Deutsch
EnglishGeneral terms and conditions of 3D-Micromac AG
I. General Conditions
1. Unless other agreements have been made, exclusively the supplier's order confirmation shall be decisive for the scope of the service stipulated by the contract. A commitment for the supplier exists only upon his issuance of an order confirmation. . The purchaser's business conditions are only valid to the extent that the supplier or service provider (hereafter: Supplier) has expressly consented to them.
2. If no specific specifications have been agreed upon, then the Supplier’s system descriptions shall be considered offered and carried forward. Safety measures for accident prevention shall be included in the delivery as agreed.
3. The Supplier reserves the right to amend the construction, material selection, specification and design even after order confirmation, provided that these amendments do not contradict the order confirmation or purchaser’s specifications.
4. The Supplier reserves his ownership and copyright exploitation rights without limitations for cost estimates, sketches and other documents (hereafter: Documents). Documents may only be made accessible to third parties with the Supplier’s prior consent and shall be immediately returned upon request if the order is not contracted to the Supplier. Sentences 1 and 2 apply respectively for the purchaser’s documents: these may be made accessible to third parties, to whom the Supplier has permissibly transferred orders.
5. The purchaser has a non-exclusive right to use the software provided by the Supplier with the agreed performance features in unchanged form on the agreed media. The purchaser may not create a backup copy without explicit consent. The Supplier’s licence conditions apply to software developed and delivered by the Supplier.
6. Partial deliveries are permitted, provided these are reasonable for the purchaser.
7. If the purchaser bases his delivery on samples, sketches and models, the purchaser assumes the liability to ensure that the trademark rights of third parties are not violated.
II. Prices and Payment Conditions
1. Prices are listed ex works excluding packaging, shipping and do not include applicable sales tax.
2. If the Supplier has assumed the installation or assembly and nothing else has been agreed, then in addition to the agreed remuneration, the purchaser shall bear all necessary ancillary costs, such as travel costs, costs for transporting tools and personal gear as well as daily allowances.
3. Payments shall be made in full to the Supplier’s designated account(s).
4. The purchaser can only balance claims that are undisputed or established as final and absolute.
III. Retention of Title
1. The delivered goods (goods subject to retention of title) remain the Supplier’s property until all of the Supplier’s claims against the purchaser resulting from the business relationship have been fulfilled. If the value of all security interests entitled to the Supplier exceeds the amount of all secured claims by more than 20%, the Supplier shall release a respective portion of the security interests at the purchaser’s request.
2. During the retention of title period, the purchaser may not pledge or transfer by way of security and may only resell to resellers in standard business practice and only on the condition that the reseller obtains payment from his customers or retains the title until the customer has fulfilled all payment obligations.
3. The purchaser shall immediately notify the Supplier of pledges, distraint or intervention by third parties.
4. In the event of the purchaser’s neglect of duty, in particular for default of payment, the Supplier is entitled to rescission and return of goods if the purchaser does not comply after being granted an appropriate grace period for performance; the legal conditions concerning the dispensability of a deadline are not affected. The purchaser is obliged to deliver.
IV. Deadlines for Delivery; Delay
1. The delivery times shall be determined by special agreement between the parties. Deadlines and appointments are only binding if they are explicitly agreed as such.Maintenance of delivery deadlines presupposes the timely receipt of all documents, required permits and approvals to be submitted by the purchaser, in particular of plans, including the fulfilment of agreed payment conditions and other duties by the purchaser as well as all subsequently arising technical questions. If these prerequisites are not fulfilled in a timely manner or if changes are made subsequent to the conclusion of a contract, then the deadlines will be commensurately extended; this does not apply if the Supplier is responsible for the delay.
2. If the inability to maintain deadlines is due to force majeure, the deadlines shall be extended commensurately and appropriately.
3. If the Supplier is delayed, then the purchaser – provided he can credibly show that damages have resulted herefrom - may claim a compensation of 0.5% for each full week of the delay up to maximum 5% of the manufacturer’s price for the portion of the delivery that could not be put into operation due to the delay.
