Gen­er­al Terms and Con­di­tions of Busi­ness
applic­a­ble to the Deliv­er­ies of Goods and the Pro­vi­sion of Ser­vices of BU Pow­er Sys­tems GmbH & Co. KG

As from: Decem­ber 2010

1 Scope of Appli­ca­tion of these Gen­er­al Terms and Con­di­tions of Busi­ness

1.1 All our deliv­er­ies of goods, pro­vi­sion of ser­vices, and sub­mis­sion of offers shall take place in accor­dance with these Gen­er­al Terms and Con­di­tions of Busi­ness (here­inafter also called: “Terms and Con­di­tions”) and are exclu­sive­ly based on them.

Any terms of busi­ness of cus­tomers, buy­ers, oth­er par­ties to a con­tract, etc. (“Con­trac­tu­al Part­ner”), which are con­flict­ing with, or diverg­ing from, these Terms and Con­di­tions, shall only apply if they are explic­it­ly acknowl­edged by a mem­ber of our man­age­ment board or by a prokurist, i.e. a per­son vest­ed with gen­er­al com­mer­cial pow­er of rep­re­sen­ta­tion accord­ing Ger­man law, or by a rep­re­sen­ta­tive autho­rized by us for such pur­pose.

Gen­er­al terms and con­di­tions of busi­ness of the Con­trac­tu­al Part­ner shall not be bind­ing even if their appli­ca­tion is not express­ly con­tra­dict­ed. Any tac­it acknowl­edge­ment of the gen­er­al terms and con­di­tions of busi­ness of the Con­trac­tu­al Part­ner on account of a con­duct, from which such inten­tion may be implied, shall be exclud­ed.

1.2 These Terms and Con­di­tions shall also apply to any future con­tract rela­tion­ships. They shall apply irre­spec­tive of the fact whether they are sep­a­rate­ly referred to in indi­vid­ual cas­es or not.

1.3 Any reg­u­la­tions diverg­ing from, and / or sup­ple­ments to, these Terms and Con­di­tions shall require writ­ten form. This stip­u­la­tion does not apply to reg­u­la­tions, which are agreed with mem­bers of the exec­u­tive board or with prokurists, i.e. per­sons vest­ed with gen­er­al com­mer­cial pow­er of rep­re­sen­ta­tion accord­ing Ger­man law, or with oth­er per­sons, which have been autho­rized by us to agree such diverg­ing reg­u­la­tions or sup­ple­ments.

2 Sub­mis­sion of Offers and Con­clu­sion of Con­tracts / Rights to our Doc­u­ments / Esti­mates of Costs and Expens­es

2.1 Our offers are sub­ject to change and are not bind­ing. Any con­tract shall only be brought about when we accept the pur­chase order of the Con­trac­tu­al Part­ner. The deliv­ery of a non-bind­ing esti­mate of costs sent by us does, under no cir­cum­stances, estab­lish the con­clu­sion of a con­tract with the Con­trac­tu­al Part­ner.

A con­tract between us and the Con­trac­tu­al Part­ner shall also be brought about (i.e. with­out any con­fir­ma­tion com­mu­ni­cat­ed by us) when we deliv­er the ordered goods and /or per­form the ordered ser­vices and the Con­trac­tu­al Part­ner accepts such goods and / or ser­vices.

In the event that the ordered goods and / or ser­vices are not deliv­ered and / or are not per­formed com­plete­ly because it turns out that the deliv­ery & per­for­mance is, in part, not pos­si­ble or because the com­plete deliv­ery & per­for­mance of such goods and ser­vices is eco­nom­i­cal­ly unrea­son­able and the Con­trac­tu­al Part­ner there­fore refus­es accep­tance of the com­plete goods and ser­vices in accor­dance with § 2.5 or § 3.1 of these Terms and Con­di­tions, we shall be enti­tled to bill all those goods and ser­vices, which have been deliv­ered and / or per­formed by us until such date.

2.2 Orders can be accept­ed by us with­in a peri­od of two (2) weeks fol­low­ing their receipt by us.

2.3 Unless oth­er­wise agreed, we reserve the right of own­er­ship, the copy­right and any oth­er intel­lec­tu­al prop­er­ty rights with respect to all offers, esti­mates of costs and expens­es, draw­ings, fig­ures, descrip­tions, oth­er doc­u­ments and records, which have been sub­mit­ted by us, are from us or from any third par­ty, and are pro­vid­ed by us or by any third par­ty to the Con­trac­tu­al Part­ner.

With­out our express con­sent, the Con­trac­tu­al Part­ner must not dis­close the objects them­selves referred to above or their con­tents to any third par­ty.

Any use of the objects and doc­u­ments referred to above as well as any dupli­ca­tion shall only be admit­ted to the extent that is required for the con­clu­sion or the per­for­mance of con­tracts with us.

The doc­u­ments and mate­ri­als referred to above includ­ing any dupli­cates shall prompt­ly be returned to us, at the expense of the Con­trac­tu­al Part­ner, if a con­tract is not brought about or if such doc­u­ments and mate­ri­als are no longer required for the sub­se­quent per­for­mance of a con­tract.

2.4 The Con­trac­tu­al Part­ner shall observe our notes con­cern­ing the use of the objects and doc­u­ments referred to in sec­tion 2.3 here­in. In par­tic­u­lar, the Con­trac­tu­al Part­ner shall observe the lim­i­ta­tions of use spec­i­fied in these doc­u­ments and must not use the objects and doc­u­ments for any pur­pos­es oth­er than the intend­ed ones.

