General Terms and Conditions of Sale and Delivery
1. General – Scope
1.1. The following General Terms and Conditions of Sale and Delivery shall apply to all existing and future business dealings between the Supplier and Purchaser and, in particular, to all offers, contracts, deliveries and other services provided by the Supplier. In the case of a standing business relationship, the General Terms and Conditions of Sale and Delivery shall also constitute an integral part of the parties’ contract, even where no express reference thereto has been made. These General Terms and Conditions of Sale and Delivery shall be deemed accepted no later than upon acceptance of the goods delivered or performance.
1.2. The Supplier hereby rejects any purchasing, delivery, payment or other business conditions of the Purchaser which contradict the General Terms and Conditions of Sale and Delivery of the Supplier. Such provisions shall not form part of the contract and shall likewise be inapplicable if contained in a written confirmation issued after the Supplier’s order acknowledgment and the Supplier does not object thereto, as the silence of the Supplier is to mean its refusal.
1.3. Oral or telephonic agreements which vary from the General Terms and Conditions of Sale and Delivery must be confirmed in writing by the Supplier in order to be valid. The same shall apply to side agreements and commitments by the Supplier’s representatives and employees, which shall not become binding on the Supplier until written confirmation is received.
1.4. Any and all agreements and legal declarations of the parties must be in writing in order to be valid, i.e. they must include the signature of all persons intended to be bound thereby.
2. Offers and contract execution
2.1. Offers made by the Supplier shall always be non-binding and subject to change without notice, i.e. they are to be understood only as an invitation to make an offer. Acceptances and all orders shall be legally effective only if confirmed by the Supplier in writing or if the Supplier makes an actual delivery.
2.2. The extent and execution of the delivery shall conform to the order confirmation if one exists.
2.3. Side agreements, amendments of and additions to these General Terms and Conditions of Sale and Delivery shall be valid only where confirmed in writing by the Supplier. The same shall apply to guarantees or assurances of certain features by the Supplier
3. Technical specifications, advertising, confidentiality
3.1. Any and all technical documents, such as drawings, specifications, illustrations, including any information as to dimension, properties or weight, to the extent they are not a part of a binding offer, shall be for informational purposes only and contain no guarantee or warranty of quality with respect to the contractual item. The same shall apply to specifications and illustrations in offers, brochures, advertisements, catalogues, in addition to other public statements, promotions or advertising by the Supplier. Guarantees and assurances by the Supplier shall be confirmed exclusively in writing and designated as such.
3.2. The Supplier reserves all property rights and copyrights with respect to cost estimates, illustrations, drawings and other technical documents. Such documents may not be made available to third parties and may be used only for the purposes agreed or indicated by the Supplier. The foregoing shall apply, in particular, to written documents that are marked “confidential” by the Supplier. The Purchaser must obtain the Supplier’s express written consent prior to distributing the same to third parties.
4. Dimensions, tolerances and legal standards
4.1. Unless a varying written agreement exists between the Purchaser and the Supplier, the relevant industry or factory standards and/or product specifications of the Supplier shall govern with respect to the dimensions and tolerances of the contractual item. Should the Purchaser require further assessments, this shall be agreed in writing and paid for by the Purchaser.
4.2. The contractual item shall meet the mandatory legal standards and other mandatory regulations of the Federal Republic of Germany valid at the time the contract is executed and compliance with which is required in order for the merchandise to be useable. Legal standards or other regulations of the Purchaser’s country or the country in which the contractual item is to be used, to the extent a country other than the Federal Republic of Germany, are not familiar to the Supplier and therefore cannot be observed during the execution of the delivery, unless guidelines are given by the Purchaser pursuant to Section 4.3. The failure to conform to such standards and regulations shall therefore not constitute a defect of the contractual item.
4.3. No later than with the purchase order, the Purchaser shall provide to the Supplier specific and detailed notice of the local, statutory or other regulations that the Supplier is required to follow during delivery and for compliance with safety and approval regulations.
4.4. Waste materials may be produced during operation of the contractual item, the disposal of which may be subject to official requirements. The disposal of such materials in accordance with such requirements shall be the obligation of the Purchaser and shall be performed at its expense.
