(Based on the terms and conditions recommended by the German Association for Plant and Machinery Manufacturers (VDMA), Version 6/1993)
The documents included in the offer such as illustrations, drawings, weight specifications, and dimensions are only approximate, unless they have been expressly specified to be binding. The supplier reserves the right of ownership and reservation concerning cost estimates, drawings and other documents; they must not be made accessible to third parties. The supplier is obligated to make plans and diagrams designated by the purchaser as confidential accessible to third parties only with prior authorisation.
II. Scope of delivery
The supplier’s written order confirmation is binding for the scope of delivery. If the supplier has made an offer valid for a certain period of time which has been accepted within this period, the offer is binding unless an order confirmation is subsequently issued within this period. Changes and amendments require the written confirmation of the supplier.
III. Price and payment
- The prices are calculated ex works unless otherwise agreed, including loading at the factory, but excluding packaging. The respective statutory VAT must be added to the prices.
- Unless otherwise agreed the net amount of the invoice must be paid without deductions and the supplier is exempt from any transaction charges. Payments must be made in accordance with the offer or order confirmation.
- Withholding payments or offsetting any counter-claims of the purchaser that are disputed by the supplier is not allowed.
IV. Delivery time
- The delivery time shall begin with the dispatch of the order confirmation, however not before the receipt of any documents, approvals and releases to be submitted by the purchaser, and not before the receipt of any down-payment agreed.
- The delivery shall be deemed on schedule if the delivery item has left the factory or notice has been given that the goods are ready for dispatch before the delivery period has expired.
- The period of delivery is extended accordingly in the event of measures such as work disputes, in particular strikes and lockouts, as well as the onset of unforeseen circumstances which lie outside the control of the supplier; insofar as it can be proved that such circumstances have considerable influence on the manufacture or delivery of the delivery item. This also applies if the circumstances affect sub-suppliers. The aforementioned circumstances must not be used by the supplier if a delay already exists. The start and end of such circumstances should be communicated to the purchaser as soon as possible by the supplier.
- If shipment or delivery is delayed at the customer’s request, the customer may be charged with storage costs to the amount of 0.5 % of the invoiced sum for each commenced month, starting one month from the notification of readiness for shipment.
- The supplier is entitled, however, to otherwise dispose of the delivery item after a reasonable period of grace has been set and expired without result and to supply the purchaser with an appropriately extended period.
- The supplier is only obliged to meet the delivery schedule if the purchaser has fulfilled his contractual obligations.
V. Transfer of risk and acceptance
- The risk shall be transferred to the purchaser at the latest upon dispatch of the delivery items to the purchaser and this also includes then part deliveries or if the supplier assumed other services such as shipment costs, carriage and set-up. At the request of the purchaser, the shipment by the supplier is insured against theft, breakage, transport, fire and water damage, as well as other insurable risks. The cost thereof shall be borne by the purchaser.
- If the shipment is delayed as a result of circumstances on the part of the purchaser, the risk transfers to the purchaser from the day of dispatch; however, the supplier is obligated to affect the insurance policy at the request of the purchaser, who shall also bear the costs thereof.
- Delivered items, even if containing minor defects, must be accepted by the purchaser without prejudice to the rights laid down in Section VII.
- Part deliveries are allowed.
VI. Retention of title
- The supplier reserves ownership of the delivery item until all payments have been made in respect of the delivery contract.
- The supplier is obligated to insure the delivery item against theft, breakage, fire, water and other damage, the cost thereof being borne by the purchaser, if the purchaser has not already provided his own insurance cover and provided evidence of same.
- The purchaser must not pledge or assign the delivery item as security. In the event of seizure or confiscation or other disposals by third parties, the supplier must immediately inform the supplier thereof.
- Should the purchaser act contrary to the terms and conditions of the contract, in particular with respect to payment default, the supplier is entitled to redeem the item after issuing a reminder letter and the purchaser is obligated to return the property. The assertion of retention of title and the seizure of the delivery item by the supplier are not considered to be cancellation of the contract.
VII. Liability for defects caused during delivery
The supplier is liable for defects caused during delivery, which also includes the lack of expressly assured properties, excluding however other claims notwithstanding Section IX, 4 as follows:
- All parts or services which become unusable or whose serviceability has become considerably impaired within 6 months of commissioning, as a result of circumstances existing before the transfer of risk, in particular due to deficient design, poor materials or defective execution, must be remedied or resupplied without cost and at the equitable discretion of the supplier. The identification of such defect must be reported immediately in writing to the supplier. Replaced parts become the property of the supplier. Should there be a delay to the shipment, set-up or commissioning that is not the fault of the supplier, the liability shall expire at the latest 12 months after the transfer of risk.
- The right of the purchaser to assert claims for defects becomes statute-barred in all cases 6 months after receipt of notice of defect has been given, the earliest, however, at expiry of the guarantee period.
