General Terms and Conditions for Deliveries and Services of VEDDER GmbH
Issue 12/2019
I Basic conditions
1. Definitions
1.1 These "General Terms and Conditions for Deliveries and Services" are hereinafter called "TERMS".
1.2. "VENDOR" in the sense of the TERMS is VEDDER GmbH.
1.3. "DELIVERIES" in the sense of the TERMS are all deliveries and services of VENDOR to BUYER.
1.4. “CONTRACT” in the sense of the TERMS is the written agreement between BUYER and VENDOR including all annexes and supplements in the written form agreed thereto which relate to the content and execution of the DELIVERIES.
1.5. "ACCEPTANCE" in the sense of the TERMS is a process in which the compliance of the DELIVERIES or a part thereof with the CONTRACT is bindingly determined for both parties.
1.6. "BUYER" in the sense of the TERMS is the company (or its legal successor) or the person (or its legal successor) that has placed the order with VENDOR for executing the DELIVERIES.
2. All deliveries and services of VENDOR (hereinafter called "DELIVERIES") are based on these TERMS, insofar as they have not been amended or supplemented by the CONTRACT.
3. Terms and conditions of purchase or general terms and conditions of BUYER which differ from these TERMS will not become an integral part of the CONTRACT, even if VENDOR accepts and/or performs the order without any reservations.
4. VENDOR's written order confirmation is decisive for the type and scope of the DELIVERIES. If no explicit order confirmation has been issued, the quotation shall have decisive effect. Any collateral agreements and amendments require VENDOR's written confirmation.
5. Costs for additional DELIVERIES which become necessary due to local conditions, joining of the subsystems, orders, dispositions or regulations of public institutions or other amendments on the part of BUYER which arise after conclusion of CONTRACT, shall be paid by BUYER.
6. VENDOR reserves the right to realise modifications and improvements to design, manufacture, material and execution, insofar as DELIVERIES are not substantially changed and the changes can be accepted as reasonable by BUYER.
7. Intellectual Property
7.1. VENDOR reserves the rights of ownership, rights of use and copyrights to all technical and economic information in written and digital form, which BUYER may have received from VENDOR pre-contractually or during contract implementation; third parties may only be granted access to such information with VENDOR's explicit approval.
7.2. BUYER may use the aforementioned information only to implement the CONTRACT, to operate, maintain and service the supplied items or subsystems. BUYER does not receive any right to use the aforementioned information to duplicate or expand the DELIVERIES.
II. Prices and Payments
1. In the absence of any other special agreement, the prices shall be effective "EXW", including loading in the works, however, excluding packaging and unloading. If legally applicable, the value-added tax at the respective statutory rate shall be added to the prices.
2. The terms of payment are subject to a special agreement and valid according to the order. All payments shall be effected without any deduction and within 30 days to the account of VENDOR.
3. BUYER shall only be entitled to withhold payments, if its counterclaims are undisputed or have been determined as legally binding.
4. The right to offset payments against counterclaims from other legal relationships is only available to BUYER to the extent that these are undisputed or have been determined as legally binding.
III. Delivery Time, Delivery Delay
1. The delivery time results from the agreements of the contractual parties. Its compliance by VENDOR presupposes that all commercial and technical questions between the contractual parties have been clarified, and that BUYER has met all statutory or contractual obligations incumbent on it. Should this not be the case, the delivery time shall be appropriately extended. This shall not apply, if VENDOR is responsible for the delay.
2. The obligation to compliance with the delivery time is subject to the correct and timely delivery by our suppliers. VENDOR shall notify of any emerging delays as soon as possible.
3. The delivery time shall be deemed to have been observed, if the DELIVERIES have left VENDOR's works by the agreed date or the notification of readiness for dispatch has been issued. Insofar as assembly activities and a subsequent ACCEPTANCE have to take place, the date of ACCEPTANCE - with the exception of a justified refusal of ACCEPTANCE - shall be decisive for determining the VENDOR's observance of the date, in the alternative, the notification of the readiness for acceptance.
