General Terms and Conditions of Supply (GTS)

  1. Scope of applicability

1.1         These General Terms and Conditions of Supply (GTS) shall apply to all commercial relations with our customers (hereinafter: „Customer“) for the supply of goods (hereinafter „Goods“) and services (e.g. assembly, development, etc.) (hereinafter: „Services“) regardless of whether or not such are produced by us or (in part) are purchased from suppliers (sec. 433 Civil Code (BGB), sec. 651 Civil Code, old version (BGB a.F.). The GTS shall apply only if the Customer is an enterprise in terms of sec. 14 Civil Code (BGB), a legal person of public law or a special public law asset.

1.2         These GTS shall apply in their respective latest version as a frame agreement for all future contracts concerning Goods and/or Services with the same Customer without any need for us to refer again to such expressly in each individual case.

1.3         Our GTS shall apply exclusively. Any general conditions of the Customer at variance or supplementary hereto or conflicting herewith shall apply only if and to the extent that such are expressly agreed to by us in writing. This shall also be the case even if we supply Goods and Services to the Customer without reservation notwithstanding the fact that we are aware of the general conditions of the Customer.

1.4         Any individual agreements entered into with the Customer (including collateral agreements, supplements or amendments) shall in each case prevail over these GTS. A written contract or our written confirmation shall determine the exact conditions of such agreements.

1.5         Any declarations or notices of a legal nature given to us by the Customer after the concluding of the contract (e.g. setting of a deadline, notification of defects) must be in writing in order to be effective.

1.6         Any reference to the application of the provisions of law is for the purposes of clarification only. Even if such is not stated, the provisions of law shall apply to the extent that such are not directly changed or expressly excluded by these GTS.

1.7         The expression „right to claim damages“ or „rights to claim damages“ in these GTS shall also include compensation for any wasted expenditures.

 

  1. Offer and acceptance, documentation; grades, dimensions and weights

2.1         Our offers are subject to confirmation and not binding. This shall still be the case even if we have provided the Customer with a catalogue, technical documentation (e.g. drawings, plans, calculations, estimates, evaluations), other product descriptions or documentation etc. (hereinafter „documentation“) – including such in electronic form.

2.2         We shall retain all property rights and copyright as well as intellectual property rights in relation to our documentation. This shall also apply to any such written documentation which is labelled as being „confidential“.  Before any transmission of such to a third party the Customer must obtain our express approval for such. Upon request such documentation shall be returned to us without undue delay.

2.3         Any details in the documentation to which we refer or which we have provided do not constitute a guarantee in terms of sec. 433 Civil Code (BGB) but constitute a simple description of performance.

2.4         The order of the Customer shall constitute a binding offer. To the extent that nothing to the contrary is stated in such an order, we are entitled to accept such an offer within 2 (two) weeks of the receipt of such by us.

2.5         Such acceptance shall either be in writing (e.g. by way of order confirmation) or by way of delivery to the Customer without reservation. The requirement of writing in this regard may also be satisfied by way of correspondence via telefax or email.

2.6         Unless otherwise agreed, grades and dimensions shall comply with the DIN/EN standards and material specifications applying at the time the contract is concluded, or in the absence of these with standard commercial practice. Deviations in grade, dimension and weight shall be permissible in accordance with DIN/EN or prevailing practice. References to standards, such as DIN/EN or their components such as material specifications, plant test certificates and testing standards, and details of grades, dimensions, weights and applicability shall not be regarded as assurances or guarantees, nor shall declarations of conformity, manufacturer declarations and corresponding marks such as CE and GS.

2.7         The weights measured by us or our supplier shall apply. The weighing note shall serve as a record of the weight. Insofar as legally permissible, weights can be measured without weighing according to standards. The standard additions/reductions shall not be affected (commercial weights). Quantities, coil numbers, etc. indicated in the shipment paper shall be non-binding with regard to goods charged by weight. Unless goods are normally weighed individually, the total weight of each shipment shall apply. Discrepancies against the calculated individual weights shall be distributed equally over all the individual weights

 

  1. Delivery Dates for Goods and/or Services, Default Delay

3.1         Any dates or deadlines for the delivery of Goods and/or Services (hereinafter „Delivery Period(s)“) shall be binding only if such are expressly confirmed by us in writing as being binding. Delivery Periods shall be agreed individually or determined by us upon acceptance of an order. Our supply obligation shall be conditional upon the correct and punctual supply of goods to us unless we are responsible for the incorrect or delayed supply of goods to us. Details of delivery periods shall be approximate. Delivery periods shall begin on the date of our order confirmation and shall only apply subject to the timely clarification of all details of the order and punctual fulfillment of all obligations of the Customer, such as the obtaining of all official certificates, the issue of letters of credit and guarantees or the payment of advances. Delivery periods and deadlines shall refer to the time of dispatch ex works or ex stocks. If the goods cannot be dispatched on time for reasons beyond our control, delivery periods and deadlines shall be deemed to have been met on notification of readiness for shipment.

