General Contract Conditions for the Services of Volkmann Elektromaschinenbau GmbH
I. Scope of application
1. Our General Contract Conditions apply to services in accordance with the agreement concluded between the Purchaser and us.
2. Within the meaning of these General Contract Conditions, purchasers are companies as defined in Sec. 14 German Civil Code and legal persons representing public rights or public law entities with special public funds.
3. Deviating, opposing or supplementary General Contract Conditions in derogation hereof will not become an essential element of the contract, unless acknowledged their validity is expressly approved in writing by us. Our General Contract Conditions shall apply even if we render the performance without reservation or remain silent in the knowledge of deviating, opposing or supplementary General Contract Conditions.
II. Offer, offer documents and conclusion of contract
1. (Offer and acceptance) Our offers are subject to change without notice. We reserve the right to make reasonable changes in the shape, colour and weight. When placing the order, the Purchaser declares its binding intent to acquire the performance ordered. We are authorised to accept the contract proposal contained in the order within two weeks upon receipt. The receipt can be accepted either in text form by sending an order confirmation or by delivery of the goods to the Purchaser. If the order is placed electronically, the contract text plus these General Contract Conditions will be stored by us and e-mailed to the Purchaser upon request.
2. (Proprietary and copyrights)
We reserve the proprietary and copyrights of images, drawings, calculations and other documents. This shall apply also to those writ-ten
documents referred to as “confidential”. The Purchaser requires our express written consent
prior to disseminating said documents to third parties.
3. (Supplier clause)
The Agreement is concluded subject to correct and timely delivery of supplies by suppliers. This shall apply upon conclusion of a congruent supply arrangement with our suppliers in case we are not responsible for such failure to deliver. The Purchaser will be notified immediately of the nonavailability of the respective performance. The consideration will be refunded to the Purchaser immediately.
III. Prices and conditions of payment
The prices are “ex works” plus packaging costs and the respective applicable statutory value-added tax.
2. (Price increase clause)
If, at the time of rendering the performance and upon expiration of a four-month period following the conclusion of contract, the prices have increased due to a change in the market price or increase in the payments demanded by suppliers, the higher price shall apply. If this price is 20% or more above the negotiated price, the Purchaser is authorised to withdraw from the Agreement. This right must be asserted immediately upon being notified of the in-creased prices. 3. (Incidental charges following installation, assembly)
If we have accepted the installation or assembly, except as otherwise agreed, the Purchaser shall pay all necessary incidental charges, including travel costs, costs for for-warding tools, and personal luggage, as well as allowances, in addition to the negotiated remuneration.
4. (Payment and discount)
The total invoice amount is payable within 14 days of the invoice date to our business ac-count, as stated on our business stationery. The deduction of a discount is subject to writ-ten agreement.
5. (Set-off and right of retention)
The Purchaser may set off only those claims that are undisputed or against which no legal recourse is possible. The Purchaser’s right of retention shall apply only if ist counterclaim is based on the same contractual relationship.
IV. Installation and assembly
Except as otherwise provided in writing, the following provisions shall apply to installation and assembly:
1. The Purchaser shall at its own costs under-take and provide in due time:
a) All excavation, construction and other non-allied ancillary work, including all required skilled and unskilled labour, construction materials and tools,
b) The equipment and materials, such as scaffolding, lifting devices and other equipment, fuels and lubricants required for assembly and start-up,
c) Energy and water to the place of use, including connections, heating and lighting,
d) At the assembly site for storing ma-chine parts, equipment, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and appropriate working areas and recreational rooms for the installers, including commissioning sanitary facilities in keeping with the circumstances; in other respects, the Purchaser shall take the same measures to protect the supplier’s and installation personnel’s property at the construction site, as it would take to protect its own property,
e) Protective clothing and devices that are necessary as a result of special circumstances at the assembly site.
2. Prior to the start of the assembly work, the Purchaser shall provide the necessary information on the location of embedded electricity, gas, water pipes and similar systems, and provide structural information unsolicited.
