General terms and conditions of sales & delivery

Status: April 2020

§ 1 Scope of application, data protection

(1) If the Customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), the following General Terms and Conditions shall apply exclusively to the business relationship between us and the Customer in the version valid at the time of the order. We do not recognize any deviating terms and conditions of the Customer unless we have expressly agreed to their validity in writing.

(2) An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. A partnership with legal capacity is a partnership that is endowed with the ability to acquire rights and incur liabilities.

(3) As far as necessary for business purposes, we shall be authorized to store and process the Customer’s data by EDP within the framework of the data protection laws (in particular § 28 BDSG).

§ 2 Offers, changes, commercial clauses

(1) Our offers are subject to change; a contract shall only be concluded by our order confirmation in text form (§ 126b BGB) or when orders have been executed by us.

(2) Amendments, supplements and/or the cancellation of a contract or these terms and conditions require text form.

(3) As far as commercial clauses in accordance with the International Commercial Terms (INCOTERMS) have been agreed, INCOTERMS 2020 shall apply.

§ 3 Transfer of risk, mode of shipment, delivery dates

(1) Unless otherwise agreed, we shall deliver and perform EXW (ex-works) our place of business.

(2) Partial deliveries or services are permissible if they are not unreasonable for the customer.

(3) The commencement of the delivery or performance period stated by us shall be subject to the clarification of all technical questions and the timely and proper fulfillment of the Customer’s obligations.

(4) If an agreed delivery or performance date is exceeded for reasons for which we are responsible, the purchaser shall set us a reasonable grace period for delivery or performance in writing. This period of grace shall be at least three weeks. If delivery or performance does not take place after expiry of the period of grace and if the purchaser wishes to withdraw from the contract for this reason or to claim damages instead of performance, he shall be obliged to notify us of this expressly in writing beforehand, setting a further reasonable period of grace and requesting delivery or performance. At our request, the Purchaser is obliged to declare within a reasonable period of time whether it intends to withdraw from the contract due to the delay in delivery or performance and/or to claim damages instead of performance or whether it insists on the delivery or performance.

§ 4 Impediments to delivery, force majeure

In the event of obstacles to delivery due to official decisions and/or national or international regulations, our delivery obligations shall be suspended. This includes in particular export control regulations as well as embargos or other sanctions. Unless otherwise agreed, we shall be responsible for obtaining the necessary export license. We do not guarantee that the export license will be granted. The procurement of any required import license is the responsibility of the buyer. If the impediment to delivery lasts longer than 12 months, both parties shall have a special right of withdrawal. In this case, we shall retain a claim to pro rata remuneration for the services already performed at the customer’s request up to the time of the declaration of withdrawal. In the event that required export licenses are not granted on a permanent basis and we are not responsible for this, the contract shall lapse retroactively with regard to the affected parts. In this case, claims for damages by both parties are excluded. However, the provision of paragraph 2 sentence 2 shall apply accordingly. If the failure to meet the deadlines is due to force majeure, e.g. natural disasters, mobilization, war, riot or similar events, e.g. sovereign intervention, strike, lockout, the deadlines shall be extended accordingly. We shall not be liable for the consequences of delayed delivery insofar as the delay is due to such circumstances which are beyond our sphere of influence and which we were unable to overcome even with the use of reasonable efforts.

§ 6 Retention of title

(1) Goods sold shall remain our property until all claims arising from the business relationship have been satisfied.

(2) If the goods are processed by the customer, our retention of title shall extend to the entire new item. If the goods are processed, combined or mixed with other items by the customer, we shall acquire co-ownership in the fraction corresponding to the ratio of the invoice value of our goods to that of the other items used by the customer at the time of processing, combination or mixing.

(3) If the goods subject to retention of title are combined or mixed with a main item of the purchaser or of a third party, the purchaser shall furthermore transfer to us already now its rights to the new item. If the purchaser combines or mixes the reserved goods with a main item of a third party against payment, he hereby assigns to us his claims for remuneration against the third party.

(4) The Purchaser shall be entitled to resell the goods subject to retention of title in the ordinary course of business. If the purchaser sells these goods on his part without receiving the full purchase price in advance or step by step against handover of the purchased goods, he shall agree a reservation of title with his purchaser in accordance with these conditions. The purchaser hereby assigns to us his claims arising from this resale as well as the rights arising from the retention of title agreed by him. At our request, he shall be obliged to notify the purchasers of the assignment and to provide us with the information and documents required to assert our rights against the purchasers. Despite the assignment, the purchaser shall only be authorized to collect the claims arising from the resale as long as he duly fulfills his obligations towards us.

(5) If the value of the securities provided to us exceeds our claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the request of the Purchaser.