3.2         The commencement of any Delivery Period is subject to the timely receipt of all documentation, approvals and permits to be provided by the Customer as well as the clarification of all technical questions and the correct and timely fulfilment of the obligations and duties of the Customer. If such prerequisites are not satisfied in good time, the delivery deadlines shall be correspondingly extended by a reasonable period of time; this shall not apply if we are responsible for such delay.

3.3         Furthermore, any contractual performance shall be subject to the condition that it is not hindered by any national or international regulations and in particular any export regulations, embargo or other sanction. The Customer undertakes to provide all information and documentation necessary for any export/transport/import. Any delays resulting from export checks or authorisation procedures shall render a scheduled Delivery Period ineffective. To this extent the contract shall be deemed not to have been concluded. Any rights to claim for damages in this regard are excluded; this shall not apply to any cases of mandatory liability in accordance with item 11.2.

3.4         Insofar as we cannot comply with any binding Delivery Periods for reasons for which we are not responsible, and in particular as a result of

3.4.1     force majeure, such as for example, natural catastrophes, earth- quakes, sovereign acts, limitations in transport, limitations on energy use, a general scarcity of raw materials, mobilisation, war, civil unrest, strike or lockout or

3.4.2     a virus or other attacks of third parties on our IT system insofar as such takes place notwithstanding our exercising reasonable prudence in providing protection measures, or

3.4.3     late or incorrect supply by sub-suppliers, we shall notify the Customer of such without undue delay and at the same time advise as to the expected new Delivery Period.

3.5         For a delay in delivery to be a default a default notice is required from the Customer in each case. If we are in default delay, the Customer may claim liquidated damages for each further week of delay from the commencement of the second complete week of default delay provided that the Customer can provide evidence of some damage caused by such default delay: Such liquidated damages shall be to the amount of 0.5% (zero point five per cent) of the net price (contract value) for each complete calendar week of default delay, but totalling no more than a maximum of 5% (five per cent) of the contract value of the delayed Goods. We shall, however, retain the right to demonstrate that the Customer has in fact not suffered any damage at all or has suffered damage only to a substantially lower extent than the amount of the above liquidated damages. If the anticipated amount of damages exceeds 20% of the value of the volume affected by the delayed delivery, the Customer shall be obligated to immediately make corresponding hedge purchases, if appropriate to utilize hedge purchase opportunities identified by us, while withdrawing from the contract for the volume affected by the delayed delivery; in this case the additional costs of the hedge purchase and the damages caused by the delay in the interim period shall be reimbursed by us on presentation of evidence. If the Customer fails to meet his damage minimization obligations in accordance with the above paragraph, our liability for damages verifiably caused by delay shall be limited to 50% of the value of the volume affected.

3.6         Any further rights of the Customer to claim compensation for damage due to default delay as well as any further rights to claim damages beyond those set in item 4.5 of these GTS shall be excluded in all cases of default delay even after expiry of any subsequent deadline set by us for the supply of the Goods and/or Services; this shall not apply to any cases of mandatory liability in accordance with item 11.2.

3.7         The Customer may withdraw from the contract in terms of the provisions of law only if the damage resulting from the default delay exceeds the limit set out in item 4.5 of these GTS.

3.8         The above provisions shall not constitute a reversal of the burden of proof to the disadvantage of the Customer.

3.9         The Customer shall upon our request and within a reasonable period of time declare whether or not it shall withdraw from the contract as a result of the delay in the supply of Goods and/or Services or whether it still requires such Goods and/or Services.

3.10       Any premature deliveries as well as any part-deliveries shall be permissible insofar as such are reasonable for the Customer.

 

  1. Delivery, Transfer of Risk, Acceptance and Delay in Receipt

4.1         To the extent that nothing else to the contrary is agreed, deliveries shall be EXW (Ex works Sesitec factory in accordance with INCOTERMS 2010).

4.2         The risk of accidental destruction or damage to the Goods shall transfer to the Customer as follows:

4.2.1     in case of EXW terms without any erection or assembly, upon the making available of the Goods at the place of delivery;

4.2.2     in case of delivery with erection or assembly on the day of the taking of delivery in the plant of the Customer or the Customer‘s nominated assembly site; to the extent that trials have been agreed in writing, after the defect-free completion of such tests insofar as the acceptance tests follow on from the receipt of goods without undue delay. Otherwise, the transfer of risk to the Customer shall already have been deemed to have taken place upon receipt of the Goods.