5. Price and payment
5.1. Unless otherwise agreed, prices shall be “ex works Muenster” pursuant to INCOTERMS 2000, including loading on site, but excluding packaging. All additional expenses, such as costs for freight, insurance, export, transit, import or other permits, as well as certifications and the like, shall be borne by the Purchaser. The Purchaser shall furthermore bear all types of taxes, fees and tolls. Packaging cannot be taken back or compensated without express written agreement.
5.2. Prices are understood net plus value added tax, where applicable, at the respective statutory rate on the day of invoicing. The Purchaser shall furthermore be obligated to bear the costs of material set out in Section 8 of these General Terms and Conditions of Sale and Delivery.
5.3. Unless otherwise agreed, payments shall be made without any deductions or charges to the Supplier at its point of payment, as follows:
- 40% deposit following receipt of order confirmation;
- 50% as soon as the Purchaser is informed that the bulk of the order is ready for shipment;
- balance within one month following transfer of risk.
Payments for repairs shall be made immediately.
5.4. To the extent the Supplier’s compensation has not been finally agreed, its price valid on the day of delivery shall be controlling. The Supplier reserves the right to modify prices accordingly in the event of cost decreases or increases after the conclusion of the contract, in particular, on account of wage rate agreements or changes in the cost of materials. The Supplier shall provide the Purchaser with proof of such changes upon request.
5.5. The application of discounts shall require a specific written agreement. Agreed discounts shall not be given if the Purchaser is delinquent on payment of previous deliveries.
5.6. Statutory regulations shall apply to payment delays unless otherwise specified hereinafter.
5.7. Failure to comply with payment conditions shall release the Supplier from its obligation to make delivery, but shall not release the Purchaser from its obligation to accept delivery.
5.8. Should the Purchaser fail to make timely payment, it shall become delinquent, without notice, as of the date of default. The Supplier shall charge interest at 8% p.a. above EURIBOR for the period payment is outstanding. Evidence for the application of higher damages for delay is reserved.
5.9. If the Purchaser is delinquent on a partial payment for longer than one month, the remaining open balance shall become immediately due and payable.
5.10. If the Purchaser becomes delinquent on payment, the Supplier shall be entitled, following prior notice with no result, to reclaim the contractual item or to enter the Purchaser’s premises and remove the contractual item as security.
5.11. In cases where the Purchaser is delinquent in payment pursuant to Sections 5.6 through 5.10, the Supplier may cancel a standing order pursuant to Section 6.9 and require advance payment for outstanding deliveries.
5.12. The Purchaser may not withhold or reduce payments on account of objections, claims or counterclaims not acknowledged by the Supplier. Payments shall also be made in the event that delivery is delayed or becomes impossible due to circumstances beyond the Supplier’s control.
5.13. All of the Supplier’s claims against the Purchaser, arising out of any legal relationship whatsoever, shall be immediately due and payable if circumstances arise which entitle the Supplier to cancellation pursuant to a statutory or contractual provision.
6. Retention of title
6.1. The Supplier shall retain title to the contractual item until receipt of all payments under the delivery contract.
6.2. With respect to contractual items that the Purchaser obtains from the Supplier as part of an ongoing business relationship, the Supplier shall retain title until all its claims against the Purchaser arising from the business relationship, whether claims arising in the future, including those arising from concurrently or subsequently concluded contracts, are settled. The foregoing shall also apply where individual or all claims of the Supplier are included in a current account and the balance is drawn and acknowledged.
6.3. The Supplier shall be entitled to insure the goods subject to retention of title at the Purchaser’s expense against theft, breakage, fire, water and other damage unless it can be verified that the Purchaser has itself procured such insurance.
6.4. The Purchaser shall be obligated to handle the goods subject to retention of title with care. If maintenance and inspection work is required, the Purchaser must perform such work in a timely manner at its own expense.
