General Terms and Conditions of Purchase (GTP)
1. General, Scope of application
1.1 These General Terms and Conditions of Purchase (GTP) shall apply to all commercial contacts with our suppliers (hereinafter “Supplier”). These GTP shall apply only insofar as the Supplier is an enterpreneur (sec. 14 Civil Code (BGB)), a legal person under public law or a special asset under public law.
1.2 These GTP shall apply in particular to contracts for the purchase and/or supply of goods and/or software and/or services (hereinafter always “delivery”) regardless of whether the Supplier produces the goods itself or purchases such from a sub-supplier (sec. 433 Civil Code (BGB), sec. 650 para. 1 Civil Code (BGB). These GTP shall apply in their respective latest version as a frame agreement for all future contracts concerning goods and/or services with the same Supplier without any requirement for us to refer again to such expressly in each individual case.
1.3 These GTP shall apply exclusively. Any general terms and conditions of the Supplier 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 requirement for agreement by us shall apply in all cases, including cases where we unconditionally accept a delivery from a Supplier whilst being aware of the Supplier’s general terms and conditions.
1.4 Any individual agreements entered into with the Supplier (including collateral agreements, supplements or amendments) shall in each case prevail over these GTP. The written contract or our written confirmation shall determine the exact conditions of such agreements.
1.5 Any declaration or notice of a legal nature given to us by the Supplier after the concluding of a contract (e.g. setting of a deadline, demand notice, notice of withdrawal (Rücktritt)) must be in writing in order to be effective. Transmission by fax or email is not sufficient. The determination of timely notification shall be according to the date of receipt by the party receiving the notice.
1.6 Any reference to the application of the provisions of law is for the purpose 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 GTP.
2. Contract Formation
2.1 Only orders issued in writing and written agreements are binding for us (contract conclusion). Oral agreements shall become binding only after confirmation in writing by us. The requirement of writing in this regard may also be satisfied by way of an exchange of correspondence via fax or email and orders via electronic order systems. So as to allow us to undertake any correction or completion before acceptance, the Supplier shall notify us of any apparent errors (e.g. typographical errors or mistakes in calculation) or omissions in any order, including related documentation; otherwise we shall have the right to rescind (anfechten) any contract on the basis of an error or omission.
2.2 The Supplier shall confirm in writing or by email (Textform) our order within 2 (two) working days or shall deliver such unconditionally (acceptance). The delivery date must be confirmed as a calendar date. The order confirmation shall constitute the acceptance of our offer. Our delivery date confirmed by the Supplier is binding and integral part of the contract. A order confirmation received by us later than 14 (forteen) calendar days after ordering date will not be deemed as conclusion of the contract and shall constitute as new offer which requires our acceptance. We reserve the right to declare our acceptance of the offer by confirmation of the receipt of the delivery.
2.3 The reference data as detailed in the order are to be provided in all correspondence, invoices and delivery documents.
2.4 Individual orders are to be named with separately in any correspondence.
3. Delivery Time and Delay in Delivery
3.1 The delivery date provided by us in the order is binding. The delivery date relates to the delivery of the goods to the delivery address. The Supplier shall be responsible for delivery to the incoming goods department within the times provided. The Supplier shall
3.1.1 notify us in writing or by email (Textform) without undue delay if it becomes apparent that the agreed delivery date cannot be met in whole or in part and shall notify us
3.1.2 of the probable period of delay.
3.2 Part deliveries are not permissible in any case unless such has been agreed to by us separately.
3.3 If the Supplier does not provide the delivery or fails to do so within the agreed delivery time or if the Supplier is in default delay, our rights shall be determined in accordance with the provisions of law. The provisions of paragraph 4 shall not be affected thereby.
3.4 If the Supplier is in default delay, we may – in addition to any further legal rights – demand liquidated damages for our delay damage to the amount of 0.2 % of the net price for each calendar day of delay, but totalling no more than 5% of the net price for the delayed goods to be delivered. We reserve the right to claim for any additional damage suffered by us. The Supplier has the right to establish that we did not suffer any damage or the amount of actual damage was considerably less.
3.5 We are entitled to declare our right to compensation resulting from a lumpsum liquidated damages claim pursuant to 3.4 against claims of the Supplier. The right to claim for further damage is not excluded thereby.