4.3         To the extent that any acceptance procedures have been agreed, such shall determine the time of the transfer of risk. In addition to any agreed acceptance procedures, the provisions of law in relation to contracts for the supply of goods (Werkvertragsrecht) shall apply as appropriate. Acceptance shall also occur if the Customer is in default with receipt.

4.4         If acceptance procedures are agreed to, the Customer shall undertake such without undue delay but, however, no later that within 2 (two) weeks after completion and notification by us. Insofar as the Customer does not undertake acceptance procedures in accordance with the agreed deadline or if it refuses without good cause to undertake such, acceptance shall be deemed to have taken place. Any use of the Goods – if applicable, after the concluding of any agreed test phase – shall constitute acceptance. If an acceptance test has been agreed, it shall take place at the supplier plant or in our warehouse immediately after notification of acceptance readiness. The Customer shall bear the personnel costs of acceptance testing, the material/ equipment costs of acceptance testing shall be charged in accordance with our price list or the price list of the supplier plant. If, for reasons beyond our control, the acceptance test is not carried out, not carried out in good time or not carried out in full, we shall be entitled to ship the goods without acceptance testing or to store them at the expense and risk of the Customer and to invoice them to him.

4.5         If the Customer is in default with any receipt, or if it culpably infringes any support or if our delivery is delayed for reasons for which, amongst others, the Customer is responsible, we shall be entitled to claim compensation for any resulting damage. This shall include additional expenses. Commencing from the first date of notification of readiness for dispatch, storage fees may be charged to the amount of 0.5 % (zero point five per cent) of the invoice amount for each commenced month; such storage fees shall not exceed 5 % (five per cent) of the invoice amount. The parties shall retain the right to prove that actual storage costs were greater or lower. We reserve the right to claim further damages.

4.6         The Customer is not entitled to refuse the receipt of any Goods due to minor defects. If the delivery periods are not met, the Customer’s rights under sec. 281, 323 Civil Code (BGB) shall only apply if the Customer sets us an appropriate period for delivery expressly stating – at variance with sec. 281, 323 Civil Code (BGB) – that the Customer will refuse the delivery after expiry of said period; after expiry of the period without delivery, claims for fulfillment shall be excluded.

4.7         We shall determine the route and mode of shipment as well as the forwarder and freight carrier.

4.8         Goods reported ready for shipment in accordance with the contract must be collected immediately, otherwise we shall be entitled, after issuing a demand note, to ship or store the goods at our discretion at the expense and risk of the Customer and to issue an immediate invoice. The legal provisions on default of acceptance remain unaffected.

4.9         If, for reasons beyond our control, transport via the planned route or to the planned destination in the planned time is impossible or severely impeded, we shall be entitled to deliver via a different route or to a different destination; the additional costs incurred shall be borne by the Customer. The Customer shall be given the opportunity to comment in advance.

4.10       On handover of the goods to a forwarder or freight carrier, though no later than on the goods’ departure from the warehouse or supplier plant, the risk, including that of confiscation of the goods, for all transactions, including franco-domicile and carriage-free deliveries, shall pass to the Customer. We shall take out insurance only on the instructions and at the expense of the Customer. Unloading commitments and costs shall be borne by the Customer.

4.11       The goods shall be delivered without packaging and without rust protection. We shall deliver packaged goods if this is standard commercial practice. We shall provide packaging, protection and/or transport aids according to our experience at the expense of the Customer. They shall be returned to our warehouse. We shall not bear costs incurred by the Customer for the return transport or for disposing of the packaging.

4.12       We shall be entitled to make partial deliveries to a reasonable extent. Standard excess and short deliveries in respect of the agreed volume shall be permissible. The indication of an “approximate” volume shall entitle us to exceed/fall short of the agreed volume by up to 10% and invoice accordingly.

