General Conditions of Sale for Products and Services El-O-MATIC GmbH
In the sense of these general conditions of sale the supplier means to be “EL-O-MATIC GmbH“; “Purchaser” means the person, company, firm or corporation placing an order; “Products” means the products (including software and documentation according to the definition in article 9), as described in the order confirmation of the supplier; “Services” means the services as described in the order confirmation of the supplier; “Contract” means the written agreement (including these general conditions of sale) for supplies and products and / or the provision of services between purchaser and supplier; “Contract Value” means the price to be paid by the purchaser to the supplier for products and / or services and “Affiliated Companies of the Supplier” means any company of EL-O-MATIC GmbH affiliated, as described in § 15 AktG (German Stock Corporation Act).
2. The Contract
2.1 Contracts are to be created in writing. They will be accepted according to these general conditions of sale. Conditions of the purchaser and confirmations, warranties, guarantees and other declarations not part of the offer or order confirmation of the supplier or which the supplier do not explicitly agreed to in writing are not binding to the supplier.
2.2 The contract will only become valid with the order confirmation of the supplier. In case of differences between products and services according to the description in suppliers offer and the products and services according to the description in suppliers order confirmation, the order confirmation is authoritative.
2.3 Contract changes demand a written agreement between the parties. The supplier reserves the right to make small changes and / or improvements to the products as long as the functionality of the products is not impaired and the contract value or date of delivery is not affected.
3. Quote validity and prices
3.1 The supplier quote is valid for the time period as mentioned in the quote document or, in case no period is mentioned, for 30 days since the date of the offer, except the quote has been withdrawn before.
3.2 The prices are fixed for supplies as mentioned in the supplier quote. They are to be understood as (a) without value added tax and (b) without any other tax, fees or charges as they would usually occur for contract execution outside of Germany.
3.3 If not declared differently in the suppliers offer, the prices for products are ex works, suppliers shipping point, without freight, insurance, handling and packing. In case packing is demanded, such packing material cannot be returned.
4.1 Any payment is to be made without any compensation, counter claim or deduction (except as determined by law) within 30 days after receipt of the invoice in full, in the currency as stated by the suppliers offer, if not agreed differently with the finance department of the supplier. Die Fakturierung der Produkte erfolgt jederzeit nach Anzeige der Versandbereitschaft der Produkte an den Besteller. The invoicing of services happens afterwards, on a monthly base or at the time of finalization of the service. The supplier reserves his right, irrespective of its other rights, (i) to claim interest for delay in height of 8% above the base interest rate according § 247 BGB for the delayed time period, (ii) suspend the contract execution (including the withhold of supplies) if the purchaser is not making due payments in the frame of the contract or any other agreement or is probably not making any payments according to the suppliers due diligence investigation, and (iii) claim a reasonable security on behalf of the payment.
4.2 Offsetting by the purchaser is only permitted with recognized or legally established claims. The purchaser can only exercise a right of retention if it is based on the same contractual relationship.
5. Delivery time
5.1 If not agreed differently in the suppliers offer, all delivery and completion periods will start with the contract acceptance by the supplier and are to be seen as approximate periods, without acceptance of any kind of contractual obligation.
5.2 In the event of delay or prevention of fulfillment of contractual obligations by the supplier due to acts or omissions of the customer or his agents (including, among other things, failure to provide specifications and / or construction drawings with complete dimensions and / or other information that the supplier appropriately requires in order to meet its contractual obligations), both the delivery time / completion time and the contract price are subject to be adjusted accordingly.
5.3 If the delivery is delayed due to an act or omission of the purchaser or if the purchaser does not accept the delivery or does not provide adequate shipping instructions after he has been informed that the products are ready for dispatch, the supplier can store the products in a suitable manner at the purchaser’s expense. With the storage of the products, the delivery is deemed to be made and the risk for the products passes to the purchaser and the purchaser will make the corresponding payment to the supplier.
