General terms and conditions
1. These conditions and any other special contractual agreements underlie all supplies and services. Any of the buyer's purchase conditions, which deviate from these, are not part of the contract, even if the order is accepted. A contract comes into existence through the supplier's confirmation of the order in writing, unless a special agreement has been made.
2. The supplier retains its right of ownership and copyright over samples, quotations, drawings and similar information of a tangible or intangible nature - including material in electronic form. None of this may be made accessible to third parties. The supplier is obliged to make information and documentation, which has been labelled confidential by the buyer, accessible to third parties only with the buyer's express agreement.
II. Prices and Payment
1. If no special agreement is made, the prices are valid ex works and include loading at the factory, but exclude packaging and unloading. Value added tax at the current relevant legal rate is added to the prices.
2. If no special agreement is made, payment must be transferred to the supplier's account without any deduction:
1/3 of the payment following receipt of the confirmation of order
1/3 as soon as the buyer is informed that the main parts are ready for shipment,
the remaining sum within one month after the risk has passed to the buyer.
3. The right to withhold payment or offset it against counterclaims is only an option for the buyer, if its counterclaims are uncontested or have been upheld by a court of law.
4. If the buyer is entitled to pay in installments because of a contractual agreement, and if it gets into arrears with one installment for a period exceeding 4 weeks, the whole of the outstanding sum becomes due for payment immediately.
III. Delivery Times, Delays in Deliveries
1. The delivery times are established on the basis of the agreements made by the parties to the contract. The supplier's observance of these presupposes that all the commercial and technical issues between the parties have been resolved and the buyer has fulfilled all the obligations incumbent upon it, such as e.g. producing all the necessary certificates or authorisations from the authorities or paying the first installment. If this is not the case, the delivery time is extended by an appropriate period. This does not apply, if the supplier is responsible for the delay.
2. The observance of the delivery deadline applies, subject to the proviso that goods have been delivered to the supplier correctly and punctually.
3. The delivery date has been observed, if the goods being supplied have left the supplier's factory by the time it expires, or the buyer has been informed that the goods are ready for dispatching. If the goods are to be accepted on arrival, the acceptance date is the critical time - unless a refusal to accept the goods is legitimate - or alternatively the notification of readiness to accept the goods.
4. Partial deliveries are admissible, if this is reasonable to the buyer.
5. If the shipment or the acceptance of the goods supplied is delayed for reasons that cannot be attributed to the supplier, the buyer is charged for the costs incurred through the delay, beginning one month after notification has been given of readiness to ship the goods or have them accepted.
6. If non-compliance with the delivery time can be attributed to an act of God, industrial disputes or other events, which are outside the supplier's sphere of influence, the delivery time is extended for an appropriate period. The supplier must inform the buyer of the start and conclusion of any such circumstances as soon as possible.
7. The buyer may withdraw from the contract without any set time limit, if the whole operation becomes totally impossible for the supplier, before the risk for the goods has passed to the buyer. The buyer may also withdraw from the contract, if the execution of one part of the consignment becomes impossible and it has a legitimate interest in refusing a partial delivery. If this is not the case, the buyer must pay the contractually agreed price relevant to the partial delivery. The same applies in the case of the supplier's inability to perform. Other matters are covered by section VII 2.
8. If the impossibility or the inability to perform arise during the delay in accepting delivery, or if the buyer is solely or overwhelmingly responsible for these circumstances, it remains obliged to provide goods or services in return.
9. If the supplier defaults, so causing loss to the buyer, it is entitled to demand a lump-sum compensation for the delay. For each full week of the delay, this amounts to 0.5% of the total sum, but a maximum amount of 5% of the value of this part of the overall order, which cannot be used at the right time or in line with the contract as a result of the delay.
10. If the buyer grants the supplier, which is in default, an appropriate period to perform - taking into account the legal exceptions - and if this deadline is not met, the buyer is entitled to withdraw from the contract within the framework of the legal stipulations.