4.13       We shall be entitled to collect acknowledgement of receipt from the recipient in electronic form.

 

  1. Erection, Assembly

The provisions of item 6.2 shall apply to the conditions for erection and assembly. In addition, the following provisions shall apply to any erection and assembly:

5.1         The Customer shall provide at its own expense and in good time:

5.1.1     all excavation and construction work and other supplementary external work including the necessary technical and support staff, building materials and vehicles,

5.1.2     the necessary materials and supplies for assembly and commissioning such as scaffolding, lifting equipment and other facilities, fuels and lubricants,

5.1.3     energy and water for the place of use including all connections, heating and lighting,

5.1.4     adequate large, and suitably dry and lockable rooms at the place of assembly for the storage of machine parts, any apparatus, materials, tools, etc. and suitable work and social rooms for the assembly personnel including reasonable sanitary facilities in the circumstances; in addition, the Customer shall undertake all necessary measures to protect our property or the property of any subcontractor and the assembly personnel on the construction site to the same extent it would undertake such measures to protect its own property or that of its own personnel and

5.1.5     protective clothing and safety equipment as necessary for the assembly site due to particular circumstances.

5.2         Before the commencement of any assembly work the Customer shall make available, on an unsolicited basis, the necessary details concerning the location of any hidden power, gas or water pipes and cables or any similar facilities on site as well as the necessary structural details.

5.3         Before the commencement of assembly, the support equipment and materials, including operation instructions, descriptions and parts lists necessary for the commencement of work must be at the erection and assembly site. Any costs for the transport or return of such shall be at the expense of the Customer.  All preparatory work must be so advanced before the commencement of the assembly that the erection and assembly can be started as agreed and carried out without any interruption. Access ways and the erection and assembly place must be levelled and cleared.

5.4         If the erection, assembly or commissioning is delayed by any circumstances for which we or our subcontractors are not responsible, the Customer shall bear the costs for any waiting time and necessary additional trips by us or our (contracted) assembly personnel to a reasonable extent.

5.5         We reserve the right to decide the location at which the work should be undertaken insofar as such cannot be carried out at one location.

5.6         Without undue delay and on a weekly basis the Customer shall certify for us the periods worked by assembly personnel as well as the ending of the erection, assembly and commissioning.

 

  1. Prices and Payment Conditions, export certificate, tax; Order Cancellation; Set-off and Right of Retention

6.1         Our current prices at the time of the concluding of the contract shall apply in each case in Euro (€), EXW plus the applicable statutory value added tax in relation to any delivery of Goods without erection and assembly at the place of the Customer. These prices are also subject to taxes, customs duties or other duties as well as consular and legalisation fees which, notwithstanding the applicable law (see item 16) may be mandatorily required by another legal system, as well as any packing costs to the extent that such are not expressly included in the price. If a Customer registered outside the Federal Republic of Germany (foreign buyer) or his representative collects goods or transports or sends them abroad, the Customer shall furnish us with the export certificate required under tax law. If this certificate is not provided, the Customer shall pay the sales tax on the invoiced amount for the export shipment applying in the Federal Republic of Germany insofar as we can claim tax exemption for export deliveries. For shipments from the Federal Republic of Germany to other EU member states, the Customer shall notify us prior to shipment of his sales tax identification number under which his profit and income tax is handled within the EU. Otherwise he shall pay the statutory sales tax amount owed by us in addition to the agreed purchase price for our supplies. For any tax-free intra-Community delivery from the Federal Republic of Germany to another EU member state, the Customer of the goods is, in accordance with sec. 17a and 17c of the VAT Implementing Regulation, obligated to provide us with proof of the actual arrival of the goods (confirmation of arrival). Said proof shall be given on a form provided by us. Should such proof not be provided, the Customer shall pay the value added tax rate applicable to deliveries within the Federal Republic of Germany, calculated on the basis of the respective (net) invoice amount.

6.2         In relation to the invoicing of Services (e.g. erection or assembly) our price list shall apply in its current version at the time.  Any price estimates are non-binding and are provided by separate agreement. The costs of the provision of such price estimates are included in the price unless otherwise agreed. The costs for the price estimate shall only be charged extra if an order is not made in relation thereto.

6.3         All payments shall be due within 30 days of the date of the issuing of the invoice without any deduction for prompt payment. All agreed discounts shall relate only to the invoice value excluding freight and are conditional on the full payment of all due liabilities of the Customer at the time of discounting. Unless otherwise agreed, the discount terms shall begin from the invoice date.

6.4         We reserve the right to require a security payment and/or prepayment for any Goods and/or Services.

6.5         If the Customer cancels any binding contract, it shall remain obliged to pay for such in terms of the provisions of law. Even if we do not produce any products as a result of a cancellation request, the Customer shall still be obliged to pay the agreed remuneration minus any costs of materials saved.

6.6         Upon the expiry of the above payment period, the Customer shall be in default in payment. The amount owing during such default shall be subject to an interest charge of 9 percentage points above the basic interest rate of the European Central Bank, unless higher interest rates are agreed. We reserve the right to make further claims for damages for default. In relation to merchants, our rights to claim arrears interest (sec. 353 Commercial Code (HGB) shall not be affected thereby.

