GENERAL CONDITIONS
For goods and services provided by ZETTL GmbH
As of December 2023
1. Scope of application
1.1 These General Terms and Conditions (GTC) apply exclusively to all contracts for the delivery of systems, devices and other products by ZETTL GmbH (hereinafter "ZETTL"), including for soft-ware, accessories and spare parts, as well as for services provided by ZETTL. They apply according-ly to contracts for the production or delivery of a work (Sections 631 and 650 German Civil Code), insofar as their application is not excluded by the nature of the contract for the production of a work. Deviating provisions, in particular conflicting terms and conditions of the Customer, shall on-ly be deemed agreed if they are expressly confirmed in writing by ZETTL as being applicable in place of these Terms and Conditions. These GTC shall also apply if ZETTL carries out the delivery to the Customer without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer.
1.2 These GTC apply in personal respect exclusively to entrepreneurs within the meaning of Sec-tion 14 of the German Civil Code (BGB), i.e. natural persons or legal entities acting in pursuit of their trade or business, as well as to legal entities under public law.
1.3 In the case of an ongoing business relationship, these GTC shall apply in their updated version as valid at the time of conclusion of the contract, even without explicit or implicit reference to all fu-ture transactions, in particular in the case of call-off orders or follow-up orders made verbally or by telephone.
2. Offers, Order, Conclusion of Contract
2.1 Offers from ZETTL are non-binding, unless expressly agreed otherwise in writing. Orders shall only become binding upon written order confirmation, unless the ordered delivery or service has al-ready been performed or invoiced by ZETTL. The confirmation of receipt of electronic orders (e-mail) does not constitute a binding acceptance of the order. However, the confirmation of receipt can be combined with the declaration of acceptance. For orders in electronic business transac-tions, the text of the contract shall be saved by ZETTL and sent to the Customer on request to-gether with these GTC by e-mail.
2.2 If ZETTL requires an export licence for the fulfilment of its obligations, the contract shall be con-cluded under the condition precedent that an export licence is granted. ZETTL is obliged to apply for a corresponding licence at the competent authority. In the event that the application is reject-ed, ZETTL shall have no further obligations.
2.3 Property rights and copyrights, in particular reproduction and distribution rights to illustrations, drawings, calculations and other documents that come into the possession of the Customer in connection with an offer from ZETTL or the execution of an order, shall remain with ZETTL. These documents may not be made accessible to third parties except in cases of resale in accordance with their intended purpose and must be returned to ZETTL upon request if the contract is not concluded or fails.
2.4 All correspondence in connection with the commissioning of ZETTL must be sent to the address stated in the order confirmation and must contain all information required for processing (num-ber and date of the order confirmation and item number).
3. Delivery Dates
3.1 The dates and deadlines for deliveries or services specified by ZETTL are only approximate, unless they have been agreed in writing with a date determined by calendar. Specified delivery periods shall commence upon dispatch of the written order confirmation, but not before receipt of the down payment and the provision of the documents and approvals to be procured by the Customer as well as clarification of open commercial or technical questions and not before receipt of any required official certificates or approvals. Compliance with the delivery time is subject to correct and on-time delivery of required supply to ZETTL. ZETTL shall inform the Customer immediately of any delays that become apparent.
3.2 The delivery and performance deadlines shall be deemed to have been met if the delivered goods have left ZETTL's construction premises or ZETTL has notified the Customer of readiness for dispatch or the service has been performed until expiry of the agreed deadline. ZETTL is entitled to make partial deliveries within the scope of what is reasonable for the Customer.
3.3 Should it be impossible or economically unreasonable for ZETTL to meet agreed delivery dates due to force majeure, official measures, disasters such as fire or flooding, pandemics or epidem-ics, quarantine, war, riots, strikes in its own plants, delivery facilities, at suppliers or in the area of means of transport, power failure or failure of telecommunication lines, ZETTL shall be entitled to make up for the delivery after the reason for the obstruction has ceased. This shall also apply if their occurrence or outbreak was already known prior to the conclusion of the contract. In the event of a delay in delivery of more than four months, the Customer is entitled to reject the de-livery and to withdraw from the contract. The Customer has no further rights or claims due to non-delivery or late delivery for such reasons, even if these reasons only occur when the delivery period has already been exceeded or ZETTL was in default.
3.4 Any interruption in the execution of work on deliveries or services due to the processing and dis-cussion of a request from the Customer for changes or additional services is the sole responsibility of the Customer and requires a mutually agreed revision of the schedule.
3.5 If the delivery date is not met due to the sole fault of ZETTL, the Customer may, starting from the sixth working day thereafter (Monday to Friday, excluding public holidays), demand payment of a contractual penalty in the amount of 0.1% of the agreed total net price for each working day or part thereof that the delivery date is exceeded, but in total no more than 5% of the value of that part of the total delivery that cannot be used on time or in accordance with the contract as a re-sult of the delay. Further claims for damages due to delay are excluded.
3.6 If the delivery is not collected at the agreed time or within one week after ZETTL has notified readiness for delivery, ZETTL reserves the right to charge reasonable storage costs.