4. Damage compensation claims by the purchaser due to delivery delay as well as damage compensation claims instead of performance that exceed the limits listed in No. 3 are excluded in all cases of delayed delivery, even after expiration of a possible delivery deadline placed on the Supplier. This does not apply as far as liability is compulsory in cases of intent, gross negligence or due to loss of life or injury to body or health. The purchaser may only rescind from the contract within the framework of legal conditions as far as the delivery delay is the fault of the Supplier. The previous condition is not associated with a shift of the burden of evidence to the disadvantage of the purchaser.
5. Upon the Supplier’s request, the purchaser is obliged to declare within an appropriate period of time if he desires delivery or withdrawal from the contract due to delivery delays.
6. If, at the purchaser’s request, shipping or delivery is delayed by more than one month after notice of readiness for shipment, the purchaser may be charged storage fees in the amount of 0.5% of the price of the goods to be delivered up to a maximum of 5% in total. The contract parties are at liberty to prove higher or lower storage costs.
V. Transfer of Risk
1. Risk is transferred as follows to the purchaser, even in the case of carriage free delivery:
a) for deliveries without installation or assembly, when they are brought to or picked up from dispatch. Deliveries can be insured against typical transport risks by the Supplier at the request and cost of the purchaser;
b) for deliveries with installation or assembly, on the day of transfer into own operation or, as far as agreed, after faultless test operation.
2. If the shipping, ordering, begin, execution of installation or assembly, transfer into own operation or test operation is delayed for reasons attributed to the purchaser or the purchaser delays acceptance for other reasons, then risk is transferred to the purchaser.
VI. Installation and Assembly
The following conditions apply to installation and assembly, provided nothing else has been agreed in writing:
1. The purchaser shall bear the costs for and supply in a timely manner:
a) all construction and other ancillary work from other sectors, including construction materials, tools, skilled and unskilled workers,
b) the objects and materials necessary for installation and operation, such as scaffolding, lifting gear and other equipment, fuels and lubricants,
c) energy and water at the application site including connections, fittings and lighting,
d) sufficient large, suitable, dry and lockable rooms at the assembly site for the storage of machine parts, equipment, materials, tools, etc. and adequate working and lounge areas for the assembly personnel including sanitary facilities commensurate with the circumstances; in addition, the purchaser shall take all measures at the site to protect the Supplier’s and assembly personnel’s property, which he would take to protect his own property,
e) protective clothing and safety gear required due to special circumstances at the assembly site.
2. Prior to assembly work, the purchaser shall submit necessary information regarding the location of concealed electrical, gas and water conduits or similar systems as well as required structural information.
3. Prior to installation or assembly, provisions and objects required for the commencement of work must be available at the assembly or installation site and all preparatory work must be so advanced prior to initiation of construction that the assembly or installation can be begun and executed as agreed and without interruption. Delivery routes and installation or assembly sites must be levelled and cleared.
4. If assembly, installation or operation is delayed for reasons that are not the fault of the Supplier, then the purchaser shall bear the respective costs for the waiting time and additional necessary travel of the Supplier or assembly personnel.
5. The purchaser shall immediately attest the Supplier weekly of the duration of assembly personnel’s work time as well as completion of assembly, installation or operation.
6. If the Supplier demands acceptance of the delivery after completion, then the purchaser shall do so within two weeks. If this does not occur, then acceptance shall take place as follows. Acceptance shall also be considered carried out when the delivery - or after completion of an agreed test phase - is put into use.
VII. Acceptance
1. Acceptance shall take place after notification of completion and acceptance readiness by the Supplier and shall fundamentally take place at his location. The purchaser’s acceptance shall be conducted by a person authorised by him.
2. With the acceptance of the product, the following will be evinced and confirmed: functionality, mechanics, pneumatics, electrical installation, programming, security and documentation of control and operation.
3. The purchaser may not refuse acceptance of the delivery due to slight defects.
VIII. Defect of Quality
The Supplier is liable for defect of quality as follows:
1. At the supplier’s discretion, all parts or services that exhibit a defect of quality within the limitation period – without consideration for the operating life - shall be repaired, replaced or performed anew without charge, provided that these are during the transfer or risk period.