6. Force majeure
6.1 The contract (except the obligation of the purchaser to pay all amounts owed to the supplier in accordance with the contract) will be suspended without liability in the event of delay or prevention of performance of the contract due to circumstances beyond the reasonable control of the party concerned, in particular force majeure, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage, government decisions or measures (in particular export or re-export bans or non-issue or revocation of necessary export permits) or unrest, strike, lockout or court order. The supplier is not obliged to deliver hardware, software or technology or to provide services if permits have not been granted as part of the import and export control or if legal requirements for the exemption from the authorization requirement have not been met (in particular, according to the regulations, which apply in the United States, the European Union and in the jurisdiction in which the registered office of the supplier is located or from which components of the products are supplied) and the respective circumstances were not foreseeable for the supplier and are outside the sphere of influence of the supplier. In the event of revocation of governmental approvals or in the event of a change in the applicable import and export control provisions in such a way that the supplier is prevented from fulfilling the contract, the supplier is released from the contractual obligations without any liability on the part of the supplier.
6.2 In the event of delay or prevention of the fulfillment of a party’s obligations based on this clause 6 for a period of more than 180 consecutive calendar days, each party may terminate the part of the contract that was not fulfilled at the time by writing to the other party without liability, provided that the purchaser is obliged to reimburse the reasonable costs and expenses for work started and to pay for all products and services delivered up to the time of termination.
7. Check, test and calibration
7.1 The products are checked by the supplier or the manufacturer before dispatch and, if feasible, subjected to the standard tests of the supplier or the manufacturer. Additional checks or tests (including checks by the purchaser or his representative or tests in the presence of the purchaser or his representative and / or calibration) or the issuing of test certificates and / or the communication of detailed test results require the prior written consent of the supplier, whereby the supplier reserves the right to invoice them. If the purchaser or his representative does attend such checks, tests and / or calibrations after the readiness of the products for these checks, tests and / or calibrations has been announced with a period of seven days, these will be carried out and are considered to be in the presence of the purchaser or his representative. The supplier’s declaration that the tests and / or examinations of the products have been passed or that the calibrations of the products have been carried out correctly is binding.
7.2 Prerequisite for warranty claims of the purchaser is the proper fulfillment of the obligation to examine and give notice of defects according to § 377 HGB (commercial Code Germany).
8. Delivery, transfer of risk and ownership
If not agreed differently in the contract, products are supplied “Carriage Paid To“ (CPT) contractual place of delivery. Freight, packing and handling will be invoiced according to regular prices of the supplier. The risk of loss and damage is transferred to the purchaser with the supply. The purchaser is responsible for the insurance of the products after the transfer of risk. Insofar as it is expressly stipulated in the contract that the supplier is responsible for the insurance of the products after delivery to the carrier, the insurance will be invoiced at the usual prices of the supplier. The terms “ex works”, “FCA”, “CPT” and other delivery terms used in the contract are defined in the sense of the latest version of the Incoterms.
9. Documentation and software
9.1 The ownership of the copyrights to software and / or firmware that has been included in the products or made available for use with the products (“software”) and in the documentation supplied with the products (“documentation”) remains with the respective associated company of the supplier (or another party that supplied the software and / or documentation to the supplier) and is not transferred to the customer hereby.
9.2 Unless otherwise stipulated in these conditions, the customer hereby receives the non-exclusive, royalty-free right to use the software and the documentation in connection with the products, and as long as the software and the documentation are not reproduced (unless this is expressly permitted under applicable law) and the customer treats the software and the documentation strictly confidential and does not disclose them to others and does not grant others access to them (except for the supplier’s normal operating and maintenance manuals). The purchaser can transfer the license mentioned above to another party who buys, rents or leases the products, provided that other party confirms the conditions of this section 9 in writing and recognizes them as binding on them.
9.3 Without prejudice to Section 9.2, only the respective license conditions of the supplier’s affiliated company or a third party apply to the use of certain software by the purchaser.
9.4 The supplier and the affiliated companies of the supplier remain the owner of all inventions, constructions and processes made or developed by them and, apart from the provisions in section 9, no commercial or industrial property rights are hereby granted.
10. Liability for defects
10.1 The supplier guarantees that the products and services have the agreed quality at the transfer of risk. Unless otherwise agreed, the agreed quality corresponds to the supplier’s specifications that are valid and announced when the order is confirmed.
10.2 In case products and services have not the agreed quality at the transfer of risk, the supplier guarantees by supplementary performance that he either repairs or replaces the parts concerned (rectification) or replaces the products or services with faultless products or services (new delivery).
10.3 The supplier can make several repairs due to a defect and, at his discretion, change from the rectification to a new delivery. He bears all costs incurred by the supplementary performance, in particular transport, travel, labor and material costs, insofar as these do not arise from the fact that the products have been moved to a location other than the place of performance.
