§ 1 Scope
1.1 Our terms and conditions of sale apply exclusively; we do not accept contradictory terms and conditions from the customer or terms and conditions from the customer that deviate from our terms and conditions, unless we have expressly agreed in writing that they apply. Our terms and conditions of sale also apply if we, with knowledge of contradictory terms and conditions from the customer or terms and conditions from the customer that deviate from our terms and conditions, make a delivery to the customer without reservation.
1.2 Our terms and conditions of sale only apply in relation to businesses in the context of clause 310 BGB (German civil code).
1.3 Our terms and conditions of sale apply in the related version as a framework agreement also for all future transactions of the same nature with the customer, without the need for us to refer to them in each individual case; we will inform the customer about changes at the latest with the conclusion of the related contract.
§ 2 Quotation – prices – payment terms
2.1 Our quotations are subject to change and non-binding as far as a legal intention to be bound does not exceptionally and expressly arise from the quotation. A contract only comes into being with our order confirmation and exclusively with the terms and conditions confirmed in writing by us, or with a delivery.
2.2 Our prices are subject to statutory value added tax for delivery ex works (Incoterm 2020) Heidestrasse 9, 49219 Glandorf, Federal Republic of Germany.
2.3 If not otherwise agreed, payment is due at 30 days net. Any agreed discount on new invoices is not applicable if older invoices have not been paid. Payment date is the day on which the value of the incoming payment is available to us. If down payments or advance payments are agreed, the amount for the down payment or advance payment is also subject to statutory value added tax.
2.4 For payments using the SEPA direct debit scheme, the customer must issue us a SEPA mandate. The direct debit will be debited 10 days after the date of the invoice. The period for prenotification is shortened to 1 day. The customer assures that there will be sufficient funds in the account. Costs that arise due to non-payment or the chargeback of the direct debit are to be borne by the customer, as long as the non-payment or the chargeback was not caused by us.
2.5 It can be agreed between the parties to the contract that the customer must open a documentary letter of credit via the customer’s bank (or a [different] bank acceptable to us). In this situation it is specified that the opening of the letter of credit is undertaken in agreement with the Uniform Customs and Practice for Documentary Credits, 2007 edition, ICC publication no. 600 (“UCP”).
2.6 The customer only has offsetting and retention rights if the customer’s counterclaims are legally established, undisputed and recognised by us, or if compensation resulting from the contractual relationship is affected, in particular if there is a counterclaim derived from a non-cash claim with entitlement to refusal of performance. The customer is only authorised to exercise the customer’s retention right as far as the customer’s counterclaim is based on the same contractual relationship.
2.7 Subsequent changes or additions to the order or the essential results of the order are to be recorded in writing and are to be confirmed by both parties. In situations in which we provide services for which a fixed price has not been agreed, the price will be determined by us using the standard billing rates applicable at the time of the provision of the service. Furthermore, we can invoice all costs arising including a reasonable surcharge. Upon request we will document the surcharge.
§ 3 Delivery and performance
3.1 In principle, all delivery dates that we may state are non-binding unless we expressly declare dates as binding.
3.2 It is a prerequisite for compliance with all delivery and performance obligations that the customer meets the customer’s obligations correctly and in good time and that all technical questions are clarified.
3.3 We are only ever formally delayed if the customer has first issued us with a reminder – except if a specific delivery date is agreed.
3.4 The item supplied is shipped by the most economical route and at the customer’s risk and expense. If required by the customer, we will insure the delivery by means of a transport insurance policy. The resulting related costs are to be borne by the customer.
3.5 Partial deliveries are allowed if:
– the partial delivery can be used by the customer in the context of the contractually intended use,
– the delivery of the remaining item supplied from the order is assured and
– no significant additional effort or additional costs arise for the customer as a consequence (unless we declare we are prepared to assume these costs).
3.6 Customary variations in the item supplied from the order confirmations, quotations, samples, brochures, data sheets, trial and advance deliveries are permissible as specified in the related applicable DIN/EN standards or other applicable technical standards.