3.6 Acceptance of a delayed delivery or performance does not constitute a waiver of any right to compensation.
3.7 If the Supplier delivers earlier than agreed we shall be entitled to charge reasonable warehouse fees for the longer period of storage. Sec. 315 Civil Code (BGB) (provisions for performance by a party) shall apply. We are not obliged to accept receipt of any goods before the respective delivery date.
4. Performance, Delivery, Transfer of Risk, Delay in Acceptance
4.1 Without our prior written agreement, the Supplier is not entitled to allow any performance to be undertaken by a third party (e.g. subcontractor). The Supplier shall bear the procurement risk in relation to its performance.
4.2 Delivery shall, unless otherwise agreed, be in accordance with DDP (INCOTERMS 2020) to the delivery address supplied by us. The respective place of destination is also the place of performance, including possible subsequent performances. In case of explicitly agreed of any delivery conditions to the contrary we are entitled to specify the transport method as well as the transport company.
4.3 Each delivery must include in duplicate a delivery note with details of the date (issuing and dispatch), contents of the delivery (article number, index, quantity, country of origin and customs tariff number for each delivered item) as well as our order identification (order date, order and position number), nature of the packing as well as the number of packages and weight of the packages. If a delivery note is missing or is incomplete we shall not be responsible for any resulting delays in processing or payment.
4.4 The Supplier shall undertake the legally-required and appropriate packing and declarations.
4.5 The risk of accidental destruction or deterioration to the goods shall transfer to us in accordance with DDP (INCOTERMS 2020) upon the transfer of the goods at the place of performance. Insofar as acceptance procedures are agreed, such shall determine the time of transfer of risk. Furthermore, in case of agreement on acceptance procedures the provisions of law for contracts for work and services (Werkvertragsrecht) shall apply accordingly. The transfer or acceptance times shall apply equally if we are in default delay with acceptance.
4.6 If we are in default delay with acceptance the provisions of law shall apply. The Supplier must however expressly offer its performance to us even if a specified date or date to be specified is identified in relation to an act or measure of support (Mitwirkung) from us (e.g. supply of materials). If a contract relates to non-fungibles to be produced by the Supplier (individual production), the Supplier shall be entitled to further rights only if we are under an obligation to provide support and are responsible for such lack of support.
5. Duty of Disclosure of Supplier
5.1 Before undertaking any changes in manufacturing procedure, materials or supplied parts for our delivery, or any changes in production location, or before any changes in procedures and equipment for testing the products or any other quality control measures the Supplier shall notify us of such in good time so that we are able to determine whether such changes could have an adverse effect for us. The Supplier must also make any third party duly involved in the performance for the Supplier subject to a corresponding duty to provide notice of any changes. In a similar manner, any change in a service provider or sub-supplier must also be notified to us by the Supplier. If adverse effects cannot be excluded, the Supplier shall ensure the continuation of supply with unchanged parts until such a time that a suitable alternative solution can be found.
5.2 In case of any product discontinuation or other relevant change of regularly ordered deliveries the Supplier shall notify us on an unsolicited basis with an at least 12 (twelve) months period in advance for a last-time buy in writing.
5.3 Any changes in the company name shall be notified to us without undue delay.
6. Prices and Payment Conditions
6.1 The price detailed in the order shall be binding. The agreed prices are fixed prices and do not include the statutory turnover tax (Umsatzsteuer) unless such is detailed separately.
6.2 Unless agreed otherwise in individual cases, the price includes the entire performance by the Supplier including any supplementary performance matters (e.g. production, assembly, installation, licences) as well as additional costs (e.g. material costs, due packing, transport costs including transport insurance and third party liability insurance). Packing materials may be returned to the Supplier who shall accept the return of such packing materials at our request.
6.3 The invoice for each order shall be sent separately to our invoice address after delivery. The invoice shall not be included in a delivery.
6.4 Payment shall be, at our choice, either:
6.4.1 within 14 (fourteen) calendar days with 3% discount for prompt payment or
6.4.2 within 30 (thirty) calendar days net.
The payment deadline shall begin to run after the complete receipt of goods in accordance with the contract as well as the receipt of the documentation in accordance with item 4.3 above, but not before the agreed delivery date.
6.5 We shall not be liable for any interest for late payment. The right of the Supplier to default interests shall not be affected thereby. In order for such default delay to occur the provisions of law shall apply. In any case, a demand notice from the Supplier shall be necessary.