2. Defect of quality claims are subject to a limitation period of 12 months. This does not apply as far as the laws accordant to §§ 438 Par. 1 No 2 (Bauwerke und Sachen für Bauwerke [Construction and Objects for Construction]), 479 Par. 1 ( Rückgriffsanspruch [Recourse Claim]) and 834a Par. 1 No. 2 (Baumängel [Defects in Construction]) of the BGB [German Civil Code] do not prescribe longer periods or in cases of loss of life or injury to body or health, for intentional or grossly negligent breach of duty by the Supplier or for fraudulent concealment of a defect. The legally prescribed periods concerning suspension of statute of limitations, suspension and resumption are not affected.
3. The purchaser shall immediately report defects of quality in writing to the Supplier.
4. In the event of a notice of defect, the purchaser may withhold payments to an extent commensurate with the scope of the exhibited defect of quality. The purchaser may only withhold payments if a notice of defect is asserted for which entitlement is unquestioned. If the notice of defect is found to be wrong, then the Supplier is entitled to claim compensation for resulting expenditures from the purchaser.
5. The Supplier shall then have the opportunity for supplementary performance within an adequate period of time.
6. If the supplementary performance fails, then the purchaser - irrespective of possible damages claims accordant to Article XI - may withdraw from the contract or lower the remuneration amount.
7. Defect of quality claims do not exist for only slight deviations from the agreed specifications or from the agreed impairment of utility, for natural wear or damages that occur after the transfer of risk due to incorrect or negligent use, excessive strain, unsuitable equipment, inadequate construction work, unsuitable foundation soil or due to particular external influences not postulated by the contract or for raw material defects that cannot be reproduced. If the purchaser or a third party conduct improper changes or repair work, then no defect of quality claims exist for these or resulting consequences.
8. Claims by the purchaser for expenses required for the purpose of supplementary performance, in particular transport-, infrastructure-, labour- and material costs are excluded as far as the expenses increase due to the fact that the delivered object has been subsequently transferred to a place other than the purchaser's plant, unless the transfer complies with usage specifications.
9. Recourse claims by the purchaser against the Supplier accordant to § 478 BGB [German Civil Code] (Rückgriff des Unternehmers [Contractor’s Recourse]) exist only to the extent that the purchaser has not made any agreements with his recipient beyond the defect of quality claims as provided by law. The extent of a recourse claim by the purchaser against the Supplier and his assistants due to material defects is excluded.
IX. Industrial Property Rights and Intellectual Property Rights: Defect of Title
1. Unless otherwise agreed, the Supplier is obliged to provide delivery free from third-party industrial property rights and intellectual property rights (hereafter: property rights) solely in the country of the Supplier. Should a third party lay a legitimate claim against the purchaser for violation of property rights for deliveries from the Supplier used in a contractual manner, then the Supplier is liable to the purchaser within the period of time determined in Article VIII No. 2 as follows:
a) The Supplier shall, at his discretion and own expenses, obtain a right of use, make amendments so that property rights are not violated or exchange the affected deliveries. If appropriate conditions are not possible for the Supplier, then the purchaser is entitled to legal recourse- and reduction claims.
b) The Supplier’s duty to provide damage compensation conforms to Article XI.
c) The Supplier's duties listed above exist only as far as the purchaser has immediately notified the Supplier in writing of third party claims, does not recognise a violation and reserves all defensive measures and settlement negotiations for the Supplier. If the purchaser ceases use of the delivery for mitigation of damages or other important reasons, then he is obliged to inform the third party that usage cessation is not associated with a recognition of a property right violation.
2. Claims by the purchaser are excluded if he has associated a property right violation.
3. Claims by the purchaser are furthermore excluded, if the property rights violation is caused by special parameters by the purchaser, by usage not foreseeable by the Supplier or caused by the purchaser's amendment to the delivery or usage together with products not delivered by the supplier.