(6) In the event of seizures, confiscations or other dispositions or interventions by third parties in the reserved goods, the customer shall notify us immediately.

§ 7 Rights of the purchaser in case of defects

(1) The products delivered by us comply with the applicable EU regulations and standards. We do not assume any liability for compliance with other national regulations. If the products are used abroad, the purchaser undertakes to check the conformity of the products with the relevant legal systems and standards himself and to make any necessary adjustments.

(2) The Purchaser shall not be entitled to assert any rights due to defects in our deliveries and services insofar as the value or the suitability of the delivery and service is only insignificantly reduced. Appearances which are due to normal wear and tear shall not constitute a defect.

(3) As far as the delivery or service is defective and the purchaser has complied with the inspection and complaint obligations in writing in accordance with § 377 of the German Commercial Code (HGB), we shall, at our discretion, make a subsequent delivery or rectify the defect (subsequent performance). The customer shall grant us the opportunity to do so within a reasonable period of at least 10 working days.

(4) The customer may demand reimbursement of the expenses incurred for the purpose of subsequent performance, provided that the expenses are not increased by the fact that the subject matter of the delivery has subsequently been taken to a place other than the original place of delivery, unless the transfer is in accordance with its intended use.

(5) If the subsequent performance fails, the

Purchaser may reduce the remuneration or withdraw from the contract. However, withdrawal from the contract shall only be permissible if the Purchaser expressly threatens us with this in writing beforehand with a reasonable further period of grace.

(6) The Purchaser shall only have a right of recourse against us pursuant to Section 478 of the German Civil Code (BGB) to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory claims for defects.

§ 8 Liability for damages

(1) Unless otherwise stated below, any claims of the Purchaser beyond the provisions of § 7 shall be excluded, irrespective of the legal grounds. Therefore, we shall not be liable for damages which have not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit or for other financial losses of the customer. Insofar as our contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.

(2) The above limitation of liability shall not apply insofar as the cause of the damage is based on intent or gross negligence, personal injury is involved or a claim for damages exists under the Product Liability Act. The same shall apply insofar as we have assumed a guarantee for the quality of the contractual performance contrary to the limitation of liability.

(3) Insofar as we negligently breach an essential contractual obligation, the obligation to pay compensation for damage to property shall be limited to the damage that typically occurs. Material contractual obligations are those which provide the customer with legal positions which the contract is intended to grant him according to its content and purpose and those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely.

(4) Otherwise, our liability for damages is excluded.

(5) The assignment of the claims of the customer regulated in §§ 7, 8 paragraphs (1) to (3) is excluded.

§ 9 Statute of Limitations

The limitation period for claims based on defects of our deliveries and services as well as for claims based on our liability for damages shall be one year. This shall not apply insofar as longer periods are prescribed in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 479 Para. 1 (right of recourse) and 634a Para. 1 No. 2 BGB (German Civil Code) (construction defects) as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part and in the event of claims for damages under the Product Liability Act.

§ 10 Provision of Materials

(1) If the provision of materials by the Purchaser has been agreed, the Purchaser shall provide the materials free of charge and in good time and in proper quality. The same shall apply to the documentation with technical requirements and specifications required for our performance. Provisions and documentation shall remain the property of the customer.

(2) Our liability for material defects, from product liability or delay in delivery is excluded, insofar as these are attributable to not obviously recognizable faulty provisions, requirements or specifications of the purchaser, or to delayed provisions despite timely request. The same exclusion of liability shall apply if the Purchaser stipulates that we are to procure input material according to his specifications and/or from certain suppliers selected by him, even if we are required by agreement to order ourselves and at our own expense.

§ 11 Performance of installation work

(1) If installation work has been ordered, the installation sites must be freely accessible. If this is not the case, any additional costs incurred shall be charged to the Purchaser.

(2) The Purchaser shall, at its own expense, take over and provide in good time all earthwork, construction work and other ancillary work outside the trade, including the skilled and unskilled labor, building materials and tools required for this purpose, the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants, as well as energy and water at the place of use, including connections, heating and lighting.

(3) He shall take care of the storage of machine parts, apparatus, materials, tools, etc. at the assembly site. He shall be obliged to provide sufficiently large, suitable, dry and lockable rooms for this purpose and adequate working and recreation rooms for the assembly personnel, including adequate sanitary facilities. In all other respects, the customer shall protect and treat our property and our assembly personnel in the best possible manner.

(4) Protective clothing and protective devices which are necessary due to special circumstances at the assembly site shall be provided by the customer.

(5) Prior to the start of the assembly work, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data without being requested to do so.