3.7 Items supplied from deliveries made correctly can only be returned if we agree to accept the return. In this situation, the customer must bear the costs for the return shipment.
3.8 Force majeure, official requirements and other situations for which we are not responsible, in particular strike action, lock-outs, transport disruptions and the interruption of operations, labour disputes, scarcity of energy and raw materials as well as the shortage of materials, transport bottlenecks for which we are not responsible, fire damage, pandemics, war or a state of emergency for more than 14 days exempt us from the obligation to deliver or perform for their duration, provided we have informed the customer about the performance extension. We are entitled to withdraw from the contract if the fulfilment of the contract is no longer reasonable for us for the reasons stated above. Unreasonableness does not exist if the hindrance to performance resulting from the reasons stated above is foreseeably only of a temporary nature. Claims for damages against us are excluded in these situations.
3.9.1 We are liable according to the statutory provisions if performance is impossible and if performance is delayed if this situation is due to intent or gross negligence, including the intent or gross negligence of our representatives or vicarious agents. For minor negligence, our liability due to impossibility related to compensation for damages and compensation for futile expenditure is limited to the foreseeable damages typical for the contract. Further claims by the customer due to the impossibility of performance as a result of minor negligence are excluded. The customer’s right to withdraw from the contract remains in these situations, however, unaffected.
3.9.2 Our liability for damages in addition to performance due to delay in performance as a result of minor negligence is limited to a total of 10 % and for damages in lieu of performance also to 10 % of the usual average value in the sector for the performance with which we are delayed. In these situations the customer expressly has the option of providing evidence to the contrary. Further claims by the customer due to delay in performance as a result of minor negligence are excluded – even after the expiry of a period we have been set for performance. These provisions apply also to the compensation for futile expenses as a result of minor negligence. However, these provisions related to limitation do not apply if we have agreed a binding delivery date with the customer.
3.9.3 The restrictions in this clause 3.9 also do not ultimately apply if we are liable due to intentional or grossly negligent infringement of an obligation, harm to life, personal injury or harm to the health, if a guarantee is assumed for the characteristics or the existence of successful performance, or if the procurement risk is assumed, or if there are mandatory statutory liability conditions (e.g. Produkthaftungsgesetz (German law related to product liability)) or if essential contractual obligations are infringed. Essential contractual obligations are those that shape the fulfilment of the contract and on which the customer may rely. The above provisions do not change the burden of proof to the disadvantage of the customer.
§ 4 Export controls and product approval
4.1 If the customer resells the goods delivered by us or the works and services provided by us to a third party, the customer must comply with the applicable national, European and international (re-)export control regulations. In any circumstance, the customer has the obligation, if such goods, works or services are resold to a third party, to observe the (re-)export control regulations of the Federal Republic of Germany, the European Union and the United States of America. If approval by the related authority should be necessary due to these regulations, the customer undertakes the obligation to apply for this approval independently and at the customer’s expense and to inform us about this situation.
4.2 If the customer resells the goods delivered by us or the works and services provided by us to a third party, the customer has the obligation to check and ensure by means of suitable measures that
4.2.1 the customer, by reselling the goods delivered by us or the works and services provided by us to a third party, or by means of the provision of other resources in relation to such goods, works and services, does not infringe an embargo of the European Union, the United States of America and/or the United Nations – also taking into account any restrictions on domestic transactions and any anti-circumvention provisions;
4.2.2 these goods, works and services are not intended to be used for a prohibited use or for a military-related, nuclear-related or weapons-related use requiring approval, unless all necessary approvals are available;
4.2.3 the provisions in all applicable sanction lists issued by the European Union and the United States of America related to business transactions with businesses, persons or organisations stated in the lists are met.
4.3 Given a corresponding request, the customer will substantiate to us, without delay, that the products delivered do not infringe the relevant regulations stated above.