6.6 Our rights to set-off and retention as well as the defence for nonperformance (sec. 320 Civil Code (BGB)) shall be available to us to the extent provided by law.
6.7 Payment shall not constitute an acknowledgement of delivery in accordance with the contract.
6.8 We shall be entitled to determine the method of payment.
7. Force Majeure
7.1 The performance time for contractual obligations of either party shall be extended in the event of force majeure and in particular any natural catastrophe, earthquake, order of any sovereign, limitation of transport, operational interruptions, limitations on the use of energy, general lack of raw materials, mobilisation, war, unrest, pandemic/epidemic, lockdown, strike, lockout or other unforeseeable or unavoidable events for which the respective party is not responsible and such extension shall be for the period of the disturbance to the extent of its impact. The commencement and end of the respective hindrance shall be notified by the respective party without undue delay. To the extent that such has been undertaken the other party shall have no right to claim.
8. Documentation, Confidentiality and Know-how, Software, Data protection
8.1 We shall retain all property rights and copyright as well as intellectual property rights in relation to any illustrations, plans, drawings, calculations, instructions, product descriptions and other documentation. Such documentation is to be used exclusively for the performance of the contract and after the ending of the contract such shall be destroyed or, at our request, returned to us without any copies being retained insofar as there is no statutory retention period which prevents such being undertaken.
8.2 The Supplier shall treat this Agreement as confidential as well as all Confidential Information exchanged. Confidential Information includes all information which has been transferred to the Supplier by us or in our order in an oral or written form or by way of data transfer and in an electronic form or in any other way and which could reasonably be regarded as being subject to copyright or as being of a sensitive nature or as being not intended for the public. Confidential shall include in particular but is not limited to, specifications, scientific documentation, patent applications as well as disclosures, procedures, methods, formula, models, samples, knowledge, data, drawings, know-how, analyses, calculations, examinations, quantities, conditions and other details of our order as well as copies or duplicates of such. Any information marked as being confidential is in any case Confidential Information.
8.3 The Supplier undertakes to keep Confidential Information confidential and not to disclose to such to third parties. The Supplier shall undertake the necessary steps to prevent any unauthorized disclosure of Confidential Information received. In particular, only those employees required to know the Confidential Information for the purposes of the performance of the contract shall be allowed to access to such.
8.4 The Supplier undertakes to continue to ensure that Confidential Information is used only for the agreed purpose and in case of an ending of the cooperation the Supplier further undertakes to no longer use Confidential Information.
8.5 Any property rights, intellectual property rights or copyright required by the Supplier in the course of research and development work as well as any know-how so acquired shall belong exclusively to us and shall be fully transferred to us. If any copyright is created in relation to the Supplier, it shall grant us an indefinite and unlimited exclusive right of use and realization to the respective property.
8.6 Any products which are made on the basis of documentation or Confidential Information developed by us or with our tools or any copies thereof shall be used by the Supplier itself or made available to third parties only with our written approval.
8.7 In case of delivery of standard-software by the Supplier (including all updates, upgrades, patches etc.) we and all our affiliated companies are entitled to undertake all processes relevant under copyright law which are necessary or useful to use the software according to the contract. The Supplier grants to us with regard to the standard-software all rights to carry out all processes connected regularly with the use of software, in particular rights not limited in place and time to replication (including the production of backups), to procession in any way including correction of mistakes, to leasing, forward purchasing, sublicencing and other ways of use complying with the state of technology. Furthermore the rights for ways of use unknown at the time of conclusion of the contract are granted. The Supplier will secure the granting of rights to be obtained from copyright owners. With regard to software individually designed for us (individual software (Individualsoftware) we are granted exlusively all rights not limited in time, place and by content. The Supplier will provide us with the complete source code of the individual software along with the development documentation. The software delivered by the Supplier including software contained and embedded in the delivery (embedded software (Embedded Software)) does not contain software which constiutes open source software (OSS) pursuant to the definition of the „open source initiative“. Insofar the delivered software contains OSS the Supplier explicitly will notify us and point out in detail which OSS is contained in which components of the delivered software and which licence rule the OSS as well as which obligations will have to be met under the respective licence conditions. The delivered software shall contain in no case OSS which will lead to a „copyleft-effect“ in case of use of the delivered software.