6.5. If the Purchaser converts the goods subject to retention of title into a new movable object, the conversion shall be for the Supplier, without the latter becoming obligated thereby; the new object shall be the property of the Supplier. In the event of assimilation with goods not belonging to the Supplier, the Supplier shall acquire co-ownership of the new object in accordance with the proportion of the value of the goods subject to retention of title to the other goods at the time of conversion and the value of the conversion. If the goods subject to retention of title are connected, mixed or combined with goods not belonging to the Supplier, the Supplier shall be a co-owner. Should the Purchaser acquire sole ownership through connection, mixing or combining, it shall already have transferred co-ownership to the Supplier in accordance with the proportion of the value of the goods subject to retention of title to the other goods at the time of connection, mixing or combining. In such cases, the Purchaser shall safeguard the goods owned or co-owned by the Supplier within the meaning of the foregoing provisions, without compensation.
6.6. If goods subject to retention of title are disposed of either alone or together with goods not belonging to the Supplier, the Purchaser shall already have, i.e. at the time of the execution of the contract, assigned to the Supplier any and all claims arising from the resale in the amount of the value of the goods subject to retention of title together with any and all ancillary rights and absolute priority; the Supplier hereby accepts such assignment. The value of the goods subject to retention of title shall be the amount invoiced by the Supplier, excluding this amount, however, if third party rights exist. If the resold goods subject to retention of title are co-owned by the Supplier, the assignment of claims shall extend to the amount corresponding to the Supplier’s co-ownership share.
6.7. If goods subject to retention of title are installed by the Purchaser as an integral part of property of a third party, the Purchaser shall already have assigned the transferable claims accruing against the third party or the party concerned for compensation equal to the value of the goods subject to retention of title with all ancillary rights, including the right to grant a security interest with absolute priority; the Supplier accepts the assignment. Section 6.6, sentences 2 and 3, shall apply accordingly.
6.8. The Supplier shall be entitled and authorized to dispose of, to use or to install the goods subject to retention of title only in the ordinary course of business and provided that the claims within the meaning of Sections 6.6 through 6.7 are in fact transferred. The Supplier shall not be entitled to make any other use of the goods subject to retention of title, in particular, pledges or assignments as security. An assignment by way of genuine factoring shall be permitted to the Purchaser only on the condition that the Supplier is so notified by the factoring bank and the account maintained by the Purchaser at the bank is specified and the factoring yield exceeds the value of the Supplier’s secured claim. The Supplier’s claim shall become immediately due and payable upon crediting of the factoring yield.
6.9. The Supplier shall authorize the Purchaser, subject to cancellation, to collect the claims assigned to the Supplier pursuant to Sections 6.6 through 6.7. The Supplier shall not exercise its own collection authorization as long as the Purchaser meets its payment obligations, including with respect to third parties. At the Supplier’s request, the Purchaser shall identify the debtor of the assigned claims and notify the latter of the assignment; the Supplier shall also be entitled to notify the debtor itself.
6.10. The Purchaser may neither pledge nor assign for security the goods subject to retention of title without the Supplier’s consent. The Purchaser shall immediately notify the Supplier of levies of execution, attachments or other measures by third parties with respect to the goods subject to retention of title or the assigned claims, and provide the Supplier with all information and documents necessary for the preservation of its rights. The foregoing shall also apply where such measures are imminent. The execution official or third party shall be informed of the Supplier’s property rights. The Purchaser shall bear all costs for revocation of the seizure and for the re-procurement of the goods subject to retention of title to the extent such costs cannot be recovered from the third party.
6.11. The Purchaser shall inform the Supplier without delay of levies of execution by third parties on the goods subject to retention of title or the assigned claims and provide all documentation necessary to challenge the levy.
6.12. The Purchaser’s right to resell, to use or to install the goods subject to retention of title, or the authorization to collect assigned claims, shall be extinguished upon its suspension of payments and/or its petition for insolvency proceedings. The foregoing shall not apply to the rights of the insolvency administrator.
6.13. The Supplier shall be obligated to reassign or to release, at its election, the claims when the value of the security granted exceeds the claims (reduced by advance payments and partial payments, where applicable) by more than 20%. Upon satisfaction of all the Supplier’s claims arising under the business relationship, title to the goods subject to retention of title and the assigned claims shall pass to the Purchaser.
