General Terms and Conditions of quattro-form GmbH |
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Applicable as follows: |
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To persons who, at the time of entering into the contract, are engaged in commercial enterprise or independent business dealings (traders); |
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To corporate bodies or special entities under public law. |
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I. General points |
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All supplies and services shall be governed by these terms and conditions and by any separate contractual agreements. Any differing conditions of purchase issued by the buyer shall not be acknowledged as contractual terms - not even on acceptance of purchase order. |
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The supplier reserves the intellectual property rights to samples, cost estimates, drawings and similar information of a tangible and intangible nature - including in electronic form; third parties must not be given access to said items. The supplier undertakes to abide strictly by the buyer’s wishes with regard to the confidentiality of any information and documents supplied by the latter and never to disclose said information and documents to third parties without obtaining the buyer’s consent. |
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II. Price and payment |
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Unless agreed otherwise, prices are quoted ex works (EXW) including the loading of goods at the factory but excluding packaging and unloading. Statutory value added tax shall be added to the prices at the rate applicable at the time. The submitted offer has a validity of 3 months. In exceptional cases the supplier reserves the right to adjust prices. |
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In the absence of any special agreement, payments shall be remitted strictly net to the supplier’s account in the following instalments:
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3. |
The buyer shall only be entitled to withhold |
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III. Delivery time, delay in delivery |
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The delivery time shall be as contractually agreed between the parties. The supplier’s adherence to said delivery time shall be subject to the parties having discussed and settled all the relevant commercial and technical matters and subject to the buyer having fulfilled all the applicable obligations, such as providing the required official certificates or permits or making a down payment. If these conditions are not met then the delivery time shall be extended accordingly. This shall not apply if the supplier is responsible for the delay. |
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The meeting of the delivery deadline shall be subject to the supplier having been supplied on time with the correct materials. The supplier shall give as much notice as possible of any impending delays. |
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The goods shall be deemed to have been delivered on time if they left the supplier’s plant by the end of the delivery deadline or if notification has been given that they are ready for dispatch by the end of the delivery deadline. In cases involving a mandatory inspection and acceptance procedure, the acceptance date shall be the determining factor, or alternatively the date on which readiness for acceptance is announced - except in cases where acceptance is refused for legitimate reasons.
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If the dispatch or acceptance of the goods are delayed for reasons for which the buyer is responsible then the latter shall be invoiced for the costs incurred by the delay, beginning one month after the announcement of readiness for dispatch or acceptance. |
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If the failure to meet the delivery deadline is attributable to force majeure, industrial disputes or to other events beyond the supplier’s control then the delivery time shall be extended accordingly. The supplier shall notify the buyer as soon as possible of the onset and cessation of any such circumstances.
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The buyer may withdraw from the contract without notice if its fulfilment is entirely and definitively beyond the supplier’s power before the passing of risk. The buyer may also withdraw from the contract if it becomes impossible to supply one part of a purchase order and the latter has a legitimate interest in refusing part delivery. If this is not the case then the buyer shall pay the applicable contract price for the part delivery. The same shall apply in case of incapacity on the part of the supplier. In other respects paragraph VII.2 shall apply. If the impossibility or incapacity should occur during the delay in acceptance, or if the buyer is solely or largely responsible for the circumstances, then the latter shall remain liable to provide consideration.
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If the supplier fails to meet the deadline, causing the buyer to incur damages, then the latter shall be entitled to claim a lump sum in compensation. The calculation of the sum shall begin two weeks after the agreed delivery date at the earliest, amounting to 0.5 % for each full week of delay but no more than 5 % of the value of the part of the delivery which cannot be used on time or as specified in the contract as a result of the delay. If the buyer allows the supplier additional time after the deadline to make delivery - having due regard for statutory exceptions - and if the extended deadline is not met then the buyer shall be entitled to withdraw under the statutory provisions. Further claims arising from delayed delivery shall be determined solely by paragraph II.2 of these terms and conditions. |
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IV. Passing of risk, acceptance |
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The risk shall pass to the buyer when the ordered article has left the factory, including in cases of part deliveries or in cases where the supplier has taken on additional commitments, e.g. the shipping costs or delivery and installation. In the event of a mandatory final inspection and acceptance procedure, this shall determine the point of the passing of risk. It must be carried out punctually on the date appointed for the final inspection and acceptance or, alternatively, after the supplier has announced that the goods are ready for inspection and acceptance. The buyer may not refuse acceptance if there is a slight imperfection of a non-essential nature.
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In the event of the delay or non-occurrence of shipment or acceptance as a result of circumstances beyond the supplier’s control, the risk shall pass to the buyer from the day of announcement of readiness for dispatch or acceptance. The supplier undertakes to take out the insurance cover requested by the buyer at the latter’s expense. |
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Part deliveries may be made insofar as they are acceptable to the buyer. |
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V. Reservation of title |
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The supplier shall retain title to the ordered goods until such time as all payments in connection with the supply contract have been received.