4.4 The customer exempts us in full from all claims asserted against us by the authorities or other third parties due to culpable infringement of the above statutory export control obligations by the customer and undertakes the obligation to pay compensation for all damages and expenses incurred in this context.
§ 5 Reservation related to price adjustment and self-delivery
5.1 The price stated by us and agreed with the customer is in principle subject to reservation. If, between order award and the delivery, there is a period of more than three months, we are entitled, with purpose of preserving contractual equivalence, to increase the agreed price proportionately, if between order award and delivery the costs for raw materials, energy, wages and salaries, customs duties, fees, transport, etc. have increased for reasons for which we are not responsible (for example due to the Corona pandemic and/or the effects of the war in the Ukraine) and as result the costs for the manufacture and delivery of the item supplied to the customer have increased. The increase in one or more cost items will not result in a price increase if the prices for other cost factors reduce at the same time and equivalence can be maintained. As such, a price increase for the purposes of increasing profits is excluded. We will inform the customer in advance about a price increase. The customer can then object within 10 days of the reception of the notification of the price increase. If there is an objection, we can choose between withdrawal from the contract or delivery for the price originally agreed. If we declare withdrawal from the contract due to objection to the price increase, further claims by the customer are excluded.
5.2 If we cannot meet binding delivery dates for reasons for which we are not responsible (non-availability of performance), we will inform the customer about this situation without delay and at the same time provide the new, expected delivery date. If performance is also not available by the new delivery date, we are entitled to withdraw partially or completely from the contract; we will reimburse without delay any related customer payment already made. Non-availability of performance in this context is in particular the failure of self-delivery by our suppliers on schedule, if we have concluded a congruent hedging transaction, if there are other disruptions in the delivery chain, for instance, due to force majeure for which neither we nor our supplier are responsible, or we have no obligation to procure in the specific case.
§ 6 Due date – interest – consequences of delay
6.1 If payment is made after the expiry of the agreed period allowed for payment, interest is to be paid to us on the arrears in the amount stipulated by law.
6.2 As long as the customer is in arrears with payment, we have no obligation to make further deliveries, irrespective of the legal basis for our obligation to deliver.
6.3 If a significant degradation in the customer’s financial circumstances occurs, in particular if an application is made to initiate insolvency proceedings, for outstanding deliveries we can cancel the period allowed for payment and require payment in cash or some other form of surety before delivering the item supplied.
6.4 If we have agreed with the customer payment by instalments and/or payments on account, the following also applies: If the customer falls into arrears with the payment of an instalment or payment on account, in full or partially, for longer than three days, the remaining amount due becomes due immediately and in full in one payment.
6.5 If the shipment is delayed due to the customer’s fault or at the customer’s request, or if the customer’s acceptance is delayed on the due date, the customer must nevertheless pay the purchase price. In these situations, we will store the item supplied at the risk and expense of the customer starting from 14 days after notification of readiness to ship.
6.6 If a surety for the payment of the purchase price has been provided by a bank or other third party and item supplied cannot be delivered due to the customer’s delayed acceptance, we are also entitled to claim the total remaining purchase price still due from the bank or other third party against submission of proof that the goods to be delivered have been stored. Such storage is at the customer’s expense and risk. The date on which the item supplied is stored by us is considered the delivery date. All delivery documents and other documents that must be provided by us to obtain payment from a bank or other third party are to be provided to us by the issuer of these documents without delay.
§ 7 Retention of title
7.1 We reserve the title to the item supplied until all claims we hold against the customer from the business relationship are fulfilled. If the customer acts contrary to the contract, in particular if the customer is in arrears with payment, we are entitled to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace. After any withdrawal from the contract, we have the right to reclaim the item supplied, to sell it to another customer or otherwise dispose of it.
7.2 The customer has the obligation to treat the item supplied with care; in particular the customer has the obligation, at the customer’s expense, to insure the item supplied sufficiently at replacement value against damage caused by fire, water or theft. If maintenance or inspection work is necessary, the customer must undertake this work punctually at the customer’s expense.
