General Terms and Conditions of Sale and Delivery (as of 1 January 2021)
I. General Provisions – Scope of Application
(1) Our products and services shall be supplied exclusively in accordance with the following General Terms and Conditions of Sale and Delivery. The version provided on our website at the time of the placement of the order shall apply. These General Terms and Conditions shall also apply to all future transactions between the contracting parties without any new reference thereto being required. They shall also apply to subsequent contracts even if we do not make any express reference to them, particularly if we unreservedly supply products or services to the customer1 in the knowledge that the customer’s terms and conditions of business conflict with or deviate from our General Terms and Conditions of Sale and Delivery. We shall not recognize deviating terms and conditions of the customer unless we have expressly consented to their validity in text or written form.
(2) All agreements made between us and the customer for the purpose of implementing this contract are laid down in this contract in text form. Amendments and/or supplements to this contract, including this provision, shall only be effective in text form. This requirement regarding form may only be waived by declaration in text form. These Terms and Conditions shall be deemed accepted no later than upon receipt of the goods or the performance rendered (inter alia services). Any counter-confirmation from the customer that refers to the customer’s terms and conditions of business or its terms and conditions of purchase is hereby objected to.
(3) Our Terms and Conditions of Sale shall apply only in relation to businesses within the meaning of Section 310 (1) BGB [German Civil Code]. The practices and customs prevailing in commercial transactions shall be duly taken into account.
(4) We shall be entitled to assign the claims arising from our business relations.
II. Offers and Conclusion of a Contract, Subject-matter of the Service
(1) Our offers made to the customer shall be subject to change without notice and be non-binding. The customer’s order shall be binding within the meaning of Section 145 BGB. However, we reserve the right to decline the order within two (2) weeks of receipt, in text form or in the form in which the order was placed. This shall particularly be the case if an objection to our Terms and Conditions of Sale and Delivery or our offer is included with the customer’s order.
However, a contract shall be deemed effected no later than as a result of the ordered products or services having been unreservedly provided at the agreed time of delivery. Side agreements, amendments or performance data shall be subject to our confirmation in text form.
1 Customer: person or organization that receives products or services intended for or requested by this person or organization.
(2) We shall retain title and copyright to illustrations, drawings, calculations, product names given, plans and other documents. These documents shall be made accessible to third parties only with our express consent granted at least in text form. These documents shall be returned to us on request.
The contractual partners undertake to treat as trade secrets all non-public and technical details that come to their knowledge as a result of the business relationship.
(3) The documents, drawings, specified weights and dimensions, performance and consumption data that form part of our offer as well as the technical data and descriptions in the respective product information shall be binding. Information arising from promotional material and promotional illustrations shall be non-binding and be merely of an informative nature. These shall not constitute agreed qualities or guarantees of specific quality or durability in respect of the products or services to be supplied by us, hereinafter also referred to as “deliverable(s)”.
(4) We shall be entitled to alter, without our customer’s consent, the material specified in our offer or agreed upon with our customer in respect of our deliverables, unless such change of material leads to a change in the characteristics or functionalities of the deliverables ordered.
(5) In the case of a sale based on a sample or specimen (e.g. prototyping), this shall merely warrant proper conformity with the specimen, but shall not constitute the provision of a guarantee within the meaning of Section 276 (1) BGB or a guarantee of specific quality or durability of the items to be supplied by us within the meaning of Section 443 BGB.
(6) If the deliverable is used outside of Germany, the scope of delivery for occupational health and safety equipment and environmental protection equipment shall be governed by the agreement entered into. If no such agreement exists, or there is any doubt as to which provisions apply, the provisions applicable in the Federal Republic of Germany shall prevail. The customer shall be responsible for ensuring compliance with statutory or other provisions at the place of use.
(7) If customary trade terms concerning the type of delivery are agreed upon, these shall be interpreted in accordance with the Incoterms (ICC) of the International Chamber of Commerce in Paris as applicable on the day of the conclusion of the contract.
The customer’s credit limit shall be the invoiced value of our service not yet paid by the customer at the time when goods are shipped. Our employees are not authorized to make verbal side agreements in addition to the written offer. If the credit limit is exceeded, we shall be released from our obligation to deliver. The customer shall be granted the option of paying in advance.
III. Prices, Payment Terms, Default in Payment
(1) The prices agreed upon at the time of the conclusion of the respective contract shall apply. If a price has not been expressly stipulated, or the deliverable is purchased by the customer at list prices, the applicable prices shall be those valid on the day of delivery according to our price list, which can be sent on request.
