| | I. GENERAL |
| 1. |
The following Terms and Conditions are valid for all deliveries and services by
Grässlin GmbH (hereinafter referred to as "Supplier"), as well as
for all future deliveries and services with our customers (hereinafter referred to
as "Purchaser"). General terms and conditions of the Purchaser shall apply
only if and when expressly accepted by the supplier in writing. The scope
of deliveries and/or services (hereinafter referred to as "Supplies") shall
be determined by the written declarations of both Parties.
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| 2. |
The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter
referred to as "Documents"). The Documents shall not be made
accessible to third parties without the Supplier's prior consent and shall
upon request, be returned without undue delay to the Supplier if the contract
is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis
mutandis to documents of the Purchaser; these may, however, be made
accessible to third parties to whom the Supplier may rightfully transfer
Supplies.
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| 3. |
The Purchaser shall have the non-exclusive right to use standard software,
provided that it remains unchanged, is used within the agreed performance
parameters, and on the agreed equipment. The Purchaser may make one
back-up copy without express agreement.
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| 4. |
Partial Supplies shall be allowed, unless they are unreasonable to accept for
the Purchaser.
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| | II. PRICES AND TERMS OF PAYMENT |
| 1. |
Prices shall be ex works and exclude packaging; value added tax shall be
added at the then applicable rate.
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| 2. |
The Purchaser may set off only those claims that are undisputed or against
which no legal recourse is possible.
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| 3. |
Unless otherwise agreed upon, any payments under our invoices shall be
due and payable to their net amounts (without discount) within thirty days
following the invoice date to the Supplier's paying office or a representative
expressly authorized by the Supplier. They can be set off at Supplier's option
against other unsettled payments. The Supplier grants a discount of 2
% for all payments, which are received by the Supplier 14 days after the invoice
date. Checks can be accepted subject to pending full discharge of the
debt.
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| 4. |
In case of default of payments by the Purchaser in whole or in part, the
Purchaser has to pay from this date on - without prejudice to any other
claims of the Supplier - default interest at the annual rate of 8% above the
base interest rate that is published by the German Federal Bank.
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| 5. |
If the Purchaser stops payments or if the institution of bankruptcy proceedings
is requested or if checks due are not honoured the total payment claims
of the Supplier becomes due immediately.
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| | III. RETENTION OF TITLE |
| 1. |
Items pertaining to the Supplies ("Retained Goods") shall remain the property
of the Supplier until each and every claim the Supplier has against the
Purchaser on account of the business connection has been fulfilled. If the
combined value of the security interests of the Supplier exceeds the value of
all secured claims by more than 20 %, the Supplier shall release a corresponding
part of the security interest if so requested by the Purchaser.
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| 2. |
For the duration of the retention of title, the Purchaser may not pledge the
Retained Goods or use them as security, and resale shall be possible only
for resellers in the ordinary course of their business and only on condition
that the reseller receives payment from its customer or makes the transfer
of property to the customer dependent upon the customer fulfilling its obligation
to effect payment.
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| 3. |
The Purchaser shall inform the Supplier forthwith of any seizure or other act
of intervention by third parties.
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| 4. |
Where the Purchaser fails to fulfill its duties, including failure to make payments
due, the Supplier shall be entitled to cancel the contract and take
back the Retained Goods in the case of continued failure following expiry of
a reasonable time set by the Supplier; the statutory provisions that a time
limit is not needed remain unaffected. The Purchaser shall be obliged to surrender
the Retained Goods.
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| 5. |
The goods supplied by the Supplier under reservation of title may be sold by
Purchaser only in the course of ordinary business and on condition that the
claim for payment of the purchase price passes to the Supplier. Purchaser
already now assigns to the Supplier any claim of Purchaser under any resale
of goods supplied by the Supplier under reservation of title and in order
to secure all claims the Supplier may have against Purchaser on such resale.