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of installation and assembly and any preparatory work must have advanced to such a degree that the installation and assembly can be started as agreed and carried out without interruption. The access routes and the installation or assembly site must be levelled and cleared.
4. If the installation, assembly or startup is delayed by circumstances for which the supplier is not responsible, the Purchaser shall be-ar reasonable costs for the waiting period and additional travel required by our employees.
5. The Purchaser shall immediately certify the weekly number of working hours, those of the assembly personnel, as well as the completion of the installation, assembly or startup.
6. If we requested the acceptance of delivery upon completion, the supplier must take de-livery within two weeks. If we are not notified, acceptance is deemed to have been effected. Acceptance is also deemed to have been effected if the
delivered supplies are put to use, after completion of an agreed test phase, if applicable.
V. Time of performance and delay in performance
1. (Delays by the Purchaser)
Compliance with the stipulated time for delivery is conditional upon the timely receipt of all documents, necessary permits and releases, especially of plans to be provided by the Purchaser, as well as fulfilment of the agreed terms of payment and other obligations by the Purchaser. If these requirements are not met in a timely manner, the time limits will be ex-tended by the period of the delay. This shall not apply if we are
responsible for the delay.
2. (Delays in performance due to force majeu-re)
The delivery time will be extended due to force majeure, e.g., mobilization, war, revolt or similar events, such as strike or lockout, by the period of delay.
3. (Delay in performance)
If we are in delay, the Purchaser may demand a compensation of 1% each for each full week of the delay, in total a maximum of 10% of the price for that part of the delivery which could not be put into proper operation due to the delay – if the Purchaser substantiates that this has caused the Purchaser damages. The Purchaser may prove a higher damage cost by the delay. In this case, the damage shall be limited to typical contractual, foreseeable damage. This shall not apply to cases in which our support staff and we are liable due to intent or gross negligence. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. This shall not affect the Purchaser’s right to withdraw from the contract and demand damages instead of performance after our grace period expires. The other provisions according to VIII. of these General Contract Conditions shall apply to damage instead of performance.
VI. Passage of risk and default in acceptance
1. (Passage of risk)
Except as otherwise provided in the order confirmation, the parties agreed to delivery “ex works”. The risk of accidental loss and accidental deterioration of the goods, also in the case of carriage paid delivery, shall be passed on to the Purchaser:
a) In the case of services without installation or assembly, if said services were dispatched or provided for pickup,
b) In the case of services with installation or assembly on the day of acceptance in the Purchaser’s own company or, if agreed, according to fault-free trial run.
At the Purchaser’s request and costs, we are able to ensure the delivery of the consignment in accordance with the Purchaser’s specifications through our forwarding company.
3. (Default in acceptance)
If the pickup, dispatch, delivery, start, installation or assembly, takeover in the Purchaser’s own facility or the trial run is delayed for justifiable reasons, or the Purchaser for other reasons defaults in taking delivery, the risk at the time of
supplying the goods shall be transferred to the Purchaser.
4. (Warehouse costs in the case of default in acceptance)
If, after the notification of readiness for collection the collection, is delayed, or after the notification of readiness for dispatch, the dis-patch of the goods is delayed, for which the Purchaser is responsible, the Purchaser may be charged a storage fee in the amount of 2% of the price of the goods for each month or part thereof, but at the most a total of 10%. The parties are at liberty to prove that the storage costs are higher or lower.
VII. Reservation of ownership
1. (Extended reservation of ownership)
The supplied goods shall remain our property until the fulfilment of all claims, including all balance
demands for the current account, to which now or in the future we are entitled from a cur-rent business relationship with the Purchaser. Our performance shall be deemed to be conditional goods.
2. (Handling conditional goods and costs)
The Purchaser agrees to handle the conditional goods with care and to ensure said goods sufficiently against loss through fire, water, burglary and theft at the new value. If maintenance and inspection work are necessary, these are to be performed by the Purchaser in due time at its own costs.