10.4 The purchaser can provide a reasonable grace period of at least four weeks to the supplier in order to allow supplementary performance and, if the supplementary performance fails during the period, after the deadline request a reduction or, if the defect is not insignificant, withdraw from the contract. Compensation can only be claimed in accordance with Section 12.
10.5 Claims and rights due to defects become statute-barred, except in case of intent, twelve months after commissioning the products, but no later than eighteen months after delivery. Claims for damages due to defects become statute-barred if they are based on injury to life, body or health or due to gross negligence on the part of the supplier after the statutory period has expired.
10.6 The supplier is not liable for normal wear and tear, material provided by the purchaser or processing of the products by the purchaser, damage due to improper storage or improper installation or operation or due to a lack of proper maintenance as well as damage due to a change or repair not previously approved in writing by the supplier. The supplier is also not liable for the use of unauthorized software or unauthorized replacement or replacement parts. The costs incurred by the supplier for the examination and correction of such defects are paid by the purchaser on request. The purchaser is always solely responsible for the completeness and correctness of all information provided by him.
10.7 For products or services the supplier obtains from a third party (but not from affiliated companies of the supplier) for the purpose of resale to the purchaser, the supplier assigns all warranty rights against this third party to the purchaser. The supplier also remains obliged to assume the warranty specified in the aforementioned paragraphs for the purchaser, provided, however, that the customer has previously unsuccessfully attempted to enforce the assigned warranty rights against the third party.
11. Liability for property rights
11.1 The supplier warrants that at the transfer of risk there are no patents or other third party property rights that can be asserted in relation to the products or the services within the scope of the intended use. The aforementioned paragraphs 10.2 to 10.5 and 10.7 apply accordingly.
11.2 The supplier’s liability is excluded if a patent or property right of a third party is violated because the supplier has followed a design provided by the purchaser or an instruction given by the purchaser, or because the products are used in a way for a purpose, in a country or in connection with other products or other software, and this was not announced to the supplier before the contract was concluded.
11.3 The purchaser is obliged to inform the supplier in writing at the earliest possible point in time during the term of his warranty if a third party claims a patent or other property right with regard to the products or the services or asserts claims in or out of court. The purchaser will give the supplier the opportunity to comment before accepting a claim asserted by a third party in or out of court. Upon request, the supplier is to be given the authority to conduct the negotiations or litigation with the third party for his own account and under his own responsibility. The purchaser is liable to the supplier for any damage that arises from the culpable violation of the aforementioned obligations.
11.4 The customer guarantees that the use of a design provided by him or compliance with the instructions given does not result in the supplier violating patents or other property rights in the fulfillment of his contractual obligations. The purchaser will indemnify the supplier against all reasonable costs and damages incurred by the supplier due to non-compliance with the purchaser’s guarantee.
12.1 The supplier is only liable to the purchaser for damage caused by gross negligence or willful misconduct. In the event of a breach of essential contractual obligations, the supplier is liable for any culpable behavior on the part of its employees (legal representatives, managers and other vicarious agents).
12.2 Except in the event of intentional damage caused by employees of the supplier or grossly negligent damage caused by legal representatives or senior employees of the supplier, the supplier is not liable for the compensation of indirect damage, especially not for the replacement of loss of profit, unless this damage is covered by the protective purpose of an expressly declared guarantee.
12.3 Except in the case of intentional damage caused by employees of the supplier or grossly negligent damage caused by legal representatives or executives of the supplier, the liability of the supplier is limited in all cases to the amount typically foreseeable at the time the contract was concluded.
12.4 Claims for damages due to injury to life, body and health, the violation of a warranty expressly given in writing by the supplier, as well as those under the Product Liability Act remain unaffected.
13. Legal and other provisions
13.1 In the case of the extension or limitation of the contractual obligations of the supplier due to the adoption or amendment of a law or regulation, edict or statute with legal force after the date of the offer of the supplier, which affects the fulfillment of the obligations of the supplier from the contract, the contract price and delivery time will be adjusted accordingly and / or the fulfillment of the contract will be suspended or possibly terminated. There will be no price adjustment if the delivery is to be carried out within four months of the conclusion of the contract.