Purchaser shall be entitled to collect on behalf of the Supplier the receivables
so assigned. The Supplier, however, can revoke this authority of
Purchaser, if Purchaser delays any payment due to the Supplier. In that
event the Supplier shall be authorized to notify the relevant customers of
Purchaser on Purchaser's behalf of the existing assignment. Purchaser shall
be obligated to provide the Supplier with all data (especially the names of
customers) as well as all documents necessary for the Supplier to assert his
claims against Purchaser's customers.
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| | IV. TIME FOR SUPPLIES; DELAY |
| 1. |
Times set for Supplies can only be observed if all Documents to be supplied
by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations
of the Purchaser are fulfilled. Unless these conditions are fulfilled in
time, times set shall be extended appropriately; this shall not apply where
the Supplier is responsible for the delay.
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| 2. |
If non-observance of the times set is due to force majeure such as mobilization,
war, rebellion or similar events, e.g. strike or lockout, such time
shall be extended accordingly.
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| 3. |
If the Supplier is responsible for the delay (hereinafter referred to as "Delay")
and the Purchaser demonstrably suffered a loss there from, the Purchaser
may claim a compensation as liquidated damages of 0.5 % for every completed
week of Delay, but in no case more than a total of 5 % of the price of
that part of the Supplies which because of the Delay could not be put to the
intended use.
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| 4. |
Purchaser's claims for damages due to delayed Supplies as well as claims
for damages in lieu of performance exceeding the limits specified in No. 3
above shall be excluded in all cases of delayed Supplies even upon expiry
of a time set to the Supplier to effect the Supplies. This shall not apply in
cases of mandatory liability based on intent, gross negligence, or due to
injury of life, body or health. Cancellation of the contract by the Purchaser
based on statute shall be limited to cases where the Supplier is responsible
for the delay. The above provisions do not imply a change in the burden of
proof to the detriment of the Purchaser.
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| 5. |
At the Supplier's request the Purchaser shall declare within a reasonable
period of time whether the Purchaser cancels the contract due to the
delayed Supplies or insists on the Supplies to be carried out.
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| 6. |
If dispatch or shipment is delayed at the Purchaser's request by more than
one month after notice of the readiness for dispatch was given, the Purchaser
may be charged, for every month commenced, storage costs of 0.5
% of the price of the items of the Supplies, but in no case more than a total
of 5%. The parties to the contract may prove that higher or, as the case may
be, lower storage costs have been incurred.
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| | V. TRANSFER OF RISK |
| 1. |
Even where delivery has been agreed freight free, the risk shall pass to the
Purchaser at the time when the Supplies are shipped or picked up by the
carrier. Upon request of the Purchaser, the Supplier shall insure the Supplies
against the usual risks of transport at the expense of the Purchaser.
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| 2. |
The risk shall pass to the Purchaser if dispatch, shipping, the taking over
in the own works or the trial run is delayed for reasons for which the Purchaser
is responsible or if the Purchaser has otherwise failed to accept the
Supplies.
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| | VI. RECEIVING OF SUPPLIES |
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The Purchaser shall not refuse to receive Supplies due to minor defects.
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| | VII. DEFECTS AS TO QUALITY |
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The Supplier shall be liable for defects as to quality ("Sachmängel", hereinafter
referred to as "Defects",) as follows:
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| 1. |
All parts or services where a Defect becomes apparent within the limitation
period shall, at the discretion of the Supplier, be repaired, replaced or provided
again free of charge irrespective of the hours of operation elapsed,
provided that the reason for the Defect had already existed at the time when
the risk passed.
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| 2. |
Claims based on Defects are subject to a limitation period of 12 months.
This provision shall not apply where longer periods are prescribed by law
according to Section 438 paragraph 1 No. 2 (buildings and things used for a
building), Section 479 paragraph 1 (right of recourse), and Section 634a
paragraph 1 No. 2 (defects of a building) German Civil Code ("BGB"), as
well as in cases of injury of life, body or health, or where the Supplier intentionally
or grossly negligently fails to fulfill its obligation or fraudulently
conceals a Defect. The legal provisions regarding suspension of expiration
("Ablaufhemmung"), suspension ("Hemmung") and recommencement of
limitation periods remain unaffected.