4. Should the dispatch or ACCEPTANCE of DELIVERIES be delayed on BUYER's request, or for reasons, for which BUYER is responsible, BUYER shall, beginning one month after notification of the readiness for dispatch or readiness for acceptance, bear the costs incurring as a result of the delay, above all those due to storage, amounting to at least 0.5% of the invoice amount per month for storage at VENDOR's works. After setting a reasonable deadline which has unsuccessfully expired, VENDOR shall have the right, if possible, to dispose differently of the stored items, and to supply BUYER within a reasonably extended deadline.
5. Should the failure to meet the delivery time be caused by force majeure, industrial conflicts or other events beyond VENDOR's control, the delivery time shall be appropriately extended. VENDOR shall notify BUYER of start and probable end of such circumstances at the earliest convenience.
6. Should the complete performance prior to the passage of the risk become definitely impossible for VENDOR, BUYER can withdraw from CONTRACT without setting a deadline. Additionally, BUYER can withdraw from CONTRACT, if performance of part of DELIVERIES related to an order becomes impossible and BUYER has a justified interest in refusing the partial delivery. Should said circumstance not apply, BUYER shall pay the contractual price related to the partial delivery. The same shall apply in the event of VENDOR's inability to perform. In all other respects, sections VII.2 and 3 shall apply. Should the impossibility or inability to perform occur during BUYER's delay of acceptance, or should BUYER be solely or largely responsible for said circumstances, BUYER shall be obliged to provide compensation therefor.
7. Should VENDOR get into delay and should BUYER incur damages therefrom, BUYER shall be entitled to claim liquidated damages. Said claim shall amount to 0.5% per each full week of delay, but to no more than in total 5% of the value of that part of the entire delivery which cannot be used in time or in accordance with CONTRACT as a result of said delay. Should BUYER set a reasonable deadline for VENDOR to perform the service after maturity - under consideration of the legal exceptions - and should said deadline not be met, BUYER shall be entitled to withdrawal within the framework of the statutory regulations. BUYER shall undertake to declare on VENDOR's request during a reasonable period, whether it will exercise said right of withdrawal. Further claims from delivery delay shall be based exclusively on sections VII.2 and 3 of these TERMS.
IV. Passage of the Risk, Acceptance
1. The risk shall pass to BUYER when the supplied items have left the works, this shall also apply in the event of partial deliveries or if VENDOR also is responsible for other services such as shipping costs or delivery and installation. Insofar as an ACCEPTANCE is necessary, this shall be decisive for the passage of the risk.
2. The ACCEPTANCE shall be performed by the ACCEPTANCE date, or alternatively, immediately after VENDOR's notification of the readiness for acceptance. BUYER may only refuse the ACCEPTANCE, if substantial defects exist.
3. Should the dispatch or ACCEPTANCE be delayed or fail to be performed for reasons beyond VENDOR's control, the risk shall pass to BUYER on the day of the notification of readiness for dispatch or ACCEPTANCE. VENDOR shall undertake to take out the insurances at BUYER's expense, provided that BUYER demands such insurances.
4. Should a documentation form part of the DELIVERIES whose preparation requires BUYER to participate, and should complete submission of said documentation not be possible at the date of acceptance or notification of the readiness for acceptance, this shall not be deemed to be a substantial defect.
5. Partial deliveries shall be permitted if not unreasonable for BUYER.
6. If VENDOR performs assembly activities within the frame of the ORDER, the passage of the risk is implemented on ACCEPTANCE of the work at BUYER’s site.
7. If together with the subsystems of VENDOR, provisions, subsystems or items of BUYER or third parties are supplied, processed or made available in any other way, VENDOR will not accept any warranty and be released from any liability in the event of any damage, with the exception of wilful intent or gross negligence.