8.8 The Supplier shall comply with the applicable data protection legal obligations.
9. Material Support and Retention of Title/intellectual property right
9.1 We retain title to all supplies and materials provided in support (e.g. finished and half-finished products) including software and as well as possible copyrights and other intellectual property rights to means provided in support, in particular copyright realization and use rights. This shall also apply to any tools, templates, samples and other objects which we provide to the Supplier for the performance of the delivery or services. Such objects are – insofar as such are not processed – to be stored at the expense of the Supplier separately in a suitable manner and to be labelled as our property and insured to the customary extent against any theft, destruction or loss.
9.2 The Supplier is allowed to process, mix or combine objects provided by us. In this case the processing is effected exclusively for us. The Supplier shall store the new object with the diligence and care of a prudent merchant.
9.3 If in the processing, mixing or combining with the objects of any third party their rights of ownership persist, we shall acquire in relation to the new object a co-ownership in proportion to the value of the items provided by us in relation to the value of the other items.
9.4 If parts of the goods provided are left over after processing, such shall remain our property even if such parts are production residues no longer suitable for use. If no provision is agreed to the contrary, the Supplier shall inform us of any remaining quantities. The decision as to whether the provided goods and any remaining parts thereof should remain with the Supplier or sent to us or a third party shall be made exclusively by us.
9.5 Transfer of title in the goods shall take place to us unconditionally and without any regard to payment of the price. Any and all forms of extended or expanded retention of title are hereby excluded so that any effective retention of title by the Supplier shall apply only to the time of payment for the goods delivered to us and shall apply only to such goods.
9.6 Title to tools or other equipment in our order shall transfer fully to us. Transfer of possession shall be substituted by the Supplier keeping the tools for us at no charge with the due care of a merchant. The tools shall be kept separately and shall be identified in the business records. The tools shall be returned at any time upon request. As regards the intellectual property rights, in particular copyrights or other intellectual property rights, to tools or other equipment we will be granted upon production the exclusive realization and use rights not limited by content, in time and place.
10. Defective Delivery
10.1 The provisions of law shall, unless otherwise determined below, apply to our rights in the event of any defects or defects of title in the goods (including incorrect delivery or short delivery as well as incorrect packing, defective assembly instructions, operation instructions or instructions of use) and in case of any other breaches of obligations by the Supplier. All deliveries shall comply at least with the state of technology at the time of performance.
10.2 The Supplier shall be liable in accordance with the provisions of law in particular for the agreed properties of the goods at the time of transfer of risk. Those product descriptions which – in particular by way of inclusion or reference in our order – are within the scope of the respective contract or, in a similar manner to these GTP are included in the contract, shall constitute part of the agreement as to quality. It shall not be of relevance in this regard whether the product description originates from us, the Supplier or the manufacturer.
10.3 As regards the delivery the Supplier is also obliged to observe the valid and applicable European and national guidelines, regulations and law in particular but not limited to RoHS, WEEE, REACH as well as the German Electrical Equipment Act (ElektroG). In addition delivery must comply with the applicable and valid norms (e.g. DIN, IEC).
10.4 Notwithstanding sec. 442 paragraph 1 sentence 2 Civil Code (BGB), we shall be entitled to claim for any defect if such defect is not known to us at the time of the conclusion of the contract for reasons of gross negligence.
10.5 In relation to the merchant’s duty to inspect goods and give notice of any defect, the provisions of law (sec. 377, sec. 381 Commercial Code (HGB)) shall apply subject to the following: Our duty to inspect shall apply only in regards to the detection of defects which would be apparent at our incoming goods examination by way of an external inspection including an inspection of the delivery documentation (e.g. evident damage from transport, evident incorrect delivery or short delivery). Any further or additional duty to inspect is hereby excluded. Insofar as acceptance procedures are agreed to, there shall be no duty to inspect. In addition such shall depend on the extent to which an inspection is possible in an individual case having regard to the circumstances and to commercial practice. Any defects shall be notified to the Supplier within a reasonable period. Our duty to give notice of defects for any defects discovered at a later time shall not be affected thereby. In addition sec. 377 paragraph 5 Commercial Code (HGB) shall apply.
