Maximator JET GmbH - General terms of Business

As recommended by the German Engineering Federation – VDMA

Version of:  April 2004


General

  1. All goods and services supplied are subject to these conditions and to any separate contractual agreements based on them. Deviating purchase conditions of the Buyer shall not form part of the contract, even upon acceptance of order.
    In the absence of separate agreements, a contract shall be validated through the order confirmation of the Buyer.
  2. The Supplier shall reserve all property rights and copyrights to samples, preliminary estimates, drawings, and similar information of a physical and nonphysical kind including such in electronic form. They may not be made available to third parties. The Supplier shall agree not to make any information or documentation, designated as confidential by the Buyer, available to third parties without the approval of the buyer.

Price and payment

  1. Unless otherwise specified, the prices quoted are ex works, including loading at the works, but exclusive of packing and shipment. Prices are subject to value-added tax at the statutory rate.
  2. Payment is due net cash without deductions at the place of payment stipulated by the Supplier and net, within 14 days of invoice date.
  3. The Buyer shall not have the right to withhold payments or a right of offset against counterclaims, unless such counterclaims are undisputed or legally valid.

Time of delivery, delayed delivery

  1. The delivery time is based on the agreements between the parties. In order for the supplier to meet the delivery time, all commercial and technical issues between the parties must have been resolved, and the Buyer must have fulfilled all obligations, e.g. procured the necessary authorisations or permits or made an agreed down payment. If this is not the case, the delivery time shall be extended appropriately. This shall not apply if the Supplier is responsible for the delay.
  2. Compliance with the delivery deadline shall be subject to correct and prompt delivery to the Supplier. The Supplier shall notify the Buyer of any imminent delays as soon as possible.
  3. The delivery deadline shall be regarded as having been met if the delivery item has left the works by the time the deadline expires, or has been reported as being ready to be shipped. Should acceptance be required, and with the exception of legitimate non-acceptance, the acceptance deadline, or alternatively the readiness for acceptance, shall be decisive.
  4. If shipment or acceptance of the object of the delivery is delayed for reasons which are due to the Buyer, any costs accruing from the delay shall be charged to the Buyer, starting two weeks after the report that the delivery item is ready to be shipped or undergo acceptance.
  5. If the failure to comply with the delivery deadline can be attributed to force majeure, labour disputes or other events or occurrences that are outside the sphere of influence of the Supplier, the delivery deadline shall be extended by a reasonable period. The Supplier shall inform the Buyer of the beginning and end of such circumstances as soon as possible.
  6. The Buyer can rescind the contract without notice if the Supplier is definitively prevented from performing his obligations in full before passing of risk. The Buyer may also rescind the contract if a partial delivery cannot be made for a specific order, and the Buyer has a legitimate interest in rejecting the partial delivery. If this is not the case, the Buyer must pay the contractual price due for the partial delivery. The same shall apply in the event of the Supplier’s inability to perform. Section VII.-2 shall apply for the remainder. If such an impossibility or incapacity occurs during the delay in taking delivery, or if the Buyer alone is responsible or primarily responsible for these circumstances, he shall remain obliged to make the agreed compensation.
  7. If the Supplier is in default and the Buyer suffers a financial damage as a result, the Buyer is entitled to demand a lump-sum compensation for the delay. This shall amount to 0.5% for each full week of delay, but the total amount of compensation shall not exceed 5% of the value of that part of the delivery, which could not be used in good time or as contractually stipulated. Should the Purchaser grant the Supplier, under consideration of statutory exemptions, a reasonable term of respite following the due date and this deadline is not met, the Buyer shall be entitled to withdraw from the contract to the extent permitted by law. Further claims resulting from default of delivery shall be exclusively defined in compliance with section VII.-2 of these terms and conditions.
Transfer of risk, acceptance
  1. The risk is transferred to the Buyer when the delivery item has left the works, even if partial deliveries take place or when the Supplier has taken over other performances, e.g. the shipment costs or delivery and erection. If an acceptance procedure has to be implemented, it is decisive for the transfer of risk. It must be carried out immediately in time for the acceptance date or alternatively after a report by the Supplier that the item is ready for acceptance. The Buyer may not refuse acceptance in the case of a non-serious defect.
  2. If shipment or acceptance are delayed for reasons for which the Supplier is not responsible, risk shall pass to the Buyer from the date of notification of readiness for shipment or acceptance. The Supplier undertakes to take out any insurance required by the Buyer at the latter’s expense.
  3. Partial deliveries are permitted, if these are not unreasonable for the Buyer.

