General Terms and Conditions of Delivery (GTC)
Article 1: General
1. Any deliveries and/or services provided by Elbag Energietechnik GmbH (hereinafter referred to as the “Supplier”) shall always be subject to the following General Terms and Conditions of Delivery (“GTC”). The Customer's general terms and conditions shall not apply unless the Supplier has expressly accepted them in writing. The declarations mutually agreed upon in writing shall be decisive for the scope of delivery.
2. The Supplier reserves, without limitation, its property and copyright exploitation rights for any cost estimates, drawings and other documents (hereinafter referred to as the “Documents”). The Documents shall not be disclosed to third parties without the Supplier’s prior consent. In the event that the order is not awarded to the Supplier, the Documents shall promptly be returned to the Supplier upon Supplier’s request. The same shall apply to the Customer’s documents; these documents may, however, be disclosed to third parties permissibly subcontracted by the Supplier for deliveries.
3. The Customer shall have the non-exclusive right to use standard software and firmware with the agreed performance features in unmodified form on the agreed devices. The Customer may make a backup copy of the standard software without an express agreement.
4. Partial deliveries shall be permitted to the extent that they are reasonable for the Customer.
5. The term “claims for damages” in these GTC also includes any claims for reimbursement of wasted expenditure.
Article 2: Prices and Terms of Payment
1. The prices are ex works excluding packaging plus the applicable statutory value added tax.
2. Where installation or assembly is carried out by the Supplier and no further agreements have been made, the Customer shall bear, in addition to the agreed remuneration, any required ancillary costs such as travel and transport costs as well as the corresponding allowances.
3. Unless agreed otherwise, payments shall be made free Supplier's paying agent.
4. The Customer shall not be entitled to offset any claims unless such claim is undisputed or has been declared final and absolute by a court.
Article 3: Retention of Title
1. The Supplier shall retain title to the goods supplied (“Retained Goods”) until any and all claims the Supplier has against the Customer under the business relationship have been satisfied. In the event that the value of all security interests which the Supplier is entitled to exceeds the amount of all secured claims by more than 10 %, the Supplier, at Customer’s request, shall release a corresponding part of the security interests; the Supplier shall be entitled to choose between different security interests for release.
2. The Customer may neither pledge any Retained Goods, which are subject to retention of title, to third parties nor transfer them by way of security. Resale to resellers in the ordinary course of business shall be permitted only on condition that the reseller receives payment from its client or makes it a condition that title is not transferred to the client until the latter has fulfilled its payment obligations.
3. The Customer hereby assigns to the Supplier, by way of security, any claims against third parties resulting from such resale of Retained Goods with all ancillary rights - including any balance claims - without any further specific declarations being required. In the event that Retained Goods are resold together with other items without an individual price being agreed for the Retained Goods, the Customer assigns to the Supplier that part of the total price claim which corresponds to the price of the Retained Goods invoiced by the Supplier.
4. a) Processing or mixing of Retained Goods with other items shall be permitted. The processing shall be carried out for the Supplier. The Customer shall keep the resulting new item for the Supplier with the due diligence of a prudent businessman. The new item shall be deemed to be Retained Goods.
b) The Supplier and the Customer hereby agree that in case of combination or mixing of Retained Goods with items of third parties the Supplier shall in any case be entitled to co-ownership of the new item with the share resulting from the ratio between the value of the combined or mixed Retained Goods and the value of the other goods at the time of combination or mixing. The new items shall be deemed to be Retained Goods to this extent.
c) The assignment of claims provided for in no. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed Retained Goods invoiced by the Supplier.
d) In the event that the Customer combines the Retained Goods with real property or movable property, the Customer shall assign to the Supplier by way of security also the claims which it is entitled to as remuneration for the combination, including any ancillary rights, in the amount of the ratio between the value of the combined Retained Goods and the value of the other combined goods at the time of combination without any further specific declarations being required.
5. The Customer shall be authorized to collect the assigned claims resulting from resale until revoked. The Supplier may revoke the Customer's authorization for collection in the event of good cause, in particular in the event of default of payment, cessation of payments, opening of insolvency proceedings, bill protest or reasonable indications of over-indebtedness or imminent insolvency of the Customer. Furthermore, after prior warning and with a reasonable period of notice, the Supplier shall be entitled to disclose the assignment made by way of security, to realize the assigned claims and to demand disclosure of the assignment by way of security by the Customer to the client.