2.5 Esti­mates of costs and expens­es shall not be bind­ing. In the event that a con­tract is brought about on the basis of a non-bind­ing esti­mate of costs and expens­es, we may exceed the price spec­i­fied in the esti­mate of costs and expens­es by up to 10%.

In the event that it can be seen that the price spec­i­fied in the esti­mate of costs and expens­es will be exceed­ed by more than 10%, we will noti­fy the Con­trac­tu­al Part­ner. We shall be enti­tled to stop the work and relat­ed activ­i­ties until a bind­ing agree­ment is con­clud­ed with Con­trac­tu­al Part­ner on addi­tion­al work and activ­i­ties.

Based on our noti­fi­ca­tion (i.e. that it can be seen that the price spec­i­fied in the esti­mate of costs and expens­es will be exceed­ed by more than 10%), the Con­trac­tu­al Part­ner shall be enti­tled to ter­mi­nate the rel­e­vant con­tract.

In such a case, we shall be enti­tled to bill the price for the goods deliv­ered, and the ser­vices per­formed, until the date of noti­fi­ca­tion in accor­dance with the esti­mate of costs and expens­es.

3 Accep­tance of Items for Repairs / Exchange of Items / Tun­ing

3.1 Con­cern­ing the extent of main­te­nance work and / or repairs, the respec­tive con­trac­tu­al agree­ment shall be applic­a­ble. The basis of that agree­ment will be the data and infor­ma­tion made avail­able to us by the Con­trac­tu­al Part­ner.

If it appears – dur­ing the imple­men­ta­tion of the con­tract – that the per­for­mance of the agreed main­te­nance work and / or repairs is not pos­si­ble and this could not be rec­og­nized upon the con­clu­sion of that con­tract, we shall be enti­tled to bill the Con­trac­tu­al Part­ner for all work that had been per­formed before such impos­si­bil­i­ty of per­for­mance was deter­mined.

Based on our noti­fi­ca­tion, the Con­trac­tu­al Part­ner shall be enti­tled to ter­mi­nate the con­tract; in such a case, we shall be enti­tled to invoice any work per­formed until such date. We shall only be oblig­at­ed to con­tin­ue the work, when the Con­trac­tu­al Part­ner bind­ing­ly charges us with the con­tin­u­a­tion of the work.

3.2 In the event that we take in pay­ment any item of the Con­trac­tu­al Part­ner, this means that we con­clude a con­tract of pur­chase with the Con­trac­tu­al Part­ner with respect to the item to be deliv­ered by us and that the Con­trac­tu­al Part­ner will only be enti­tled to trans­fer own­er­ship of its item to us instead of pay­ing the pur­chase price.

We shall be enti­tled to all rights (i.e. with­out any reduc­tion of such rights), which arise from defects or faults of the item(s) pro­vid­ed by the Con­trac­tu­al Part­ner. In par­tic­u­lar, any items tak­en in pay­ment must be free from weld­ed or non-weld­ed frac­tures and / or cracks.

3.3 In the event that we take in pay­ment any items, the price agreed for such items, which were tak­en in pay­ment, will be depen­dent on the con­di­tion that the items tak­en in pay­ment can be repaired. If indi­vid­ual com­po­nents of such item(s) tak­en in pay­ment can­not be repaired any longer, we shall be enti­tled to replace these com­po­nents and to cal­cu­late a rea­son­able deduc­tion from the price of the item(s) tak­en in pay­ment. The Con­trac­tu­al Part­ner shall be enti­tled to reclaim any com­po­nents, which have been replaced by us.

3.4 In the event that the Con­trac­tu­al Part­ner charges us with a tun­ing of any items, which are the sub­ject mat­ter of a con­tract, or a machin­ing of old-time items, which are the sub­ject mat­ter of a con­tract, we shall be oblig­at­ed to per­form the agreed work in due form.

Unless oth­er­wise agreed, any spe­cif­ic result or suc­cess over and beyond the per­for­mance of such work shall not be owed.

4 Main­te­nance Ser­vices

4.1 Any main­te­nance ser­vices shall be per­formed by us only on the basis of sep­a­rate agree­ments. Such agree­ments shall be deci­sive for the extent of the main­te­nance ser­vices owed by us.

4.2 On the basis of a main­te­nance con­tract, we shall only be oblig­at­ed to deliv­er the goods and / or per­form the ser­vices that are agreed in such main­te­nance con­tract. Any result or suc­cess over and beyond such deliv­ery of goods and per­for­mance of ser­vices and, in par­tic­u­lar, the attain­ment of a spe­cif­ic ser­vice life of the main­tained objects shall require a sep­a­rate agree­ment.

4.3 In the absence of such a respec­tive agree­ment, we shall not be oblig­at­ed to respond to errors & faults report­ed to us and / or to elim­i­nate such errors & faults with­in a defined peri­od of time.

4.4 The Con­trac­tu­al Part­ner shall enable us to access all items, for which a main­te­nance agree­ment was con­clud­ed, and shall pro­vide, in addi­tion, all spe­cial­ized and aux­il­iary staff, fuels, ener­gy, and water includ­ing any required con­nec­tions, heat­ing, and light­ing as well as take any oth­er mea­sures required for the per­for­mance of main­te­nance activ­i­ties.

In case of added dif­fi­cul­ties and / or delays result­ing from the fact that the Con­trac­tu­al Part­ner does not meet, in full or in part, the duties referred to above or insuf­fi­cient­ly meets such duties, we shall be enti­tled to bill a rea­son­able com­pen­sa­tion for these con­di­tions.