4 Terms of Delivery, Transfer of Risk and Acceptance
4.1 Delivery by ZETTL shall be ex ZETTL's place of manufacture (EXW Incoterms 2020)
4.2 The risk shall pass to the Customer upon delivery in accordance with section 4.1. This shall also ap-ply in the case of partial deliveries and also if acceptance is still to be carried out at the installation site.
4.3 Delivered items, even if they have insignificant defects, must be accepted by the Customer with-out prejudice to his warranty rights. Complaints regarding transport damage must be made by the Customer in due time against freight forwarders, carriers and their insurance companies or similar.
4.4 If acceptance of the delivery item has been agreed (e.g. in the case of agreed assembly or com-missioning of the system), acceptance must be carried out and recorded in the presence of both parties when the system is commissioned.
4.5 Acceptance shall also be deemed to have taken place without formal acceptance as soon as the delivery item is used in production, but no later than four weeks after delivery and twelve weeks after notification of readiness for dispatch.
4.6 If delivery or acceptance is delayed or does not take place due to circumstances for which ZETTL is not responsible, the risk shall pass to the Customer on the day of notification of readiness for dis-patch or acceptance. In this case, ZETTL undertakes to procure the insurance of the delivery item as requested by the Customer at the Customer's expense.
4.7 The Customer is obliged to maintain delivered or installed delivery items until acceptance in ac-cordance with ZETTL's maintenance instructions and to submit corresponding proof thereof.
5. Retention of Title
5.1 ZETTL retains title to the delivery items until the customer has fulfilled all of ZETTL's claims arising from the order.
5.2 As long as the ownership has not yet been transferred to the Customer, the Customer is obliged to treat the delivery items with care and to maintain them in accordance with ZETTL's instructions. In addition, the Customer is obliged to insure them at its own expense against damage from theft, fire, water or vandalism at replacement value. The Customer hereby assigns its claims against the insurer with regard to the delivery items to ZETTL; ZETTL accepts this assignment. ZETTL also declares the reassignment of these claims to the Customer under the condition precedent of the expiry of the retention of title due to full payment of all claims of ZETTL.
6. Warranty
6.1 Unless otherwise agreed, ZETTL warrants for a period of twelve months from delivery (Clause 4.1.), in the case of production or delivery of a work from the day of acceptance, that the delivery items comply with the agreed specifications, the state of the art and the CE standards and do not have any material or processing defects. Within this period, ZETTL shall bear the labour and material costs for the repair or replacement of defective components. If there is a case according to Section 6.5, the statutory warranty period shall apply.
6.2 The warranty period for repaired or replaced parts begins again on the respective delivery date but ends no later than six months after the end of the initial warranty period.
6.3 Unless the parties agree otherwise, the warranty for defects of title shall be limited to the territo-ry of the Federal Republic of Germany. In addition, the provisions of Section 7 shall apply to copy-rights and other industrial property rights.
6.4 If the rectification or replacement fails, the Customer may, at his discretion, demand a reduction of the remuneration or compensation for damages or withdraw from the contract, unless a further attempt of subsequent improvement or replacement cannot reasonably be expected of him. In the case of only minor defects, however, the Customer has no right of cancellation. If the Customer chooses to withdraw from the contract due to a defect after subsequent fulfilment has failed, he shall not be entitled to any additional claim for damages. If he chooses compensation for damages after subsequent fulfilment has failed, the goods shall remain with the Customer if this is reasonable for him. The compensation for damages is then limited to the difference between the purchase price and the value of the defective item. This shall not apply if ZETTL has maliciously caused the breach of contract. The Customer may only assert claims for damages under the conditions specified in Section 8.
6.5 The exclusion or limitation of claims for defects shall not apply in the event of intentional, grossly negligent or fraudulent behaviour on the part of ZETTL, in the event of culpable injury to life, limb or health, in the event of the assumption of a guarantee or a procurement risk (Section 276 BGB) and in the event of mandatory statutory liability, e.g. under the German Product Liability Act.
6.6 The above warranty provisions do not constitute a limitation of a merchant’s duty to examine the received goods and to give notice of defects under Section 377 HGB (German Commercial Code).
7. Copyrights and Industrial Property Rights
7.1 The Customer shall be liable for the correctness of the documents to be supplied by it, such as samples and drawings. If third party property rights are infringed due to the production of the de-livery items according to drawings, samples or other information provided by the Customer, the Customer shall indemnify ZETTL from all claims of the property right holder.
7.2 Insofar as the scope of delivery also includes software subject to licence, ZETTL shall grant the Customer a simple, non-exclusive right to use this software in the program version valid at the time of delivery (release) on the delivered system upon full payment of the purchase price. This right is only transferable together with the delivery item in which the software is installed. Oth-erwise, all rights to the software shall remain with ZETTL or the software manufacturer.