6. The Customer shall notify the Supplier without delay in the event of any attachment, seizure or other disposition or intervention by any third parties. Furthermore, when the Supplier credibly demonstrates a justified interest, the Customer shall promptly provide the Supplier with the information required for asserting its rights against the client and hand over the required documents.
7. In the event of a breach of duty, in particular in the event of default of payment, the Supplier shall be entitled to withdraw from the contract, in addition to taking back, after unsuccessful expiry of a reasonable period set for the Customer’s performance; the statutory provisions on dispensability of setting a time limit shall remain unaffected. The Customer shall be required to return the Retained Goods. The taking back or the assertion of retention of title or the attachment of Retained Goods by the Supplier shall not be deemed to be a withdrawal from the contract unless expressly declared by the Supplier.
Article 4: Delivery Periods
1. Compliance with delivery periods shall be subject to the condition that the Supplier in due time receives all documents to be furnished by the Customer, any required approvals and any releases, particularly plans, and that the Customer complies with the agreed terms of payment and other obligations. If these conditions are not met in due time, the periods shall be extended accordingly unless the Supplier is responsible for the delay.
2. If the Supplier fails to observe the periods for any of the following reasons, the periods shall be extended accordingly:
a) force majeure, e. g. mobilization, war, acts of terrorism, riots or similar events (e. g. strike, lockout),
b) virus attacks and other attacks by third parties on the Supplier’s IT system provided that they have occurred despite compliance with the ordinary due diligence regarding protective measures,
c) obstacles due to German, US and other applicable national, EU or international provisions of foreign trade law or due to other circumstances which the Supplier is not responsible for, or
d) sub-suppliers’ failure to provide deliveries to the Supplier in due time or in the proper manner.
3. In the event of delay in delivery which the Supplier is responsible for the Customer may claim compensation provided that it can credibly demonstrate that it has suffered a loss as a result. The compensation shall be 0.5 % for each full week of delay, but in total not more than 5 % of the price of that part of the deliveries which could not be used for the intended purpose due to the delay.
4. The Customer's claims for damages due to delay in delivery as well as claims for damages instead of performance exceeding the limits specified in no. 3 shall be excluded in all cases of delay in delivery, even after expiry of a period which may have been set for Supplier’s delivery. This shall not apply in cases of mandatory liability for intent, gross negligence or injury to life, body or health. The Customer may not withdraw from the contract under the statutory provisions unless the Supplier is responsible for the delay in delivery. The foregoing provisions shall not imply a change in the burden of proof to the detriment of the Customer.
5. At Supplier’s request, the Customer shall declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or whether it insists on delivery.
6. If dispatch or delivery is delayed at the Customer’s request by more than one month after notification of readiness for dispatch, the Customer may be charged storage costs of 0.5 % of the price of the items to be delivered for each additional month commenced, but not more than a total of 5 %. The contracting parties may, however, prove higher or lower storage costs.
Article 5: Transfer of Risk
1. Risk shall pass to the Customer as follows, even in the case of freight-free delivery:
a) in the case of delivery without installation or assembly risk shall pass to the Customer when the goods have been dispatched or collected. At the Customer’s request and expense, the Supplier shall insure the delivery against the usual transport risks;
b) in the case of delivery with installation or assembly risk shall pass to the Customer on the day the goods are taken over for own operation or, if agreed, after a faultless trial operation.
2. Where dispatch, delivery, the start or execution of installation or assembly, taking over into own operation or the trial operation is delayed for reasons the Customer is responsible for or where the Customer is in default of acceptance for any other reasons, risk shall pass to the Customer.
Article 6. Installation and Assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. The Customer shall, at its own expense, provide the following items in due time:
a) any earthwork, construction work and other ancillary work outside the sector, including the skilled and unskilled staff, construction materials and tools required for these works,
b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
c) energy and water at the point of use including connections, heating and lighting,
d) at the assembly site sufficiently large, suitable, dry and lockable rooms for storage of machine parts, equipment, materials, tools, etc. and adequate working and break rooms for the assembly staff, including sanitary facilities appropriate to the circumstances; furthermore, the Customer shall take the same measures to protect the Supplier’s property and the assembly staff at the construction site as it would take to protect its own property,
e) protective clothing and protective devices required due to special circumstances at the assembly site.