5 Advi­so­ry and Con­sult­ing Ser­vices

5.1 In the event that we advise the Con­trac­tu­al Part­ner with respect to the suit­abil­i­ty, usabil­i­ty, or oth­er char­ac­ter­is­tic fea­tures of our prod­ucts, the Con­trac­tu­al Part­ner shall be oblig­at­ed to hand over to us – with­out any express request – all infor­ma­tion and doc­u­ments, which are required for such con­sult­ing ser­vices. The con­sult­ing ser­vices shall be per­formed on the basis of infor­ma­tion and doc­u­ments dis­closed to us by the Con­trac­tu­al Part­ner.

5.2 In the event that we advise the Con­trac­tu­al Part­ner on the instal­la­tion and / or assem­bly of our prod­ucts – irre­spec­tive of the fact whether such instal­la­tion and / or assem­bly is per­formed by the Con­trac­tu­al Part­ner itself or by any third par­ty – these con­sult­ing ser­vices shall com­prise (in the absence of any sep­a­rate agree­ment) only the answer­ing of indi­vid­ual ques­tions relat­ed to the instal­la­tion and / or assem­bly. They do not com­prise any super­vi­sion of the instal­la­tion and / or assem­bly by us.

6 Pro­fes­sion­al Train­ing and Edu­ca­tion Ser­vices

6.1 Any pro­fes­sion­al train­ing ser­vices will be per­formed by us only on the basis of sep­a­rate agree­ments con­clud­ed with the Con­trac­tu­al Part­ner. We shall not be oblig­at­ed to per­form any addi­tion­al ser­vices, which would exceed such agreed ser­vices.

6.2 With respect to all doc­u­ments deliv­ered to the Con­trac­tu­al Part­ner and / or to any par­tic­i­pants of train­ing cours­es (named by the Con­trac­tu­al Part­ner), we reserve the exclu­sive right of exploita­tion.

The Con­trac­tu­al Part­ner and / or such par­tic­i­pants of train­ing cours­es (named by the Con­trac­tu­al Part­ner) shall only be enti­tled to use the train­ing doc­u­ments with­in the frame­work of the train­ing and for their own pur­pos­es (non-exclu­sive right of use and enjoy­ment).

Any pass­ing on of such train­ing doc­u­ments to third par­ties shall require our pri­or con­sent in writ­ing.

6.3 The Con­trac­tu­al Part­ner shall be oblig­at­ed to check the qual­i­fi­ca­tions of the staff mem­bers, which are select­ed by the Con­trac­tu­al Part­ner for the par­tic­i­pa­tion in a train­ing course. We shall be enti­tled to refuse the pro­fes­sion­al train­ing of those per­sons who are not qual­i­fied (as can be proved) for a train­ing course.

7 Prices and Terms of Pay­ment / Rights of Setoff and Reten­tion / Advance Pay­ments

7.1 Unless agreed oth­er­wise, our prices shall apply “ex works”. The cost of trans­porta­tion and pack­ag­ing are not includ­ed in the prices and will be billed as sep­a­rate items.

7.2 The legal val­ue-added tax is not includ­ed in our prices. It will be cal­cu­lat­ed on the basis of the legal­ly required rate that is applic­a­ble at the date of billing and will be shown sep­a­rate­ly as far as our deliv­er­ies are sub­ject to val­ue-added tax.

In case of for­eign busi­ness trans­ac­tions, the Con­trac­tu­al Part­ner shall pay the duties and charges, which arise from the trans­fer into the consignee’s coun­try (in par­tic­u­lar, cus­toms duties), and, in addi­tion, the legal duties and / or charges aris­ing in the consignee’s coun­try itself.

As far as we must pay any duties and / or charges, first of all, by our­selves in case of for­eign busi­ness trans­ac­tions, the Con­trac­tu­al Part­ner shall reim­burse us for the pay­ments of such duties and / or charges.

7.3 Our invoice amounts are due imme­di­ate­ly and shall be paid with­in a peri­od of thir­ty (30) days fol­low­ing the receipt of such invoice by the Con­trac­tu­al Part­ner.

In the event that we per­form any work or indus­tri­al ser­vices (with­in the mean­ing of § 631, Sec­tion 1, of the Ger­man Civ­il Code), which do not com­prise the deliv­ery of mov­able prop­er­ty to be man­u­fac­tured or to be pro­duced, the matu­ri­ty of an invoice amount shall require – besides the receipt of such invoice by the Con­trac­tu­al Part­ner – the accep­tance.

Upon the expi­ra­tion of the time for pay­ment, the Con­trac­tu­al Part­ner shall be in default with­out requir­ing any demand for pay­ment. In the event of a default in pay­ment, we shall be enti­tled to demand the legal inter­est for late pay­ment. The asser­tion of any addi­tion­al dam­age shall remain unaf­fect­ed.

7.4 Any dis­counts shall be grant­ed by us only on the basis of sep­a­rate agree­ments.

7.5 The Con­trac­tu­al Part­ner shall be enti­tled to setoff only with respect to such dues owed to the Con­trac­tu­al Part­ner, which have become final and absolute or are undis­put­ed. The same shall apply to the asser­tion of a right of reten­tion.

7.6 In the event that advance deliv­ery of goods or advance per­for­mance of ser­vices are required in order to deliv­er goods to, or per­form ser­vices for, the Con­trac­tu­al Part­ner (e.g. pro­cure­ment of mate­ri­als, plan­ning ser­vices), we shall be enti­tled to require a rea­son­able amount of advance pay­ments in accor­dance with such advance deliv­ery of goods or advance per­for­mance of ser­vices. Our rights accord­ing to § 321 of the Ger­man Civ­il Code shall remain unaf­fect­ed.