7.3 Despite the retention of title, the customer is still entitled to resell the item supplied in normal business transactions. The customer is not permitted to pledge the item supplied or assign it as a security. The customer already now assigns to us the receivable from the purchaser arising from the resale of the item supplied in the amount of the final invoice (including value added tax) agreed with us. This assignment applies independent of whether the item supplied is resold without processing or after processing. The customer remains entitled to collect the receivable even after assignment. Our authority to collect the receivable ourselves remains unaffected. However, we will not collect the receivable as long as the customer meets the payment obligations from the proceeds collected, is not in arrears with payment and, in particular, no application has been made to initiate insolvency proceedings or payment has not been suspended. Should one of the situations mentioned above arise, we can demand from the customer that the customer makes known to us the assigned receivables and the related debtors, notifies the related debtors about the assignment and provides to us all documents as well as all information we require to assert the claims.
7.4 If seizures or other interventions by third parties occur, the customer must notify us immediately in writing so that we can take legal action as per clause 771 ZPO (German code of civil procedure). If the legal action as per
clause 771 ZPO (German code of civil procedure) is successful and enforcement at the third party does not cover the judicial and extrajudicial costs of such legal action, the customer is liable to us for the loss incurred.
7.5 The processing or reshaping of the item supplied by the customer is always undertaken for us. If the item supplied is processed with other items not belonging to us, we obtain joint ownership of the new item proportional to the value of the item supplied (final invoice amount including value added tax) in relation to the other items processed at the time of the processing. The same applies to the item produced by the processing as to the item supplied with reservation.
7.6 If the item supplied is inseparably mixed with other items not belonging to us, we obtain joint ownership of the new item proportional to the value of the item supplied (final invoice amount including value added tax) in relation to the other items processed at the time of the processing. If the mixing occurs such that the customer’s item is to be considered the principle item, then it is considered agreed that the customer transfers to us pro rata ownership. The customer holds the resulting sole ownership or joint ownership for us.
7.7 To secure our claims against the customer, the customer also assigns to us the claims arising against a third party due to combining the item supplied with a property.
7.8 We undertake the obligation to release the sureties due to us upon request from the customer if the value that can be realised with our sureties exceeds the claims to be secured by more than 10 %. The sureties to be released will be selected at our discretion.
§ 8 Liability for defects
8.1 It is a prerequisite for claims for defects made by the customer that the customer has met the customer’s obligations to inspect and notify defects according to clause 377 HGB (German commercial code).
8.2 We do not accept any liability for second-hand machines or equipment (balers).
8.3 Weights, dimensions, performance date, yields and other data stated in sales brochures, advertisements and comparable documents are only to be considered approximate. The same applies to the performance and characteristics of trial machines or demonstration machines exhibited or made available.
8.4 As far as there is a defect in the item supplied for which we are responsible, we are entitled, at our discretion, to provide supplementary performance in the form of the rectification of the defect or to deliver a new, defect-free item. If the defect is rectified, we have the obligation to bear all expenses necessary for the purpose of rectifying the defect, in particular transport costs, travel costs, labour costs and material costs, provided these are not increased by the relocation of the item supplied to a place other than the place of fulfilment.
8.5 If the supplementary performance fails, which is to be assumed at the earliest after the 2nd attempt at improvement or supplementary performance, supplementary performance is rejected or is unreasonable, the customer is entitled, at the customer’s discretion, to withdrawal or a price reduction. If not otherwise specified below (clause 8.6, 8.7 and 8.8), further claims by the customer are excluded – irrespective of the legal basis. We are therefore not liable for damages that did not occur on the item supplied; in particular we are not liable for loss of production, the interruption of business, the costs for any recall campaign, lost profits or other financial losses incurred by the customer. The following also applies to foreign transactions: if the effort and costs for improvement by us would be disproportionate, we can request the customer to undertake the necessary repairs or have the necessary repairs undertaken. We must then compensate the customer for costs incurred by the necessary improvement work.