13.2 To the extent that it is not required under applicable law, the supplier is not responsible for the collection, treatment, recovery or disposal (i) of the products or any part of the products, provided that this is considered “waste” by law or (ii) any objects for which the products or any part of the products are spare parts. If the supplier is obliged under applicable law (including waste law with regard to electrical and electronic devices, EU directive 2002/96 / EC (WEEE) and corresponding laws in the EU member states) to dispose products or any part of the products as “waste”, and if the purchaser is not prevented from doing so by applicable law, the supplier shall, in addition to the contract price, either (i) pay the supplier’s regular fee for the disposal of these products or (ii) if the supplier does not have such a regular fee, pay the costs of the supplier (including all processing, transport and recovery costs and a reasonable overhead surcharge) for the disposal of these products.
13.3 As long as they are on the supplier’s premises, the customer’s employees will comply with the supplier’s applicable operating regulations and the supplier’s appropriate instructions, in particular the regulations and instructions relating to safety and electrostatic discharge.
14. Compliance with laws
The customer confirms that the receipt and use of hardware, software, services and technology by him comply with all applicable laws, regulations and ordinances related to the import, export control and sanctions, in their respective valid versions including, but without limitation, the laws, regulations and ordinances of the United States, the European Union and the jurisdictions in which the supplier and the customer are based or from which deliveries may be made, as well as the conditions from all associated permits, general licenses or license agreements are subject. The customer will never use, transfer, release, export or re-export the hardware, software or technology in violation of these applicable laws, regulations and ordinances or the conditions of associated licenses or permits. The purchaser further undertakes not to carry out any activities which would expose the supplier or any of its affiliated companies to the risk of a penalty under the laws or regulations of a corresponding jurisdiction, according to which improper payments, including but not limited to, kickbacks to employees of a government, agency, institution or equivalent subdivisions, to political parties or officials of political parties or candidates for public office, or to employees of customers or suppliers are prohibited. The customer undertakes to comply with all applicable legal, ethical and other regulations.
15. Default, insolvency and termination
The supplier is entitled, without prejudice to other rights to which he is entitled, to terminate the contract in whole or in part to the purchaser, without notice in writing, if the purchaser is in default with the fulfillment of one of his contractual obligations and does not remedy this within thirty days of the supplier’s written notification of default, takes measures to remedy the delay if such a remedy is reasonably possible within the specified period or if a remedy is not possible within the period.
16.1 A party’s waiver in respect of an infringement or non-performance or right or remedy, and a regular course of action does not constitute a continued waiver in respect of another breach or non-performance or another right or remedy unless such waiver does not is recorded in a document signed by the party to be bound.
16.2 In the event of the invalidity or impracticability of a number, a paragraph or any other provision of the contract, the validity of the remaining provisions of the contract will not be affected. In the event that a provision is invalid or unenforceable, the parties undertake to replace it with a provision that is most close to the economic purpose intended with the ineffective or unenforceable provision.
16.3 The purchaser cannot assign his rights and obligations from this contract without the prior written consent of the supplier.
16.4 The supplier concludes the contract as the main contractual partner. The purchaser confirms that he will only contact the supplier with regard to the proper fulfillment of the contract.
16.5 THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE NOT SOLD OR INTENDED TO BE USED IN ANY NUCLEAR OR RELATED APPLICATIONS. ARE NOT INTENDED FOR THIS USE. The purchaser (i) accepts the products and services with the above restriction, (ii) undertakes to pass this restriction on in writing to all subsequent buyers or users and (iii) undertakes to indemnify the supplier and the supplier’s affiliates of all claims, losses, liabilities, processes, judgments and claims for damages including compensation for incidental and consequential damages resulting from the use of the products or services in any nuclear or related application. The purchaser defends and indemnifies regardless of whether the claim is based on tort, contract, or other basis, including claims that the supplier’s liability is based on negligence or liability.
16.6 The contract is subject in every respect to the law of the Federal Republic of Germany to the exclusion of the Vienna Convention on the International Sale of Goods of 1980. The exclusive place of jurisdiction for all disputes arising from the contract is Krefeld. However, the supplier can also sue the customer at the place of the purchasers registered office.
16.7 The headings above the numbers and paragraphs of the contract serve only to facilitate and are not taken into account in the interpretation.
16.8 All communications and claims in connection with the contract must be in writing.