10.6 The Supplier shall bear all expenses for the purposes of rectification of any defect (Nachbesserung) or substitute delivery (Ersatzlieferung) to the respective place of use. The costs incurred for the purposes of inspection and rectification by the Supplier shall be borne by the Supplier even if it later becomes apparent that no defect exists. Our liability to pay damages in relation to any unjustified request for defect rectification shall not be affected thereby; in this regard we shall however only be liable, if we were aware of or failed to be aware of, in a manner which is grossly negligent, the non-existence of the defect.
10.7 If the Supplier does not fulfil its obligations of subsequent performance – at our discretion either by rectification of the defect or by supply of substitute goods – within a reasonable period set by us, we may rectify the defects ourselves or demand compensation from the Supplier for the necessary expenses in relation thereto. If subsequent performance by the Supplier is unsuccessful on two occasions or is not reasonable for us (e.g. because of particular urgency, endangerment of the operations, or any pending or threatened disproportionate damage) no deadline needs to be set; the Supplier shall be notified without undue delay and if possible in advance.
10.8 In addition we are entitled in the event of any defect or defect in title to claim in accordance with the provisions of law for a reduction of the purchase price or to withdraw (Rücktritt) from the contract. In addition we are entitled to claim damages in accordance with the provisions of law for any loss or expenses.
11. Producer’s Liability and Regress
11.1 To the extent that any third party makes a claim against us on the basis of product liability or producer’s liability which relates to the delivery of the Supplier, the Supplier shall indemnify us upon first demand in relation to any such claim to the extent of its external liability limit and shall compensate us to this extent.
11.2 In terms of its indemnification obligations the Supplier shall provide compensation in accordance with sec. 683, sec. 670 Civil Code (BGB) resulting from or in connection with any claim by a third party including any recall actions carried out by us. The exact nature and scope of any recall action shall be notified by us to the Supplier – insofar as such is possible and reasonable – and the Supplier shall be given the opportunity to make a statement. Any additional or further rights to claim existing at law shall not be affected thereby.
11.3 The Supplier shall conclude product liability insurance with a reasonable level of cover and shall furnish evidence of such to us upon request.
11.4 Apart from our claims for defects we are entitled ft he recourse rights within the supply chain legally defined (recourse against the supplier (Lieferantenregress) pursuant secs. 445a, 445b, 478 BGB). We are in particular entitled to request subsequent performance (Nacherfüllung (Nachbesserung oder Ersatzlieferung)) by the Supplier which we are obliged to perform to our end customer in the single case. Our legal right to choose in the case of claims for defects (sec. 439 para. 1 BGB) shall not be limited thereby. Before we will acknowledge or fulfil any claim for defect notified by our end customer (including claim on reimbursement of expenses pursuant to secs. 445a para. 1, 439 para. 2 and 3 BGB) we will inform the Supplier and by short information on the facts will request the written statement of the Supplier. In case of no substantiated statement within appropriate period of time and in case of no mutual solution the claim on defects actually granted by us shall be deemed as obliged towards our end customer. The Supplier may in this case bring counterevidence. Our claims regarding recourse against the supplier shall also apply in case the defect delivery is processed in a further way by us or another company, e.g. by embedding in another product.
11.5 Our rights due to the mandatory legal provisions pursuant to sec. 327u para. 4 Civil Code (BGB) regarding contracts on digital products between enterpreneurs (recourse of the enterpreneur (Rückgriff des Unternehmers)) shall not be affected.
12. Limitation Period
12.1 The mutual rights of the contract parties to claim shall expire in accordance with the provisions of law unless determined otherwise below.
12.2 Notwithstanding sec. 438 paragraph 1 no. 3 and sec. 634a para. 1 no. 1 Civil Code (BGB) the general limitation period for any claims for defects shall be 3 years from the time of the transfer of risk. Insofar as acceptance procedures are agreed, the limitation period shall begin to run from the time of acceptance. The 3 year limitation period shall apply accordingly also to any claim arising from a defect of title, whereby the legal limitation period for restitution (dingliche Herausgabe) by a third party (sec. 438 paragraph 1 no. 1 Civil Code (BGB)) shall not be affected hereby; any claim for a defect of title shall, in addition, not expire in any case so long as the rights of the third party – in particular as a result of a lack of a limitation period – may still be claimed against us.
12.3 Subsequent performance shall be undertaken without undue delay. It shall result in a recommencement of the limitation period unless the scope, period and/or costs for the subsequent performance do not indicate an acknowledgement of the duty of subsequent performance by the Supplier. In any case of a justified notice of defect the limitation period shall be extended by the period between the notice of defect and the rectification of such defect.