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| 3. |
The Purchaser shall notify Defects to the Supplier in writing and without
undue delay.
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| 4. |
In the case of notification of a Defect, the Purchaser may withhold payments
to a reasonable extent taking into account the Defect occurred. The Purchaser,
however, may withhold payments only if the subject matter of the notification
of the Defect occurred is justified beyond doubt. Unjustified notifications
of Defect shall entitle the Supplier to have its expenses reimbursed by
the Purchaser.
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| 5. |
The Supplier shall first be given the opportunity to supplement its performance
("Nacherfüllung") within a reasonable period of time.
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| 6. |
If supplementary performance is unsuccessful, the Purchaser shall be entitled
to cancel the contract or reduce the remuneration, irrespective of any
claims for damages it may have according to Art. X.
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| 7. |
There shall be no claims based on Defect in cases of insignificant deviations
from the agreed quality, of only minor impairment of usefulness, of natural
wear and tear or damage arising after the transfer of risk from faulty or negligent
handling, excessive strain, unsuitable equipment, defective workmanship,
inappropriate foundation soil or from particular external influences not
assumed under the contract, or from non-reproducible software errors.
Claims based on defects attributable to improper modifications or repair
work carried out by the Purchaser or third parties and the consequences
thereof shall be likewise excluded.
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| 8. |
The Purchaser shall have no claim with respect to expenses incurred in the
course of supplementary performance, including costs of travel and transport,
labour, and material, to the extent that expenses are increased because
the subject-matter of the Supplies was subsequently brought to another
location than the Purchaser's branch office, unless doing so complies
with the intended use of the Supplies.
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| 9. |
The Purchaser's right of recourse against the Supplier pursuant to Sec. 478
BGB is limited to cases where the Purchaser has not concluded an agreement
with its customers exceeding the scope of the statutory provisions
governing claims based on Defects. Moreover, No. 8 above shall apply
mutatis mutandis to the scope of the right of recourse the Purchaser has
against the Supplier pursuant to Sec. 478 paragraph 2 BGB.
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| 10. |
Furthermore, the provisions of Art. X (Other Claims for Damages) shall apply in
respect of claims of damages. Any other claims of the Purchaser against the
Supplier or its agents or any such claims exceeding the claims provided for
in this Art. VII, based on a Defect, shall be excluded.
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| | VIII. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE |
| 1. |
Unless otherwise agreed, the Supplier shall provide the Supplies free from
third parties' industrial property rights and copyrights (hereinafter referred to
as "IPR") with respect to the country of the place of destination. If a third
party asserts a justified claim against the Purchaser based on an infringement
of an IPR with respect to the Supplies made by the Supplier and then
used in conformity with the contract, the Supplier shall be liable to the
Purchaser within the time period stipulated in Art. VII No. 2 as follows:
- The Supplier shall choose whether to acquire, at its own expense,
the right to use the IPR with respect to the Supplies concerned or
whether to modify the Supplies such that they no longer infringe the
IPR or replace them. If this would be unreasonable to demand from
the Supplier, the Purchaser may cancel the contract or reduce the remuneration
pursuant to the applicable statutory provisions.
- The Supplier's liability to pay damages shall be governed by Art. X.
- The above obligations of the Supplier shall only apply if the Purchaser
(i) immediately notifies the Supplier of any such claim asserted by
the third party in writing, (ii) does not concede the existence of an infringement
and (iii) leaves any protective measures and settlement negotiations
to the discretion of the Supplier. If the Purchaser stops using the
Supplies in order to reduce the damage or for other good reason, it shall
be obliged to point out to the third party that no acknowledgement of
the alleged infringement may be inferred from the fact that the use has
been discontinued.