7.3 Property rights deriving from the results of work or service performed in projects with the Cus-tomer shall remain exclusively with ZETTL, unless the respective work or service results were cre-ated exclusively by employees of the Customer or by third parties on behalf of the Customer (e.g. as part of a Customer contribution). No transfer of industrial property rights to the Customer shall take place unless this has been individually and expressly agreed with the Customer in writing. Even in the event of an expressly agreed transfer of property rights, ZETTL shall remain entitled to use ideas, concepts, experience, tools, programme development components, technologies and other work results developed or obtained during the provision of services by ZETTL to the Cus-tomer free of charge. If both contracting parties have contributed to the creation of the work or service results, they are jointly entitled to the property right thereto according to their share in the respective result. With regard to their share of the respective result, the parties grant each other a licence-free, non-exclusive and unlimited right of use.
7.4. Each party is obligated to notify the other party immediately in writing if it becomes aware that a third party is asserting claims for infringement of intellectual property rights based on the contractual use of the products delivered or services provided by ZETTL, and if, as a result of these claims, the use of the goods or services in the country where the services are performed is restricted or prohibited, or is at risk of being restricted or prohibited. If and to the extent that ZETTL is liable under warranty or civil liability pursuant to Sections 6 and 8 and the agreements made with the Client, ZETTL shall, at its own discretion and expense, satisfy such claims, defend against them, or settle the disputes. The Client shall support ZETTL in its defense in every reasonable manner. ZETTL shall bear all financial burdens arising from a judgment against the Client, including damages awarded to a third party and litigation costs. ZETTL shall bear the costs of a settlement if ZETTL agrees to the settlement. The Client grants ZETTL the sole authority to decide on the legal defense and on settlement negotiations. The Client shall grant ZETTL the necessary powers of attorney for this purpose on a case-by-case basis.
7.5 Should ZETTL come to the conclusion that a product may become the subject of a property right complaint, ZETTL shall be entitled, at its own discretion, to
- to obtain the right for the Customer to continue using the product at its own expense,
- to replace the product to a reasonable extent at its own expense or to modify it in such a way that it no longer infringes the rights of third parties or
- to take back the product and refund the purchase price to the Customer less an appropriate usage fee.
7.6 ZETTL shall have no obligations if the Customer itself is responsible for the infringement of the property rights, e.g. if claims by third parties are caused because software, machines or parts thereof are changed by the Customer or connected to programs or data not provided by ZETTL. This shall also apply if the infringement of the property rights is attributable to special specifications made at the instruction of the Customer or was caused by a type of use contrary to the contract or not foreseeable by ZETTL.
8. Limitation of Liability
8.1 ZETTL shall be liable in accordance with the statutory provisions in cases of intent, gross negli-gence and fraudulent behaviour as well as for culpable injury to life, body or health, for claims un-der the Product Liability Act and other mandatory statutory liability and if it has assumed a guaran-tee for the quality of an item or for a performance success or a procurement risk in accordance with Section 276 BGB and the damage results from a defect of this quality, a failure of this success or the failure of the procurement. If a fixed delivery date has been agreed, it shall also be liable in the event of default in accordance with the statutory provisions, unless otherwise contractually agreed.
8.2 ZETTL shall only be liable for property damage and financial loss caused by simple or slight negli-gence in the event of a breach of a material contractual obligation but limited to the amount of damage foreseeable at the time of conclusion of the contract and typical for the contract. Materi-al contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose compliance the Customer relies and may rely.
8.3 Otherwise, ZETTL shall only be liable for damages for which it is not at fault and for property dam-age and financial losses caused by simple or slight negligence if the type and scope of the damage is covered by its business or product liability insurance. Any further liability, in particular liability for indirect damage or consequential damage, such as loss of profit or damage due to loss of produc-tion, is excluded. ZETTL has business and product liability insurances in the amount of € 20 million each for property damage and personal injury and € 5 million for financial losses.
8.4 Contractual claims in accordance with the above paragraphs 8.2. and 8.3. can only be asserted within a preclusion period of one year from the start of the statutory limitation period.
8.5 None of the above provisions on the limitation of liability shall result in a reversal of the burden of proof or a limitation of claims for subsequent fulfilment.
8.6 Insofar as ZETTL's liability is excluded or limited, the personal liability of executives, employees, representatives and agents of ZETTL shall also be limited or excluded. The above exclusions and limitations of liability shall apply accordingly to non-contractual and pre-contractual liability and (without prejudice to the statutory supplier recourse) to claims for reimbursement of expenses.
9 Cancellation of the Order
9.1 If the Customer cancels the order placed, ZETTL shall immediately cease all work for this and, at the request of the Customer, hand over to the Customer the delivery item and technical docu-ments, insofar as these have already been created and are to be handed over in accordance with the contract. In the event of cancellation by the Customer, ZETTL shall be remunerated as follows:
• Cancellation after conclusion of contract and before start of production: 50 % of the agreed total price
• Cancellation after start of production and before delivery: 90 % of the agreed total price
• Cancellation after delivery: 100 % of the agreed total price
9.2 If the advance payment made by the customer exceeds the aforementioned remuneration, ZETTL shall refund the difference.