2. Any required information on the location of hidden power, gas and water lines or similar installations as well as the required structural information shall be provided by the Customer prior to the start of the installation work without being requested to do so.
3. Before the start of installation or assembly the materials and items required for the start of work must be available at the installation or assembly site, and before the start of installation all preparatory work must have progressed so far that installation or assembly can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must have been levelled and cleared.
4. Where installation, assembly or commissioning is delayed due to circumstances which the Supplier is not responsible for, the Customer shall bear the reasonable costs incurred for any idle times and additional travelling of the Supplier or the assembly staff.
5. The Customer shall provide the Supplier without delay with a written confirmation of the duration of the assembly staff’s working time on a weekly basis as well as of the completion of installation, assembly or commissioning.
6. When the Supplier requests acceptance of the delivery after completion, the Customer shall be required to do so within two weeks, otherwise acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the goods delivered have been put into use - if applicable, after completion of an agreed test phase.
Article 7: Receipt
The Customer shall not be entitled to refuse receipt of any deliveries due to insignificant defects.
Article 8: Liability for Defects in Quality
The Supplier shall be liable for defects in quality as follows:
1. Any parts or services showing a defect in quality shall, at Supplier's option, be repaired or delivered again or rendered again free of charge provided that the cause of the defect already existed at the time of transfer of risk.
2. Claims for remedial performance shall be subject to a limitation period of 12 months from the statutory commencement of the limitation period; the same shall apply to rescission and reduction. This period shall not apply where legislation provides for longer periods in the case of intent, fraudulent non-disclosure of a defect and non-compliance with a guarantee of quality pursuant to sections 438 para. 1 no. 2 (construction work and items used for construction work), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) of the German Civil Code (BGB). The statutory provisions on suspension of expiry, suspension and recommencement of periods shall remain unaffected.
3. The Customer shall notify any defects in writing without delay.
4. In the event of a notice of defects the Customer may withhold an amount of payment that is in a reasonable proportion to the defects in quality. The Customer may not withhold payments unless the notice of defect is justified beyond any doubt. The Customer shall not withhold payment if its claims for defects are time-barred. If the notice of defects is unjustified, the Supplier may demand reimbursement of the expenses incurred from the Customer.
5. The Supplier shall be given the opportunity to provide remedial performance within a reasonable period of time.
6. Where remedial performance fails, the Customer may withdraw from the contract or reduce remuneration, without prejudice to any claims for damages which may exist under no. 10.
7. The Customer shall not be entitled to make any claims for defects in the case of merely insignificant deviation from the agreed quality, merely insignificant impairment of usability, natural wear and tear or damage arising after transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work or unsuitable construction ground or arising due to particular external influences which are not provided for by the contract, as well as in the case of non-reproducible software errors. If the Customer or any third parties carry out improper modifications or repair work, the Customer shall not make any claims for defects of the same and for the consequences resulting from them.
8. Any claims of the Customer due to the expenses required for the purpose of remedial performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses increase because the goods delivered have subsequently been taken to a place other than the Customer's business site unless such relocation is in accordance with the intended use of the same.
9. The Customer shall have a right of recourse against the Supplier pursuant to section 478 of the German Civil Code (BGB) (entrepreneur’s recourse) only if the Customer has not made any agreements with its client exceeding the scope of the statutory provisions governing claims for defects. Furthermore, no. 8 shall apply mutatis mutandis to the scope of the Customer's right of recourse against the Supplier pursuant to sec. 478 para. 2 of the German Civil Code (BGB).
10. Any claims for damages the Customer may have due to a defect in quality shall be excluded. This shall not apply in the event of fraudulent non-disclosure of the defect, non-compliance with a quality guarantee, injury to life, body or health and in the event of intentional or grossly negligent breach of duty by the Supplier. The above provisions shall not imply a change in the burden of proof to the detriment of the Customer. The Customer shall not make any further claims or any claims other than those provided for in this Article 8 due to a defect in quality.