8 Times of Deliv­ery and Delayed Deliv­er­ies

8.1 The obser­vance of the deliv­ery times spec­i­fied by us requires the punc­tu­al receipt of all doc­u­ments to be deliv­ered by the Con­trac­tu­al Part­ner, of oth­er infor­ma­tion, and of pos­si­bly need­ed approvals and releas­es. The same applies to advance pay­ments to be made by the Con­trac­tu­al Part­ner.

In the event that these pre­req­ui­sites are not met because of rea­sons, which are out­side of our sphere of respon­si­bil­i­ty, the times of deliv­ery shall be extend­ed on a rea­son­able scale.

8.2 Any oper­at­ing trou­bles caused by force majeure, strikes, lock­outs or lack of oper­at­ing resources or raw mate­ri­als, which are out­side of our sphere of respon­si­bil­i­ty, shall enti­tle us to can­cel a con­tract not yet per­formed if the cir­cum­stances referred to above ensure that a deliv­ery of goods or the pro­vi­sion of ser­vices will be per­ma­nent­ly impos­si­ble and, in addi­tion, could not be fore­seen when that con­tract was con­clud­ed.

8.3 The punc­tu­al and cor­rect deliv­ery of goods to, and per­for­mance of ser­vices for, our com­pa­ny shall be reserved.

8.4 In the event that we are in default with respect to a deliv­ery of goods or a per­for­mance of ser­vices or if a deliv­ery of goods or a per­for­mance of ser­vices is impos­si­ble, a dam­age claim of the Con­trac­tu­al Part­ner shall be lim­it­ed sub­ject to the reg­u­la­tions of sec­tion 14 here­of.

8.5 The Con­trac­tu­al Part­ner shall not be enti­tled to can­cel a con­tract because of delays in deliv­ery, which are out­side of our sphere of respon­si­bil­i­ty.

In the event that the Con­trac­tu­al Part­ner is enti­tled to a right of can­cel­la­tion because of a delay in deliv­ery, for which we are respon­si­ble, the Con­trac­tu­al Part­ner shall state (if request­ed by us), in writ­ing and with­in a rea­son­able peri­od of time, whether it can­cels the con­tract or insists on the deliv­ery.

If the Con­trac­tu­al Part­ner does not make a state­ment with­in the spec­i­fied, rea­son­able peri­od of time, the Con­trac­tu­al Part­ner shall grant to us an addi­tion­al rea­son­able peri­od of time for the deliv­ery of our goods and / or the per­for­mance of our ser­vices and may only can­cel the con­tract when even such peri­od of time expired unsuc­cess­ful­ly.

8.6 As far as an agree­ment was reached with the Con­trac­tu­al Part­ner that our deliv­ery of goods and / or per­for­mance of ser­vices shall not take place at a fixed date but with­in a spe­cif­ic peri­od of time, we shall be enti­tled to deliv­er the goods or per­form the ser­vices even before the expi­ra­tion of such peri­od of time.

In the event that a fixed date of deliv­ery had been agreed with the Con­trac­tu­al Part­ner and we accord­ing­ly informed the Con­trac­tu­al Part­ner a rea­son­able peri­od of time pri­or to the deliv­ery of such goods or pri­or to the per­for­mance of such ser­vices, we shall be enti­tled to an advance deliv­ery of goods or an advance per­for­mance of ser­vices as far as this can rea­son­ably be expect­ed. This does not apply if the deliv­ery of such goods or the per­for­mance of such ser­vices can only take place at the agreed date because of rea­sons that can be rec­og­nized by us.

9 Pass­ing of the Risk / Accep­tance Inspec­tion

9.1 Unless agreed oth­er­wise, the deliv­ery shall be effect­ed “ex works”.

9.2 In any case, the risk shall pass to the Con­trac­tu­al Part­ner if the Con­trac­tu­al Part­ner fails to take accep­tance with respect to the rel­e­vant deliv­ery of goods or per­for­mance of ser­vices.

9.3 At the request of the Con­trac­tu­al Part­ner, we shall take out a trans­port insur­ance pol­i­cy for the deliv­ery items. The costs of such an insur­ance pol­i­cy shall be paid by the Con­trac­tu­al Part­ner. The Con­trac­tu­al Part­ner shall ensure that all pre­req­ui­sites applic­a­ble to the instal­la­tion and / or assem­bly shall be met.

9.4 As far as this is pos­si­ble from a tech­ni­cal point of view and is accept­able to the Con­trac­tu­al Part­ner, the accep­tance inspec­tion of the work to be pro­duced by us shall take place – at our dis­cre­tion – on the premis­es of our fac­to­ry.

10 Per­for­mance of Deliv­er­ies / Deploy­ment of Third Par­ties

10.1 Par­tial deliv­er­ies shall be admis­si­ble as far as they are rea­son­able and accept­able to the order­ing per­son / orga­ni­za­tion. The same shall apply to any excess or short deliv­er­ies, which are cus­tom­ary in the trade.

10.2 Unless agreed oth­er­wise, we shall select – in case of deliv­er­ies – the pack­ag­ing and the type of ship­ment accord­ing to our best judg­ment.

10.3 In the event that the Con­trac­tu­al Part­ner defaults in accep­tance or infringes any oth­er duties to coop­er­ate, we shall be enti­tled to all legal claims for dam­ages and com­pen­sa­tion for extra expens­es (i.e. to their full amount).