10. Export Regulations
10.1 The delivery items are intended for final destination in the country of delivery agreed with the Customer and may not be exported without authorisation. The Customer is aware that the export of the delivery items, including the technical information transmitted with them, may also be re-stricted by the export regulations of the Federal Republic of Germany and other countries, in par-ticular the United States of America. If ZETTL grants permission for export, the Customer is obliged to comply with the relevant export regulations.
10.2 The Customer is obliged to observe the relevant sanctions lists of the European Union, the German Federal Government, the US export authorities or other relevant countries, e.g. the European Sanctions List, Denied Persons List, as well as other warnings of the competent authorities in the respective current version and to act accordingly.
10.3 ZETTL is not obliged to deliver products or fulfil contractual obligations if the relevant delivery or provision of services would lead to a violation of export regulations or country-specific export restrictions of the Federal Republic of Germany, the European Union, the United States of America or the relevant export control regulations of other countries.
11. Statute of Limitations
11.1 Subject to the provision in Section 11.2, claims of the Customer - for whatever legal reasons - shall become time-barred after twelve months; this also applies to the limitation period for recourse claims in the supply chain pursuant to Section 445b para. 1 BGB. The suspension of expiry pursu-ant to Section 445b para. 2 BGB remains unaffected; it ends at the latest five years after the time at which ZETTL delivered the delivery item to the Customer. These provisions on the limitation pe-riod for recourse claims and the suspension of expiry shall not apply if the last contract in this sup-ply chain is a purchase of consumer goods.
11.2 The statutory limitation periods shall apply to claims for damages pursuant to Section 8.1. They shall also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused its defectiveness.
12. Rights to Refuse Performance and Offsetting
The Customer shall only be entitled to set-off if its counterclaims are legally established, undis-puted or recognised by ZETTL. Rights of retention or other rights to refuse performance can only be asserted against ZETTL if and insofar as they are based on the same contractual relationship. Even in the case of an ongoing business relationship, each individual order shall be regarded as a separate contractual relationship. Complaints of defects of any kind whatsoever shall not entitle the Customer to withhold payments unless the defects complained of have been legally estab-lished, are undisputed or have been recognised by ZETTL.
13. Final Provisions
13.1 Amendments and supplements to the agreements made between the parties must be made in text form (e.g. by e-mail) and require express reference to the order affected thereby. This also applies to the cancellation of the text form requirement.
13.2 German law shall apply exclusively between the parties to the exclusion of the conflict of laws and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG). This also applies in the case of non-contractual claims. If foreign law must be applied in individual cases, these GTC shall be interpreted in such a way that the economic purpose pursued with them is achieved as far as legally possible.
13.3 The place of jurisdiction is Munich (District Court Munich I, Chamber for Commercial Matters). However, each contracting party shall also be entitled to sue the other party at its general place of jurisdiction.
13.4. In case of diversions between the German and the English version of these General Terms and Conditions for Deliveries and Services of ZETTL GmbH, the German version shall prevail.
2. General Terms and Conditions of Purchase
GENERAL TERMS AND CONDITIONS OF PURCHASE
As of December 2023
1. Scope of application
1.1. These General Terms and Conditions of Purchase apply to all deliveries of goods to and services provided for ZETTL GmbH. They apply mutatis mutandis to contracts for work and services, provided that their application is not precluded by the nature of such contracts. Deviating provisions, in particular conflicting terms and conditions of the supplier, shall be deemed agreed upon only if we expressly acknowledge them in writing as superseding these terms and conditions; in such cases, these Terms and Conditions of Purchase shall apply supplementarily. These Terms and Conditions of Purchase shall also apply even if we do not expressly object to your conflicting or deviating terms and conditions. The special terms and conditions listed in our purchase order depending on the type of goods or services, or otherwise agreed upon with you in writing, shall take precedence. Your acceptance of our purchase order shall be deemed acknowledgment of the aforementioned terms and conditions, waiving any conflicting terms and conditions of sale or delivery on your part.
1.2. These Terms and Conditions of Purchase apply, in a personal capacity, exclusively to business entities as defined in § 14 of the German Civil Code (BGB)—that is, natural or legal persons acting in the course of their commercial or self-employed professional activities—as well as to legal entities under public law.
1.3. In the case of an ongoing business relationship, these Terms and Conditions of Purchase, as in effect at the time the contract is concluded, shall apply to all future transactions—even without specific notice or reference—including, in particular, verbal or telephone call-off orders or follow-up orders.
2. Offers, Order, Conclusion of Contract
2.1. Submitting your bids is free of charge for us. As a general rule, no compensation is provided for site visits, cost estimates, the preparation of planning documents, and the like.
2.2. Orders, contracts, agreements, as well as additions and amendments, are binding only if we have issued or confirmed them in writing. If our order does not immediately result in the conclusion of a contract, it remains binding for 14 days, unless otherwise specified in the order itself.
2.3. If an order is placed in advance by telephone, you agree to immediately review the information provided by you and by us upon receipt of our written order or confirmation and to notify us immediately of any discrepancies.