Article 9: Industrial Property Rights and Copyrights; Defects of Title
1. Unless otherwise agreed, the Supplier shall provide delivery free from third parties' industrial property rights and copyrights (hereinafter referred to as “IPRs”) only in the country of the place of delivery. In the event that a third party makes a justified claim against the Customer for an infringement of IPRs by a delivery made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Customer within the period of time stipulated in Article 8 no. 2 as follows:
a) The Supplier shall, at its option and expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the IPR is not infringed or replace them. Where this is not possible for the Supplier on reasonable terms and conditions, the Customer shall be entitled to the statutory rights of rescission or reduction.
b) The Supplier's obligation to pay damages shall be governed by Article 12.
c) The aforementioned obligations of the Supplier shall only apply if the Customer promptly notifies the Supplier in writing of the claims brought by any third party, does not acknowledge an infringement, and leaves any defensive measures and settlement negotiations to the Supplier. Where the Customer ceases to use the goods delivered in order to minimize the damage or for any other good reason, the Customer shall inform the third party that such cessation of use does not imply an acknowledgement of any infringement of an IPR.
2. Claims of the Customer shall be excluded to the extent that the Customer is responsible for the infringement of an IPR.
3. Claims of the Customer shall also be excluded to the extent that the infringement of an IPR has been caused by any particular specifications made by the Customer, by any use not foreseeable by the Supplier, or by the fact that the goods delivered are modified by the Customer or used together with products not provided by the Supplier.
4. In the event of an infringement of any industrial property rights the provisions of Article 8 no. 4, 5 and 9 shall apply mutatis mutandis to the claims of the Customer under no. 1 a).
5. In the event of other defects of title the provisions of Article 8 shall apply mutatis mutandis.
6. Further claims or claims other than those provided for in this Article 9 of the Customer against the Supplier and its vicarious agents for a defect of title shall be excluded.
Article 10: Reservation of Performance
1. Performance of the contract is subject to the proviso that there are not any obstacles resulting from German, US or other applicable national, EU or international provisions of foreign trade law or any embargoes or other sanctions.
2. The Customer shall provide any information and documents which may be required for export, transport or import.
Article 11: Impossibility of Performance; Adjustment of Contract
1. Where delivery is impossible, the Customer may claim damages unless the Supplier is not responsible for the impossibility. However, the Customer's claim for damages shall be limited to 10 % of the value of that part of the delivery which cannot be used as intended due to the impossibility. This restriction shall not apply in the case of liability for intent, gross negligence or injury to life, body or health; this shall not imply a change in the burden of proof to the detriment of the Customer. The Customer’s right to withdraw from the contract shall remain unaffected.
2. Where any unforeseeable events within the meaning of Article 4 no. 2 substantially alter the economic importance or the content of the delivery or have a significant impact on the Supplier's business, the contract shall be appropriately adjusted taking into account the principles of good faith. Where this is economically unreasonable, the Supplier shall be entitled to withdraw from the contract. The same shall apply where the required export licences are not granted or cannot be used. When the Supplier intends to exercise its right of withdrawal, it shall inform the Customer without delay upon becoming aware of the significance of the event even if an extension of the delivery period has previously been agreed with the Customer.
Article 12: Other Claims for Damages
1. Unless otherwise provided for in these General Terms and Conditions of Delivery, any claims for damages the Customer may have for any legal reason whatsoever, in particular for breach of duties resulting from the contractual relationship and for tort, shall be excluded.
2. This shall not apply in the event of liability for the following reasons:
a) liability under the German Product Liability Act (Produkthaftungsgesetz),
c) gross negligence on the part of owners, legal representatives or executive employees,
d) fraudulent intent,
e) non-compliance with an assumed guarantee,
f) culpable injury to life, body or health, or
g) culpable breach of essential contractual obligations.
However, the claim for damages for breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract unless another one of the aforementioned reasons applies.
3. The above provisions shall not imply a change in the burden of proof to the detriment of the Customer.
Article 13: Place of Jurisdiction and Applicable Law
1. Where the Customer is a merchant, the Supplier's registered office shall be the sole place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. However, the Supplier shall also be entitled to bring an action at the Customer's registered office.
2. This contract shall be governed by and construed in accordance with German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Article 14: Severability Clause
If any of the provisions of the contract is held to be invalid, the remaining parts of the contract shall remain in force. This shall not apply if adherence to the contract would constitute an unreasonable hardship for either party.