11. Any further claims from any delay in shipment are solely determined by section VII.2 of these conditions.
IV. The Passing of Risk, Acceptance
1. Assuming there are no other agreements, the risk passes to the buyer, as soon as the vendor has handed over the sold goods to the haulage company, the carrier or any other person or institution specified to carry out the shipment, even when partial deliveries result or the supplier has assumed responsibility for other services, e.g. the shipment costs or the delivery and installation of the goods. If the goods are to be accepted on arrival, this is the decisive moment for the passing of risk. This acceptance must be carried out immediately on the acceptance date, alternatively after notification from the supplier that the goods are ready for acceptance. By presenting evidence of a defect that is not substantial, the buyer may not refuse to accept the goods.
2. If the shipment or the acceptance of the goods is delayed or does not take place as a result of circumstances, which cannot be attributed to the supplier, the risk passes to the buyer from the day of notification of readiness for the goods to be shipped or accepted. The supplier is obliged to take out insurance, which the buyer demands, at the latter's expense.
3. If the buyer does not accept the goods supplied by the supplier in line with the contract, or if the supplier is unable to supply the goods as a result of a circumstance, for which the buyer is responsible, the supplier is entitled to demand lump-sum compensation from the buyer for not fulfilling its obligations amounting to 15% of the purchase price, plus the legal rate of value added tax. Any possible higher claim for compensation on the part of the buyer remains unaffected just as the buyer's right to provide evidence of a smaller loss.
V. Retention of Title
1. The supplier retains the ownership of the goods being supplied until all the payments arising from the supply contract are settled.
2. The supplier is entitled to insure, at the buyer's expense, the goods being supplied against theft, breakage, fire, water and any other kinds of damage, if the buyer itself cannot provide evidence that it has taken out insurance.
3. The buyer may not sell or pawn the goods supplied nor assign them by way of security. If the goods are seized or confiscated or other official orders are issued by third parties, the buyer must inform the supplier about this situation immediately.
4. If the buyer contravenes the contract, especially by delaying payment, the supplier is entitled to take back the goods supplied following a further demand for payment, and the buyer is obliged to surrender the goods. The enforcement of the retention of title and the seizure of the goods supplied by the supplier do not constitute a withdrawal from the contract.
5. An application for the initiation of bankruptcy proceedings entitles the supplier to withdraw from the contract and demand the immediate return of the goods supplied.
The supplier provides a guarantee covering material and title defects in the consignment to the exclusion of further claims - except for section VII - as follows:
1. All the parts, which turn out to be defective as a result of a circumstance occurring prior to the passing of the risk, must either be rectified or supplied new free of charge, depending on which option the supplier chooses. When any such defects are discovered, the supplier must be informed immediately in writing. Parts that are replaced become the property of the supplier.
2. Once the supplier has been informed, the buyer must give the supplier the necessary time and opportunity to perform all the improvements and provide replacement deliveries, which the supplier deems necessary; otherwise the supplier is exempt from any liability for the consequences which ensue from this situation.
The buyer only has the right to remedy the defect itself or have this done by third parties and demand indemnity for the necessary expenditure from the supplier in urgent cases, where factory safety is endangered or to prevent disproportionately huge damage. If so, the supplier must be informed immediately.
3. With regard to the expenses arising from rectifying parts or providing replacement supplies - if the notice of defect turns out to be justified - the supplier bears the costs of the replacement part(s) including shipment, plus the appropriate costs involved in removing and inserting the part(s), and furthermore the cost of possible provision of its engineers and assistants, if this is a reasonable demand in the individual case.
4. Within the framework of the legal stipulations, the buyer has the right to withdraw from the contract, if the supplier - taking into account the legal exceptions - allows an appropriately set deadline for rectifying or providing replacement(s) with regard to a material defect to pass without taking the necessary action. If the defect is only of a minor nature, the buyer only has the right to reduce the contract price. The right to reduce the contract price for any other reason is excluded.
5. No guarantee can be provided in the following situations in particular:
in the case of inappropriate or improper usage, defective assembly or commissioning by the buyer or third parties, natural wear and tear (e.g. parts subject to wear and tear), defective or careless handling, failure to carry out proper maintenance, inappropriate working materials, faulty construction work, an inappropriate foundation, chemical, electro-chemical or electrical effects - in so far as the supplier cannot be held responsible for these. The same applies to second-hand machines or plant.