6.14. References to the value of the goods subject to retention of title are derived from the amount invoiced by the Supplier (invoice value).
6.15. If the retention of title must be entered in a registry in order to be valid, the Supplier shall be entitled to cause its retention of title to be entered in the relevant registry. The Purchaser undertakes to provide all necessary cooperation upon the Supplier’s first request.
7.1. The delivery dates specified by the Supplier shall be binding only where expressly designated as “binding delivery dates” by the Supplier.
7.2. The Supplier’s compliance with binding delivery times shall require that all business and technical questions between the parties have been resolved and that the Purchaser has fulfilled all it obligations, e.g., the procurement of necessary official authorizations or permits, or the rendering of payment. Should this not be the case because of the fault of the Purchaser, the delivery time shall be extended accordingly.
7.3. The Supplier shall not be responsible – even where binding performance periods and deadlines have been agreed – for delivery delays due to force majeure or due to circumstances which substantially impede or render delivery impossible (including subsequent difficulties in obtaining materials, operating malfunction, strike, lock-outs, lack of personnel, lack of transport means, official directives, piracy or the like, also where occurring at the Supplier’s supplier or its sub-supplier). Such delays shall entitle the Supplier to postpone the delivery for the duration of the hindrance, in addition to a reasonable start-up time, or to cancel the contract in whole or in part with respect to the unfulfilled part of the contract. The same shall apply when the Supplier is already in delay. The Purchaser shall be immediately informed of the unavailability of performance. Consideration shall be reimbursed without delay.
7.4. After a reasonable grace period is set, the Purchaser shall be entitled to cancel the contract with respect to the uncompleted part if the hindrance lasts longer than six months.
7.5. If the Supplier fails to comply with a delivery deadline agreed as binding for reasons other than those specified in Section 7.3, the Purchaser shall have the right, after the grace period of 8 weeks to be granted by the Purchaser in writing has run without performance being rendered, to cancel the contract. There shall be no right to contract damages for non-performance pursuant to Section 13.
7.6. Should the Purchaser be in delay because of its failure to perform an obligatory act, whether the retrieval of a delivery or preparatory work to be performed by the Purchaser, the agreed or still outstanding payment shall be due and payable after a reasonable grace period but no later than on the agreed delivery date. The legal effects of the creditor’s delay shall not be affected thereby. At the Supplier’s discretion, temporary storage of the contractual item shall be provided at the Purchaser’s expense and risk.
7.7. The Supplier shall be entitled to make partial deliveries, and issue corresponding invoices, at any time.
7.8. After the order confirmation has been sent by the Supplier, the Purchaser shall no longer be entitled to cancel the order.
7.9. To the best of the Supplier’s knowledge, the export and use of the goods being supplied in the country of destination are not in contravention of the export regulations of the Federal Republic of Germany and/or the European Union. Any changes to the foregoing prior to the delivery of the contractual item shall be monitored by the Supplier and immediately communicated to the Purchaser.
7.10. In the event that new export regulations come into effect during the performance of the delivery contract, this shall be treated as an event of force majeure. Section 7.3 shall be applicable in this respect.
8. Cost of materials
8.1. If, as part of its obligations, the Supplier undertakes trials to test functionality, to assess performance, to adjust tools or the like with respect to the delivery of machines and tools, the Purchaser shall provide the necessary material at no cost.
8.2. The same shall apply to repair and remediation attempts.
8.3. If the Supplier uses its own materials, the Purchaser shall reimburse the incidental costs.
9. Transfer of use and risk
9.1. Risk shall be transferred to the Purchaser as soon as the contractual item has left the Supplier’s premises. This shall also apply to each partial delivery or where the Supplier has assumed additional obligations, e.g., shipping costs or delivery and installation.
9.2. If the shipment is delayed or not completed due to reasons beyond the Supplier’s control, risk shall pass to Purchaser as of the day of notification that the shipment is ready.