4. In the event of property rights violations, the Supplier’s claims regulated in No. 1 a) also apply for the conditions in Art. VIII No. 4, 8 and 9 accordingly.
5. In the case of other defects of title, the conditions in Art. VIII apply accordingly.
6. Claims by the purchaser against the Supplier and his assistants due to defect of title beyond or other than those regulated in Art. IX are excluded.
X. Impossibility: Contract Adaptation
1. If delivery is impossible, the purchaser is entitled to claim damage compensation, unless the Supplier is not responsible for the impossibility; however, the purchaser’s damage compensation claim is limited to 10% of the value of the part of the delivery which, due to impossibility, cannot be put into operation. This limitation does not apply as far as liability is compulsory in cases of intent, gross negligence or due to loss of life or injury to body or health; a shift of the burden of evidence to the disadvantage of the purchaser is not associated herewith. The purchaser’s right to withdraw from the contract is not affected.
2. Provided that unforeseeable events in terms of Art. IV, No. 2 significantly change the economic importance or contents of the delivery or have significant impacts on the Supplier’s operation, the contract will be adequately adapted with observation of good faith. Provided that this is not economically feasible, the Supplier is entitled to withdraw from the contract. If he makes of use this withdrawal right, then upon realisation of the scope of the event he shall immediately notify the purchaser, even if an extension of the delivery time has been agreed with the purchaser.
XI. Other Damage Compensation Claims
1. Damage- and expenditures reimbursement claims by the purchaser (hereafter: damage compensation claims), irrespective of legal ground and in particular for violations of duty in contractual obligations and unauthorised activities are excluded.
2. This does not apply unless liability is compulsory, i.e. accordant to product liability laws, in cases of intent, gross negligence, due to loss of life, injury to body or health or due to violation of substantial contractual duties. Damage compensation claims for violation of substantial contractual duties are however limited to foreseeable damages typical for this type of contract, provided that no case of intent or gross negligence is present or in case of liability for loss of life or injury to body or health. The previous condition is not associated with a shift of the burden of evidence to the disadvantage of the purchaser.
3. If the purchaser is entitled to damage compensation claims as per Art. XI, these fall under the statute of limitations upon expiration of the limitation period applying to defects of quality claims as per Art. VIII No. 2.For damage compensation claims accordant to product liability laws, the legally prescribed limitation provisions apply.
XII. Sample Production
1. Sample production deadlines are meant to be approximate, unless the Supplier has explicitly provided binding acceptance in writing for a specific date.
2. If a cost estimate is desired prior to design of samples/prototypes, then this should be explicitly stated. The costs for the estimate shall be paid even if the work is not contracted.
3. Initial samples also serve in principle for fine-tuning in production and for communication between production and contractor as well as for testing of material and production possibilities. Entitlement to perfect initial samples is excluded.
4. Functionality of the samples cannot be guaranteed.
5. The Supplier’s liability conforms exclusively to the agreements made in individual contracts. Purchaser’s damage compensation claims resulting from default in contract conclusion, violation of contractual secondary obligations and unauthorised liability are excluded, unless these are based on gross negligence by the Supplier or one of his assistants. The Supplier is liable for violations of substantial contractual obligations even for slight negligence; in this case his liability is limited to compensation of foreseeable and typical damages.
6. These claims fall under the statute of limitations one year after receipt of the goods or acceptance of performance by the purchaser.
7. Claims from the product liability law remain unaffected from the regulation above.
XIII. Court of Jurisdiction and Applicable Law
1. If the purchaser is a merchant, then the sole court of jurisdiction is the Supplier’s headquarters for all disputes directly or indirectly resulting from the contractual relationship. The Supplier is also entitled to file suit at the headquarters of the purchaser.
2. To the exclusion of United Nations convention on Contracts for the International Sale of Goods (CISG), German substantive law applies to privity in the context of this contract.
XIV. Binding Character of the Contract
This contract remains binding even if individual conditions are legally invalid. This does not apply if adherence to the contract presents unreasonable hardship for one of the parties.
