General Terms and Conditions
- Our General Terms and Conditions apply to all contracts with our contractual partners who are entrepreneurs (“Customer”).
- Our General Terms and Conditions apply exclusively; terms and conditions of the Customer’s that conflict with or deviate from ours will not be acknowledged unless we have expressly agreed to their applicability in writing. Our Terms and Conditions apply even in cases where delivery has been executed by us without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer.
- Our quotations are always made without engagement, i.e., they only represent an invitation to the Customer to make an offer. If a purchase order from the Customer qualifies as an offer, we reserve the right to accept it within two weeks.
- Contracts with Customers only become effective by our written order confirmation, or at the latest upon execution of the order. All agreements made between the Customer and ourselves pertaining to the execution of the contractual relations have been set forth in writing in this contract. Any changes, side agreements, and any other agreements (particularly individual agreements that deviate from our offer or from our order confirmation) require written form provided the parties do not mutually agree (including orally) to waive the written-form requirement. Any change requests by the Customer are approved only if explicitly accepted by us.
- We reserve the right to make technical or design changes compared with descriptions and details in brochures, offers, and written documents, including any design modification, development, and material variation resulting from technical progress, if and insofar as the change is not unreasonable for the Customer in consideration of our interests. This is regularly deemed to be the case if it does not interfere with the contractual purpose associated with our performance, provided the Customer does not have a special interest in the provision of the unchanged performance.
- We are entitled to delegate contractual performance in whole or in part to third parties (agents), particularly if services fall within the purview of specialized experts.
Documents and changes in execution
- The Customer must provide us with any relevant execution documents and all necessary and useful information in writing that is required to execute the order, and it must approve partial performances when so requested.
- The Customer reserves the right to make changes in execution. These must be reported to us in writing and shall be considered to the extent possible in the further execution of the contract. In the event that additional services are needed in connection with the Customer’s changes, these shall be reimbursed separately and priced on the basis of comparable items or, absent such items, priced reasonably in accordance with normal rates.
- We reserve our rights of ownership and copyrights of any sketches, illustrations, diagrams, drawings, calculations, and design details and in any other documents. This also applies for any written documents designated as “confidential.” The Customer requires our express written consent prior to sharing them with third parties.
Prices and Terms of Payment
- Unless agreed otherwise, our prices apply at Erlangen plus the applicable value-added tax. The deduction of cash discounts require a special agreement. In the event that a delivery is agreed to occur within four months, the price agreed on the day the contract is concluded shall apply. We are entitled and obliged to make price adjustments if more than four months have passed from the date of conclusion of the contract to the delivery date and, in addition, if cost reductions or cost increases have come into effect following the date of conclusion of the contract, especially if price adjustments are based on collective wage agreements or changes in the cost of materials. We will inform the Customer thereof without delay. We will provide evidence of the relevant cost factors and cost reductions or increases that caused the price reduction or increase, upon the Customer’s request. Moreover, price increases must be reasonable and may not alter the ratio of performance and counterperformance. Price increases shall only be permissible under the condition that a profit reduction may be avoided thereby but no additional profit realized. In the event that the price increase exceeds 5.0 percent of the delivery value, the Customer is entitled to rescind the contract within two weeks following receipt of the announcement of the price increase, with effect from the first day of the price increase. If the Customer rescinds the contract, they must nevertheless pay for all work performed.
- Our goods and services are payable strictly as net (with no deduction) within 30 days of billing at the latest. Bills of exchange and checks are accepted only for the sake of payment. If checks or bills of exchange are accepted, deferral of the purchase price applies only on the condition that the Customer’s financial conditions do not deteriorate. We can demand progress payments for work performed based on the agreement for completed portions of the work.
- The legal regulations shall apply to delays in payment. Default interest shall be fixed at a higher or lower rate than the legal interest rates if we can provide proof of expenses with a higher interest, or the Customer can provide proof of lower expenses. In the event of a stoppage of payment, delay in payment, deterioration of the Customer’s financial condition, or the opening of insolvency proceedings, we are entitled to immediately assert any demands from the business relationship that are not yet payable. The Customer may avert enforcement of these rights by furnishing security in the form of a directly enforceable guarantee in the amount of our payment claim, along with interest and costs.