9.3. Use of the contractual item shall pass to the Purchaser in the agreed scope upon payment in full, subject to any contrary provisions of these General Terms and Conditions of Sale and Delivery and other conflicting agreements. With respect to partial deliveries, the foregoing shall apply in each case once full payment has been made for the entire delivery.
10. Shipment and insurance
10.1. Unless otherwise agreed, contractual items shall be shipped at the Purchaser’s expense.
10.2. Insurance against damages of any kind shall be the obligation of the Purchaser. Even where it is to be procured by the Supplier, it shall be deemed concluded on behalf of and for the account and risk of the Purchaser.
10.3. The Purchaser shall inspect the delivery immediately upon receipt for shipping damages or losses. Should such damages or losses be discovered, the Purchaser shall attach a corresponding reservation of rights to the receipt and immediately address the situation with the shipper. Notification of less readily detectable shipping damages must be given to the shipper no later than within 7 days following receipt of the goods.
10.4. Stacking and storage supports included with a delivery shall be invoiced and thereafter credited once returned free of defects (with the exception of rentals)..
11. Use of software
11.1. If a delivery includes software, the Purchaser shall be granted a non-exclusive right to use the delivered software, including documentation thereto, and to make a single copy thereof for security purposes. The software may be used only for the delivery for which the Purchaser received it from the Supplier.
11.2. Without a contrary written agreement or consent by the Supplier, the Purchaser may not copy (unless made for security purposes pursuant to Section 11.1), edit or otherwise modify the software. Any consent of the Supplier shall always apply only to the individual case for which it was granted, unless otherwise expressly stated. Simultaneous use of the software on more than one system shall not be permitted.
11.3. Subject to Sections 11.1 and 11.2, all rights to the software, the source code and documentation, including copies thereof, shall remain with the Supplier or software supplier. The granting of sublicenses by the Purchaser shall not be permitted.
11.4.The Purchaser may assign its right of use to the software only upon disposal of the contractual item, and only when the new user assumes the obligation to the Supplier pursuant to this Section 11 and the Purchaser provides the Supplier with the address of the new user.
12. Warranty and warranty rights
12.1. The Supplier warrants only that the delivery item corresponds, within the scope of customary tolerances, to the specifications and features expressly confirmed in the Supplier’s order confirmation or the customary use assumed by the Supplier. There shall be no additional warranties or guarantees. In particular, the Supplier assumes no liability for the suitability of the contractual item for application and use other than for the customary use assumed by the Supplier for the contractual item, even where the Purchaser has informed the Supplier of such intended use. The Purchaser, and not the Supplier, shall be responsible for ensuring that the requested specifications and features are sufficient for the Purchaser’s intended use.
12.2. The warranty shall exclude defects arising from normal wear and tear, inadequate storage and maintenance, failure to comply with operating standards, excessive load, improper operating supplies, inappropriate procedures by the Purchaser or a third party, the use of non-original parts, as well as from other causes which are not attributable to the Supplier.
12.3. The Purchaser shall inspect the contractual item received with respect to quantity and condition (quality and guaranteed features). Written notice of defects shall be provided to the Supplier within 7 days of delivery (evident defects) or of discovery (latent defects, i.e. those not readily identifiable upon ordinary inspection). Should the Purchaser fail to do so, the contractual item shall be deemed accepted. Late notice of defects, i.e. in breach of the foregoing obligation, shall not be acknowledged by the Supplier and are excluded from the warranty. Timely dispatch of the defect notice shall constitute compliance with the deadline.
12.4. Should the Purchaser discover a defect in the contractual item, it may not dispose of the same, i.e. the contractual item may not be modified, resold or converted until an agreement as to the handling of the complaint is reached.
12.5. The Purchaser shall be obligated to make available to the Supplier the rejected contractual item or a sample thereof for the purpose of assessing the rejection. The warranty shall become null and void in the event of an unjustified rejection.
12.6. The Purchaser’s warranty rights assume that it has duly discharged its inspection and notification obligation. Warranty claims with respect to latent defects further require that the Purchaser has followed the maintenance plan and kept a logbook from the time the contractual item was commissioned.