6.7         The Customer is entitled to set-off or retain any amount only insofar as its claim is confirmed by a legally-binding judgment or is undisputed.

6.8         If after the concluding of a contract it becomes apparent that our rights to remuneration are endangered by a lack of solvency on the part of the Customer (e.g. as a result of an application for the commencement of insolvency proceedings), we shall be entitled in accordance with the provisions of law to refuse further performance and – if applicable, with a deadline being set – to withdraw from the contract (sec. 321 Civil Code (BGB)). In the case of any contracts for the production of non-fungibles object (custom production), we may withdraw instantly; the provisions of law concerning the dispensability of notice period shall remain unaffected thereby.

6.9         Any agreed reductions in relation to the contract prices or any rebates of any type whatsoever shall cease to apply if the Customer is in default with its payment or acceptance obligations as a whole or in part.

  1. Retention of Title

7.1         All delivered goods shall remain our property (reserved property) until all claims have been fulfilled, including in particular the outstanding balance claims due to us in the framework of the business relationship (reservation of balance) and claims established unilaterally by the insolvency administrator in the course of his duties. This shall also apply to future and conditional claims, e.g. from accepted notes, and also such cases where payments are made on specifically designated claims. This reservation of balance shall finally expire on payment of all receivables covered by this reservation of balance still outstanding at the time of payment. We are entitled to assign our payment claims vis-à-vis the Customer.

7.2         With regard to the treatment and processing of reserved property, we shall be deemed to be manufacturer in the meaning of sec. 950 Civil Code (BGB) without being committed in any way. The treated or processed goods shall be regarded as reserved property in the meaning of clause No. 1. If the Customer processes, combines or mixes the reserved property with other goods, we shall obtain co-ownership in the new goods in the proportion of the invoiced value of the reserved property to the invoiced value of the other goods used. If, by such combining or mixing, our ownership expires, the Customer hereby transfers to us his ownership rights to the new goods in proportion to the invoice value of the reserved property and shall keep them in safe custody for us free of charge. Our co-ownership rights shall be regarded as reserved property in the meaning of item 7.1.

7.3         The Customer may sell the reserved property only within the normal course of his business in accordance with his normal business terms and provided he is not in default of payment and provided also that he reserves title and transfers to us any claims arising out of the resale in accordance with items 7.4 to 7.6. The Customer shall not be entitled to dispose of the reserved property in any other way. Use of the reserved property to fulfill contracts for work and labor shall also be deemed to be resale in the meaning of this item 7.

7.4         The Customer hereby assigns to us any claims resulting from the resale of the reserved property together with all securities which the Customer acquires for the claims. Such claims shall serve as security to the same extent as the reserved property itself. If the reserved property is resold by the Customer together with other goods not purchased from us, any claims resulting from such resale shall be assigned to us in the ratio of the invoiced value of the reserved property to the invoiced value of the other goods sold. In the case of resale of goods in which we have co-ownership rights according to item 7.2, the assignment shall be limited to the part which corresponds to our co-ownership rights. Should the reserved property be used by the Customer for the purposes of fulfilling a contract for work, the claim arising from such contract for work shall be assigned to us in advance to the same extent.

7.5         The Customer shall be entitled to collect any claims receivable resulting from the resale. This right shall expire if revoked by us, at the latest in the event of default of payment, failure to honor a bill of exchange or filing for bankruptcy. We shall exercise our right of revocation only if it becomes evident after conclusion of the contract that payment resulting from this contract or other contracts with the Customer is jeopardized by Customer’s inability to pay. At our request, the Customer shall immediately inform his customers of such assignment and furnish us with the documents needed to collect the claims. In no case is the Customer authorized to assign the claims.

7.6         The assignment of claims receivable resulting from the resale is not permissible unless the assignment takes place in the form of a genuine factoring transaction of which we are notified and in which the factoring proceeds exceed the value of our secured receivable. Our receivable shall fall due immediately upon crediting of the factoring proceeds.

7.7         The Customer shall inform us immediately of any seizure or any other attachment by a third party. The Customer shall bear any costs necessary to suspend such seizure or attachment or return the reserved property insofar as such costs are not reimbursed by a third party.

7.8         Should the Customer default in payment or fail to honor a bill of exchange, we shall be entitled to take back the reserved property and to enter for this purpose the Customer’s premises. The same shall apply should it become evident, after the conclusion of the contract, that payment resulting from this contract or other contracts with the Customer is jeopardized by the Customer’s inability to pay. If the reserved property is taken back, this shall not be regarded as withdrawal from the contract. The provisions of the insolvency code shall remain unaffected.