- The Customer’s right of set-off is limited to counterclaims that have been adjudicated finally and without possibility of appeal, are undisputed, or have been acknowledged by us. The Customer is entitled to exercise their right of retention only insofar as their counterclaim is based on the same legal relationship.
Deliveries and partial deliveries, Delay in delivery
- The delivery dates indicated in our offers are subject to change. Delivery dates are binding only if expressly confirmed. Deliveries only commence upon receipt of our written order confirmation and payment of any agreed installments. If the Customer is required to provide permits, release certificates, installation plans, advance payments, certifications, or any other documents, the delivery period commences only upon submission of all such documentation, regardless of when the order confirmation was received.
- Our delivery times are subject to proper and timely delivery by our suppliers, unforeseen events during the production process, or other delays due to force majeure, interruption of operations, delay in transit, labor disputes, scarcity of materials, or import and export restrictions that subsequently impede or frustrate performance by us or our suppliers. The delivery dates shall be extended by the period of the delay plus a reasonable restart period. We have not exceeded our delivery date if, by the deadline, the subject matter of the agreement left our factory or we gave notice of readiness to ship. We have also not exceeded our delivery date if the subject matter of the agreement could not be shipped in a timely manner due to no fault of our own. In that case, it is sufficient for us to give notice of readiness to ship.
- Absent proper and timely delivery by our suppliers or in the event of unforeseen events that subsequently make it impossible or significantly more difficult for us to perform our obligations, we are entitled to rescind the agreement without incurring liability for damages to the Customer. We will promptly notify the Customer of the impossibility of performance and refund any consideration received. If we fail to provide a statement in response to a request, the Customer may rescind the agreement.
- If we become aware of irregular payments, deterioration of financial conditions, payment stoppage, overindebtedness, inability to pay, or insolvency filing by the Customer, we are entitled to ship COD or after prepayment, at our election. The Customer is entitled to prevent the enforcement of such rights by furnishing security in the form of a directly enforceable guarantee in the amount of our payment claim plus interest and costs.
- We are entitled to make partial deliveries and to issue partial billing statements for our services if partial deliveries are not unreasonable for the Customer.
- In the event of a delay in delivery, we are liable as specified by law in cases of intentional misconduct or gross negligence. We are also liable for any culpability on the part of our representatives or agents. However, in cases of gross negligence our liability is limited to the foreseeable damage that typically occurs. In addition, we are liable in accordance with the statutory provisions if we have culpably violated a material contractual obligation if the infringement of the obligation relates to an obligation that makes proper execution of this agreement possible in the first place and on which the Customer must be able to rely. In this case, too, our liability is limited to the foreseeable damage that typically occurs. In other cases, our liability for delays in delivery is calculated using a flat rate of compensation equal to 0.5% of the value of the delayed delivery for each whole week of delay, not to exceed 5% of the value of the delayed delivery. The Customer is entitled to furnish proof of greater damages from the delay. Any claims and rights of the Customer that exceed the aforementioned stipulations are precluded hereby. The aforementioned limitations shall not apply in the event of liability for injury to life, limb, or health.
Packaging and Dispatch, Passing of Risk
- Unless otherwise indicated in the order confirmation, goods are shipped at the expense and risk of the Customer. We will pack the subject matter of the agreement as is customary in the trade. We reserve the right to select the shipping method. Insurance coverage for the goods in transit will be provided at the Customer’s request and expense. We are not liable in the event of loss, accidental destruction, or damage to the shipped merchandise.
- This risk passes to the Customer upon delivery of the contractual object to the forwarding agent, carrier, or any other person specified to perform shipment, or at the latest, upon leaving our factory or warehouse. The risk is also transferred if the contractual object has been accepted by the Customer, the Customer has been notified that the object is ready, or if delivery has been deferred at the Customer’s request.
- We hereby assign and transfer to the Customer any damage claims against liable third parties and/or insurance companies. The Customer accepts such assignment and transfer. Any further claims against us are precluded hereby.