12.4 The limitation periods at law related to the sale of goods (Kaufrecht) and law for contracts for work and services (Werkvertragsrecht) including the above extensions shall apply – to the extent required by law – to all contractual claims for defects. Insofar as we are entitled to compensation for any defects not based on contract law, the normal limitation periods at law (sec. 195, sec. 199 Civil Code (BGB)) shall apply, provided that the application of the limitation periods under sales law or law for contracts for work and services (Werkvertragsrecht) do not result in a longer limitation period in any individual case.
13. Import and Export Regulations, Compliance with laws
13.1 In the case of goods and services from countries of the European Union (EU) outside of the Federal Republic of Germany, the Supplier shall provide an EU turnover tax identification number.
13.2 The Supplier shall, on the basis of EU and other regulations, provide the necessary information for its supply declaration at its own cost, and shall allow controls by the customs authorities and arrange for the necessary official confirmations.
13.3 The Supplier shall notify us by no later than the time of its offer as to the following:
13.3.1 whether the goods and services (or part thereof) are subject to national export control regulations. If such is the case, it shall notify us of the export number;
13.3.2 whether the goods and services (or part thereof) are subject EC export regulations. If such is the case, we shall be notified of the respective number of the “List of Goods”;
13.3.3 if the goods and services (of part thereof) are subject to US export regulations. If such is the case, the “Export Control Classification Number” (ECCN) shall be notified insofar as the delivery is subject to the “Export Administration Regulations” (EAR); otherwise in case of the application of the “International Traffic in Arms Regulation” (ITAR) the “United States Munition List Number” (USML) shall be notified. In addition, in case of the application of the ITAR provisions it shall be notified whether the goods and services (or part thereof) are to be classified as “Significant Military Equipment” or as “Major Defense Equipment”;
13.3.4 whether the goods and services (or part thereof) are subject to applicable sanction provisions;
In case of any culpable failure or any defective notification of these details we shall be entitled to withdraw (Rücktritt) from the contract. Our right to also claim damages shall not be affected thereby.
13.4 The Supplier is obliged to comply with the applicable mandatory provisions, in particular AML (anti-money laundering) and ESG (environmental, social, governance) provisions, in connection with all legal relations between us and the Supplier. The Supplier shall secure the delivered products comply with all applicable mandatory requirements for the market placing (Inverkehrbringen) in the European Union and the European Economic and shall provide us with evidence of conformity upon request by appropriate documents. The Supplier will take reasonable efforts to secure the compliance with the obligations of the Supplier in this item 13.4 by the subsuppliers of the Supplier.
13.5 The Supplier will with any delay notify us in case its deliveries contain minerals and metals named in schedule 1 Regulation (EU) 2017/821 (Regulation on Conflict minerals) (Konfliktmineralien-Verordnung) (conflict minerals). The Supplier is obliged to comply with all requirements of the Regulation on Conflict minerals and will perform its contractual services in compliance with the OECD principles for the fulfilment of the duty of care to promote responsible supply chains for minerals from conflict and high risk areas. We reserve the right to contact at least once a year the Supplier whose deliveries contain conflict minerals or could contain and to request information to identify the melting and refinery companies in the supply chain. The Supplier will keep in evidence the information pursuant art. 4 para. 1 lit. f), g) and h) Regulation on Conflict minerals (Konfliktmineralien-Verordnung) including the corresponding documentation and provide to us upon request. The Supplier will support us in case of examination by third parties in the sense of art. 6 Regulation on Conflict minerals (Konfliktmineralien-Verordnung) comprehensively and provide us with the required information and documents.