(6) Prior to the start of assembly or erection, the materials and objects required for the start of the work must be available at the site of assembly or erection and all preparatory work must have progressed to such an extent that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be leveled and

(7) If assembly, erection or acceptance is delayed due to circumstances for which we are not responsible, the Purchaser shall bear the reasonable costs of waiting time and any additional travel required by us or our erection personnel.

(8) The Customer shall certify to us on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.

(9) Any additionally required material or additional work that was not foreseeable at the time the order was placed shall be charged separately, unless otherwise agreed.

(10) We are entitled to use subcontractors.

§ 12 Acceptance in the case of work performances

(1) If acceptance has been agreed for work performances, we shall be entitled to demand acceptance of the performance after completion – if necessary, also before expiry of the agreed execution period. In this case, the customer shall carry out the acceptance within 12 working days; completed parts of the performance shall be accepted separately. Acceptance may only be refused due to significant defects until they have been remedied.

(2) If no acceptance is requested, the performance shall be deemed accepted upon expiry of 12 working days after written notification of completion of the performance. If no acceptance is demanded and the purchaser has taken the service or a part of the service into use, the acceptance shall be deemed to have taken place after the expiry of 6 working days after the start of use, unless otherwise agreed. The use of parts of a structural plant for the continuation of the work shall not be deemed to constitute acceptance.

(3) Reservations due to known defects or due to contractual penalties shall be made by the Purchaser at the latest at the times specified in paragraphs 1 and 2.

(4) Upon acceptance, the risk shall pass to the Purchaser to the extent that it is not already borne by the Purchaser pursuant to Sec. 3 (1).

§ 13 Commencement of the limitation period for work performances

If acceptance has been agreed, the limitation period for claims based on defects in work performances as well as for claims based on our liability for damages shall commence upon acceptance of the performance. Insofar as several independently removable work performances are concerned, the limitation period shall commence with regard to these partial performances with their acceptance.

§ 14 Industrial property rights, copyrights

(1) As a matter of principle, the provision of our deliveries and services shall not be associated with any transfer of rights of use to industrial property rights or copyrights to which we are entitled. Such transfer shall only take place on the basis of a separate agreement.

(2) Unless otherwise agreed, the following shall apply to the transfer of standard software: The Customer shall receive an unlimited, simple right of use limited to use with the contractual products for use at a single workstation. The mandatory statutory provisions of §§ 69 c and d UrhG shall remain unaffected.

(3) Any claims for damages by the Purchaser shall be governed by §§ 8 and 9 and shall be excluded to the extent that the Purchaser is responsible for the infringement of the IPR, in particular if the infringement of the IPR is caused by an application not foreseeable by us or by the fact that the Supplies are modified by the Purchaser or used together with products not supplied by us.

(4) In the event of infringement of property rights, we shall be entitled, at our discretion, to obtain the necessary property rights within a reasonable period of time or to provide the Purchaser with a permissible alternative solution.

§ 15 Confidentiality

(1) The parties shall treat confidential information, in particular samples made available, cost estimates, drawings, documents, business intentions, personal data, problems, data and/or solutions to problems and other know-how, irrespective of the content, as well as information obtained visually by inspecting plants/equipment (hereinafter collectively referred to as “Information”), of which they obtain knowledge from the other party within the framework of the business relationship, as confidential for the duration of and after termination of the contractual relationship, in particular they shall not pass it on to third parties or use it for their own business purposes without authorization. This shall apply accordingly to the conclusion and content of this Agreement. The parties shall also impose this obligation on their employees.

(2) This confidentiality obligation shall not apply to information which

– was already known to the other party outside the contractual relationship.

– was lawfully acquired from third parties; is or becomes generally known or state of the art.

– is released by the contracting party making the transfer.

The obligation to maintain secrecy for technical information shall end 5 years after termination of the contractual relationship.

(3) After termination of this contractual

(4) The parties shall comply with the rules of data protection, in particular if they are granted access to the other party’s operations or hardware and software. They shall ensure that their vicarious agents also comply with these provisions, in particular they shall oblige them to maintain data secrecy before commencing their activities. The parties do not intend to process or use personal data on behalf of the other party. Rather, a transfer of personal data shall only occur in exceptional cases as a secondary consequence of the contractual services of the parties. The personal data shall be handled by the parties in accordance with the provisions of data protection law.

§ 16 Place of Jurisdiction, Choice of Law

(1) If the customer is a merchant, the place of jurisdiction shall be Traunstein; if we bring an action, the general place of jurisdiction of the customer shall also apply.

(2) The law of the Federal Republic of Germany shall apply to all legal relationships between the customer and us.

cts terms of sale and delivery

12.02.2020

Author: Roith. Rev.2