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| 2. |
Claims of the Purchaser shall be excluded if it is itself responsible for the
infringement of an IPR.
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| 3. |
Claims of the Purchaser shall also be excluded if the infringement of the IPR
is caused by specifications made by the Purchaser, to a type of use not foreseeable
by the Supplier or to the Supplies being modified by the Purchaser
or being used together with products not provided by the Supplier.
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| 4. |
In addition, with respect to claims by the Purchaser pursuant to No. 1 a)
above, Art. VII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of
an infringement of an IPR.
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| 5. |
Where other defects in title occur, Art. VII shall apply mutatis mutandis.
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| 6. |
Any other claims of the Purchaser against the Supplier or its agents or any
such claims exceeding the claims provided for in this Art. VIII, based on a
defect in title, shall be excluded.
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| | IX. IMPOSSIBILITY OF PERFORMANCE; ADAPTATION OF CONTRACT |
| 1. |
To the extent that Supplies are impossible to be carried out, the Purchaser
shall be entitled to claim damages, unless the Supplier is not responsible for the
impossibility. The Purchaser's claim for damages shall, however, be limited to
an amount of 10 % of the value of the part of the Supplies, which, owing to
the impossibility, cannot be put to the intended use. This limitation shall not
apply in the case of mandatory liability based on intent, gross negligence or injury
of life, body or health; this does not imply a change in the burden of proof
to the detriment of the Purchaser. The right of the Purchaser to cancel the contract
shall remain unaffected.
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| 2. |
Where unforeseeable events within the meaning of Art. IV No. 2 substantially
change the economic importance or the contents of the Supplies or considerably
affect the Supplier's business, the contract shall be adapted taking
into account the principles of reasonableness and good faith. Where doing
so is economically unreasonable, the Supplier shall have the right to cancel
the contract. If the Supplier intends to exercise its right to cancel the contract,
it shall notify the Purchaser thereof without undue delay after having realised
the repercussions of the event; this shall also apply even where an extension
of the delivery period had previously been agreed with the Purchaser.
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| | X. OTHER CLAIMS FOR DAMAGES |
| 1. |
have (hereinafter referred to as "Claims for Damages"), based on whatever legal
reason, including infringement of duties arising in connection with the contract
or tort, shall be excluded.
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| 2. |
The above shall not apply in the case of mandatory liability, e. g. under the
German Product Liability Act ("Produkthaftungsgesetz"), in the case of intent,
gross negligence, injury of life, body or health, or breach of a condition
which goes to the root of the contract ("wesentliche Vertragspflichten"). However,
Claims for Damages arising from a breach of a condition, which goes to
the root of the contract, shall be limited to the foreseeable damage, which is
intrinsic to the contract, unless caused by intent or gross negligence or
based on liability for injury of life, body or health. The above provision does not
imply a change in the burden of proof to the detriment of the Purchaser.
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| 3. |
To the extent that the Purchaser has a valid Claim for Damages according to
this Art. X, it shall be time-barred upon expiration of the limitation period applicable
to Defects pursuant to Art. VII No. 2. In the case of claims for damages
under the German Product Liability Act, the statutory provisions governing
limitation periods shall apply.
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| | XI. VENUE AND APPLICABLE LAW |
| 1. |
If the Purchaser is a businessperson, sole venue for all disputes arising directly
or indirectly out of the contract shall be the Supplier's place of business.
However, the Supplier may also bring an action at the Purchaser's place of
business.
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| 2. |
Legal relations existing in connection with this contract shall be governed by
German substantive law, to the exclusion of the United Nations Convention on
Contracts for the International Sale of Goods (CISG).
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| | XII. SEVERABILITY CLAUSE |
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The legal invalidity of one or more provisions of this contract shall in no way affect
the validity of the remaining provisions. This shall not apply if it would be unreasonable
for one of the parties to continue the contract.
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