Chemnitz, 1 June 2009
Dipl.-Ing. Tino Petsch Dipl.-Ing. Jens Hänel
Management Management
1. Unless other agreements have been made, exclusively the supplier's order confirmation shall be decisive for the scope of the service stipulated by the contract. A commitment for the supplier exists only upon his issuance of an order confirmation. . The purchaser's business conditions are only valid to the extent that the supplier or service provider (hereafter: Supplier) has expressly consented to them.
2. If no specific specifications have been agreed upon, then the Supplier’s system descriptions shall be considered offered and carried forward. Safety measures for accident prevention shall be included in the delivery as agreed.
3. The Supplier reserves the right to amend the construction, material selection, specification and design even after order confirmation, provided that these amendments do not contradict the order confirmation or purchaser’s specifications.
4. The Supplier reserves his ownership and copyright exploitation rights without limitations for cost estimates, sketches and other documents (hereafter: Documents). Documents may only be made accessible to third parties with the Supplier’s prior consent and shall be immediately returned upon request if the order is not contracted to the Supplier. Sentences 1 and 2 apply respectively for the purchaser’s documents: these may be made accessible to third parties, to whom the Supplier has permissibly transferred orders.
5. The purchaser has a non-exclusive right to use the software provided by the Supplier with the agreed performance features in unchanged form on the agreed media. The purchaser may not create a backup copy without explicit consent. The Supplier’s licence conditions apply to software developed and delivered by the Supplier.
6. Partial deliveries are permitted, provided these are reasonable for the purchaser.
7. If the purchaser bases his delivery on samples, sketches and models, the purchaser assumes the liability to ensure that the trademark rights of third parties are not violated.
II. Prices and Payment Conditions
1. Prices are listed ex works excluding packaging, shipping and do not include applicable sales tax.
2. If the Supplier has assumed the installation or assembly and nothing else has been agreed, then in addition to the agreed remuneration, the purchaser shall bear all necessary ancillary costs, such as travel costs, costs for transporting tools and personal gear as well as daily allowances.
3. Payments shall be made in full to the Supplier’s designated account(s).
4. The purchaser can only balance claims that are undisputed or established as final and absolute.
III. Retention of Title
1. The delivered goods (goods subject to retention of title) remain the Supplier’s property until all of the Supplier’s claims against the purchaser resulting from the business relationship have been fulfilled. If the value of all security interests entitled to the Supplier exceeds the amount of all secured claims by more than 20%, the Supplier shall release a respective portion of the security interests at the purchaser’s request.
2. During the retention of title period, the purchaser may not pledge or transfer by way of security and may only resell to resellers in standard business practice and only on the condition that the reseller obtains payment from his customers or retains the title until the customer has fulfilled all payment obligations.
3. The purchaser shall immediately notify the Supplier of pledges, distraint or intervention by third parties.
4. In the event of the purchaser’s neglect of duty, in particular for default of payment, the Supplier is entitled to rescission and return of goods if the purchaser does not comply after being granted an appropriate grace period for performance; the legal conditions concerning the dispensability of a deadline are not affected. The purchaser is obliged to deliver.
IV. Deadlines for Delivery; Delay
1. The delivery times shall be determined by special agreement between the parties. Deadlines and appointments are only binding if they are explicitly agreed as such.Maintenance of delivery deadlines presupposes the timely receipt of all documents, required permits and approvals to be submitted by the purchaser, in particular of plans, including the fulfilment of agreed payment conditions and other duties by the purchaser as well as all subsequently arising technical questions. If these prerequisites are not fulfilled in a timely manner or if changes are made subsequent to the conclusion of a contract, then the deadlines will be commensurately extended; this does not apply if the Supplier is responsible for the delay.
2. If the inability to maintain deadlines is due to force majeure, the deadlines shall be extended commensurately and appropriately.
3. If the Supplier is delayed, then the purchaser – provided he can credibly show that damages have resulted herefrom - may claim a compensation of 0.5% for each full week of the delay up to maximum 5% of the manufacturer’s price for the portion of the delivery that could not be put into operation due to the delay.