2.4. We reserve all ownership rights and copyrights to illustrations, drawings, calculations, and other documents provided to you by us in connection with the order or contract negotiations; they may not be made available to third parties without our express written consent. They are to be used exclusively for production based on our order; upon completion of the order, they must be returned to us without being asked.
2.5. All correspondence related to the order must be sent to the address specified in the order letter and must include all information necessary for processing the order (order number and date, order number, and item number).
3. Shipping Guidelines
3.1. Shipments must be made to the shipping address specified in our order or confirmation, unless we provide a different address in writing prior to shipment. Proof of shipment must be provided to us in the form of a shipping notice or proof of delivery, signed by the recipient, in duplicate. It must contain the following information:
- Order No. and date, order No. and item No.,
- Type, quantity, net and gross weight of the goods,
- the shipping address provided in the order, as well as
- Information that we additionally requested in the order.
One copy accompanies the goods; the other copy must be sent to us by mail or electronically in PDF format.
3.2. We accept no responsibility for any delays in payment that may result from failure to comply with these provisions. Any additional costs arising from failure to comply with the shipping addresses shall be borne by you. If, as agreed, we are to bear the shipping costs, you agree to select the most economical shipping method, unless we expressly require a specific shipping method. Any additional costs resulting from the selection of a more expensive shipping method shall be borne by you.
3.3. Shipment is at your risk. The risk of any deterioration, including accidental loss, remains with you until delivery to the shipping address or place of use specified by us.
3.4. You are required to take back shipping packaging at your own expense, unless we agree otherwise on a case-by-case basis. In the case of recurring deliveries, the packaging may also be returned with one of the next deliveries.
4. Materials to Be Provided
4.1. If we provide you with materials, they may only be used for us in accordance with the order. All materials remain our property. They must be stored separately and marked as our property. You may be required to notify third parties of our ownership. You bear the risk of accidental loss for the materials provided by us. You are required to obtain appropriate insurance coverage in an adequate amount.
4.2. Before performing your deliveries and services, you must verify whether the materials we have provided were delivered properly, particularly on time. If this is not the case, you are obligated to set a grace period and specify the required materials once again. At the same time, you must specify the scheduling and other consequences that will result if we fail to meet the extended deadline. If such a notice is missing or if the requested materials are not sufficiently specified, you are, in particular, not entitled to an extension of the deadline. Our rights remain unaffected.
4.3. If materials provided by us are processed, combined, or inseparably mixed with materials that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of our materials (purchase price plus sales tax) to that of the processed, combined, or mixed items at the time of processing, combination, or mixing. If the combination or mixing is carried out in such a way that the supplier’s item is to be regarded as the principal item, it is also deemed agreed that the supplier shall transfer proportional co-ownership to us to the extent that the principal item belongs to the supplier; the supplier shall hold the co-ownership in trust for us. If the security interests to which we are entitled under this provision exceed the purchase price of all our goods subject to retention of title that have not yet been paid for by more than 10%, we are obligated, at your request, to release the security interests at our discretion.
4.4. The provisions of sections 4.1 through 4.3 above apply mutatis mutandis to materials that you have purchased from a third party for the purpose of fulfilling the order and for which you have billed us separately.
4.5. We are liable for the provision of materials in cases of intentional, grossly negligent, or fraudulent conduct on our part, as well as for claims arising under the Product Liability Act and for damages resulting from culpable injury to life, body, or health. Otherwise, our liability is excluded.
5. Compensation
5.1. The agreed-upon prices are fixed prices.
5.2. Unless otherwise agreed in writing, prices are quoted on a free-on-board basis, including packaging, transportation, customs duties, border clearance fees, and insurance to the specified shipping address or place of use, as well as the costs of any inspections, acceptance tests, documentation, and the preparation of technical documentation.
5.3. The invoice must be submitted electronically as a PDF file immediately upon delivery or completion of the service, specifying the order number, the contract number, the VAT ID number, the order quantity, the delivery quantity, and the date of delivery. The statutory value-added tax must be shown separately on the invoice, if applicable.
6. Terms of Payment, Transfer of Risk, Retention of Title
6.1. You authorize us to deduct a 3% discount from all invoice amounts due to you (including interim and final payments)—after deducting agreed-upon security retainages, justified retainages for defects, and invoice corrections—if we pay by the 15th business day after receipt of your invoice. No interest on late payment may be claimed until this payment deadline has passed. The period begins upon receipt of the invoice, but not before receipt of the goods or performance of the services, and—if documentation and test certificates are part of the scope of services—not before their handover to us in accordance with the contract. Late payments resulting from improper shipping documents or incomplete invoice details nevertheless entitle us to deduct the applicable discount.
6.2. If you provide construction services to us, we are required under Section 48 of the Income Tax Act to withhold a withholding tax of currently 15% from all payments due and to remit this amount to the competent tax office on behalf of the contractor. The tax base for the withholding is the remuneration plus value-added tax. We will not withhold tax if, together with the invoice and no later than 14 days before the payment due date, you provide us with a valid exemption certificate pursuant to § 48b(1), sentence 1, of the Income Tax Act that exempts us from the obligation to withhold tax.