V. Retention of Title
1. VENDOR shall retain the title on the supplied items until all of VENDOR's claims against BUYER from the business relationship have been paid, including claims arising in the future, and those from contracts concluded at the same time or later. This shall also apply, if individual or all of VENDOR's claims have been included in a current invoice and the balance has been drawn and accepted.
2. VENDOR shall be entitled to arrange for the insurance of the supplied items against theft, breakage, fire, water and other damage at BUYER's expense, unless BUYER can furnish proof of haven taken out those insurances itself.
3. As long as there has been no passage of title, BUYER shall inform VENDOR immediately in writing, if supplied items have been seized or are exposed to any other intervention of third parties.
4. The petition for opening insolvency proceedings relating to BUYER's assets shall entitle VENDOR to withdraw from CONTRACT and to demand the immediate surrender of supplied items.
5. BUYER shall be entitled to the resale of the supplied items in the normal course of business. BUYER herewith assigns already now to VENDOR its claims from the resale of the supplied items amounting to the final amount of invoice (including value-added tax) agreed with VENDOR.
VENDOR shall undertake not to collect its claims as long as
- BUYER duly fulfils its payment obligations or
- authority to collect has not been revoked or
- no petition for opening insolvency proceedings relating to BUYER's assets has been filed.
VI. Warranty and Claims for Defects
VENDOR shall be liable for material defects and defects of title to the exclusion of further claims - subject to a different provision in section VII - as follows:
1. Material defects
1.1. VENDOR will assume no liability in the following cases:
Inappropriate or improper use, faulty assembly or commissioning by BUYER or third parties, natural wear and tear, erroneous or negligent handling, improper maintenance, unsuitable operating media, deficient construction or assembly work, unsuitable building site, chemical, electrochemical or electrical influences - unless VENDOR shall be responsible for such circumstances.
1.2. Notwithstanding mandatory warranty provisions, wilful or gross negligent acts, VENDOR will not guarantee that the supplied items are suitable for an intended purpose or conform to the requirements and stresses foreseen by BUYER, should BUYER data be outstanding, incomplete or wrong, unless such a suitability was expressly assured in writing.
1.3. DELIVERIES which turn out to be inadequate due to a circumstance arising prior to the passage of the risk, shall, at VENDOR's discretion, be reworked by VENDOR or replaced by faultless DELIVERIES.
VENDOR shall be immediately notified of the detection of such defects. Replaced defective parts shall become the property of VENDOR.
1.4. BUYER, after coordination with VENDOR, shall grant the required time and opportunity to carry out all rework and replacement deliveries deemed to be necessary by VENDOR; otherwise VENDOR shall be released from the liability for the consequences arising therefrom. Only in urgent cases where the operational safety is at risk, or to prevent disproportionately large damage, of which VENDOR must be notified immediately, BUYER shall be entitled to eliminate the defect itself, or have said defect eliminated by a third party, and to demand compensation for the required expenditure from VENDOR.
1.5. Insofar as the complaint turns out to be justified, VENDOR shall bear the direct costs of the rework or replacement delivery, including the shipping costs. VENDOR shall only be obliged to accept the costs of removal and installation as well as of any necessary provision of the required fitters and auxiliary staff including travel expenses, if VENDOR is responsible for the defect in the DELIVERIES and to the extent, as this takeover of costs is not an unreasonable burden imposed on VENDOR.
1.6. Within the framework of statutory regulations, BUYER has the right to withdraw from CONTRACT, if - under consideration of the legal exceptions - VENDOR should fail to observe an appropriate grace period set for the rework or replacement delivery of a material defect. Should only a minor defect exist, BUYER shall only be entitled to reduce the contract price. In any and all other respects, the right to reduce the contract price shall be excluded.
1.7. Should BUYER or a third party carry out improper rework, VENDOR shall not be liable for the consequences arising therefrom. The same shall apply to all changes to the supplied items carried out without VENDOR's prior approval.