4. Damage compensation claims by the purchaser due to delivery delay as well as damage compensation claims instead of performance that exceed the limits listed in No. 3 are excluded in all cases of delayed delivery, even after expiration of a possible delivery deadline placed on the Supplier. This does not apply as far as liability is compulsory in cases of intent, gross negligence or due to loss of life or injury to body or health. The purchaser may only rescind from the contract within the framework of legal conditions as far as the delivery delay is the fault of the Supplier. The previous condition is not associated with a shift of the burden of evidence to the disadvantage of the purchaser.
5. Upon the Supplier’s request, the purchaser is obliged to declare within an appropriate period of time if he desires delivery or withdrawal from the contract due to delivery delays.
6. If, at the purchaser’s request, shipping or delivery is delayed by more than one month after notice of readiness for shipment, the purchaser may be charged storage fees in the amount of 0.5% of the price of the goods to be delivered up to a maximum of 5% in total. The contract parties are at liberty to prove higher or lower storage costs.
V. Transfer of Risk
1. Risk is transferred as follows to the purchaser, even in the case of carriage free delivery:
a) for deliveries without installation or assembly, when they are brought to or picked up from dispatch. Deliveries can be insured against typical transport risks by the Supplier at the request and cost of the purchaser;
b) for deliveries with installation or assembly, on the day of transfer into own operation or, as far as agreed, after faultless test operation.
2. If the shipping, ordering, begin, execution of installation or assembly, transfer into own operation or test operation is delayed for reasons attributed to the purchaser or the purchaser delays acceptance for other reasons, then risk is transferred to the purchaser.
VI. Installation and Assembly
The following conditions apply to installation and assembly, provided nothing else has been agreed in writing:
1. The purchaser shall bear the costs for and supply in a timely manner:
a) all construction and other ancillary work from other sectors, including construction materials, tools, skilled and unskilled workers,
b) the objects and materials necessary for installation and operation, such as scaffolding, lifting gear and other equipment, fuels and lubricants,
c) energy and water at the application site including connections, fittings and lighting,
d) sufficient large, suitable, dry and lockable rooms at the assembly site for the storage of machine parts, equipment, materials, tools, etc. and adequate working and lounge areas for the assembly personnel including sanitary facilities commensurate with the circumstances; in addition, the purchaser shall take all measures at the site to protect the Supplier’s and assembly personnel’s property, which he would take to protect his own property,
e) protective clothing and safety gear required due to special circumstances at the assembly site.
2. Prior to assembly work, the purchaser shall submit necessary information regarding the location of concealed electrical, gas and water conduits or similar systems as well as required structural information.
3. Prior to installation or assembly, provisions and objects required for the commencement of work must be available at the assembly or installation site and all preparatory work must be so advanced prior to initiation of construction that the assembly or installation can be begun and executed as agreed and without interruption. Delivery routes and installation or assembly sites must be levelled and cleared.
4. If assembly, installation or operation is delayed for reasons that are not the fault of the Supplier, then the purchaser shall bear the respective costs for the waiting time and additional necessary travel of the Supplier or assembly personnel.
5. The purchaser shall immediately attest the Supplier weekly of the duration of assembly personnel’s work time as well as completion of assembly, installation or operation.
6. If the Supplier demands acceptance of the delivery after completion, then the purchaser shall do so within two weeks. If this does not occur, then acceptance shall take place as follows. Acceptance shall also be considered carried out when the delivery - or after completion of an agreed test phase - is put into use.
VII. Acceptance
1. Acceptance shall take place after notification of completion and acceptance readiness by the Supplier and shall fundamentally take place at his location. The purchaser’s acceptance shall be conducted by a person authorised by him.
2. With the acceptance of the product, the following will be evinced and confirmed: functionality, mechanics, pneumatics, electrical installation, programming, security and documentation of control and operation.
3. The purchaser may not refuse acceptance of the delivery due to slight defects.
VIII. Defect of Quality
The Supplier is liable for defect of quality as follows:
1. At the supplier’s discretion, all parts or services that exhibit a defect of quality within the limitation period – without consideration for the operating life - shall be repaired, replaced or performed anew without charge, provided that these are during the transfer or risk period.
