned to us to the same extent in advance. We accept the aforesaid assignments.
The Purchaser is entitled to collect accounts receivable from the resale. The said collection authorisation shall expire in the event of our revocation. We will only exercise our revocation right if any circumstances become known to us which result in a material deterioration of the Purchaser’s financial standing which jeopardises our claim for payment, in particular, default in payment, non-payment of a bill of exchange or cheque or application for the opening of insolvency proceedings.
At our request the Purchaser is obliged to notify its customers immediately of the assignment to us and to provide us with the documents required for collection.
If the provisions of the contract of the third-party debtor with the Purchaser include an effective restriction of the authority to assign or if such third party makes the assignment conditional upon its consent, we shall be notified thereof in writing without delay. In this event we shall hereby be irrevocably authorised, subject to the foregoing paragraph 8.5, to collect the amount owed to us on behalf and for the account of the Purchaser. The Purchaser hereby also gives the third-party debtor the irrevocable order to pay in our favour.
The Purchaser shall notify us without delay of any attachment of property or other impairment by third parties. The Purchaser shall pay all expenses required to revoke the attachment or for the return transport of the goods which are subject to a retention of title unless such expenses are refunded by third parties.
If the total realisable value of the collateral furnished in our favour permanently exceeds our accounts receivable by more than 20%, we are, to the said extent, obliged to release collateral at our choice at the request of the Purchaser or any third party impaired by our overcollateralisation.
In the event of any breach of duty by the Purchaser, particularly including default in payment, we may terminate the contract in compliance with the statutory regulations – without prejudice to any further claims for damages. In this event, the Purchaser is obliged to return the property and to assign claims for the restoration of property. For the purpose of taking back the goods which are subject to a retention of title, we are entitled to enter the business premises of the Purchaser. The same shall apply if any other circumstances occur which imply a material deterioration of the Purchaser’s financial standing and seriously jeopardise our claim for payment.
9. Payments, set-off, maturity
Except as otherwise agreed upon in writing or if any of the cases referred to in paragraph 2.4 applies, we will issue our invoice upon delivery, and the Customer owes us payment within a period of 14 days from the invoice date without deduction. The Customer shall default upon expiry of the said period. However, we are also entitled to make payment a condition precedent for delivery (at our option, also by cash on delivery or direct debiting by a bank); paragraph 2.4 shall remain unaffected.
Payments shall be made in cash to us or by bank transfer to the account indicated by us in the invoice. Any cash discounts granted by us shall be calculated as of the invoice date.
The settlement of invoices by bill of exchange or cheque is only effected on account of performance and requires a separate agreement. Discount charges, cheque charges and costs shall be calculated as of the maturity date of the invoice amount and shall be borne by the Purchaser. The risks and costs related to the transfer of the invoice amount shall be borne by the Purchaser.
In the event of default, we are entitled to claim statutory interest as well as a lump-sum payment for the loss incurred as a result of such default. The right to assert claims for further loss in the event of default, including in particular expenses for lawyers engaged by us, shall be reserved.
In the event of culpable default in payment by the Purchaser, we are entitled at all times to cancel any deferred payment terms granted and to declare the full outstanding balance from the business relationship to be immediately due and payable and to demand immediate cash payment and to revoke any discounts even if such discounts are not openly shown in the order/contract or on the invoice and to revoke any other privileges agreed (such as cash discounts or other price reductions), as the proper performance of all contracts which are pending or partly unperformed upon conclusion of the contract is always a prerequisite therefor. This right is not excluded by any extension of the payment term or by the acceptance of any cheques or bills of exchange. In addition, we are entitled to carry out any outstanding deliveries only against prepayment or furnishing of collateral.
The withholding of payments or set-off against any counterclaims of the Purchaser is not permissible unless such counterclaims are undisputed, ready for decision or have become res judicata. In addition, for justified notices of defects, payments may be withheld by the Purchaser to an extent which is proportional to the defects.
In the event that our claim for counter-performance is jeopardised by a lack of capacity of the Purchaser to render performance and such risk is not identifiable by us until after conclusion of the contract, we are entitled to demand payment of the purchase price before delivering the goods, regardless of the mode of payment defined in the contract. If the Purchaser fails to meet this demand or fails to furnish third-party collateral, we are entitled after 14 days to terminate the contract subject to claims for damages.