3. (Extended reservation of ownership in the case of resale, leasing)
The Purchaser is authorised to resell and/or use the conditional goods in the ordinary course of business, so long as the Purchaser is not in default of payment. Pledging or assignment as security shall not be permitted. The Purchaser shall assign to us as security the full amount of claims, which arise from the resale of the conditional goods or for any other legal reason (including all claims to credit balances in the current account). We accept this assignment. Following the assignment, the Purchaser is authorised to collect the claims. We reserve the right to collect the claim ours-elves as soon as the Purchaser fails to meet ist payment obligations and is in default of payment. Resale/Leasing of said goods shall be excluded, if the Purchaser, in an agreement with a third party, has negotiated an effective prohibition of assignment.
4. (Extended reservation of ownership in the case of processing)
The Purchaser may process the conditional goods always on our behalf and by order from us. If the goods are processed with items not owned by us, we shall acquire joint ownership in the new object in proportion to the value of the goods supplied by us to the other processed items. The same shall apply if the goods are mixed with other items not owned by us.
5. (Reporting requirements)
The Purchaser agrees to immediately notify us if a third-party accesses the goods, for example, in the case of a pledge, as well as in the case of damage or destruction of the goods. The Purchaser shall notify us immediately of any change in ownership of the goods and of changes in the ownership of the Purchaser’s company.
6. (Right of withdrawal from contract)
We are authorised to withdraw from the contract in the case of payment default or breach of a contractual obligation according to VII. 2-5 of these General Contract Conditions and demand surrender of the conditional goods. This shall not
affect additional claims.
7. (Release of guarantees)
If the value of the guarantee exceeds our claims against the Purchaser by more than 20%, we shall, at the Purchaser’s request and by our choice, release the securities to which we are entitled in the corresponding amount.
For defects of quality, we shall be liable in accordance with the following provisos:
1. (Notice of defect)
The Purchaser must notify us of evident defects within a period of one week from receipt of goods in writing. Hidden defects must be reported in writing at the latest within 12 months from the receipt of goods. For the purpose of compliance with the time limit, the timely sending of the complaint shall be adequate. Otherwise, the assertion of warranty claims shall be excluded.
2. (Retroactive performance)
If the performance or delivery contained a defect at the time of the passage of risk, we have the option to effect retroactive performance in the form of remedying a defect or
supplying a new defect-free object. In the case of a repair or replacement, this is done only as a courtesy without acknowledgement of a legal obligation. We shall bear the required expenditures for retroactive performance, provided they do not increase because the contractual item is in a different location than the place of performance.
3. (Period of grace, rescission or price reduction)
In the first instance, we must be given an opportunity for supplementary performance within a reasonable period. Should the retroactive performance fail, the Purchaser may demand a price reduction or cancellation of contract (rescission) notwithstanding any damage claims. The Purchaser’s right of rescission shall not apply in the case of minor defects.
4. (Exclusion of warranty)
Warranty claims shall not exist in the case of non-reproducible software faults. If the Purchaser or third parties have made improper changes or performed repairs, the resulting consequences shall not be covered by warranty claims.
5. (Compensatory damages in the case of intent and gross negligence)
We shall be liable according to the legal provisions, should the Purchaser have to assert claims for damage based on intent or gross negligence, including wilful misconduct or gross negligence by our legal representatives or vicarious agents. If legal representatives, our vicarious agents or we are not blamed for intentional breach of contract, the liability to pay compensatory damages shall be limited to foreseeable, typical damage.
6. (Compensatory damages in the case of ordinary negligence)
We shall be liable according to the legal regulations, if we negligently are in breach of a major contractual obligation. A major contractual ob-ligation shall exist, if said obligation refers to the fulfilment of a duty on which the customer did and
could rely. In this case, the liability for compensatory damages is limited to foreseeable, typically occurring damages.
7. (Tort liability claims and product liability)
This shall not affect the negligent liability relating to injury to life, body or health. This also shall apply to liability under to the Product Liability Act.
8. (Claims under the right of recourse)
The Purchaser’s claims under the right of recourse against us according to Sec. 478 German Civil Code (company’s recourse) shall exist only in that the Purchaser and its customers did not enter into agreements beyond legal claims arising from a defect. The statute of limitations according to Sec. 479 German Civil Code shall apply.
