1. Scope of Supply
1.1 The Seller’s quotations shall not be binding offers unless they are specifically
said to be binding.
1.2 The scope of goods to be supplied or services to be rendered shall be
determined exclusively on the basis of the written order confirmation of the
Seller or, failing that, on the basis of the Seller’s written quotation. Any additional
or subsidiary agreements shall also be made in writing.
All deliveries and services shall be effected on the basis of these Terms to
the exclusion of any other terms and conditions. Any references by the Buyer
to its own Terms and Conditions of Purchase are herewith expressly excluded.
These Terms shall also apply to all future business with the Seller,
even if this is not expressly agreed upon again. Any variations to these Terms
shall be subject to express written confirmation by the Seller.
1.3 Data included in product catalogues, price lists, drawings, dimension
and weight tables shall not be binding on the Seller unless specific reference
is made to them by the Seller. Product details of this kind shall only
serve information purposes and shall not be deemed to constitute guaranteed
1.4 The Seller reserves all intellectual or industrial property rights and
copyrights in respect of all technical and commercial documentation provided
by the Seller, such as plans, samples, drawings, cost estimates and
similar information of a tangible or intangible nature – also in electronic format.
These shall not be disclosed to any third party without prior written permission
of the Seller and shall be returned to the Seller immediately if requested
by the Seller, which the Seller may do at any time.
1.5 Unless agreed otherwise, contractually agreed acceptance tests shall
be performed at the place of manufacture and in accordance with the
common practices of the industry concerned in the country of manufacture,
with the Seller only bearing its own costs. The costs incurred by the
Buyer, for example for witnessing the tests, shall be for the Buyer’s account.
Unless otherwise agreed, acceptance testing shall be done in accordance
with the provisions laid down in DIN 1944/III or DIN ISO 9906 as applicable.
2. Delivery Time, Delay in Delivery and Force Majeure
2.1 All delivery times agreed upon shall be counted from the date of the
written order confirmation from the Seller, but not until all commercial and
technical issues have been settled by the contracting parties, all documents,
materials, licences, permits, authorizations, approvals, releases and securities
to be procured by the Buyer have been produced by the Buyer, and
Seller is in receipt of the agreed down-payment from the Buyer. If this is
not the case, the delivery time shall be extended by a reasonable amount
of time unless the Seller is responsible for the delay.
2.2 Compliance with the agreed delivery time is subject to the proviso that
the Seller itself is supplied with correct goods and on time. The Seller shall
inform the Buyer as soon possible about any anticipated delay in delivery.
2.3 Delivery times shall be deemed to have been met when the acts to be
effected by the Seller in accordance with the contractually agreed trade terms
have been completed. If acceptance of the goods or services by the Buyer
has been agreed upon, the date of acceptance shall be decisive – justified
refusal to accept the goods or services excepted – or, failing this, the notification
of readiness for acceptance.
2.4 If shipping and/or acceptance of the contractual goods or services are
delayed for reasons within the control of the Buyer, the Seller shall have
the right to charge the costs incurred because of the delay to the Buyer
within one month from the date of the notification of readiness for shipment.
2.5 Delivery times shall be reasonably extended if delivery is delayed for
reasons of force majeure, labour disputes or any other events or circumstances
beyond the reasonable control of the Seller. If the events delaying
the delivery persist for more than three months, the Buyer shall have the
right to withdraw from the contract. The Seller shall not be liable to the Buyer
for damages as a result of the Buyer’s withdrawal from the contract.
2.6 If it becomes definitely impossible for the Seller to perform its obligations
under the contract in full before passing of the risk or in the event that
a comparable inability to perform arises, the Buyer shall have the right to
withdraw from the contract without granting an additional period for performance.
The same shall apply if, in the case of an order for several
equally important parts, performance of part of the delivery becomes impossible
and if the Buyer has a justified interest in rejecting a partial delivery.
If this is not the case, the Buyer shall pay the contract price attributable
to the partial delivery. In other respects, clause 7.2 of these Terms shall apply.
If the impossibility or the inability to perform arises during a delay in acceptance
by the Buyer, or if the Buyer is solely or mainly responsible for
these circumstances, then the Buyer shall remain under the obligation to
2.7 If the Buyer suffers a loss due to a delay in delivery for reasons within
the Seller’s control, the Buyer shall have the right to claim liquidated damages
in the amount of 0.5 % per full week of delay, but not exceeding
5 % of the value of that part of the total scope of supply which cannot be
used on time or not in accordance with the contract as a result of the delay.
If after expiry of the agreed delivery period the Buyer grants the Seller an
additional period of reasonable length for performance, unless the granting
of such an additional period is not required by law, and if the Seller does
not perform within the additional period granted, the Buyer shall have the
right to withdraw from the contract as provided by applicable law.
All further claims based on delayed delivery shall be determined exclusively
on the basis of the provisions laid down in clause 7.2 of these Terms.