8.6 Irrespective of the above we are liable in accordance with statutory provisions if the customer asserts claims for damages due to intent or gross negligence, including the intent or gross negligence of our representatives or vicarious agents.
8.7 We are also liable in accordance with statutory provisions if we are culpable of infringing an essential contractual obligation, essential contractual obligations are those that shape the fulfilment of the contract and on which the customer may rely. However, the liability to pay damages for minor negligence is limited to the amount in accordance with the foreseeable, typically occurring damage.
8.8 The liability if a guarantee for the characteristics or the existence of successful performance is assumed or if a procurement risk is assumed in accordance with clause 276 BGB (German civil code) remains unaffected. The same applies to the liability for culpable harm to life, personal injury or harm to the health and mandatory liability, in particular in accordance with the Produkthaftungsgesetz (German law related to product liability).
§ 9 Assembly, commissioning, maintenance and services
9.1 Subject to an agreement to the contrary, installation and assembly of the items supplied are undertaken by the customer at the customer’s risk.
9.2 In the situation that we have undertaken contractually to install and assemble, the following applies:
9.2.1 The customer must make available, to a sufficient degree, resources and equipment, including cranes and forklift trucks, etc. for unloading and installing the items supplied. The customer is also to provide, in good time and at the customer’s expense, all tools, qualified employees, oil, lubricant, water, steam, oxygen, electrical power, air, drawings and data, raw materials as well as other articles, preparatory work and services necessary for the installation and commissioning of the item supplied. These items include especially an appropriate workplace and storage area close to the place at which the commissioning work is to be undertaken;
– the positioning of the equipment in the installation area, which is in an appropriate state, for starting the installation;
– all necessary construction work, in particular related to the surface, the cabling, lines, anchor screws, floor channels, frames, gratings, cover plates, carriers for supporting the lines and cabling, and for mounting suspended conveyor belts and equipment on the roof structure;
– delivery, installation and connection of all cables required, except device-internal cables, including mains cables, data cables, control and signal cables, etc. from the main control panels and control centres to and between the connection points on the individual parts of the equipment as per our circuit diagrams, including screened cable ducts or cable ties for mains and data cables as per our specifications;
– standard IT hardware and software as planned (if not included in the quotation);
– positioning of the main server (if present) in a dry, clean, air-conditioned room with sufficient telephone and data cable connections to our supervisory personnel and online service;
– work permits and other approvals necessary in the country where the equipment is to be installed.
9.2.2 The customer must prepare the space for the installation work at the customer’s expense and in accordance with the contractual agreements and ensure that the necessary electrical power connections and technical facilities are available. The customer is solely responsible for the structural design. Before the start of the installation work, the customer must provide us with all necessary information about the position and availability of supply connections, e.g. electrical power, gas and water lines and other installations. This statement applies in particular to hidden installations. We are not liable for damage that arises because the customer has not met the above obligation.
9.2.3 It must be possible to drive to the installation location for the machine without hindrance, an appropriate crane must be available or the building floor must be able to withstand a truck or mobile crane. The building floor must be cleared in the area required for the installation of the machine.
9.2.4 Before the start of the installation of a machine, the parts supplied must be available on site. Construction work and other preparatory work must be completed to the extent that installation can be started immediately after the arrival of the fitter and can be undertaken without interruption. New buildings must be dry, wall and ceiling finishes must be complete and windows and doors installed. The customer ensures that the necessary foundation suitable for the specific nature of the machine to be installed and with sufficient load-bearing capacity is available (concrete levelled using spirit level). Any measures for the insulation of structure-borne noise are organised by the customer.
9.2.5 We charge the current hourly rates for the services provided by our fitters (if necessary with surcharges for overtime, work on weekends, bank holidays or at night). The usual surcharges apply to work on Sundays and bank holidays. Accommodation costs, daily expenses, travel costs as well as allowances for working in the field are charged separately. Mileage and an hourly rate at the current rates are charged for travel to and from the site. The mileage will be calculated from Glandorf. Extra journeys by fitters, for example to procure spare parts, etc., are charged in the same way, provided these are necessary for the commissioning of the machine and only became apparent while undertaking the installation work. The prices stated are subject to statutory value added tax.