- No guarantee shall be assumed for damage caused arising from the following: Unsuitable or improper use, incorrect assembly or commissioning by the purchaser or third parties, natural wear and tear, incorrect or negligent use, unsuitable equipment, replacement materials, shoddy workmanship, unsuitable foundation, chemical, electrochemical or electrical influences, insofar as they can not be traced back to the fault of the supplier.
- For the execution of all improvements to items and replacements deemed necessary at the equitable discretion of the supplier, the purchaser must provide the required time and occasion after agreement with the supplier, otherwise the supplier is exempt from all liability for defects. Only in urgent cases of risk to operational safety or to prevent unreasonable damage, whereby the supplier must be informed immediately thereof, or if the supplier is behind schedule with the remedying of a defect, has the purchaser the right to remedy himself or commission third parties to remove the fault and to request the reimbursement of the necessary costs from the supplier.
- The supplier shall bear the direct costs arising from the improved or replacement delivery – insofar as the claim is authorised – the costs of the replacement part including the shipment and the appropriate removal/installation charges, in addition if these can be obtained fairly depending on the individual circumstances, the costs of any necessary presentation to customs for assembly men or assistants. The purchaser shall assume all other costs.
- The guarantee period for the replacement part and the repaired parts is three months. It must run, however, at least up until the expiry of the original guarantee period for the delivery item. The period of liability for defects to the delivery item is extended by the duration of the interruption to operation caused by repair/replacement work.
- The liability is removed for the consequences of changes or repair work performed by the purchaser or third parties in an improper manner without the prior approval of the supplier.
- Other claims from the purchaser, in particular a claim for the replacement of damage which has not incurred to the delivery item itself, are excluded. This liability exclusion does not apply in the case of deliberate acts or acts of gross negligence on the part of the person in possession or the head employee, as well as in the case of culpable breach of important contractual duties. In the case of a culpable breach of important contractual duties the supplier shall be liable – except in cases of deliberate acts or gross negligence on the part of the person in possession or the head employee – only for direct losses foreseeable and typical to this type of contract. The liability exclusion also does not apply in cases insofar as liability is provided under product liability law for defects to the delivery items concerning personal or material damage in relation to objects used privately. It also does not apply to the lack of expressly assured properties, if the guarantee was intended to protect the purchaser against damage not arising to the delivery item itself.
VIII. Liability for supplementary duties
If the delivered item can not be used by the purchaser in accordance with the contract as a result of the fault of the supplier from failing to perform/incorrectly performing suggestions and advice received before or after the conclusion of the contract, as well as other contractual supplementary duties – in particular instructions for the operation and maintenance of the delivery item, – then the regulations in Sections VII and IX apply accordingly to the exclusion of other claims from the purchaser.
IX. Right of the purchaser to rescission and other liability of the supplier
- The purchaser can rescind the contract if it is not possible for the supplier to provide the full service before the transfer of risk. The same applies in the case of incapacity of the supplier. The purchaser can also withdraw from the contract if the execution of a part of the delivery is impossible with respect to number when similar items were ordered and it has a justified interest in the refusal of a partial delivery; if this is not the case, the customer can reduce the valuable consideration accordingly.
- If delay of performance exists in terms of Section IV of the terms and conditions of delivery, and if the purchaser gives the defaulting supplier an appropriate grace period with the express declaration that it will refuse acceptance of the performance after the lapse of this period, the purchaser is entitled to terminate the contract.
- Should the impossibility for performance arise during delay of acceptance or through the fault of the purchaser, he shall remain obligated to provide consideration.
- The purchaser also has a right to rescission of the contract if the supplier allows the period of grace set by him for the improvement or replacement delivery regarding the defect in the sense of the terms and conditions of delivery to lapse without result and if this is his own fault. The purchaser also has the right to rescind the contract in other cases where the supplier fails to improve or replace the delivery item.
- All other further claims by the purchaser, in particular for the rescission or reduction, or replacement of damage of any kind, and in fact such damage which did not arise to the delivery item itself, are excluded. This liability exclusion does not apply in the case of deliberate acts or acts of gross negligence on the part of the person in possession or the head employee, as well as in the case of a culpable breach of important contractual duties. In the case of a culpable breach of important contractual duties the supplier shall be liable – except in cases of deliberate acts or gross negligence on the part of the person in possession or the head employee – only for direct losses foreseeable and typical to this contract. The liability exclusion also does not apply in cases insofar as liability is provided under product liability law for defects to the delivery items concerning personal or material damage in relation to objects used privately. It also does not apply to the lack of expressly assured properties, if the guarantee was intended to protect the purchaser against damage not arising to the delivery item itself.
If the purchaser is a merchant, a legal entity or a special fund as defined by the public law, all disputes arising from this contract must be asserted at the court which is in the jurisdiction of the supplier’s head office or the subsidiary where the delivery takes place. The supplier is also entitled to assert a claim in the jurisdiction of the purchaser’s head office.