3. Passing of Risk and Acceptance
3.1 The goods or services shall be supplied in accordance with the trade
terms laid down in the individual contract, whose interpretation shall be subject
to the INCOTERMS edition applicable at the time the contract was concluded.
3.2 If the contract provides for the goods or services to be accepted, and
if it has been agreed that such acceptance is conditional for the passing
of risk, then acceptance shall be effected on the date of acceptance without
delay, or, failing this, immediately following the Seller’s notification of
readiness for shipment. A minor defect shall not entitle the Buyer to refuse
acceptance of the goods or services.
3.3 In the event that shipment and/or acceptance are delayed or are not
effected at all for reasons beyond the Seller’s sphere of responsibility, the
risk shall be deemed to have passed to the Buyer on the date of the Seller’s
notification of readiness for shipment. Upon the Seller’s request, the
Buyer shall provide for the necessary insurance cover.
3.4 Partial deliveries shall be permitted unless they constitute an undue
burden on the Buyer.
4. Prices and Payment, Collateral, Set-off and Right to Refuse
4.1 Unless otherwise agreed, prices shall be understood to be EXW (Incoterms
2000), including loading, but without packaging. Prices are subject
to VAT in the amount valid at the time of invoicing.
4.2 Unless otherwise agreed, payments shall be transferred to the Seller’s
account without deduction as follows:
Down-payment 1/3 upon receipt of order confirmation, 1/3 upon receipt of
notification of readiness for shipment, and the remainder within thirty (30)
days from the passing of risk.
4.3 If the Seller has well-founded doubts about the Buyer’s solvency, particularly
if the latter is behind with its payments, the Seller shall have the
right to demand that the Buyer make advance payments or provide collateral
for future deliveries, or to revoke the payment terms agreed upon earlier,
without prejudice to further claims.
4.4 The practice of setting off claims or exercising the right to refuse performance
by the Buyer shall only be accepted if and to the extent that undisputed
or legally effective counterclaims confirmed by a final and absolute
5. Retention of Title
5.1 The property in the goods shall not pass from the Seller until all contractual
payments have been received in full.
5.2 The Buyer shall not be entitled to sell, pledge or in any way charge by
way of security for any indebtedness any of the goods supplied. In the event
of attachment or garnishment orders, confiscation of property or other administration
orders in favour of third parties, the Buyer shall notify the Seller
5.3 If the Buyer is in breach of contract, particularly in the event of default
in payment, the Seller shall be entitled to repossess the goods supplied after
having submitted an appropriate reminder to the Buyer, and the Buyer
shall be under the obligation to return the goods to the Seller.
5.4 The Seller can only demand that the Buyer return the goods supplied
on the grounds of retention of title after having withdrawn from the contract.
5.5 The filing of a petition to open insolvency proceedings by the Buyer
shall entitle the Seller to withdraw from the contract and to demand the
immediate return of the goods supplied.
6. Claims in Respect of Defects
The Seller’s warranty for defects in workmanship and material as well as
defects in title in the goods supplied shall – to the exclusion of all further
claims – cover the following, subject to the provision laid down in clause 7
of these Terms:
6.1 Defects in Workmanship and Material
6.1.1 The Seller shall repair or replace any defective goods free of charge,
on the understanding that the decision whether to eliminate a defect by
means of repair or replacement shall be left to the Seller’s sole discretion.
However, this provision shall apply only on condition that the Buyer immediately
notifies the Seller in writing of any defect and shall be limited to defects
due to circumstances prior to the passing of risk.
The property in goods or parts that have been replaced shall pass to the
6.1.2 The direct costs of the substitute article incurred within the scope of
repair or replacement, including shipment, shall be for the Seller’s account
with the proviso that the Buyer’s complaint proves to be justified. Additionally,
the Seller shall bear all reasonable dismantling and re-assembly
costs, as well the costs incurred for any deployment of service personnel
and assistant labour that may be required, including travel expenses, unless
this would impose an unreasonable burden on the Seller. Costs incurred
solely because of the fact that the place of use of the shipment is not the
same as the contractually agreed destination and such deviation is not in
accordance with the designated (typical) use of the goods supplied, are in
each case for the Buyer’s account.
6.1.3 The Seller shall not be liable under the above warranty, if the Buyer fails
to grant the Seller a reasonable period of time and opportunity to carry out
the necessary repair or arrange for replacement and carries these out itself
or has them carried out by a third party. Only in urgent cases if the operational
safety of the equipment is at risk or in order to prevent unacceptably
grave damage, in which cases the Seller is to be notified immediately, or if
the Seller is in default with respect to remedying a defect, shall the Buyer have
the right to remedy the defect or have it remedied by a third party, and to demand
reimbursement of the relevant costs incurred by him from the Seller.
6.1.4 The Seller shall not be liable for any defects caused by operating conditions
other than those contractually agreed, unsuitable or improper use
or storage, faulty installation or commissioning by the Buyer or any third
party, fair wear and tear, improper or negligent treatment, inappropriate maintenance,
unsuitable equipment, defective civil works or unsuitable construction
ground, chemical, electrochemical or electrical influences, unless
these can be attributed to a fault of the Seller.