10.4 When ful­fill­ing our duties, we shall be enti­tled to deploy third par­ties.

11 Spe­cial Reg­u­la­tions applic­a­ble to Instal­la­tion and Assem­bly

11.1 Any instal­la­tion and / or assem­bly shall be per­formed by us only on the basis of a sep­a­rate agree­ment.

11.2 In the event that we take on the instal­la­tion and / or the assem­bly, the Con­trac­tu­al Part­ner shall – at its expens­es and in good time – grant access to the rel­e­vant place of uti­liza­tion, pro­vide any required spe­cial­ized and aux­il­iary staff, fuels, ener­gy, and water at the rel­e­vant place of uti­liza­tion (includ­ing any required con­nec­tions, heat­ing, and light­ing), as well as take any oth­er mea­sures required for the instal­la­tion and / or the assem­bly.

11.3 In addi­tion, the Con­trac­tu­al Part­ner shall pro­vide the required work­ing spaces and offices.

11.4 In any case, the Con­trac­tu­al Part­ner shall inform us of all pos­si­ble risks and par­tic­u­lar­i­ties relat­ed to the instal­la­tion and / or the assem­bly.

11.5 In case of added dif­fi­cul­ties and / or delays result­ing from the fact that the Con­trac­tu­al Part­ner does not meet, in full or in part, the duties referred to above or insuf­fi­cient­ly meets such duties, we shall be enti­tled to bill a rea­son­able com­pen­sa­tion for these con­di­tions.

12 Claims because of Defects in Qual­i­ty

12.1 Any infor­ma­tion pro­vid­ed on our deliv­ery items and / or oth­er ser­vices shall be qual­i­ty descrip­tions and do not con­sti­tute any guar­an­tee, war­ran­ty or rep­re­sen­ta­tion.

In the event that we deliv­er our goods or per­form our ser­vices on the basis of any spec­i­fi­ca­tions or a state­ment of work, the owed qual­i­ty of our deliv­er­ies or ser­vices shall be described there­in. In the absence of any spe­cif­ic agree­ment, our deliv­er­ies of goods and per­for­mance of ser­vices will cor­re­spond to the reg­u­la­tions apply­ing in the Fed­er­al Repub­lic of Ger­many and to the state of the art rec­og­nized in the Fed­er­al Repub­lic of Ger­many.

12.2 The Con­trac­tu­al Part­ner must not reject a ship­ment because of insub­stan­tial defects or faults. Any devi­a­tions, which are cus­tom­ary in the trade, shall not con­sti­tute any defects or faults.

12.3 The Con­trac­tu­al Part­ner shall be oblig­at­ed to exam­ine the deliv­ery item(s), care­ful­ly and prompt­ly, as soon as they are deliv­ered. The same shall apply if we deliv­er the item(s), accord­ing to the instruc­tions of the Con­trac­tu­al Part­ner, to any third par­ty.

The deliv­ered items shall be deemed approved if a default or defect, which could have been dis­cov­ered through a care­ful exam­i­na­tion, is not prompt­ly noti­fied. In the event that the defect or fault could not be rec­og­nized through a care­ful exam­i­na­tion, the peri­od of time applic­a­ble to a punc­tu­al writ­ten noti­fi­ca­tion of a defect / fault shall start from the date of its dis­cov­ery.

If a defect / fault is dis­cov­ered pri­or to a sub­se­quent use of the deliv­ery item and, in par­tic­u­lar, before its instal­la­tion, the Con­trac­tu­al Part­ner shall refrain from any sub­se­quent use, which ren­ders more dif­fi­cult or frus­trates the lat­er exam­i­na­tion and deter­mi­na­tion of the defect / fault, its elim­i­na­tion, or the return of the defec­tive / faulty item to us with­in the frame­work of the sub­se­quent ful­fill­ment or leads to a dam­age to the deliv­ered item.

12.4 As far as this is rea­son­able, the Con­trac­tu­al Part­ner shall prompt­ly enable us to exam­ine a defect / fault dur­ing the cus­tom­ary busi­ness hours. In the event of a noti­fi­ca­tion of defect, which is will­ful­ly and know­ing­ly wrong or is wrong because of gross neg­li­gence, the Con­trac­tu­al Part­ner shall be liable for the dam­ages result­ing to us from such behav­ior.

12.5 We shall not be liable for any defects / faults, which arise from any improp­er treat­ment of the items (deliv­ered by us) by the Con­trac­tu­al Part­ner or by any third par­ty. This shall apply, in par­tic­u­lar, to such defects / faults, which are caused by a faulty instal­la­tion. We shall not be liable either for any oper­a­tional wear and tear of the items deliv­ered by us.

12.6 In case of a qual­i­ty in defect, we shall be oblig­at­ed, at our dis­cre­tion, either to deliv­er a fault­less item or to sub­se­quent improve­ment, rec­ti­fi­ca­tion, repair, etc. (“sub­se­quent ful­fill­ment”). With­in the frame­work of such a sub­se­quent ful­fill­ment, we shall be oblig­at­ed to pay all required expens­es and, in par­tic­u­lar, costs of trans­porta­tion, trav­els, labor and mate­ri­als as far as these are not increased through the fact that the pur­chased object was trans­ferred to a loca­tion oth­er than the orig­i­nal place of deliv­ery or con­sign­ment.

This does not apply if the trans­fer to a dif­fer­ent loca­tion cor­re­sponds to the prop­er use of the deliv­ery item.