Retention of Title
- We reserve title to the merchandise pending payment in full. This also applies to any or all demands from an existing current-account relationship (business relationship) with the Customer; the reservation applies to the acknowledged balance. If we have made separate arrangements with the Customer for payment using the note procedure, the reservation of title shall not expire prior to redemption of the notes accepted by the Customer. In the event that the Customer violates their obligations, and in particular in the event of delay in payment, we are entitled to demand the return of the merchandise (setting a reasonable deadline) and/or to rescind the agreement; the Customer is then required to surrender the merchandise. If the merchandise has not yet been delivered, we are entitled to withhold it or to refuse to fulfill the agreement until all amounts owed by the Customer are paid. A request to surrender the contractual object or the withholding thereof shall not be interpreted as a statement of rescission unless we expressly stated this in writing.
- The Customer must notify us without delay in the event of attachment or other intervention by third parties. If the Customer violates this requirement, they are liable to us for damages.
- The Customer is entitled to resell the merchandise in the ordinary course of business; however, they now hereby assign and transfer to us any and all demands they accrue from such resale against their buyers or third parties, regardless of whether the merchandise was resold without processing or after processing. We hereby accept such assignment and transfer. If there is a current-account relationship between the Customer and their buyers or third parties, the demands assigned to us by the Customer in advance shall also relate to the acknowledged balance and, in the event of the buyer’s or third party’s insolvency, also to the “causal” balance. The Customer remains authorized and empowered to collect the demand even after it is assigned and transferred. The Customer is required to immediately pay us the proceeds from each resale of our merchandise to the extent that our demands are due and payable. Our authority to collect the demands ourselves shall remain unaffected thereby. We are further entitled to revoke the authorization to collect the demands. However, we pledge and undertake not to revoke such collection authority and not to collect demands as long as the Customer satisfies their payment obligations from the agreed proceeds, does not enter arrears with payments, there is no stoppage of payments, and/or no petition is filed to open insolvency proceedings. In the event that a petition to open insolvency proceedings is filed, the authorization to resell the goods subject to reservation of title and to collect the demands shall expire; in this regard, we can and may demand that the Customer disclose to us the assigned demands and their debtors, provide all information necessary for collection, surrender the associated records, and notify the debtors regarding the assignment and transfer.
- In all cases, processing or transformation of the merchandise by the Customer is performed for us. Internally, this does not result in any obligations for us to Customers. If the merchandise is processed with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the merchandise to that of other objects processed at the time of the processing. Furthermore, the object created by the processing is subject to the same provisions as the merchandise delivered under reservation.
- If the merchandise is inseparably combined with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the merchandise to that of the other combined objects at the time they are combined. If they are combined in such a way that the Customer’s object is considered to be the main object, it is assumed to be agreed that the Customer will transfer co-ownership to us proportionally.
- We pledge and undertake to release our security at the Customer’s request insofar as the attainable value of our security exceeds the demands being secured by more than 10 percent; the choice of the security to release is ours.
- We are liable for defects in the object of the agreement in line with the following provisions if the Customer is in proper compliance with their examination and notification duties in accordance with HGB (German Commercial Code) Section 377.
- The Customer is required to inspect the object of the agreement for obvious defects that any average customer would notice. Obvious defects also include missing manuals as well as easily visible damage to the object of the agreement and the delivery of another or a smaller quantity. We must be notified of obvious defects in writing within two weeks after delivery. We must be notified in writing of defects that only become visible at a later time within two weeks following identification, accompanied by an error report with details pertaining to on-site and environmental conditions as well as the last inputs. If the Customer violates the examination or notification duties, the object of the agreement is considered approved.
- If there is a defect in the contractual object (subject to item 8.5), we are entitled to provide a cure, either by correcting the defects or supplying a non-defective contractual object, at our election. Any costs incurred in connection with the subsequent performance shall be paid by us unless they increase because the goods or services are transported to a location other than Erlangen and the transportation does not correspond to their intended use. Defective contractual objects must be returned to us in exchange for reimbursement of costs. In the event that this is impossible or economically unreasonable, we must be given the opportunity to examine the alleged defects. The defective contractual objects must be made available and returned to us if a non-defective contractual object is provided. If one or both types of subsequent performance are impossible or unreasonable, we may withhold subsequent performance. We may withhold subsequent performance as long as the Customer has not fulfilled their payment obligations to us to an extent corresponding to the non-defective part of the rendered performance. Warranty claims are excluded for insignificant defects.