2. Defect of quality claims are subject to a limitation period of 12 months. This does not apply as far as the laws accordant to §§ 438 Par. 1 No 2 (Bauwerke und Sachen für Bauwerke [Construction and Objects for Construction]), 479 Par. 1 ( Rückgriffsanspruch [Recourse Claim]) and 834a Par. 1 No. 2 (Baumängel [Defects in Construction]) of the BGB [German Civil Code] do not prescribe longer periods or in cases of loss of life or injury to body or health, for intentional or grossly negligent breach of duty by the Supplier or for fraudulent concealment of a defect. The legally prescribed periods concerning suspension of statute of limitations, suspension and resumption are not affected.
3. The purchaser shall immediately report defects of quality in writing to the Supplier.
4. In the event of a notice of defect, the purchaser may withhold payments to an extent commensurate with the scope of the exhibited defect of quality. The purchaser may only withhold payments if a notice of defect is asserted for which entitlement is unquestioned. If the notice of defect is found to be wrong, then the Supplier is entitled to claim compensation for resulting expenditures from the purchaser.
5. The Supplier shall then have the opportunity for supplementary performance within an adequate period of time.
6. If the supplementary performance fails, then the purchaser - irrespective of possible damages claims accordant to Article XI - may withdraw from the contract or lower the remuneration amount.
7. Defect of quality claims do not exist for only slight deviations from the agreed specifications or from the agreed impairment of utility, for natural wear or damages that occur after the transfer of risk due to incorrect or negligent use, excessive strain, unsuitable equipment, inadequate construction work, unsuitable foundation soil or due to particular external influences not postulated by the contract or for raw material defects that cannot be reproduced. If the purchaser or a third party conduct improper changes or repair work, then no defect of quality claims exist for these or resulting consequences.
8. Claims by the purchaser for expenses required for the purpose of supplementary performance, in particular transport-, infrastructure-, labour- and material costs are excluded as far as the expenses increase due to the fact that the delivered object has been subsequently transferred to a place other than the purchaser's plant, unless the transfer complies with usage specifications.
9. Recourse claims by the purchaser against the Supplier accordant to § 478 BGB [German Civil Code] (Rückgriff des Unternehmers [Contractor’s Recourse]) exist only to the extent that the purchaser has not made any agreements with his recipient beyond the defect of quality claims as provided by law. The extent of a recourse claim by the purchaser against the Supplier and his assistants due to material defects is excluded.
IX. Industrial Property Rights and Intellectual Property Rights: Defect of Title
1. Unless otherwise agreed, the Supplier is obliged to provide delivery free from third-party industrial property rights and intellectual property rights (hereafter: property rights) solely in the country of the Supplier. Should a third party lay a legitimate claim against the purchaser for violation of property rights for deliveries from the Supplier used in a contractual manner, then the Supplier is liable to the purchaser within the period of time determined in Article VIII No. 2 as follows:
a) The Supplier shall, at his discretion and own expenses, obtain a right of use, make amendments so that property rights are not violated or exchange the affected deliveries. If appropriate conditions are not possible for the Supplier, then the purchaser is entitled to legal recourse- and reduction claims.
b) The Supplier’s duty to provide damage compensation conforms to Article XI.
c) The Supplier's duties listed above exist only as far as the purchaser has immediately notified the Supplier in writing of third party claims, does not recognise a violation and reserves all defensive measures and settlement negotiations for the Supplier. If the purchaser ceases use of the delivery for mitigation of damages or other important reasons, then he is obliged to inform the third party that usage cessation is not associated with a recognition of a property right violation.
2. Claims by the purchaser are excluded if he has associated a property right violation.
3. Claims by the purchaser are furthermore excluded, if the property rights violation is caused by special parameters by the purchaser, by usage not foreseeable by the Supplier or caused by the purchaser's amendment to the delivery or usage together with products not delivered by the supplier.
4. In the event of property rights violations, the Supplier’s claims regulated in No. 1 a) also apply for the conditions in Art. VIII No. 4, 8 and 9 accordingly.