6. If the buyer or a third party rectifies equipment in an improper manner, the supplier is not liable for any consequences that might arise. The same applies to any changes made to the goods supplied without the prior agreement of the supplier.
Defects of Title
1. If the use of the goods supplied leads to the infringement of industrial property rights or copyright within the domestic territory, the supplier will, at its expense, in principle procure for the buyer the right to further use the equipment or will modify the goods supplied in a way that is reasonable for the buyer, so that the infringement of property rights is eliminated. If this is not possible under economically viable conditions or within an appropriate period, the buyer is entitled to withdraw from the contract. The supplier also has a right to withdraw from the contract, if the above mentioned conditions are fulfilled.
In addition the supplier will exempt the buyer from uncontested or legally settled claims from the relevant property rights holders.
2. The supplier's obligations set out in section VI.7 are final, except for section VII.2 in the case of infrinments of property rights or copyright.
These only exist if:
- the buyer immediately informs the supplier of infringements of property rights or copyright that have been asserted,
- the buyer supports the supplier to the appropriate extent in defending the claims that have been asserted or enables the supplier to carry out the modification measures in line with section VI 7,
- all the preventive measures, including settlements out of court, remain the province of the supplier,
- the defect of title has not been caused by a directive from the buyer, and
- the infringement of the right was not caused by the fact that the buyer arbitrarily altered the goods supplied or used them in a manner not agreed in the contract.
1. If the goods supplied cannot be used by the buyer as agreed in the contract because of the supplier's negligence, as a result of the failure to carry out suggestions and advice or having done so in a defective manner, either prior to or following the signing of the contract, or by infringing other collateral obligations in the contract, especially instructions regarding the use and maintenance of the goods supplied, then the relevant stipulations in sections VI and VII.2 apply, to the exclusion of further claims from the buyer.
2. The supplier is liable for damage, which did not directly occur in the goods supplied, whatever the legal basis of the arguments, only:
- if deliberately done
- in cases of gross negligence by the owner/board or managing employees,
- in cases of proven injury to life, limb or damage to health,
- in cases of defects, which it has concealed with intention to deceive, or when it has guaranteed their absence,
- in defects to the supplied goods, in so far as liability for personal injury and damage to property with regard to goods that are used privately is covered by the Product Liability Act.
- In cases of proven infringement of essential contractual obligations the supplier is liable, even in the case of gross negligence by non-management staff and in the case of slight negligence; in the latter this is limited to damage consistent with the contract and which can be reasonably predicted.
Any further claims are excluded.
VIII. Statute of Limitations
All claims by the buyer - on whatever legal grounds - fall under the statute of limitations after 12 months. The legal deadlines apply in cases of deliberate or deceitful behaviour and with regard to claims in line with the Product Liability Act. These also apply to defects in a building or for goods supplied, which were used in a building in line with their usual manner of use and have caused its defectiveness.
IX. Use of Software
If the goods supplied also include software, the buyer is granted a non-exclusive right to use the software supplied including its documentation. It is permitted for use in connection with the goods supplied for which it is specified. The use of the software on more than one system is prohibited.
The buyer may only duplicate, revise, translate the software or change from the object code to the source code to an extent which is legally permissible (§§ 69 a ff. Copyright Act). The buyer is obliged not to remove the manufacturer's data - especially copyright notices - or alter these without the prior expressed agreement of the supplier.
All other rights linked to the software and the documentation, including copies, remain with the supplier or the software supplier. The granting of sublicences is prohibited.
X. Applicable Law, Place of Jurisdiction
For all legal relations between the supplier and the buyer, the law of the Federal Republic of Germany applies exclusively to the legal relations, but to the exclusion of the United Nations Agreement of 11th April 1980 covering the international sale of goods. The place of jurisdiction is Tamm. The supplier is however entitled to take legal action at the buyer's head office.
Werner & Pfleiderer
Industrielle Backtechnik GmbH
Frankfurter Straße 17
Fon: +49 (0) 7141 202-0
Fax: +49 (0) 7141 202-5111