9. (Statute of limitations concerning warranty claims)
Warranty claims shall lapse 12 months after delivery of the object.
10. (Statute of limitations concerning damages)
Claims for damages due to a defect shall lapse 12 months after delivery of the object. This shall not apply in cases of injury to life, body or health,
which are caused by our legal representatives or our vicarious agents or us, if our legal representatives or our vicarious agents or we have acted with intent or gross negligence, or if our vicarious agents have acted with intent.
Apart from the above warranty claims, only we shall grant the Purchaser warranties in the legal
IX. Industrial proprietary rights, copyrights and rights of use
1. (Liability in the case of third-party rights)
Except as otherwise agreed, we agree to render the performance free from industrial property rights and third-party copyrights (herein-after called ‘protective rights’) only in the country of the place of delivery. If a third party raises legitimate
claims against the Purchase due to infringements of proprietary rights resulting from contractually used performances rendered by us, we shall be liable to the Purchaser as follows:
a) We shall, by our choice and at our costs, either obtain a right of use for the performances in question, modify said performances, so that the proprietary right will not be infringed, or replace it. Should this not be possible under reasonable
conditions, the customer shall be entitled to the legal withdrawal from the agreement or to rights of price reduction within the time limit stipulated according to VIII. 10 of these General Contract Conditions.
b) Our duty to pay damages is in accordance with sections VIII., XI. of the-se General Contract Conditions.
c) The above duties on our part exist only if the Purchaser immediately re-ports to us in writing the claims filed by third parties, does not recognise an infringement and the right to take all defensive actions and settlement negotiations remains reserved. If the Purchaser discontinues the use of the performance for reasons of damage reduction or other important reasons, it agrees to advise the third party that the discontinuation of utilisation is not related to an acknowledgement of a breach proprietary rights.
d) In the case of infringements of proprietary rights, the Purchaser’s claims regulated in IX. 1a shall apply correspondingly and in other respects, the provisions according to VIII., XI. of these General Contract Conditions. In the case of other defects of title, the provisions according to VIII., XI. of the-se General Contract Conditions shall apply correspondingly.
2. (Exclusion of liability)
The Purchaser’s claims shall be excluded, if the Purchaser is held liable for infringing proprietary rights. Claims by the Purchaser also shall be excluded, if the infringement of proprietary rights is caused by a utilisation that was unforeseeable by us or because the performance is changed by the Purchaser or is used together with products not supplied by us.
X. Rights of use for software
If the performance includes a standard soft-ware, the Purchaser shall have the non-exclusive right of use with the negotiated per-formance characteristics in unchanged form on the negotiated devices.
XI. Overall liability
1. An extensive liability for damages, as provided in VIII. of these General Contract Conditions – irrespective of the legal nature of the asserted claim – shall be excluded. This shall apply in particular to claims for damages due to tortious claims for compensation of actual loss according to Sec. 823 German Civil Code.
2. The limitation according to XI. 1 also shall apply, if the customer, instead of a claim for damages, demands compensation for wasted expenses instead of performance.
3. If the liability for damages is excluded or limited for us, this also shall apply with respect to the personal liability of our employees, collaborators, legal representatives and vicarious agents.
XII. Extended lien with work performance
1. Because of a claim from an order we shall be entitled to a lien to the Purchaser’s objects that come into our possession on the basis of the Agreement.
2. The lien may also be asserted on account of claims from previous work performed, de-liveries of spare parts and other performances, provided they are related to the object. For other claims from the business relations, the lien shall apply only if it is undisputed or legally valid.
XIII. Jurisdictional venue and applicable law
1. The exclusive jurisdictional venue for agreements with contractors according to Sec. 14 German Civil Code, legal persons re-presenting public rights or public law entities with special public funds, is the court of our registered office.
2. The law of the Federal Republic of Germany shall exclusively apply to agreements between the Purchaser and us. The UN Sales Convention
shall not apply.