7.9         Should the total invoiced value of the existing securities exceed the secured claims including ancillary claims (interest, costs, etc.) by more than 50%, we shall be obligated, at Customer’s request, to release securities in the corresponding amount at our discretion.

 

      1. Software products

8.1         We grant the Customer a non-exclusive right to use the computer program and related documentation under the contract (hereinafter jointly: „Software“) exclusively for the operation of the designated hardware supplied therewith. This right of use, unless limited by way of contract, is for an indefinite period. Such rights of use do not include any rights to translate, rent out, lend, sublicense, nor any rights to distribute, publicly transmit or otherwise make such available to any third party. Any copying shall be permitted only insofar as such is necessary for the production of a backup security copy or insofar as such is necessary for the operation of the related or supplied Software. The Customer is generally not allowed to process the Software in part or in whole, to decompile such, to disassemble such or in any other way to reverse engineer such for the purpose of obtaining the source code unless such is permitted by mandatory law or expressly by us.

8.2         The Software shall be provided only in a machine-readable form (hereinafter: „object code“) and without any source code (hereinafter: „source code“) and source code documentation.

8.3         If good cause can be shown we shall grant the Customer the right to transfer the use of the Software to a third party, but this shall only be in connection with the Software as acquired by the Customer from us. In such case, the Customer shall make the third party subject to these duties and limitations to the same extent.

8.4         All other rights shall remain with us.

8.5         Insofar as we make Software available to the Customer and in relation to such Software we have acquired rights (third party software), in addition to the provisions agreed herein, the conditions of use agreed with our licensor shall also apply. Insofar as the Customer is provided with open source software the provisions of the open source software shall prevail over the provisions of these GTS. To the extent that the conditions of use for the open source software mandatorily require such, we shall also provide the Customer with the source code. We shall give notice of the existence and the conditions of use of any third party software as appropriate.

 

      1. Defect Liability Claims

9.1         In relation to the rights of the Customer in case of any defects (including incorrect delivery or shortfalls in delivery as well as incorrect assembly or defective assembly instructions) the provisions of law shall apply unless otherwise provided for below. The goods shall be deemed to comply with the contract if they do not deviate or do not deviate significantly from the agreed specifications at the time of the transfer of risk. The contractual compliance and defect-free quality of our goods shall be determined exclusively on the basis of the express agreements on the quality and volume of goods ordered. We shall only accept liability for a specific intended use or a specific property to the extent that this is expressly agreed; otherwise the suitability and application risk shall be borne exclusively by the Customer. We accept no liability for the deterioration, loss or improper treatment of the goods after the transfer of risk. The contents of the agreed specifications and any expressly agreed purpose of use shall not establish a guarantee; the acceptance of a guarantee shall be subject to a written agreement. The Customer’s rights of recourse against us pursuant to sec. 445a, 445b Civil Code (BGB) shall be limited to the statutory scope of third-party claims for defects against the Customer and shall be conditional upon the Customer meeting his obligation to notify defects to us pursuant to sec. 377 of the Commercial Code (HGB). In all cases the special legal requirements for the supply of goods to a consumer (recourse against suppliers under sec. 478, 479 Civil Code (BGB)) shall not be affected.

9.2         Liability for defects is excluded by circumstances such as, but not limited, to wear and tear, exceptional stress, use of unsuitable materials, defective assembly work which is not caused by us, the choice of an unsuitable place of assembly or other chemical, electric or electrochemical influences which are not our responsibility. Similarly liability for defects shall be excluded in case of any modifications or servicing undertaken incorrectly by the Customer or by a third party contracted by it.

9.3         The basis of our liability for defects is, above all, the agreement made as to the characteristics of the Goods. Product descriptions provided to the Customer before any order and which describe the characteristics of the Goods shall be deemed part of such an agreement and shall be incorporated into the contract to the same extent as these GTS.

9.4         Insofar as any characteristic was not agreed, the determination as to whether or not a defect exists shall be made on the basis of the provisions of law (sec. 434 paragraph 1, sentences 2 and 3 Civil Code (BGB)). We accept no liability for public statements of any third party.

9.5         Any right of the Customer to claim for a defect shall be subject to the condition that the Customer has fulfilled its legal obligations of inspection and notification of defects (sec. 377, 381 Commercial Code (HBG)). If during any inspection or at a later time a defect becomes apparent we are to be notified of such in writing and in detail without undue delay. Any hidden defects are to be notified in writing without undue delay upon detection but not later than within one year of the delivery of the goods or acceptance thereof. Without undue delay shall mean that the notification shall be made within two weeks of the detection of a defect whereby in order to satisfy this deadline the sending of the notice within this period shall suffice.