(2) All prices set out in our price list are understood to be exclusive of packaging, postage, transportation, tolls, freight insurance, copyright fees as well as statutory sales tax and other incidental expenses. All deliveries shall be effected on the buyer’s account and at the buyer’s risk.
(3) Our prices do not include statutory sales tax; this tax shall be shown separately in the invoice at the statutory rate valid on the day of invoicing.
(4) If a bulk discount has been agreed, and the agreed minimum quantity necessary for the respective discount (price reduction granted subject to certain terms) is not reached for reasons attributable to the customer, the price according to the price list applicable at the time of the agreement shall be deemed agreed upon, unless a different price has been agreed upon for the lower quantity purchased, in which case this different price shall apply. The price difference shall be invoiced to the customer.
(5) Unless otherwise agreed upon in text form in the individual case concerned, all public levies (taxes, charges, customs duties, currency fluctuations, etc.) arising from or in connection with the conclusion or implementation of the contract shall be borne by our customer.
(6) The deduction of a cash discount shall require special agreement in text form.
(7) The customer shall, without a reminder being required, be deemed to be in default of payment upon the expiration of the payment period specified in the invoice. The statutory rules regarding the consequences of default in payment shall apply.
(8) We shall be entitled to set off incoming payments initially against older claims, then against charges and interest on the principal debt and only then against the principal debt itself. The customer shall be entitled to rights of set-off and retention only if its counterclaims have been determined by a final and non-appealable court judgment, have been acknowledged by us or are undisputed. Furthermore, the right of retention shall exist only if the counterclaim asserted is based on the same contractual relationship as the claim.
(9) Unless otherwise specified, we shall be bound by our offers merely for 4 weeks from the date of the offer. The prices ensuing from our acknowledgment of the order shall be binding unless price changes occur on the basis of these General Terms and Conditions of Sale and Delivery.
IV. Delivery Period
(1) Delivery periods specified by us shall be non-binding unless we have expressly agreed to them in text form as binding. If delivery periods have been expressly agreed upon in text form as binding, the following provisions relating to subsections 2 to 9 of Section IV of these General Terms and Conditions of Sale and Delivery shall apply.
(2) The delivery period specified shall not begin until all technical issues have been cleared up, or all details of execution have been fully clarified. They shall always be understood as being exclusive of the duration of transportation. Agreed delivery periods shall apply only on an approximate basis, unless a transaction where time is of the essence within the meaning of Section 286 (2), no. 4 BGB or Section 376 HGB [German Commercial Code] has been expressly agreed upon in text form. In the event of default in delivery in the case of such transaction where time is of the essence, or if the customer is entitled to claim cessation of interest in the further performance of the contract, we shall be liable in accordance with the statutory provisions.
The delivery period shall be deemed met upon the hand-over of the products to the forwarder or carrier.
Adherence to our duties to deliver and perform shall be conditional upon the timely and proper performance of the customer’s obligations. If a down payment has been agreed upon, or if documents, permits or clearances are required to be obtained by the customer for the rendering of our service, the delivery period shall not begin until all of the aforementioned prerequisites are met. We reserve the right to invoke the defense of non-performance of the contract.
(3) We shall enter into default only upon the expiration of a reasonable grace period set by the customer. Unless default in delivery is due to an intentional breach of contract that is attributable to us, our liability for damages shall be limited to the foreseeable loss or damage typically occurring. The same limitation of liability shall apply if the default in delivery attributable to us is due to a culpable breach of a material contractual duty.
(4) Where the customer proves that loss or damage has been incurred upon the customer as a result thereof, we shall, in the event of negligent default in delivery, be liable to pay default compensation at the flat rate of 3 % of the value of the late delivery for every full week of default, but no more than a maximum of 15 % of the value of the late delivery.
(5) We shall be entitled to supply sub-deliveries and sub-services within the agreed delivery and performance periods if this is not unreasonable for the customer. In the case of supply contracts, each sub-delivery and sub-service shall be deemed to constitute independent performance. Delivery periods shall be extended by the period during which the customer itself is in default with performing its contractual duties.
(6) If the customer defaults on accepting delivery or culpably breaches other duties to cooperate, we shall be entitled to compensation for any loss or damage incurred upon us in this respect, including any extra expenditure (e.g. the cost of placement in storage). The right to assert claims over and above this shall remain reserved.
(7) Insofar as the prerequisites under subsection (7) are met, the risk of accidental destruction or accidental deterioration of the item purchased shall pass to the customer at such time as the customer has defaulted on acceptance or payment.