13.6 The Supplier assures that salaries paid to its emloyees comply with at least the amount of the legal minimum salary and the Supplier complies with all other obligations pursuant to the Minimum salary Act (Mindestlohngesetz (MiLoG)). The assertion will be by email (Textform). The Supplier will oblige its subsuppliers used to fulfil its contractual obligations at least by email (Textform) to comply with the provisions of the Minimum salary Act (Mindestlohngesetz (MiLoG)) and to control and secure the compliance by appropriate measures. Upon request the Supplier will name to us engaged subsuppliers. The Supplier assures that we or third parties authorized by us are entitled to control the compliance of the legal obligations resulting from the Minimum salary Act (Mindestlohngesetz (MiLoG)) by appropriate measures. For this purpose the Supplier will provide us upon request on a test basis anonymized salary pay-rolls of its employees. In case we will be challenged by a claim of a third party because of violations of the Supplier or its subsuppliers against the Minimum salary Act (Mindestlohngesetz (MiLoG)) the Supplier will indemnify in full. This indemnification obligation comprehends also penalties and fines (Ordnungs- und Bußgelder) as well as claims by the social insurance and financial authorities. Furthermore the indemnification also comprises lawyers‘ fees pursuant to Lawyers Remuneration Act (Rechtsanwaltsvergütungsgesetz (RVG)) for possible necessary extrajudicial and court defense with regard to the challenge. In case of violation of the Supplier or its engaged subsuppliers against the provisions of the Minimum salary Act (Mindestlohngesetz (MiLoG)) we are entitled to withdraw from the contract without notice period.
14. Third Party Property rights, Copyright, Intellectual Property Rights
14.1 The Supplier shall be liable for ensuring that the delivery and the use of the goods do not infringe on any patent licence or other property rights, copyrights, intellectual property rights of third parties in situations where the Supplier was aware of such infringement of rights or should have been aware of such. Any resulting licence fee shall be borne by the Supplier.
14.2 If any third party makes a claim against us in relation to such matters, the Supplier shall indemnify us on first written demand in relation to such claims. We are not entitled to enter into any agreement with the third party without the approval of the Supplier.
15. Advertising Materials
Only with our express written approval may any references be made to the existing business contacts with us such as for example, but not limited to, by way of information or advertising material (e.g. list of references).
16. Choice of Law and Jurisdiction
16.1 In relation to these G and all legal relations between us and the Supplier the laws of the Federal Republic of Germany shall apply to the exclusion of UN Sales Law (United Nation Convention on Contracts for the International Sale of Goods; CISG).
16.2 If the Supplier is a merchant (Kaufmann) in terms of the Commercial Code (HGB), a legal person under public law or a special asset under public law, the exclusive place of jurisdiction – also in international matters – for all disputes arising out of the contractual relationship shall be our respective seat of business. We shall however be entitled to commence proceedings at the place of performance of the duties of delivery.
16.3 If a provision of these GTP 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.
16.4 Insofar as these GTP are made available in another language, the German version shall take precedence.
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 and/or software (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. 650 para. 1 Civil Code (BGB). 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.
2. 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 (Textform).
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
3. 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, pandemic/epidemic, lockdown, 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.
4. 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 ADVENTURE LAKES factory in accordance with INCOTERMS 2020).
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. 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.
5. 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.
6. 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 the VAT Implementing Regulation, obligated to provide us with proof of the actual arrival of the goods (confirmation of arrival) resp. other equivalent proof of actual confirmation for the transport mandatary. 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 ft he 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 upon conclusion of the contract. 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 for ordered services 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, 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.
7. 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.
8. 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.
9. 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 secs. 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 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 (secs. 377, 381 para. 2 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. Our right to reject the replacement delivery shall remain unaffected therefrom.
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 (unless the latter complies with our prerequisites),
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.
10. 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.
11. 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 (including by our legal representatives or vicarious agents (Erfüllungsgehilfen)),
11.2.3 damage caused as a result of gross negligence (including by our legal representatives or vicarious agents (Erfüllungsgehilfen)),
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 (cardinal obligation (Kardinalpflicht)) (the obligation is material in case its fulfilment realizes the ordinary consummation of the contract and in which observance the Customer regularly trusts in); 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. The mandatory legal provisions pursuant to sec. 327u para. 4 Civil Code (BGB) regarding contracts on digital products between enterpreneurs (recourse of the enterpreneur (Rückgriff des Unternehmers)) shall not be affected, insofar it is within its mandatory scope of applicability and an equivalent scheme for the compensation of the waiver of the recourse right (e.g. producer guarantee) is not agreed.
12. 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.
13. 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. 478 Civil Code (BGB)) as well as secs. 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 (secs. 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, insofar we do not acknowledge a legal duty thereto.
14. 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.
15. Confidentiality, Data protection
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.
15.4 The applicable provisions with regard to data protection shall remain unaffected. References for the personal data processing are available in our Data Protection Statement (https://www.adventurelakes.com/en/data-privacy/).
16. 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: 18 January 2023
ADVENTURE LAKES GmbH