9.6         If the supplied object is defective, we may at our choice initially either rectify the defect (rectification) or supply defect-free goods (replacement delivery) to the extent that the defect already existed at the time of the transfer of risk in accordance with item 4.

9.7         We may undertake any such subsequent performance dependent on a Customer having paid the purchase price due for payment. The Customer may, however, withhold payment of a reasonable part of the purchase price in proportion to the defect.

9.8         The Customer shall give us reasonable opportunity and time for any subsequent performance and in particular shall provide us with the defective Goods for testing purposes. In case of replacement delivery the Customer shall return the defective objects to us in accordance with the provisions of law.

9.9         The expenses related to and necessary for the testing and subsequent performance and in particular the costs related to transportation, movement, work and materials shall be borne by us only to the extent that such are not disproportionate and this shall not be the case in particular if the supplied goods are located at a different place than that of delivery, contrary to their intended use. To the extent that the goods are at a different place than the place of delivery we shall bear only those expenses that would have resulted if the Customer had not transported the goods to another place.

9.10       If the request of the Customer for rectification of a defect proves to be unjustified, we may require reimbursement of the resulting costs from the Customer.

9.11       We shall always be allowed at least two opportunities to provide subsequent performance. If such subsequent performance is unsuccessful on at least two occasions or if any reasonable deadline set by the Customer expires or if such deadline is not required by law, the Customer may withdraw from the individual contract or reduce the purchase price. In case of any minor defect there shall, however, be no right of withdrawal from the contract.

9.12       Defects in relation to Software shall exist only in case of variations from the respective specifications which are demonstrable and reproducible by the Customer. No defect shall exist if such does not occur in the last version of the software made available to the Customer and the use of this version is reasonable.  Furthermore, there shall be no defect in the event of any of the following:

9.12.1   incompatibility with the data processing environment used by the Customer,

9.12.2   use of the Software with third party software insofar as we have not expressly agreed to such in writing or,

9.12.3   incorrect use or support of the Software by the Customer or any third party.

9.13       Any further rights to claim on the basis of defects are hereby excluded insofar as such are not granted by the mandatory provisions of law, see item 11.2. No reversal of the burden of proof to the disadvantage of the Customer is connected with the above provisions.

 

      1. Claims as to Defects of Title

10.1       Unless agreed otherwise, we shall supply the Goods free from third party claims particularly in relation to any industrial property rights and copyright (hereinafter: „Property Rights“) only in relation to the country of the place of delivery. To the extent that any third party makes any justifiable claim against the Customer on the basis of infringement of property rights for Goods provided by us and used in accordance with the contract, we shall be liable in terms of the limitation period set out under item 13. as follows:

10.1.1   We shall at our choice either obtain a right of use, modify the Goods so that there is no infringement of property rights or, exchange such. If this is not possible for us at reasonable conditions, the Customer may withdraw from the contract or reduce the price.

10.1.2   The above named obligation shall exist only insofar as the Customer notifies us without undue delay as to any claims made by a third party, does not recognize such claims and reserves for us any and all defences and rights to enter into settlement negotiations.

10.2       We shall not be liable insofar as the Customer is responsible for any infringement of property rights.

10.3       In addition, we shall not be liable insofar as any infringement of property rights results from special instructions of the Customer, any use not foreseeable for us or is caused by the Goods being modified or used with third party products by the Customer or a customer of the Customer.

10.4       In case of any other defects of title the provisions of item 9. shall apply correspondingly.

10.5       Any further or additional rights of the Customer to claim other than those set out in this item 10. are hereby excluded.  This shall not apply in the case of mandatory liability in accordance with item 11.2. No reversal of the burden of proof to the disadvantage of the Customer is connected with the above provisions.

 

      1. Liability; Damage claims

11.1       Unless otherwise agreed in these GTS, any right of the Customer to claim damages, regardless of the legal basis, but in particular resulting from any duty under the obligations between the parties or as a result of any tortious act, is hereby excluded. This expressly applies also in relation to damage to anything which is itself not part of the scope of supply.

11.2       The exclusions or limitations of liability regulated under item 11.1 as well as elsewhere in these GTS shall not apply insofar as liability is based on the following:

11.2.1   culpable injury to life, personal injury or injury to health,

11.2.2   wilfully-caused damages,

11.2.3   damage by the owner, legal representative or officer caused as a result of gross negligence,

11.2.4   non-compliance with a guarantee given in writing,

11.2.5   mandatory liability in accordance with the Product Liability Act,

11.2.6   fraudulent concealment of any defect,

11.2.7   a breach of a material contractual obligation; the claim for damages is, however, limited to

foreseeable damage for that type of contract insofar as none of the other above named situations exist.