(8) In the event of force majeure or other unforeseeable, extraordinary circumstances not attributable to us, e.g. operational disruptions due to fire, water or similar circumstances, failure of production facilities or machinery, default in delivery or non-delivery on the part of our suppliers, business interruptions due to a shortage of raw materials, energy or labor, strike, lockout, difficulties in obtaining transport, traffic disruptions, intervention by government authorities or pandemics, we shall – insofar as we are hindered in the timely fulfillment of our performance duties by the aforementioned circumstances through no fault of our own – be entitled to defer the provision of products or services for the duration of the hindrance, plus a reasonable start-up period. If the provision of the products or services is delayed by more than one month as a result thereof, both we and the customer shall, without there being any damage claims whatsoever, be entitled to rescind the contract in respect of the quantity affected by such supply disruption.
V. Delivery Quantity / Incorrect Delivery
Visible discrepancies in quantity must be reported both to us and the transport service provider in text form immediately upon receipt, hidden discrepancies in quantity within 4 business days of receipt. Acceptance of the deliverables from the transport service provider shall be deemed to be acknowledgment and proof that the correct quantity was received, and there were no problems with the packaging or loading. Moreover, in the event that we inadvertently deliver items to the customer without the customer having ordered these, the customer shall report these to us as such incorrect delivery in text form no later than within 14 days and keep the deliverables ready for collection by a transport service provider to be commissioned by us.
VI. Return Deliveries
(1) Products and services (product catalog)
Products or services purchased by the customer excessively or incorrectly shall be taken back only with our express consent and only if in faultless condition. A cost contribution of 20 % of the net invoiced amount shall be charged to the customer.
Transport costs as well as any necessary follow-up work on the products or services shall be borne by the purchaser. No refund shall be paid for products or services that are damaged or not reusable.
(2) Order-related products and services (specialty products)
All products and services not included in the product catalog shall be deemed to be specialty products. There shall be no possibility of canceling an order for such products or of returning such products.
VII. Passage of Risk
(1) The risk of accidental destruction and accidental deterioration of the products shall pass to the customer when the products are handed over, in the case of a sale by dispatch when the products are dispatched to the forwarder, the carrier or any other person or company commissioned to carry out the shipment, but no later than when the products leave our business establishment. The customer shall also bear the risk of accidental destruction and accidental deterioration of the deliverables in cases where sub-deliveries are carried out, or where we have agreed to provide other services by way of exception, e.g. handling charges, transport costs and/or public levies (taxes, charges, customs duties, etc.). If shipment is delayed due to circumstances attributable to the customer, the risk shall pass to the customer from the date of readiness for shipment.
(2) We shall take out transport insurance cover for the (sub-)delivery provided that the customer requests it in text form with 10 days’ notice before the delivery date, and we have acknowledged this request in text form; the costs incurred for this insurance cover shall be borne by the customer.
(3) If our products and services are shipped by us according to agreement with our customer, we shall choose the shipping method and the transportation route, unless otherwise agreed upon by us with our customer in text form. The provisions under Section IV shall also apply in this case.
VIII. Securing Retention of Title, Extended Retention of Title
(1) The products and services supplied shall remain our property until the purchase price and all other claims to which we are entitled against the customer from the business relationship presently or in future have been fully paid. If the customer acts in breach of the contract, particularly by defaulting on payment, we shall be entitled to repossess the deliverables. Repossession of the deliverables by us shall constitute rescission of the contract. We shall be authorized to sell or otherwise dispose of such deliverables after they have been repossessed, with the proceeds of such sale or disposal being credited against the amounts owed by the customer, less reasonable costs of the sale or disposal.
(2) The customer shall treat with care the products and services supplied by us. In particular, it shall, at its own expense, adequately insure these on a replacement value basis against loss, damage and destruction, e.g. against fire damage, water damage and theft. The customer hereby assigns to us its claims arising from these insurance contracts. We hereby accept this assignment.
The customer shall not pledge or assign as security the products and/or services that are our property. In the event of attachment or other third-party intervention, the customer shall notify us in text form without delay so that we can safeguard our rights. Where the third party is unable to reimburse us for the court and out-of-court costs of a lawsuit under Section 771 ZPO [Code of Civil Procedure] or other reasonable costs necessary for safeguarding and enforcing our rights, the customer shall be liable for the loss incurred upon us.