- In the event that subsequent performance as specified in item 8.3 is impossible or has failed, the Customer has the option to either reduce the compensation accordingly or to rescind the contract according to the statutory provisions. In particular, this shall be the case in the event of culpable delay or refusal to perform subsequent performance, or if subsequent performance has failed for the second time, unless the nature of the contractual object, the defect, or other circumstances lead to a different conclusion. The above-referenced provisions also apply in the event of delivery of another contractual object or of a lesser quantity.
- If we are required to create custom software and in the event that the software has a defect, at our election we may provide subsequent performance by way of defect correction or providing non-defective software. We are entitled to withhold subsequent performance if it is impossible or requires unreasonable effort or if the Customer has not fulfilled their payment obligations to us to an extent corresponding to the non-defective part of the rendered performance. We must be given the opportunity to examine the defect. If we provide non-defective software, the defective software must be returned to us. The Customer is entitled to decline the subsequent performance selected by us if the subsequent performance is unreasonable to them. The Customer is entitled to correct the defects and to receive compensation for expenses necessary for this purpose only after expiration to no avail of a reasonable period set in writing for us to provide subsequent performance, unless setting a deadline is not necessary according to the legal provisions. Self-remedy and compensation for expenses are precluded hereby if we are entitled to withhold subsequent performance. In the event that the subsequent performance is impossible or has failed, the Customer has the option to either reduce the compensation accordingly or to rescind the contract according to the statutory provisions. In particular, this shall be the case in the event of culpable delay or refusal to perform subsequent performance. Warranty claims are excluded for insignificant defects. In other respects, our liability for defects is determined according to the statutory rules governing contracts for work.
- No warranty is assumed for the following reasons: Incorrect installation, connection, and operation, unsuitable or inappropriate use, faulty or negligent treatment, ordinary wear and tear, unsuitable equipment, chemical, electrochemical, or electrical influences, inappropriate changes or repairs.
- Any claims and rights pertaining to defects in the delivery/performance shall become time-barred in accordance with item 13.1.
- Liability for damages and/or reimbursement of expenses for defects is governed by part 10. Any other claims of the Customer’s are precluded hereby.
If we are required to create custom software, the software is considered to have been inspected and accepted once the contractually owed user manual is delivered to the Customer and the Customer puts the software into operation and uses it for a period of time adequate for testing the software.
- We are liable for culpable injuries to life, limb, and health in accordance with the statutory provisions. The same applies in the case of liability under the German Product Liability Act.
- Furthermore, we are liable according to the statutory provisions in cases of intentional misconduct or gross negligence, including intentional misconduct or gross negligence on the part of our representatives or agents. In cases of gross negligence, our liability is limited to the foreseeable damage that typically occurs.
- In addition, we are liable in accordance with the statutory provisions if we have culpably violated a material contractual obligation if the infringement of the obligation relates to an obligation that makes proper execution of this agreement possible in the first place and on which the Customer must be able to rely. In this case, too, our liability is limited to the foreseeable damage that typically occurs.
- In other cases, liability is precluded hereby, regardless of the cause in law. This particularly applies to damage claims based on culpa in contrahendo, infringement of secondary contractual obligations, and any other infringement of obligations, tort as well as any tort liability, and any other liability for claims due to damages lying outside the contractual object, for indirect and consequential damages, in particular loss of production and loss of data, as well as any compensation for lost profit.
- Where liability is limited according to the above provisions, this also applies to any personal liability on the part of our legal representatives, employees, and agents.
- The above rules for damage compensation claims also apply to claims for reimbursement of costs.
- The Customer can rescind the agreement in accordance with statutory provisions only if we are responsible for a violation of duties. In the case of defects, however, the statutory conditions still apply. In the case of violations of duties, at our request the Customer must state within a reasonable period whether they are rescinding the agreement due to the violation or they insist on the goods/services.
- f the agreement is canceled by rescission, regardless of the cause, the Customer is required to pay reasonable compensation for the period the contractual object was provided.
Reversal agreement and compensation for non-acceptance
- If the agreement is canceled early by mutual agreement and without satisfaction of our obligations despite a valid contractual relationship, the Customer is required to pay compensation for non-acceptance.