When we select – as such a sub­se­quent ful­fill­ment – a sub­se­quent deliv­ery or a replace­ment, the faulty deliv­ery items shall be returned to us “free car­ri­er” with the Con­trac­tu­al Part­ner being oblig­at­ed to choose the most rea­son­able mode of ship­ment.

12.7 In the event that a sub­se­quent ful­fill­ment fails, the Con­trac­tu­al Part­ner shall be enti­tled, at its dis­cre­tion, either to reduce the pur­chase price, to demand dam­ages in lieu of per­for­mance, com­pen­sa­tion for wast­ed expens­es as well as – in case of a con­tract for ser­vices with­in the mean­ing of § 631, Sec­tion 1, of the Ger­man Civ­il Code, which does not com­prise the deliv­ery of mov­able prop­er­ty to be man­u­fac­tured or to be pro­duced – to elim­i­nate the defect / fault by itself and to demand the cor­re­spond­ing advance.

With respect to insub­stan­tial defects or faults, the Con­trac­tu­al Part­ner shall not be enti­tled to any claims for dam­ages in lieu of per­for­mance or com­pen­sa­tion for wast­ed expans­es. The exis­tence of insub­stan­tial defects or faults shall not enti­tle the Con­trac­tu­al Part­ner either to can­cel a con­tract.

A sub­se­quent ful­fill­ment has failed:

if we do not suc­ceed in elim­i­nat­ing the defect / fault with­in a rea­son­able peri­od of time grant­ed by the Con­trac­tu­al Part­ner,

if two (2) attempts of sub­se­quent ful­fill­ment per­formed by us fail,

if we gen­uine­ly and final­ly refuse a sub­se­quent ful­fill­ment, or

if the per­for­mance of such sub­se­quent ful­fill­ment is not accept­able to the cus­tomer.

Our rights accord­ing to § 275 of the Ger­man Civ­il Code, i.e. to refuse sub­se­quent ful­fill­ment in a spe­cif­ic form, shall remain unaf­fect­ed.

12.8 In the event that the Con­trac­tu­al Part­ner is enti­tled, because of a failed sub­se­quent ful­fill­ment, on the one hand, to con­tin­ue to demand sub­se­quent ful­fill­ment and, on the oth­er hand, to assert – instead of this – its legal rights, we can ask the Con­trac­tu­al Part­ner to exer­cise its rights with­in a rea­son­able peri­od of time.

The Con­trac­tu­al Part­ner shall inform us, in writ­ing, of its deci­sion. The receipt of the writ­ten dec­la­ra­tion of the Con­trac­tu­al Part­ner by us shall be deci­sive for the obser­vance of such a peri­od of time. In the event that the Con­trac­tu­al Part­ner does not exer­cise its rights with­in the spec­i­fied time, it can only assert its rights and, in par­tic­u­lar, its right to can­cel­la­tion or dam­ages, when a new and rea­son­able peri­od for a sub­se­quent ful­fill­ment (to be defined by the Con­trac­tu­al Part­ner) expired with­out any suc­cess.

12.9 Any claims because of defects in qual­i­ty shall become statute-barred with­in one (1) year after the deliv­ery to the Con­trac­tu­al Part­ner or to a third par­ty nom­i­nat­ed by the Con­trac­tu­al Part­ner. The lim­i­ta­tion of actions in accord­ing with this pro­vi­sion shall also apply to dam­age claims because of the deliv­ery of a defec­tive / faulty item.

This does not include any dam­age claims because of wrong­ful intent or gross neg­li­gence as well as any claims because of fatal injuries, bod­i­ly harm, or injuries to health. As far as Ger­man laws define a longer statu­to­ry peri­od of lim­i­ta­tion in case of build­ings or if items are used for a build­ing, the statu­to­ry peri­od of lim­i­ta­tion shall apply.

12.10 The reg­u­la­tions of §§ 478, 479 of the Ger­man Civ­il Code shall remain unaf­fect­ed.

12.11 In the event that we con­clude a con­tract with the Con­trac­tu­al Part­ner on the pur­chase of a sec­ond-hand item, our lia­bil­i­ty because of defects in qual­i­ty shall be exclud­ed unless we are liable for com­pul­so­ry rea­sons or unless oth­er­wise agreed.

13 Lia­bil­i­ty for Legal Imper­fec­tions in Title

13.1 In the event that we are liable for legal imper­fec­tions in title con­cern­ing the deliv­ered goods, there will be – in lieu of any sub­se­quent deliv­ery or replace­ment or any sub­se­quent improve­ment or rec­ti­fi­ca­tion – the sub­se­quent ful­fill­ment in the form of a pur­chase of the respec­tive rights by us, the con­clu­sion of a license agree­ment with the hold­er of the rights, or a change in the deliv­ery item, which is accept­able to the Con­trac­tu­al Part­ner and excludes such a breach of law. We shall be enti­tled to select, at our dis­cre­tion, among these types of sub­se­quent ful­fill­ment.

13.2 In the absence of a sep­a­rate agree­ment, the legal sit­u­a­tion in the Fed­er­al Repub­lic of Ger­many shall be deci­sive for the exis­tence of a legal imper­fec­tion in title.

13.3 In oth­er respects, the reg­u­la­tions applic­a­ble to defects in qual­i­ty, which are includ­ed in § 12 of these Terms and Con­di­tions, shall apply mutatis mutan­dis.

 

14 Lim­i­ta­tion of Dam­age Claims

14.1 We shall be liable for inten­tion­al and gross­ly neg­li­gent con­duct of our bod­ies, employ­ees, and vic­ar­i­ous agents as well as – irre­spec­tive of the lev­el & degree of such fault – for dam­ages result­ing from fatal injuries, bod­i­ly harm, or injuries to health.