9.2.6 All additional parts necessary during installation that are not expressly listed and that are necessary for commissioning due to the extraordinary, unforeseeable local situation or due to a special request from the customer or due to requirements from the local supervisory authority are charged separately with corresponding documentation.
9.2.7 Interruptions to installation work due to missing connections, construction work, power failure, etc. for which we are not responsible are at the expense of the customer, unless the customer is not responsible.
9.2.8 Additional work not included in the contractually agreed scope of delivery is charged as incurred. This aspect is to be agreed separately between us and the customer. Time spent waiting while on site or additional fitter trips to commission the machines is at the expense of the customer, unless the time spent waiting is due to a circumstance for which the customer is not responsible.
9.2.9 Any flat rate installation fees agreed do not include any work on Sundays or bank holidays; flat rate installation fees only apply if all preparatory measures on site have been concluded.
9.2.10 Costs for assistance to our technical staff (electrician, auxiliary staff and suitable lifting equipment) during the period the work commissioned is undertaken are borne by the customer, as far as these are required. The customer is entitled to demonstrate to us that assistance was not necessary for the implementation of the order.
9.2.11 All machines are supplied with the operating instructions made available by the related manufacturer. Costs for the instruction of personnel are not included in the purchase price and are charged based on the time expended in accordance with our rates for installation.
9.2.12 The correct implementation of the work specified in the order is to be confirmed to us by the customer in the installation report. The customer receives one copy for the customer’s records.
9.2.13 If not otherwise agreed in the contract, we are not liable for:
– interfaces between our equipment and/or our software on the one hand and elements provided by the customer or third parties on the other hand;
– compatibility with other customer software;
– coordination between our work and the work of other suppliers.
9.3 Maintenance work is only undertaken by us to the extent described in the contract or a special service contract. The provisions of the specific service contract apply to the services.
9.4 If the customer undertakes the service work, in particular installation and commissioning, we are exempted of any liability. We are, in particular, not responsible for unsatisfactory implementation by the customer that does not comply with our recommendations, drawings or specifications. Our employees also do not check whether all their instructions are correctly implemented by the customer.
§ 10 Government regulations/safety/use
10.1 We do not warrant that the equipment meets all the locally applicable provisions related to health and safety or other local regulations, in so far as this compliance was not expressly agreed in writing in the contract. If an inspection by the local (supervisory) authorities is necessary before the commissioning of the equipment, this aspect also falls under the responsibility of the customer.
10.2 The customer ensures that our employees can undertake their work without hazards for their health.
10.3 The products are only intended for the use expressly described in the contract and in our manuals. We are not liable for any other use of the products, even if this use is known to us.
10.4 The customer holds us harmless in relation to all claims from the customer’s employees, representatives or third parties due to injury or damage caused directly or indirectly by the failure of the customer, the customer’s employees, representatives or other third parties to follow our safety, operating, and/or maintenance instructions. This holding us harmless includes all costs arising for us including our legal fees and expenses incurred.
§ 11 Supplementary conditions for software
11.1 We grant the customer utilisation rights for the software provided and other copyright-protected results of our work in the scope of the contractually foreseen purpose. If not otherwise agreed, we grant the customer, for the usage period or contractual period or otherwise time-limited, a non-transferable, non-exclusive utilisation right for the installation of this software in a database and for the utilisation of this software as embedded software or application software, depending on the manner described in the contract. The customer is not entitled to transfer the utilisation rights granted to the customer, either in full or partially, to third parties or to grant third parties corresponding utilisation rights. We reserve the right to terminate this licence if the provisions of the licence are infringed or the customer violates the provisions of the underlying contract in any other manner.
11.2 If the utilisation rights were only transferred for a limited time or the transfer of the licence ends for other reasons, all rights transferred return to us after the expiry of the licence without the need for any other legal proceedings. The customer has the obligation to delete all licenced products available to the customer and to return the documentation.