1.8. Further claims shall be based exclusively on sections VII. 2 and 3 of these TERMS.
2. Defects of title
2.1. If the use of the DELIVERIES at the place of application causes an infringement of industrial property rights or copyrights, VENDOR shall principally provide BUYER with the right to further use at VENDOR's expense, or modify the DELIVERIES in a way deemed reasonable for BUYER that the infringement of industrial property rights no longer exists. Should this be impossible under reasonable economic conditions or within a reasonable time period, BUYER shall be entitled to withdraw from CONTRACT. Under the aforementioned conditions, VENDOR shall also have the right to withdraw from CONTRACT.
Furthermore, VENDOR shall indemnify BUYER against claims of the respective owners of the industrial property rights which are undisputed or have been determined as legally binding.
2.2. Subject to the provisions in sections VII.2 and 3, VENDOR's obligations mentioned in section VI. 2.1. are final with respect to industrial property right or copyright infringements.
They shall only apply, if
- BUYER notifies VENDOR immediately of asserted claims of industrial property right or copyright infringements,
- BUYER supports VENDOR to a reasonable extent in the defence against such asserted claims or enables VENDOR to carry out the modification measures according to section VI. 2.1,
- all defensive measures including out of court settlements remain reserved to VENDOR,
- the defect of title is not attributable to an instruction issued by BUYER and
- the infringement of right did not arise from the fact that BUYER has modified the DELIVERIES without authorisation or used the same in a way that does not comply with the CONTRACT.
VII. Liability of VENDOR, Exclusion of Liability
1. Where, as a result of culpably omitted or faulty suggestions or consultations, either before or after conclusion of CONTRACT, or as a result of culpable infringements of other contractual additional obligations, in particular in case of erroneous operating and maintenance instructions for the supplied items, for which VENDOR is responsible, BUYER is unable to use the DELIVERIES in accordance with the CONTRACT, the provisions in sections VI and VII.2 and 3 shall apply with all further claims of BUYER being excluded.
2. For damages that have not occurred at the supplied items themselves, such as loss of production, loss of profit, damages of third parties, downtime costs, loss of use, loss of orders, increased operating, maintenance or personnel costs or indirect costs and/or consequential damage of whatever kind, VENDOR shall, for whatever legal reasons, be liable only
a. in the event of wilful intent
b. in the event of gross negligence on the part of executive bodies or executive employees
c. in the event of culpable injury to life, limb or health
d. in the event of defects which VENDOR maliciously concealed
e. within the framework of an assured warranty
f. in the event of defects in the supplied items to the extent liability exists under the German Product Liability Act for personal injuries or property damage in relation to privately used items
3. In the event of culpable infringement of essential contractual obligations, VENDOR shall also be liable in the case of gross negligence on the part of non-executive employees and in the case of slight negligence, however, in the latter case limited to the reasonably foreseeable damage which is typical of CONTRACT. Further claims shall be excluded.
VIII. Statute of Limitations
All claims on the part of BUYER, regardless of the legal grounds or other contractual agreements, shall come under the statute of limitations after 12 months from the end of assembly or delivery.
IX. Severability Clause, Applicable Law, Place of Performance and Place of Jurisdiction
1. Should any of the provisions be or become ineffective or impracticable, the other provisions shall remain in full force and effect. The parties shall undertake to replace such an invalid or impracticable provision by a valid provision which comes closest to the content and economic purpose of the invalid provision.
2. All legal relationships between VENDOR and BUYER shall be exclusively governed by the laws of the Federal Republic of Germany to the exclusion of the conflict of law rules of private international law (IPR) and the UN Convention on Contracts for the International Sale of Goods (CSIG).
3. The place of performance for deliveries and payments (including cheques and bills of exchange) as well as place of jurisdiction for all disputes which may arise between VENDOR and BUYER from the CONTRACT is the place of VENDOR's head office. VENDOR shall also be entitled to bring action against BUYER at BUYER's place of business.