6.3. In the case of delivery without installation or assembly, the risk of loss and damage passes to us upon handover of the goods specified in the contract at the delivery location indicated by us in the order. If, in connection with a delivery, installation or assembly has been agreed upon without the requirement of acceptance, the transfer of risk occurs upon proper completion of the installation or assembly.
6.4. If acceptance is contractually agreed upon or required by law, the risk shall not pass to us until the acceptance report has been signed. For this purpose, the parties shall agree on a mutual acceptance date. The mere commissioning or use by us shall in no way replace formal acceptance.
6.5. In the case of delivery of goods subject to retention of title, we are entitled to resell and process such goods in the ordinary course of business. Any extension or expansion of your retention of title is excluded.
7. Set-off, Retention, Assignment of Claims
7.1. You agree that we may, in any case, set off our claims against your claims, regardless of the legal basis for such claims, even if the respective claims are due on different dates. If the claims are due on different dates, our claims shall become due, to the extent applicable, no later than the due date of our obligation and shall be settled on a value date basis.
7.2. Your right of retention with respect to items, documents, and data of any kind that we have made available to you for the purpose of fulfilling your delivery or performance obligations is excluded, as is your right of retention based on disputed counterclaims that have not been legally established. You are entitled to a right of set-off only with respect to counterclaims that have been legally established or are undisputed.
7.3. The assignment of claims against us is prohibited. Exceptions require specific agreements.
8. Deadlines, Delays, Force Majeure
8.1. The deadlines specified in the order or otherwise agreed upon are binding.
8.2. If you realize that an agreed-upon deadline cannot be met for any reason, you must notify us immediately in writing, stating the reasons and the expected duration of the delay. Partial deliveries and services require our prior consent.
8.3. Without prejudice to our statutory rights, in the event of your default, we are entitled, in addition to our right to specific performance, to charge a contractual penalty of 0.5% of the price for the portion of the order affected by the delay for each business day or portion thereof that the order is delayed, up to a maximum of 5% of the price. Notwithstanding § 341(3) of the German Civil Code (BGB), we may claim the contractual penalty up until the final payment and may also claim damages. Any contractual penalty payments shall be offset against potential claims for damages.
8.4. If you fail to deliver or perform even within a reasonable grace period set by us for performance, we are entitled, upon the expiration of such period, to commission a third party to perform the contract and to demand reimbursement from you for the necessary expenses and additional costs. In addition, we have the right to claim damages in lieu of performance; our right to rescind the contract remains unaffected. Your right to perform and our obligation to accept performance are excluded as soon as we procure a substitute by performing the service ourselves after the grace period has expired or claim damages in lieu of performance.
8.5. The timeliness of deliveries or subsequent performance of goods deliveries is determined by receipt at the receiving location specified by us in the order (hereinafter “delivery location”). If a delivery including installation or assembly has been agreed upon, the timeliness of the delivery is determined by the proper completion of the installation or assembly. To the extent that acceptance is required by law or contractually agreed upon, the time of successful completion of the agreed-upon acceptance date shall be decisive for determining whether the delivery or service was timely. In all other respects, the timeliness of services depends on their complete and contractually compliant performance.
8.6. No default in acceptance shall occur if the failure to accept the ordered goods or services is demonstrably attributable to mobilization, war, civil unrest, strikes, lockouts, fire, natural disasters, epidemics, pandemics, government orders, and all other events over which the parties have no control (force majeure). If, even after a reasonable extension of the deadline, we are still unable to accept delivery for the reasons stated above, either party shall be entitled to withdraw from the contract; in this case, the supplier’s claims for damages are excluded.
8.7. If delivery occurs earlier than agreed, we reserve the right to return the goods at your expense. If the goods are not returned in the event of early delivery or performance, we will store them at our facility at your expense and risk until the delivery date. In the event of early delivery or performance, we reserve the right to make payment only on the agreed due date.
9. Performance of the Contract
9.1. You warrant that all items delivered by you and all services rendered by you comply with the state of the art—provided they do not conflict with generally accepted engineering principles—as well as with the relevant legal provisions and the regulations, guidelines, and technical standards issued by government agencies, workers’ compensation associations, and professional associations. You assume the warranty of quality and durability for the performance characteristics or quality specifications set forth in our order or the contract components. If the performance characteristics or quality specifications are not clearly stated in the order or the contract components, or if it is not possible to deliver goods or services that meet the performance characteristics or quality standards we require by the agreed-upon delivery dates, you must consult with us in any case. You are not entitled to provide additional or reduced services. Partial deliveries are permitted only with our prior consent.
9.2. If you have any concerns regarding the method of performance we have requested, you must notify us immediately in writing. For deliveries or services based on drawings, you must verify the dimensions specified in those drawings before work begins. Any dimensional errors in the drawings that result in changes to production once it has begun do not entitle you to any additional claims of any kind.