11.3 The provision of the source code to the customer is excluded, if not otherwise expressly agreed.
11.4 If, for the implementation of the order, we involve the services and results of work, in particular utilisation rights, of third parties, we will procure the related utilisation rights to the extent necessary for the implementation of the order and transfer them to the customer. If it is not possible for us to procure the utilisation rights to this extent or if there are restrictions on the utilisation rights or other rights of third parties, we will inform the customer. The customer must respect these restrictions. We do not have the obligation to secure utilisation rights for services and works made available by the customer.
11.5 The customer is entitled to make a copy of the software exclusively for the purposes of backing up the software; this copy must be labelled as such and it must be indicated that we are the copyright holder.
11.6 The customer is not permitted to remove any copyright notices.
11.7 The customer undertakes the obligation not to modify, not to decompile, not to reverse engineer and not to copy the software, except as expressly approved in these general terms and conditions of sale.
11.8 A separate maintenance and/or service and support agreement is a prerequisite for maintenance and service measures on software transferred.
11.9 We will only transfer to the customer the utilisation rights necessary for the utilisation of our products and services to the extent described above once all claims for payment, fees and reimbursement of costs related to the order have been paid.
11.10 If data are lost, we are only liable for the effort necessary for the restoration of the data given correct data backup by the customer. We are only liable for minor negligence if the customer has undertaken a correct data backup immediately before the measure that led to the loss of data.
11.11 Our liability and warranty are excluded if damage and/or malfunctions are caused by the culpable infringement of provisions of this contract by the customer, the customer modifies the software supplied by us contrary to the contractual provisions or our instructions, or the software supplied by us is not used in the system environment agreed in the contract.
11.12 If we have the obligation to deliver and transfer items or software or to prepare other works, for example assessments, analyses, the provisions of clause 8 apply correspondingly if the delivery or service is defective.
11.13 The liability restrictions apply correspondingly to the personal liability of our employees, representatives and vicarious agents.
11.14 The liability restrictions in accordance with this clause 11 do not apply if we are liable due to intentional or grossly negligent infringement of an obligation, harm to life, personal injury or harm to the health, if a guarantee is assumed for the characteristics or the existence of successful performance, or if the procurement risk is assumed, or due to mandatory statutory liability conditions (e.g. Produkthaftungsgesetz (German law related to product liability)), or due to the infringement of essential contractual obligations. Essential contractual obligations are those that shape the fulfilment of the contract and on which the customer may rely. The above provisions do not change the burden of proof to the disadvantage of the customer.
§ 12 Rights to intellectual property and industrial property rights
12.1 All rights to intellectual property and the industrial property rights related to the products, cost estimates, drafts, drawings and other documentation, e.g. patents, utility models, registered designs, copyright and trademark rights remain with us. The customer undertakes the obligation not to assert any rights to intellectual property or industrial property rights related to the products or related to modifications to the products.
12.2 We will defend the customer against any claims deriving from an infringement of rights listed in clause 12.1 due to the use of our products in accordance with the contract and assume the costs and damages imposed on the customer, provided the customer has notified us in writing and without delay of such claims and if defensive measures and settlement negotiations remain open to us.
12.3 If the object of the contract infringes the intellectual property right and/or industrial property right of a third party, at our discretion we will replace or modify the object of the contract at our expense such that it no longer infringes the rights of a third party but nevertheless fulfils the contractually agreed functions, or procure the utilisation right for the customer by concluding a licence contract. If we do not manage to complete this action within a reasonable period, the customer is entitled to withdraw from the contract or to reduce the purchase price by an appropriate amount. Any claims for damages by the customer are subject to the restrictions in clause 8.5 to 8.7 of these general terms and conditions of sale.