14.2 In addi­tion, we shall be liable for ordi­nary neg­li­gence of our bod­ies, employ­ees, and vic­ar­i­ous agents in case of impos­si­bil­i­ty, delay in per­for­mance, non-com­pli­ance with a guar­an­tee, or the infringe­ment of anoth­er essen­tial con­trac­tu­al oblig­a­tion. Essen­tial con­trac­tu­al oblig­a­tions are such oblig­a­tions, whose com­pli­ance enables the prop­er imple­men­ta­tion of the con­tract at all and whose obser­vance can be reg­u­lar­ly relied on by the Con­trac­tu­al Part­ner. In these cas­es, our lia­bil­i­ty shall be lim­it­ed to such typ­i­cal con­trac­tu­al dam­ages, which we had to expect, on a rea­son­able basis, when the con­tract was con­clud­ed.

14.3 Any lia­bil­i­ty by us (for any legal ground what­so­ev­er), which exceeds the lia­bil­i­ty accord­ing to § 14.2 and § 14.2 of these Terms and Con­di­tions, shall be exclud­ed. This applies, in par­tic­u­lar, to any claims because of an infringe­ment of con­trac­tu­al duties and to claims result­ing from tor­tu­ous acts and offens­es.

14.4 All lim­i­ta­tions of lia­bil­i­ty in accor­dance with § 14.1 – § 14.4 of these Terms and Con­di­tions shall also apply in favor of our bod­ies, employ­ees, and vic­ar­i­ous agents.

14.5 Over and beyond, and inde­pen­dent­ly of, the reg­u­la­tions includ­ed in § 14.1 – § 14.4 of these Terms and Con­di­tions, any claims for dam­ages against us, as far as they do not com­prise inten­tion­al or gross­ly neg­li­gent breach­es of duty, shall be lim­it­ed to a max­i­mum amount of EUR 100,000.00 or to the amount of the order, whichev­er amount order is high­er.

14.6 Any claims accord­ing to the Ger­man Prod­uct Lia­bil­i­ty Act shall remain unaf­fect­ed.

14.7 In the event that the Con­trac­tu­al Part­ner wants to assert any claims because of the unus­able con­di­tion of an item, it shall enable us – as far as this pos­si­ble in accor­dance with the cir­cum­stances – to pro­vide replace­ment for the unus­able item dur­ing the rel­e­vant peri­od of time.

If the Con­trac­tu­al Part­ner fails to do this, although the deliv­ery of a replace­ment item would have been pos­si­ble for us con­sid­er­ing the cir­cum­stances, we shall owe pos­si­ble dam­ages because of the costs required for a dif­fer­ent pro­cure­ment of a deliv­ery item only to the amount of such costs, which had arisen for us by procur­ing, our­selves, a deliv­ery item.

14.8 We shall not be liable for any acci­den­tal­ly occur­ring dam­ages (and, in par­tic­u­lar, for dam­ages occur­ring with­in the frame­work of tri­al oper­a­tions or test runs) in the items belong­ing to the Con­trac­tu­al Part­ner or deliv­ered by us to the Con­trac­tu­al Part­ner.

15 Reser­va­tion of Title and Own­er­ship

15.1 We reserve title and own­er­ship with respect to any item deliv­ered with­in the frame­work of a con­tract of pur­chase until all claims result­ing from the busi­ness rela­tion­ship with the Con­trac­tu­al Part­ner are met and, in par­tic­u­lar, any pos­si­ble cur­rent account bal­ance has been paid (over­all reser­va­tion of title).

In case of a con­duct of the Con­trac­tu­al Part­ner, which is in breach of con­tract, and, in par­tic­u­lar, in case of a default in pay­ment, we shall be enti­tled to can­cel the con­tract after a rea­son­able peri­od of grace lapsed with­out any result and to take back or seize any items deliv­ered by us.

After tak­ing back one or sev­er­al deliv­ery items, we shall be autho­rized to exploit them; the pro­ceeds of the exploita­tion shall be set off against the out­stand­ing lia­bil­i­ties of the Con­trac­tu­al Part­ner, i.e. less rea­son­able costs of exploita­tion.

15.2 The Con­trac­tu­al Part­ner shall be oblig­at­ed to keep the deliv­ery item(s) in safe cus­tody, for us, and to treat them care­ful­ly. As far as any main­te­nance and inspec­tion activ­i­ties are required, the Con­trac­tu­al Part­ner must per­form them in good time and at its expens­es.

15.3 In the event of any levies of exe­cu­tion or oth­er inter­ven­tions of third par­ties, the Con­trac­tu­al Part­ner shall prompt­ly noti­fy us in writ­ing to enable us to com­mence an action in accor­dance with § 771 of the Ger­man Code of Civ­il Pro­ce­dure.

If such third par­ty is not able to reim­burse us the judi­cial and / or extra­ju­di­cial costs of an action in accor­dance with § 771 of the Ger­man Code of Civ­il Pro­ce­dure, the Con­trac­tu­al Part­ner shall be liable for the result­ing defi­cien­cy.

15.4 The Con­trac­tu­al Part­ner shall be enti­tled to resell the deliv­ery item(s) in the ordi­nary course of busi­ness; how­ev­er, it shall not be enti­tled to pass title of them or to pawn them in order to pro­vide secu­ri­ty. The Con­trac­tu­al Part­ner assigns to us, already now, all claims – to the amount of the final sum of the invoice (includ­ing val­ue-added tax) of our claims – which arise for the Con­trac­tu­al Part­ner vis-à-vis its cus­tomers or oth­er third par­ties through the resale.