6.1.5 As provided by applicable law, the Buyer shall have the right to withdraw
from the contract if the Seller – considering the legal exceptions – fails
to take action within a reasonable period of time granted by the Buyer for
repair or replacement on account of a defect in workmanship or material.
If a defect is regarded minor in nature, the Buyer shall only be entitled to a
reduction of the contractual purchase price. Apart from this exception, the
right to a reduction of the contractual purchase price shall be excluded.
All further claims shall be determined exclusively on the basis of the provisions
in clause 7.2 of these Terms.
6.1.6 If any repair carried out by the Buyer or by a third party is done improperly,
the Seller shall not be liable for any consequences thereof. The
Seller shall not be liable either for any changes to the goods supplied made
without its prior consent.
6.2 Defects in Title
6.2.1 If the goods supplied cannot be put to use without infringement of a
German industrial or intellectual property right or copyright, the Seller shall
procure, at its own expense, the basic right to the continued use of the goods
by the Buyer or modify the goods in such manner as can reasonably be
expected from him to enable the Buyer to use the goods without infringement
of an industrial or intellectual property right.
If this is not possible under economically reasonable conditions or within
a reasonable period of time, the Buyer and Seller shall be equally entitled
to withdraw from the contract.
The Seller shall also indemnify and hold the Buyer harmless from and against
any and all undisputed or legally enforceable claims of the owner of the industrial
or intellectual property right concerned.
6.2.2 The above obligations on the part of the Seller shall only exist on the
proviso that the Buyer notifies the Seller immediately of any claim made on
account of an alleged infringement of industrial or intellectual property
rights or copyrights and if the Buyer gives the Seller all reasonable assistance
in defending its case and/or enables the Seller to carry out the modification
measures as per clause 6.2.1 hereunder, with the reservation that
the Seller can take any protective action the Seller deems necessary, including
a settlement out of court, provided the defect of title is not based
on an instruction given by the Buyer, and the infringement of the said
right(s) was not caused by the Buyer having made unauthorized changes
to the goods supplied or having used the goods in a manner not compliant
with the contract.
7.1 If the goods supplied cannot be put to the contractual use by the Buyer
due to a fault of the Seller and if this is caused by the failure to perform or
the improper performance of any recommendations or advice given before
or after conclusion of the contract or by the violation of any other collateral
obligation under the contract – in particular instructions on the proper
operation and maintenance of the goods supplied -, then the provisions of
clauses 6 and 7.2 shall apply accordingly, to the exclusion of all further
7.2 The Seller shall only be liable – on whatever legal grounds – for damage
other than that found to affect the goods supplied hereunder themselves,
if the damage has been caused by intent or gross negligence on
the part of the owner / its executive bodies or senior managers, in the case
of negligent injury to life, body or health, in the case of defects concealed
fraudulently or the absence of which the Seller has expressly guaranteed,
and, if the goods supplied are found to be defective, to the extent the Seller
is liable for personal injury or damage to property for private use under
the Product Liability Act.
In the case of a negligent breach of one of its essential contractual obligations,
the Seller shall also be liable for gross negligence by its employees
in non-managerial functions and for minor negligence, the latter being
limited to reasonably foreseeable damage of the kind which is typical to the
Any and all further claims shall be excluded.
8. Warranty Term and Limitation
All claims of the Buyer – on whatever legal grounds – shall be barred by
the statute of limitations after 12 months. Claims for damages according to
clause 7.2, paragraph 2, shall be subject to the periods of time provided by
law. These periods shall also apply to defects in civil structures or to goods
supplied which are incorporated in a civil structure in accordance with their
common usage and have caused the defect in the civil structure concerned.
9. Use of Software
9.1 The Seller shall grant to the Buyer a non-exclusive right to use any software
as well as any associated documentation as may be included in the
scope of supply. The software shall only be used in or with the goods supplied
for which it is intended according to the Seller’s specification. Any other
uses shall not be permitted.
9.2 The Buyer shall only be entitled to copy, revise, translate or convert the
software to the source code to the extent authorized by law (§§ 69 a ff.
Copyright Act). The Buyer shall neither remove nor change any supplier data,
in particular copyright notices, without the express prior consent of the Seller.
9.3 The Seller reserves all other rights to the software and associated documentation,
including any copies. The Buyer shall not be entitled to grant
10. Applicable Law and Place of Jurisdiction
10.1 All legal relations between the Seller and a Buyer shall be subject to
the material law of the Federal Republic of Germany upon exclusion of conflict
of law principles and upon exclusion of the United Nations Convention
on Contracts for the International Sale of Goods (CISG) dated 11 April 1980.
10.2 The place of jurisdiction shall be the court having jurisdiction at the
seat of the Seller’s corporation, or – at the Seller’s option – the Buyer’s place