- The compensation for non-acceptance covers our expenses for implementing the agreement, such as purchasing unfinished parts, programming, design, production, administrative costs, and lost profit. The amount of the non-acceptance compensation shall be a flat 10 percent of the delivery value. The compensation for non-acceptance must be increased or decreased if we can demonstrate greater or the Customer demonstrates lesser expenses.
- The limitation period shall be one year for any rights and claims with respect to defects in goods and services, regardless of the cause in law. The limitation period begins in accordance with the statutory provisions. However, this does not apply in cases of BGB (German Civil Code) Section 438 (1) item 2 (buildings, items for buildings), BGB Section 634a (1) item 2 (buildings), or BGB Sections 478, 479 (recourse of the supplier). The statutory limitation periods shall apply in those cases.
- The limitation periods according to item 13.1 shall also apply to any and all damage compensation claims in connection with defects. If there are damage compensation claims unrelated to a defect, a limitation period of 18 months shall apply. The limitation period for damage compensation claims begins when the claim arises and there is awareness or grossly negligent lack of awareness of the circumstances that establish the claim and of the identity of the debtor.
- The limitation periods set forth in items 13.1 and 13.2 shall apply with the following proviso:
- The limitation periods do not apply in the event of intentional misconduct or fraudulent intent. Furthermore, they do not apply to damage compensation claims based on injury to life, limb, or health, for claims under the German Product Liability Act, in case of grossly negligent violation of duties, or in the event of violation of essential contractual obligations. The statutory limitation periods shall still apply in those cases.
- In the event that the Customer terminates the agreement in accordance with BGB Section 649, we are entitled to demand the agreed payment under consideration of the value of the saved expenses and derived benefits resulting from the termination. The value for saved expenses shall be assessed at a standard rate of 30 percent of the compensation for the remaining services. We and the Customer are entitled to demonstrate lesser or greater savings on expenses.
- The contracting parties may perform an extraordinary termination of agreements for work and services for good cause. In particular, good cause for extraordinary termination shall be deemed to include payment delay with two payment obligations that are due and payable, deterioration of the Customer’s financial conditions that is not insignificant (particularly commencement of insolvency proceedings and compulsory enforcement measures), and repeated violation of the Customer’s contractual cooperation duties in spite of our written reminder.
Industrial property rights
- We warrant that our contractual goods and services are free from any industrial property rights of third parties (patents, utility models, design patents, trademarks, copyrights) that may restrict or exclude their use according to the contractually agreed scope, provided that such rights have been registered and published in the Federal Republic of Germany.
- In the event that the contractually agreed use is impeded by industrial property rights of third parties, we have the right (in a scope that is reasonable for the Customer) either to change the contractual object in such a way that it is no longer thus protected, or to obtain authorization for the contractual object to be used as agreed without restriction and without additional costs for the Customer. Optionally, we are also entitled to take back the contractual object in exchange for reimbursement of the compensation minus a usage charge for the period of use by the Customer.
- All programs that the Customer has purchased from us are protected by copyright. The customer may only purchase and use the programs after signing a written software license agreement. Insofar as the scope of delivery contains software, the Customer is granted a non-exclusive simple right to use the software (use license). Granting sub-licenses is not permitted. The software is provided for use on the intended contractual object.
- The Customer is entitled to use the software for the contractually intended purpose, including error correction. The creation of a backup copy is permitted only if necessary to ensure future use. Monitoring, inspecting, and testing the program by loading, displaying, running, and transmitting is permitted only for the purpose of identifying the concepts and principles underlying the program. Copies of our programs and documentation must contain copyright notices.
- A separate written agreement is required in order to provide the source code. Source programs can be provided only if and insofar as we are authorized and able to do so. Copying the code or translating the code form (de-compiling) is permitted only under the legal conditions set forth in UrhG (German Copyright Law) Section 69 (e).
Place of fulfillment, jurisdiction, and venue
The place of fulfillment is Erlangen, Germany. This agreement is governed by and shall be construed exclusively in accordance with the laws of the Federal Republic of Germany. The application of UN commercial law is precluded hereby. In the event of any disputes between the contracting parties, the courts of Nuremberg shall have exclusive jurisdiction and venue. However, we are also entitled to bring suit in the courts at the location of the Customer’s registered office.
You can download the current General Terms and Conditions (PDF) here.