The assign­ment serves – to the same extent – in order to secure our claims and as reser­va­tion of title and own­er­ship in accor­dance with § 15.1 of these Terms and Con­di­tions.

The Con­trac­tu­al Part­ner shall remain autho­rized to col­lect such claims even after their assign­ment. How­ev­er, we shall be enti­tled to col­lect such claims by our­selves:

if the Con­trac­tu­al Part­ner does not meet its finan­cial oblig­a­tions,

if it defaults in pay­ment,

if an appli­ca­tion for the com­mence­ment of bank­rupt­cy pro­ceed­ings is filed, or

if the Con­trac­tu­al Part­ner dis­con­tin­ues its pay­ments.

In such cas­es, we may revoke the autho­riza­tion to col­lect. In addi­tion, we can demand that the Con­trac­tu­al Part­ner will prompt­ly dis­close, to us, the assigned claims and their debtors, sends us a writ­ten dec­la­ra­tion of assign­ment, and pro­vides, to us, all infor­ma­tion and doc­u­ments required for the col­lec­tion of such claims.

15.5 In the event that a deliv­ery item is insep­a­ra­bly mixed or blend­ed with oth­er items not belong­ing to us, we shall acquire co-own­er­ship in accor­dance with the ratio of the val­ue of the items belong­ing to us (final sum of the invoice includ­ing val­ue-added tax) to the val­ue of all mixed or blend­ed items.

If the mix­ture or blend takes place in such a man­ner that the item of the Con­trac­tu­al Part­ner shall be con­sid­ered to be the main item, it is agreed that the Con­trac­tu­al Part­ner trans­fers to us co-own­er­ship on a pro-rata basis. The Con­trac­tu­al Part­ner shall keep, in safe cus­tody, the items sole­ly and inde­pen­dent­ly or part­ly owned by us.

15.6 The Con­trac­tu­al Part­ner shall also assign, to us, all claims – result­ing from the con­nec­tion of the deliv­ery item(s) with real prop­er­ty – against its pur­chasers or third par­ties in order to secure our out­stand­ing claims. § 15.4 of this con­tract shall apply mutatis mutan­dis.

15.7 We under­take that we will release any secu­ri­ties, which are due to us, at the request of the Con­trac­tu­al Part­ner as far as the real­iz­able val­ue of our secu­ri­ties exceeds the claims to be secured by more than 10%. The selec­tion of the secu­ri­ties to be released shall be at our dis­cre­tion.

16 Right of Lien of the Con­trac­tor

16.1 With respect to our claims result­ing from a con­tract for ser­vices with­in the mean­ing of § 631 of the Ger­man Civ­il Code, which do not com­prise the deliv­ery of mov­able prop­er­ty to be man­u­fac­tured or to be pro­duced, we shall be enti­tled to a right of reten­tion as well as a con­trac­tu­al right of lien to the goods passed into our pos­ses­sion because of an order.

The right of reten­tion and the con­trac­tu­al right of lien can also be assert­ed because of claims result­ing from orders per­formed at ear­li­er dates, cus­tomer ser­vices per­formed, or any oth­er claims aris­ing from the busi­ness rela­tion­ship as far as these are not already secured through a reser­va­tion of title and own­er­ship with­in the mean­ing of § 15 of these Terms and Con­di­tions.

A right of reten­tion and a con­trac­tu­al right of lien shall be agreed also in the case that an item, which already passed into our pos­ses­sion on account of an order, is deliv­ered to us, again, at a lat­er date and, at that time, claims exist based on the busi­ness rela­tion­ship and these claims are secured by the right of lien of the con­trac­tor.

16.2 In lieu of the peri­od of one (1) month deter­mined by § 1234 of the Ger­man Civ­il Code, a peri­od of two (2) weeks shall apply to all cas­es.

16.3 In the event that the Con­trac­tu­al Part­ner is in default, we can exploit the items – fol­low­ing a warn­ing of sale – also through a pri­vate sale. The pro­ceeds of the exploita­tion shall be set off against the out­stand­ing lia­bil­i­ties of the Con­trac­tu­al Part­ner, i.e. less rea­son­able costs of exploita­tion.

16.4 In the event that we can­not store such items of the Con­trac­tu­al Part­ner where we are enti­tled to a right of lien, we shall be enti­tled to store them at anoth­er site and to claim, from the Con­trac­tu­al Part­ner, com­pen­sa­tion for rea­son­able costs of stor­age.

17 Final Pro­vi­sions

17.1 All legal rela­tion­ships aris­ing in con­nec­tion with the con­clu­sion, imple­men­ta­tion, or ter­mi­na­tion of this con­tract shall be sub­ject to the sub­stan­tive law of the Fed­er­al Repub­lic of Ger­many by exclud­ing the UN Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods (CISG).

17.2 Place of per­for­mance shall be Osnabrück, Ger­many.

17.3 Exclu­sive place of juris­dic­tion shall be Osnabrück, Ger­many, for all legal dis­putes. How­ev­er, we shall be enti­tled to make claims on the Con­trac­tu­al Part­ner, at our dis­cre­tion, also at any oth­er legal­ly estab­lished place of juris­dic­tion.

17.4 Sec­tion 15, sub-sec­tions no. 1 and 3 of these Terms and Con­di­tions shall only apply to mer­chants, legal enti­ties under pub­lic law and spe­cial funds under pub­lic law.0