5. In the case of other defects of title, the conditions in Art. VIII apply accordingly.
6. Claims by the purchaser against the Supplier and his assistants due to defect of title beyond or other than those regulated in Art. IX are excluded.
X. Impossibility: Contract Adaptation
1. If delivery is impossible, the purchaser is entitled to claim damage compensation, unless the Supplier is not responsible for the impossibility; however, the purchaser’s damage compensation claim is limited to 10% of the value of the part of the delivery which, due to impossibility, cannot be put into operation. This limitation does not apply as far as liability is compulsory in cases of intent, gross negligence or due to loss of life or injury to body or health; a shift of the burden of evidence to the disadvantage of the purchaser is not associated herewith. The purchaser’s right to withdraw from the contract is not affected.
2. Provided that unforeseeable events in terms of Art. IV, No. 2 significantly change the economic importance or contents of the delivery or have significant impacts on the Supplier’s operation, the contract will be adequately adapted with observation of good faith. Provided that this is not economically feasible, the Supplier is entitled to withdraw from the contract. If he makes of use this withdrawal right, then upon realisation of the scope of the event he shall immediately notify the purchaser, even if an extension of the delivery time has been agreed with the purchaser.
XI. Other Damage Compensation Claims
1. Damage- and expenditures reimbursement claims by the purchaser (hereafter: damage compensation claims), irrespective of legal ground and in particular for violations of duty in contractual obligations and unauthorised activities are excluded.
2. This does not apply unless liability is compulsory, i.e. accordant to product liability laws, in cases of intent, gross negligence, due to loss of life, injury to body or health or due to violation of substantial contractual duties. Damage compensation claims for violation of substantial contractual duties are however limited to foreseeable damages typical for this type of contract, provided that no case of intent or gross negligence is present or in case of liability for loss of life or injury to body or health. The previous condition is not associated with a shift of the burden of evidence to the disadvantage of the purchaser.
3. If the purchaser is entitled to damage compensation claims as per Art. XI, these fall under the statute of limitations upon expiration of the limitation period applying to defects of quality claims as per Art. VIII No. 2.For damage compensation claims accordant to product liability laws, the legally prescribed limitation provisions apply.
XII. Sample Production
1. Sample production deadlines are meant to be approximate, unless the Supplier has explicitly provided binding acceptance in writing for a specific date.
2. If a cost estimate is desired prior to design of samples/prototypes, then this should be explicitly stated. The costs for the estimate shall be paid even if the work is not contracted.
3. Initial samples also serve in principle for fine-tuning in production and for communication between production and contractor as well as for testing of material and production possibilities. Entitlement to perfect initial samples is excluded.
4. Functionality of the samples cannot be guaranteed.
5. The Supplier’s liability conforms exclusively to the agreements made in individual contracts. Purchaser’s damage compensation claims resulting from default in contract conclusion, violation of contractual secondary obligations and unauthorised liability are excluded, unless these are based on gross negligence by the Supplier or one of his assistants. The Supplier is liable for violations of substantial contractual obligations even for slight negligence; in this case his liability is limited to compensation of foreseeable and typical damages.
6. These claims fall under the statute of limitations one year after receipt of the goods or acceptance of performance by the purchaser.
7. Claims from the product liability law remain unaffected from the regulation above.
XIII. Court of Jurisdiction and Applicable Law
1. If the purchaser is a merchant, then the sole court of jurisdiction is the Supplier’s headquarters for all disputes directly or indirectly resulting from the contractual relationship. The Supplier is also entitled to file suit at the headquarters of the purchaser.
2. To the exclusion of United Nations convention on Contracts for the International Sale of Goods (CISG), German substantive law applies to privity in the context of this contract.
XIV. Binding Character of the Contract
This contract remains binding even if individual conditions are legally invalid. This does not apply if adherence to the contract presents unreasonable hardship for one of the parties.
Chemnitz, 1 June 2009
Dipl.-Ing. Tino Petsch Dipl.-Ing. Jens Hänel
Management Management