9.3. You agree to provide the agreed-upon services by employing qualified professionals, in strict compliance with the statutory provisions for combating illegal employment, the Posted Workers Act, the Temporary Employment Act, the Minimum Wage Act, and the provisions of social security law, in particular those regarding the payment of contributions.
9.4. Subcontracts may only be awarded to third parties with our prior written consent, unless they involve solely the supply of commercially available parts. If you intend from the outset to involve third parties in the performance of the contract, you must inform us of this in your proposal. If we grant our consent, you remain responsible for the performance of the order and are liable for any breaches of duty by the third party pursuant to Section 278 of the German Civil Code (BGB). In any case, you are responsible for the qualifications and reliability of the subcontractor and are obligated to ensure that the subcontractor complies with its legal obligations to pay taxes and social security contributions, as well as meets the requirements under commercial law for conducting business. You are obligated to require your subcontractor to comply with the same obligations you yourself are subject to in relation to us, particularly with regard to confidentiality, data protection, and proof of adequate business and product liability insurance. You must immediately replace any subcontractor who proves to be unqualified or unreliable with a suitable subcontractor. If, despite our request and the expiration of a reasonable grace period, you fail to replace such a subcontractor with a subcontractor of proven suitability, we are entitled to revoke our consent to the subcontracting.
9.5. For software products, the obligation to deliver is not fulfilled until the complete documentation (both technical and user documentation) has been provided. For programs developed specifically for us, the program must also be delivered in source code format along with the corresponding documentation.
9.6. For devices, machines, or systems, a technical description and an instruction manual must be provided free of charge in accordance with legal requirements. Furthermore, devices, machines, or systems must comply with the safety regulations applicable to them at the time of delivery and bear a CE marking. For deliveries of machines and systems, you must provide the required or agreed-upon documentation, in particular for their approval, installation, commissioning, operation, maintenance, and repair. The delivery of electrical and electronic devices or components must comply with the requirements of the European RoHS Directive 2011/65/EU—the acronym RoHS stands for “Restriction of the use of certain Hazardous Substances.”
9.7. The shipment must be properly packaged using environmentally friendly materials that do not interfere with recycling. In all other respects, the Packaging Ordinance applies. If you carry out unpacking and unloading work on our premises, you do so at your own risk. In doing so, you also assume, where applicable, the obligations of the packer and shipper under the Ordinance on the Transport of Dangerous Goods (GGVSEB). Tools and equipment shall not be loaded together with the delivered goods. Furthermore, when working on our premises, you must avoid generating waste as much as possible and dispose of any waste generated in accordance with regulations. You warrant that you possess the necessary expertise and knowledge regarding the disposal of the waste generated and that you will ensure compliance with disposal obligations in accordance with the relevant waste management regulations.
9.8. When delivering hazardous goods, you must package, label, and transport or ship them in accordance with the relevant national and international regulations and, in particular, fulfill all obligations applicable to suppliers under the European Chemicals Regulation concerning the Registration, Evaluation, Authorization, and Restriction of Chemicals—Regulation (EC) No. 1907/2006 – (hereinafter “REACH Regulation”) with respect to the delivery of the goods. Furthermore, in all cases prescribed in Article 31, paragraphs 1 through 3 of the REACH Regulation, you shall provide us with a safety data sheet in accordance with Article 31 of the REACH Regulation in the language of the recipient country and warrant that you have fulfilled your obligations under the REACH Regulation, such as the pre-registration or registration of substances contained in the goods or authorization under the REACH Regulation, and information requirements. In particular, you are obligated to inform us immediately if a component of a product contains a substance in a concentration of more than 0.1 percent by weight (w/w) that meets the criteria of Articles 57 and 59 of the REACH Regulation (so-called “substances of very high concern”). This also applies to packaging materials.
9.9. You must comply with all requirements of applicable national and international customs and foreign trade laws. You are responsible for ensuring that all shipments subject to labeling requirements are properly labeled and that, in particular, the customs tariff number and the number from the German export list are specified for imports and exports. The labeling must also appear in order confirmations and all shipping documents. In particular, you must draw attention in the aforementioned documents or invoices to any licensing requirements for (re-)exports in accordance with the respective national export and customs regulations as well as the export and customs regulations of the country of origin of the goods and services—especially items subject to U.S. re-export regulations — and inform us in detail and in writing, including the relevant export list and customs code numbers.
9.10. The delivered goods must meet the rules of origin set forth in the relevant EU preferential agreements, unless otherwise expressly specified in the purchase order. The current versions of these agreements can be accessed on the European Commission’s website (https://ec.europa.eu/). The web link to the rules of origin under the relevant preferential agreements, as of the date of this version of the Terms and Conditions of Purchase, is: https://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/preferential/. The current version of the rules of origin under the relevant preferential agreements, as published on the European Commission’s website at the time of the order, shall be decisive for the execution of the order. Furthermore, you must indicate the non-preferential origin of the goods (“country of origin”) in the commercial documents and, upon request, provide us with a certificate of origin attesting to the origin of the goods.