The Purchaser shall not assign any claims against us.
10. Our know-how, our industrial property rights and secrecy
Any models, dies, templates, samples, tools, drawings, markers, other stains and cost estimates as well as confidential information (hereinafter referred to as “Know-how”) which has been supplied to the Purchaser by us or paid by us in full or in part may only be disclosed or made accessible by us to third parties with our prior express written consent. Moreover, the Know-how shall not be used by the Purchaser for its in-house manufacturing of products or provision of its own goods/services without our prior written consent.
We shall remain the holder of the industrial property rights, particularly relating to patents, trademarks, designs, services, manufacturing procedures including all technical documents and information as well as all business secrets or trade secrets and the Know-how referred to in paragraph 8.1 which have been made available in connection with the negotiation and/or implementation of the relevant contract.
The Purchaser is obliged to keep all illustrations, plans, drawings, authorisations, instructions for implementation, product descriptions and other documents and information received (hereinafter referred to as “Information”) in strict confidence unless they are or become publicly known. We reserve all rights of ownership and copyrights therein. Such Information may only be disclosed to third parties with our prior express consent. This obligation to maintain secrecy shall continue to apply after the performance of the relevant sales contract for a period of five years as of the completion or termination of the relevant contract.
The Purchaser is solely responsible for ensuring that no third-party rights, patents, utility models, trademarks, equipment and other copyrights are violated by the execution of its order towards third parties.
After the implementation of the contracts or upon failure to conclude a contract, the Purchaser shall return to us or, if this is impossible, delete or, as appropriate, destroy any Know-how and Information received from us at its own expense.
11. Software and licence
We offer three different types of software provision, as agreed for the purposes of the contract concluded:
11.1.1 Software development contract
In the event that we receive a separate order from the Purchaser, which is independent of the other goods delivered or services rendered to develop and engineer software against agreement of a separate fee (software development contract), we grant the Customer an exclusive right to use the software developed for it. The said right of use is limited to the version acquired and provided for use by the Customer in the individual case. Any permission of use of the software or the granting of rights in the software by or to third parties shall not be possible without our consent; the same applies to any interference with the software.
11.1.2 Software development for a product
If the software engineered by us is part of the non-autonomous object of the product to be provided by us, without the explicit agreement of a software development contract pursuant to subparagraph 11.1.1 or a licence purchase for standard software pursuant to subparagraph 11.1.3, we grant the Purchaser the following rights: The Customer shall acquire the non-exclusive right to use the associated software exclusively with this product for the period of use of the product. The production of copies of the program is only permissible in the form of the required number of backup copies to avoid data loss. Any other permission of use or granting of rights to third parties without our consent is only permissible if the related product is also included in the sale to the same third party. Any interference with the software is not permissible without our consent. No other rights of use or exploitation shall be granted to the Customer.
11.1.3 Licence purchase for standard software
In the event of a licence purchase for standard software without the explicit agreement of a software development contract pursuant to subparagraph 11.1.1 or software development for a product/delivery pursuant to subparagraph 11.1.2, we grant the Purchaser as licensee a non-exclusive right of use of the software supplied. The said right of use shall be limited to the software version acquired in the individual case, i.e. new versions will have to be relicensed. In addition, the right of use shall be limited to the number of licences stated in the respective order and to the locations or, as applicable, networks stated therein. The production of copies of the program is only permissible in the form of the required number of backup copies to avoid data loss. The use is restricted to internal purposes of our counterparty. Any other permission of use or granting of rights to third parties is not permissible without our consent. Any interference with the software is not permissible without our consent. No other rights of use or exploitation shall be granted to the Customer.
The Customer is obliged to meet all technical, physical and structural requirements for the installation and/or commissioning of the software in advance and to grant us access to the relevant premises.
Unless a contract for software maintenance has been concluded, updates shall only be carried out for the purpose of rectifying any defects at irregular intervals during the period of liability for defects (see art. 5).
12. Place of performance, forum, applicable law
The place of performance for the obligations of the Purchaser and for our obligations shall be the registered seat of our company in Deggendorf, Germany.