12.7. In the case of defects, the Purchaser shall initially have only the right to demand remediation by the Supplier. The Supplier is entitled, at its discretion, to provide a substitute instead and to reclaim the defective goods. If the subsequent delivery is also defective or the attempt at remediation unsuccessful, the Purchaser shall likewise have only the right to remediation upon timely notice of defect and the Supplier a new right to make a substitute delivery instead.
If this latter attempt to remedy the defect is also unsuccessful and the Purchaser gives timely notice thereof, the Purchaser shall have the right only to demand a reduction of the agreed contract price to the extent of the reduction in value. If, however, the reduction in value equals or exceeds the agreed contract price, cancellation of the contract shall be the sole remedy.
In all other cases the Purchaser shall not be entitled to cancel the contract on account of defects. There shall be absolutely no right to contract damages in any warranty case.
12.8. If remediation or substitute delivery is made as a result of a valid defect notice, the conditions with respect to delivery times shall apply accordingly. Exchanged parts, or defective goods in the case of substitute delivery, shall be returned to the Supplier at its expense.
12.9. All of the Purchaser’s claims arising from material defects shall become time-barred in 12 months from delivery. The foregoing shall not apply in cases where a longer limitations period is prescribed by law, in particular, in the case of wilful deceit.
13. General limitation on liability
13.1. The Purchaser shall have no right to claim damages or reimbursement of expenses under any legal basis whatsoever, in particular, on the grounds of a breach of obligation under a creditor-debtor relationship or tort, whether by the Supplier, its legal representatives or agents. Unless expressly specified, the Purchaser shall likewise have no right to damages, reductions, or termination or cancellation of the contract. In no event shall the Supplier be liable for indirect or consequential damages, e.g., production losses, loss of use, loss of orders and lost profits. The foregoing shall not apply to the extent applicable law (Section 16) mandates liability.
13.2. If, notwithstanding the liability limitation pursuant to Section 13.1, the Supplier is liable for the Purchaser’s damages, its total liability [- including liability for reductions pursuant to Section 12.7 -] under contract, tort or any other basis shall be limited to 5% of the invoiced amount, to the extent permitted by applicable law (Section 16).
13.3. The foregoing liability exclusions and limitations shall also apply to the liability of the Supplier and its legal representatives, as well as any personal liability of the latter. The Supplier shall not be liable for its employees or subcontractors.
14. Release and indemnification of the supplier
14.1. The Purchaser shall hold harmless and indemnify the Supplier against claims by third parties which relate to damage caused or other legal breaches by the Supplier, its legal representatives and agents. The Purchaser shall be obligated to insure itself against such damages.
15.1. The invalidity of any provision of these General Terms and Conditions of Sale and Delivery, or a provision forming part of other agreements, shall not affect the validity of the remaining provisions or agreements. In such event, the parties hereby undertake to engage in negotiations with the aim of replacing the invalid provision with a clause that most closely approximates their previous business intention.
16. Applicable law and jurisdiction
16.1. These General Terms and Conditions of Sale and Delivery and all legal relations between the Purchaser and Supplier shall be governed by the laws of Switzerland, subject to Section 16.2, and excluding conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Convention) and other uniform law.
16.2. Section 6 of these General Terms and Conditions of Sale and Delivery shall be subject to the laws of the Federal Republic of Germany, or, if required for enforceability, the law of the jurisdiction in which the registered office of the Purchaser’s business holding the subject goods is located. The exclusion of conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Convention) shall also apply to the applicable law pursuant to this Section 16.2, to the extent permitted.
16.3. The Commercial Court of Zurich shall have exclusive jurisdiction over disputes directly or indirectly arising from this contract. Notwithstanding the foregoing, the Supplier shall also be entitled to prosecute or to sue the Purchaser in the jurisdiction in which the latter’s registered office is located.
17.1. If the Supplier also undertakes installation, installation supervision, commissioning or support during test operations, the General Terms and Conditions of Installation shall also apply. To the extent that the General Terms and Conditions of Installation are in conflict with the General Terms and Conditions of Sale and Delivery, they shall take precedence over these terms.