9.11. You are liable for any damages and costs arising, in particular, from failure to comply with the provisions set forth in Sections 9.6 through 9.10. Any deliveries and/or services that are not accepted due to failure to comply with these provisions will be stored at your expense and risk.
10. Inspection for Defects and Liability for Defects
10.1 We are obligated to inspect the delivered goods within a reasonable period of time for any deviations in quality or quantity; our notice of defect is considered timely if it is received by you within five business days from the date of receipt of the goods or, in the case of hidden defects, from the date of discovery.
10.2 Our rights in the event of defects in deliveries and services are governed by the provisions of law; however, the statute of limitations for claims for defects is 36 months from the transfer of risk. We are entitled to remedy the defects ourselves at your expense if there is imminent danger or if the matter is particularly urgent.
10.3. If a quality threshold (e.g., Agreed Quality Level) has been agreed upon with you for the delivery of goods, we are entitled to reject the entire delivery if the agreed quality threshold is exceeded, or to inspect 100% of the goods at your expense. If we accept the goods while they comply with the quality threshold, claims arising from defects discovered later remain unaffected.
11. Third-Party Intellectual Property Rights
11.1. Liability is governed by the provisions of law.
11.2. If you are liable under applicable law for the infringement of third-party intellectual property rights, you are obligated to indemnify us against such claims upon our first written request; we are not authorized to enter into any agreements with the third party—without your consent—including, in particular, reaching a settlement.
11.3. Your obligation to indemnify us applies to all expenses that we necessarily incur as a result of or in connection with a claim by a third party, in particular the costs of a reasonable legal defense.
11.4. The statute of limitations for liability arising from the infringement of intellectual property rights is ten years, calculated from the transfer of risk.
12. Insurance
You agree to obtain general liability insurance commensurate with the risks associated with the agreed-upon service, with a coverage limit of at least €5 million per claim for personal injury, property damage, and financial loss, and to maintain such coverage until the statute of limitations on your liability for defects expires. In addition, you shall obtain adequate insurance coverage against all risks arising from your product liability and, if applicable, your planning liability. You shall insure against the risks of environmental damage within the meaning of the Environmental Damage Act that exist in your business or in connection with your activities by obtaining adequate environmental damage insurance. Upon request, you shall provide us with the insurance policies.
13. Confidentiality, Models, Tools
13.1. You agree to treat all non-public commercial or technical documents, such as illustrations, drawings, calculations, and other documents, as well as know-how and other trade secrets (confidential information), that come to your knowledge in the course of our business cooperation, and not to make them available to any third party or use them for any purpose other than to fulfill your delivery and performance obligations. You must impose corresponding obligations on your employees and subcontractors to whom this information must be disclosed for the purpose of conducting our business. The confidentiality obligation shall remain in effect even after the performance of our contract; it shall expire if and to the extent that the knowledge contained in the information provided has become generally known without a breach of your confidentiality obligation.
13.2 Models, drawings, etc., produced at our expense or provided by us remain our property. They may not be reused, reproduced, or made available to third parties for any purpose other than that specified in the contract. You are liable to us for any damages resulting from a breach of this provision. Unless otherwise agreed, they must be returned to us free of charge together with the delivery or service.
13.4 We reserve title to the tools; you are obligated to use the tools exclusively for the manufacture of the goods we have ordered. You are also obligated to insure the tools belonging to us at replacement value, at your own expense, against damage caused by fire, water, and theft. At the same time, you hereby assign to us all claims for compensation arising from this insurance; we hereby accept such assignment. You must perform any necessary maintenance and inspection work on our tools, as well as all upkeep and repair work, in a timely manner at your own expense. You must notify us immediately of any malfunctions.
14. Miscellaneous
14.1. You are required to comply with the provisions of the European General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG), and other data protection regulations when you receive personal data from us or from our organization. You may process such data only to the extent permitted by our engagement or as necessary to provide the requested service. Any further processing of the data—in particular, processing for your own purposes or for the purposes of third parties—is prohibited. This also applies to the processing of personal data at a location that is not within the scope of the European General Data Protection Regulation.
14.2. Any reference to our business relationship and the use of our inquiries, orders, and other correspondence for promotional purposes is prohibited without our written consent.
14.3. The place of performance and fulfillment for deliveries and services is the agreed-upon delivery location or, if this location is not specified in our order, the shipping address. In all other cases, including payments, the place of performance and fulfillment is our company’s registered office.
14.4. The place of jurisdiction for all legal disputes arising from or in connection with this contract is Munich. However, each party is also entitled to bring a lawsuit against the other party at the other party’s general place of jurisdiction.
14.5. German law shall apply, excluding conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG). This also applies in the case of non-contractual claims. If foreign law must be applied in a specific case, these Terms and Conditions of Purchase shall be interpreted in such a way that the economic purpose they are intended to serve is achieved to the fullest extent legally possible.
14.6. Should any provision of this Agreement be invalid, the validity of the remaining provisions shall remain unaffected. In place of the invalid provisions, the parties agree to replace them without delay by means of supplementary agreements with legally valid provisions that most closely approximate the economic purpose of the invalid provision.