Retention of title

  1. The Supplier shall retain ownership of the delivery item until all the payments under the delivery contract have been received.
  2. The Supplier shall be entitled to insure the delivery item against theft, breakage, fire, water and other damage at the Buyer’s expense, unless the Buyer has demonstrably arranged insurance himself.
  3. The Buyer may not sell nor pledge the delivery item nor offer it as security/collateral. The Buyer must notify the Supplier immediately in the event of restraint, seizure or other actions by third parties.
  4. If the Buyer violates the contract, in particular by delays in payment, the supplier is entitled, after sending a written warning, to recover the goods and the Buyer shall then be obliged to hand them over. The enforcement of the reservation of ownership and the seizure of the delivery item by the Supplier shall not be deemed a form of contractual withdrawal.
  5. Application for opening of insolvency proceedings on the part of the Buyer shall entitle the Supplier to withdraw from the contract and to request immediate return of the delivery item.

Liability for defects

The Supplier shall be liable for material defects and defects of title of the delivery item, excluding further claims, except as provided in Section VII, as follows:
Material defects:

  1. All those parts proving to be defective due to circumstances that arose before the transfer of risk are to be repaired or replaced at the Supplier’s discretion free of charge. The Supplier shall be notified of all such defects as soon as they have been identified. Parts replaced shall become the property of the Supplier.
  2. In order for the Supplier to make repairs and replacement deliveries as appear necessary, the Buyer must give the Supplier sufficient time and opportunity following agreement with the Supplier; otherwise the Supplier shall be discharged from liability for the consequences. Only in urgent cases in which operational safety is compromised and/or to prevent disproportionately greater damages (in which case the Buyer shall notify the Seller immediately), or if the Supplier is in default with regard to the correction of the defect, shall the Buyer have the right to arrange for repairs or replacement himself or through a third party and to demand reimbursement from the Supplier for the resultant costs.
  3. Provided the complaint proves to be justified, any costs resulting from the repair or replacement shall be borne by the Supplier, including costs of replacement and shipment. In addition, the Supplier shall bear the costs of dismantling and installation, as well as the costs of any necessary provision of assembly workers and other staff, including their travelling expenses, unless this would cause a disproportionate burden on the Supplier.
  4. Within the framework of the legal regulations, the Buyer shall have the right to withdraw from the contract if Supplier allows a suitable period for repair or replacement of an item which exhibits quality defects to pass without action, taking any legal exceptions into consideration. If a defect detected is insignificant in nature, the Buyer shall be entitled to a reduction of the purchase price only. The right to a reduction of the purchase price shall be excluded in all other cases. Further claims shall be defined in accordance with section VII.2 of these terms and conditions.
  5. In particular, no guarantee shall be given for the following instances:
        Unsuitable or inappropriate use, defective assembly or commissioning on the part of the Buyer or a third party, normal wear and tear, incorrect or negligent treatment, incorrect maintenance, unsuitable operating materials, defective construction work, an unsuitable base/foundation, chemical, electrochemical or electrical influences – provided the Supplier is not responsible for them.
  6. All liability for or damage of any kind (including consequential damage) is excluded, where these are the result of not observing in detail the operating instructions or any other information provided on the use of the product supplied and its inherent hazards. In particular, the safety guidelines provided by us must be adhered to and it must be made sure that the operating personnel concerned have been trained and that the safety guidelines are adhered to and that any strict safety obligations that objectively arise shall also be adhered to.
  7. If the Buyer or a third party carries out repairs incorrectly the supplier shall not liable for the ensuing consequences. This also applies to changes made by the Buyer to the delivery item without the prior consent of the Supplier.
Defects of title:

8. If the use of the delivery item leads to a violation of commercial property rights or domestic copyrights, the Supplier shall provide the Buyer with the right for further use hereof at his own expense or shall modify the delivery item in an acceptable way on behalf of the Buyer, so that the copyright violation no longer exists.