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The supplier shall be entitled to insure the ordered goods against theft, breakage, fire, water and other damage at the expense of the buyer, unless the buyer can demonstrate already having taken out insurance. |
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The buyer may not transfer or pledge the ordered goods nor assign them as collateral. The buyer must inform the supplier immediately of any attachment, seizure or other dispositions made by third parties. |
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If the buyer is in breach of contract, especially in default of payment, then the supplier shall be entitled to take back the goods and the buyer obliged to surrender the goods after due warning process. |
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The supplier may only reclaim the goods on the basis of reservation of title after withdrawing from the contract. |
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A petition to open insolvency proceedings shall entitle the supplier to withdraw from the contract and to demand the immediate return of the goods. |
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VI. Claims for defects |
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The terms of the supplier’s guarantee in respect of material defects and defects of title to the exclusion of further claims - except as provided in paragraph VII - shall be as follows: |
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Material defects |
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Any parts which turn out to be defective, as a result of a circumstance which existed prior to the passing of risk, shall be rectified or replaced with non-defective parts free of charge, as the supplier chooses. The supplier must be given immediate written notification of the discovery of any such defects. Replaced parts shall become the property of the supplier. |
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After notifying the supplier, the buyer must allow ample time and opportunity for the supplier to make all the rectifications and replacements which the supplier deems necessary, otherwise the supplier shall be exempt from liability for the resulting consequences. Only in urgent cases where operational safety is at risk or where there is a need to avert disproportionate loss or damage - in the event of which the supplier must be notified immediately - shall the buyer have the right to rectify the defect or to have the defect rectified by a third party and to claim reimbursement from the supplier for the necessary outlay. |
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The supplier shall bear the immediate costs incurred by rectifying or replacing defective goods - insofar as the complaint proves to be legitimate - which shall include the costs of dismantling and installation and the costs of providing any fitters and assistants who may be needed, including their travel expenses, insofar as this does not place an inordinate burden on the supplier. |
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The buyer shall have a statutory right to withdraw from the contract if the supplier - having due regard for statutory exceptions - fails to rectify a material defect or to provide a replacement at the due time, having been allowed a reasonable period of respite to no avail. If a defect is merely negligible then the buyer shall only have the right to claim a reduction of the contract price. In no other circumstances shall the buyer be entitled to a reduction of the contract price. Further claims shall be determined by paragraph VII.2 of these terms and conditions.
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No guarantee shall be given in the following cases in particular: Inappropriate or improper use, incorrect assembly or start-up by the buyer or third parties, natural wear and tear, incorrect care or negligence, improper servicing, unsuitable operating equipment, deficient construction work, unsuitable foundation, chemical, electrochemical or electrical influences - insofar as responsibility for any of the latter does not lie with the supplier.
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The supplier shall not be liable for the consequences of any rectification work carried out incorrectly by the buyer or a third party. The same shall apply to any modifications made to the delivered item carried out without the prior consent of the supplier.
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Defects of title |
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If the use of the delivered item entails the domestic infringement of industrial or intellectual property rights, the supplier shall bear the cost of procuring the right for the buyer to continue using the item or of modifying the delivered item in such a way as dispenses with the infringement and is reasonable for the buyer. If this is not possible on economically viable terms or within a reasonable amount of time then the buyer shall be entitled to withdraw from the contract. The supplier shall also have a right to withdraw from the contract if said conditions prevail. The supplier shall also indemnify the buyer from claims of the holders of the relevant property rights which are undisputed or recognised by declaratory judgment.
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The duties of the supplier specified in paragraph VI. 7 are exhaustive in the event of property right or copyright infringement, except as provided in paragraph VII.2 |
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They shall apply only in the following cases: |
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The buyer informs the supplier immediately of property right or copyright infringement claims; |
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The buyer duly assists the supplier in averting the claims or allows the supplier to carry out modifications as provided in paragraph VI.7; |
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The supplier reserves the right to all actions of defence including extrajudicial settlements; |
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The defect of title is not due to an instruction issued by the buyer; |
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The infringement of rights was not caused by the fact that the buyer made unauthorised modifications to the delivered item or made non-contractual use of the delivered item. |
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VII. Liability |
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The terms set out in paragraphs VI and VII.2 shall apply - excluding further claims on the part of the buyer - if the delivered item cannot be used by the buyer as specified in the contract due to the fact that the supplier is at fault, having failed to act, or having acted wrongly, on recommendations and advice issued prior to entering into the contract or having neglected other contractual obligations, most notably the provision of instructions for the operation and maintenance of the delivered item. |
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The supplier shall only be liable - regardless of legal grounds - for damages not sustained by the delivered item itself as set out below: |
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In case of deliberate intent; |
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In case of gross neglect on the part of the proprietor / corporate bodies or executive staff; |
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In case of neglect of duty causing injury to life, limb or health; |
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In case of defects concealed by wilful deceit or the absence of which was guaranteed by the supplier; |
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e. |
In case of defects to the delivered item insofar as the supplier is liable under the law on product liability for personal injury and damage to property in private use. |
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The supplier shall also be liable for neglect of fundamental contractual duties in case of gross negligence on the part of non-executive staff and in case of slight negligence, albeit limited in the latter case to foreseeable damages as might typically occur and as might reasonably be assumed to occur under such contracts. Further claims shall be excluded.
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VIII. Statute of limitations |
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All claims of the buyer - regardless of their legal grounds - shall be subject to a 12-month limitation period. The statutory periods of limitation shall apply for claims for damages under paragraph VII.2 a-e. They shall also apply to any defects in a given structure or to delivered items which were used for a structure, as normal and intended, and have caused its imperfection. |
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IX. Use of software |
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If software is included under the supply contract, the buyer shall be granted a non-exclusive licence to use the supplied software inclusive of its documentation, and to use it on the delivered item for which it is intended. The software may not be used on more than one system. The buyer must abide strictly by the constraints of the law (art. 69 a ff. of the German Copyright Act (UrhG)) in terms of copying, adapting or translating the software or converting it from object code to source code. The buyer undertakes not to remove instructions and notices affixed by the manufacturer - especially copyright notices - and further undertakes not to change them without express prior consent from the supplier. The supplier or software vendor shall hold all other rights to the software and the documentation, including copies. Sub-licences may not be granted
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X. Applicable law, place of jurisdiction |
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All legal relations between the supplier and the buyer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties. |
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Venue shall be the court having jurisdiction over the place of business of the supplier. The supplier shall be entitled, however, to take action at the headquarters of the buyer. |
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quattro-form GmbH, Ettenheim |
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21.03.2023 |