11.3       No reversal of the burden of proof to the disadvantage of the Customer is connected with the above provisions.

 

      1. Termination of Contract due to Insolvency

If it becomes apparent that any rights to payment are endangered due to the Customer‘s lack of solvency, we may withdraw from the contract or terminate such with immediate effect and without notice for an extraordinary reason. The circumstances described in sentence 1 shall be deemed to be an important reason.

 

      1. Limitation Period

13.1       Notwithstanding sec. 438 paragraph 1 no. 3 Civil Code (BGB), the general limitation period for claims arising out of defects or defects as to title shall be one year from the time of supply. Insofar as any acceptance procedures are agreed, the limitation period shall begin from the time of acceptance.

13.2       If the Goods relate to any construction or an object which according to the normal use is for use in a construction and such has caused defects in the construction (building material), the limitation period shall be according to the provisions of law, 5 years from the time of delivery (sec. 438 paragraph 1 no. 2 Civil Code (BGB)). The special provisions of law in relation to claims in rem for restitution of property for third parties (sec. 438 paragraph 1 no. 1 Civil Code (BGB)), fraud by the seller (sec. 438 paragraph 3 Civil Code (BGB)) and for recourse against suppliers for consumers (sec. 479 Civil Code (BGB)) as well as sec. 445a paragraph 1, 445b paragraph 1 Civil Code (BGB) shall not be affected hereby.

13.3       The above limitation periods of the law for the sale of goods shall apply to both contractual and non-contractual claims for damages by the Customer related to defects in the goods, unless the application of the standard statutory limitation periods (sec. 195, 199 Civil Code (BGB)) would lead to a shorter limitation period in any particular case. The limitation periods of the Product Liability Act shall not be affected hereby. Otherwise the limitation periods at law shall apply to any claims for damages by the Customer under these GTS. The rectifying of defects or supply of replacement goods shall not cause the period of limitation to begin again.

 

      1. Property rights, copyright, intellectual property rights

14.1       All information, data and documents, regardless of the form, received by us through the Customer and which belongs to such or which were made available under a licence, shall remain the property of the Customer.

14.2       All information, data and documents, regardless of the form, which are our property or which we make available to the Customer in terms of a licence, shall remain our property.

14.3       The following provisions shall apply to all information, data, documents, inventions and other work results, regardless of the form of such, whether in a physical form or not, which we, alone or together with employees and/or subcontractors develop in the performance of this contract (hereinafter: „works“): We shall remain the sole owner of any known or hereinafter resulting, patentable or non-patentable rights and know-how. In relation to the scope of the order, we grant the Customer for the period of the contractual relationship and as far as such is necessary for achieving the purpose of the contract the non-exclusive, revocable, and unlimited right of use (without rights of sublicense) free of any licence fee.

 

      1. Confidentiality

15.1       All information received from us by the Customer, in particular any technical information, know-how, prices and conditions are to be treated as being confidential. This shall not apply to any information of which the Customer was already aware or of which the Customer otherwise became aware.

15.2       Only with our express written permission may any reference be made in any information or advertising material to an existing commercial relationship with us.

15.3       The Customer shall make the subcontractors it employs for the performance of any contract with us also subject to these obligations of confidentiality.

 

      1. Choice of Law and Jurisdiction, Miscellaneous

16.1       In relation to these GTS and all legal relations between us and the Customer, the law of the Federal Republic of Germany and to the exclusion of UN Sales Law (CISG) shall apply.

16.2       The place of performance for our deliveries is the supplier plant for supplies ex works and our warehouse for all other supplies, to the extent that nothing to the contrary is agreed in any particular case. The place of performance for the Customer’s payment obligation is the domicile of our company.

16.3       If the Customer is a merchant in terms of the Commercial Code (HGB), a legal person of public law or a special public law asset, the exclusive – and international – jurisdiction for all disputes arising directly or indirectly out of the contractual relationship shall be our seat of business. We are entitled, however, to issue proceedings at the general place of jurisdiction of the Customer.

16.4       If a provision of these GTS contains a gap, the provision shall apply which comes closest to what the parties had intended with respect to the economic purpose under the gap containing provision.

16.5       Insofar as these GTS are made available in another language, the German version shall take precedence.

 

As at: 1 July 2018

Sesitec GmbH