If this is not possible within a reasonable period of time or under reasonable economical conditions, the Buyer shall be entitled to rescind the contract. Under these conditions, the Supplier is also entitled to rescind the contract. Furthermore the Supplier shall indemnify the Buyer for any undisputed or legally enforceable claims by the holders of the intellectual property rights concerned.

9. The obligations of the Supplier referred to in Section VI.8 shall be final and conclusive subject to Section VII.2 in respect of breaches of commercial or intellectual property rights and copyrights. These shall only apply if:

  • The Buyer notifies the Supplier as soon as any claims for breach of commercial or intellectual property rights and copyrights are made,
  • the Buyer supports the Supplier to an appropriate extent in the defence of the asserted claims and/or enables the Supplier to effect modification measures in accordance with Section VI. 8,
  • the Supplier has reserved the right to all defending measures, including out-of-court settlements,
  • the defect of title is not due to an instruction given by the Buyer and
  • the infringement was not caused by the Buyer changing the delivery item on his own authority or using it in a way incompatible with the contract.

Liability

  1. If the Buyer cannot use the delivery item in the way intended by the contract due to the fault of the Supplier, resulting from not carrying out (or incorrectly carrying out) proposals and agreements made before or after the signing of the contract, or from a breach of other secondary contractual duties especially instructions for operating and servicing the delivery item, the provisions of Sections VI and VII.2 shall apply accordingly and to the exclusion of all and any other rights of the Buyer.
  2. In the case of damage, which has not arisen on the delivery item itself the Supplier is not liable – on whatever legal grounds – except in the event of,
  • Intent,
  • Gross negligence on the part of the owner/the executive officers or other management staff
  • Culpable injury to life, limb, and health,
  • Defects which the Supplier has deceitfully kept hidden or the absence of which has been guaranteed by the Supplier,
  • Defects to the delivery item to the extent that liability is provided under the product liability law to cover personal injury and property damage in relation to privately used items.
  • In the event of culpable fundamental breach of contract, the Supplier shall also be liable for gross negligence by the Supplier’s employees and for slight negligence; in the event of slight negligence liability shall be limited to reasonably foreseeable typical contract damage. Other claims are excluded.

Limitation

All claims by the Buyer – on whatsoever legal grounds – shall lapse after 12 months. The relevant statutory deadlines shall apply for the claims for damages referred to in Sections VII.2 a-e. They shall also apply to defects of a building or of delivery items that have been used according to their normal use as a building and that have caused its defectiveness.

Software usage

If software is contained in the scope of supply, the Buyer shall be granted a non-exclusive right to use the software supplied, including its documentation. It shall be provided for use on the delivery item intended. Use of the software on more than one system shall be prohibited without the agreement of the Supplier. The Buyer may only copy, revise or compile the software or convert it from the object code to the source code to the extent permitted by law (Sections §§ 69 a ff. UrhG [Copyright Law]). The Buyer is obligated not to remove or change manufacturer information – in particular any copyright details – without the express and prior consent of the Supplier. All other rights to the software and the documentation, including copies thereof, shall remain with the Supplier or the software vendor. The assignment of sub-licences shall not be permitted.

Applicable law, place of jurisdiction

The law of the Federal Republic of Germany governing legal relationships between German parties is applicable exclusively to all legal relationships between the Supplier and the Buyer.
Any disputes are to be resolved by the court at the supplier’s place of business. The Supplier shall be entitled to bring legal action at the principal place of business of the Buyer, however.

 

Maximator JET GmbH

Schweinfurt