For all present and future claims arising from the business relationship, receivables from bills of exchange and cheques, Deggendorf shall be the forum if the Purchaser is a merchant or commercial business, public law entity or a public fund. This forum shall also apply if the Purchaser does not have a general domestic forum, relocates its residence or usual place of abode outside Germany after conclusion of the contract or its residence or usual place of abode is unknown upon commencement of the action. However, we are also entitled to bring an action at the general forum of the Purchaser.
The official language of the contract and negotiations shall be German. This contract shall be governed by German law, with the exception of the Vienna UN Convention of 11 April 1980 (CISG). Moreover, all other international and supranational (contractual) legal systems shall be excluded. However, the prerequisites and effects of the retention of title under art. 8 shall be governed by the law at the location of the relevant object if the choice of law in favour of German law is impermissible or ineffective under the said law.
Conditions for project, design, assembly, commissioning, servicing and repair work
As at: 2018-06
1. General provisions
The following conditions shall apply to project, design, assembly, commissioning, servicing and repair work in addition to our Terms of Delivery. Any other terms and conditions are only binding upon us if acknowledged by us in writing.
2. Projects, designs, set-up and assembly, on-site services
The interpretation of project charters is based on our customers’ specifications. In particular, these specifications shall include all measures required to comply with statutory regulations as well as accident prevention and safety provisions which are to be covered by our work.
We are exclusively entitled to any work results arising from the rendering of our services, including any inventions and the rights of use and exploitation under the copyright.
The Customer shall provide the following in due time:
preparation of the construction site or, as applicable, machinery and equipment for assembly;
staff, materials and tools required for any ancillary work not covered by the project charter according to prior agreement;
energy, water, light, fuel and lubricants, lifting gear, scaffolding and other fixtures for assembly and commissioning;
suitable working space, rest areas, storage space and sanitary facilities for our assembly staff, delivery items and tools. In this regard, the customer shall make appropriate arrangements for the safety and protection of our assembly staff and property;
all information required regarding the position of hidden electricity, gas and water pipes and similar installations and the required statics data.
If any special regulations must be observed during assembly, the customer shall notify us thereof and shall bear the additional expense incurred as a result thereof.
If set-up and assembly including commissioning is delayed due to any circumstances for which the Purchaser is responsible, it shall pay the reasonable costs for waiting times and other trips of the assembly staff which are required in addition to the provisions laid down in paragraph 3.8 which are applicable accordingly, without prejudice to any other claims.
In the event that the agreement concluded does not contain any provisions regarding the invoicing of set-up, assembly and commissioning, the following shall apply:
The Purchaser pays us the rates customary upon placement of the order for working hours and surcharges for extra work, night work, work on Sunday and public holidays, work under aggravated conditions and for planning and monitoring. Time spent for preparations, travelling, lead times and feedback shall be invoiced based on the actual time spent or cost incurred. The same shall apply to travelling expenses, transport costs of tools and personal baggage and allowances for working hours and for days of rest and public holidays.
Unless otherwise agreed, we charge for project, design, assembly, commissioning, servicing and repair work at our general rates in effect for the time being.
If any assembly, commissioning, servicing or repair work is delayed by circumstances beyond our control, we charge the said rates for the costs of waiting times and additional trips of our staff.
4. Acceptance inspection
If a formal acceptance inspection has been agreed, it shall be conducted at our request immediately upon completion and documented in writing. If the Client is absent without justification from an agreed meeting for an acceptance inspection, the goods or services shall be deemed accepted without objection. The same shall apply if the customer puts our goods or services into use without formal prior acceptance.
If no formal acceptance inspection has been agreed, the following shall apply:
The subject of the contract is deemed to have been accepted if
- the delivery of goods/rendering of services has been completed and, if we also owe set-up and assembly, if set-up and assembly have been completed,
- we have informed the Purchaser thereof together with a notice that acceptance shall be implied and have requested the Purchaser to formally accept the goods or services,
- two weeks have passed since the delivery of goods/rendering of services including set-up and assembly work which may be owed or if the Purchaser has put the goods/services into use (e.g. by putting the delivered item into operation) and in this case one week has passed since the delivery of the goods/rendering of the services including any set-up and assembly work which may be owed and
- the Purchaser has refrained from carrying out the acceptance inspection within the said period for a reason other than a defect of which we have been notified and which renders the use of the goods/services impossible or materially impairs such use.