12.4 If the intellectual property rights and/or industrial property rights of a third party are infringed by products from other manufacturers supplied by us, at our discretion we will assert claims against the other manufacturer for the purchaser or assign them to the purchaser. Claims against us exist according to clause 12 only if the judicial enforcement of the claims mentioned above against the other manufacturer was unsuccessful or is impossible, for example, due to insolvency of the other manufacturer.
12.5 All information and documents supplied by us to the customer remain our property, are not permitted to be copied by the customer, disclosed to third parties and are only permitted to be used for purposes agreed. Upon request, all drawings and other documents belonging to quotations are to be returned to us. If we have delivered products according to drawings, models, samples or other documents provided by the customer, the customer is liable for ensuring the property rights of third parties are not infringed. If third parties forbid us, in particular, to manufacture and deliver such items with reference to property rights, we are entitled – without the obligation to check the legal situation – to stop all further activity and to demand damages if the customer is culpable. The customer also undertakes the obligation to exempt us from all related claims asserted by third parties without delay.
12.6 The customer undertakes the obligation that our products and their components will not be monitored, examined, reverse engineered or tested to access our trade secrets. This statement does not apply if we have made the products publicly available.
§ 13 Exclusion of further liability
13.1 Liability for damages beyond that foreseen in detail in the conditions above is excluded – irrespective of the legal nature of the claim asserted. This statement applies in particular to claims for damages resulting from fault in conclusion of the contract, due to other infringements of obligations or due to tortious claims for damages as per clause 823 BGB (German civil code). In the event of a claim for damages resulting from fault in conclusion of the contract, the liability exclusion specified above as a consequence of the claim already resulting at contract conclusion is the same as a subsequent liability waiver.
13.2 The restriction according to clause 13.1 also applies as far as the customer instead of a claim for damages, claims compensation for fruitless expenses instead of performance.
13.3 As far as liability for damages on our part is excluded or restricted, this situation also applies in relation to the personal liability for damages of our staff and employees, staff representatives and vicarious agents.
13.4 However, the restrictions in this clause 13 do not apply if we are liable due to intentional or grossly negligent infringement of an obligation, harm to life, personal injury or harm to the health, if a guarantee is assumed for the characteristics or the existence of successful performance, or if the procurement risk is assumed, or due to mandatory statutory liability conditions (e.g. Produkthaftungsgesetz (German law related to product liability)), or due to the infringement of essential contractual obligations. Essential contractual obligations are those that shape the fulfilment of the contract and on which the customer may rely. The above provisions do not change the burden of proof to the disadvantage of the customer.
§ 14 Limitation period
Claims asserted by the customer against us – irrespective of the legal reason – become time-barred one year after they arose. This statement does not apply to the situations in clauses 438 para. 1 no. 2, 634a para. 1 no. 2 and clauses 478, 445a BGB (German civil code). This statement also does not apply if there is intent or fraudulent concealment of a defect, or as far as we have assumed a guarantee as well as the acceptance of a procurement risk. This limitation period also does not apply to claims for damages if there is harm to life, personal injury or harm to the health, to claims in particular in accordance with the Produkthaftungsgesetz (German law related to product liability) as well as if there is grossly negligent infringement of an obligation or infringement of essential contractual obligations. Essential contractual obligations are those that shape the fulfilment of the contract and on which the customer may rely. The above provisions do not change the burden of proof to the disadvantage of the customer.
§ 15 Other provisions
15.1 Court of jurisdiction is 49219 Glandorf, Federal Republic of Germany. We also have the right to take legal action in the court responsible for the customer or in any other court that is responsible in accordance with national or international law.
15.2 Place of fulfilment is also 49219 Glandorf, Federal Republic of Germany.
15.3 The customer is not entitled to transfer any guarantee or warranty rights or other rights granted to the customer in the context of the contractual relationship with us, unless we have agreed to the transfer in writing.
15.4 For all legal relationships between the customer and us and in relation to this contract, the law of the Federal Republic of Germany applies with the exclusion of the reference provisions of German international private law and the UN Sales Convention.
Strautmann Umwelttechnik GmbH
Date: 17 April 2023