(3) Subject to the following provisions, the customer shall be entitled to resell in the proper course of business the products and services supplied. However, the customer hereby assigns to us all claims accruing to it from resale against its customers or third parties, regardless of whether the deliverable has been resold without having been processed or after having been processed, in the sum of the final invoiced amount (including sales tax) of our claim, this having priority over the residual portion of its claims. Even after this assignment, the customer shall remain authorized to collect such claims. Our authority to collect the claim ourselves shall remain unaffected hereby. However, we shall not collect the claim ourselves as long as the customer meets its payment obligations out of the proceeds received, has not defaulted on payment and, in particular, no petition has been filed for the commencement of composition or insolvency proceedings, and payments have not discontinued. If this is the case, however, we may demand that the customer inform us of the claims assigned and the debtors concerned, provide all information necessary for collecting the claims, hand over all relevant documents and give the debtors (third parties) notification of this assignment.
(4) At our request, the customer shall prove each of its claims assigned to us and inform its debtors of this assignment, requesting that payment be made to us up to the sum of our claims against the customer.
(5) If the customer reworks, processes or remodels the products and services supplied by us under retention of title, this shall always be deemed to have been carried out on our behalf without our incurring any obligations as a result thereof. If the products and/or services supplied by us under retention of title are processed with other items that are not our property, we shall acquire co-ownership of the new item in the ratio of the value of the products and/or services supplied by us (final invoiced amount, including sales tax) in relation to the other processed items at the time of processing. In all other respects, the item created as a result of the processing shall be subject to the same terms as those applicable to the products and services supplied under retention of title.
(6) If the products and/or services supplied by us under retention of title are inseparably mixed or combined with other items that are not our property, we shall acquire co-ownership of the new item in the ratio of the value of the products and/or services supplied by us (final amount invoiced, including sales tax) in relation to the other mixed or combined items at the time of mixing or combining. If this mixing or combining takes place in such a way that the customer’s item is to be regarded as the principal item, the customer shall be deemed to have granted us co-ownership on a pro-rata basis. The customer shall hold in safekeeping for us the solely or jointly owned property created in such manner. The customer shall be entitled, within the scope of the proper running of its business, to dispose of the products and/or services newly created through reworking, processing, remodeling, combining or mixing, as long as the customer meets in due time its obligations arising from the business relationship with us.
(7) However, under no circumstances shall the customer be authorized to resell or otherwise dispose of these new products and/or services subject to an agreement with its customer prohibiting assignment, or pledge these or assign these as security. The customer hereby assigns to us as security, to the extent of our share of ownership of the products and/or services sold, its claims arising from the sale of these new products in which we hold ownership rights. If the customer combines or mixes the supplied products and/or services with a principal item, the customer hereby assigns to us its claims against the third party up to the value of our products and/or services supplied. We hereby accept these assignments.
We undertake to release the items of security to which we are entitled, at the customer’s request, to the extent that the realizable value of our security items exceeds by more than 10 % our claims against the customer that are to be secured; we shall be responsible for choosing the items of security to be released.
IX. Liability for Defects
(1) Defect-related claims of the customer shall be conditional upon the customer having properly met its inspection and defect notification obligations owed under Section 377 HGB. The notification of defects must be in text form. During the period from delivery until the defect is reported, the customer shall bear the burden of proving that the products and services supplied have been properly handled and have been stored in a manner suited to the product.
(2) Warranty claims shall exist only if the customer makes available to us without delay all information that we consider necessary for ascertaining the cause of the fault in our products or services as well as the extent of our responsibility or enables us to conduct our own investigations, also at the respective location of the goods, if necessary. If no fault is ascertained, or no fault can be found, the customer shall bear the cost of investigating the cause of the alleged fault.
(3) Guarantees of specific quality or durability for particular features (warranted characteristics) or other independent guarantee undertakings shall be provided only if they have been agreed upon as such in text form. As a rule, our product description shall be the only specific quality agreed upon. Moreover, public statements, promotional claims or advertisements shall not constitute a statement of a particular quality in conformity with the contract. If the customer receives defective assembly instructions, we shall merely be obliged to deliver defect-free assembly instructions, and then only if the defect in the assembly instructions precludes proper assembly.
(4) The customer shall not receive from us any guarantees in the legal sense. The manufacturer’s guarantees shall remain unaffected hereby.
(5) The customer shall lose its defect-related rights if it fails to report defects properly and in due time, unless we have fraudulently concealed the defect.
(6) The customer shall not be entitled to defect-related warranty rights if the deliverables have been used or are agreed as downgraded. The same shall apply to deviations, in particular to deviations in dimensions, thicknesses, weights, performance data or color shades, that lie within tolerances customary in this industry as well as in the case of insignificant reductions in the value or suitability of the products and/or services.
(7) Where there is a defect in the products and/or services, we shall be entitled to render supplementary performance by rectifying the defect or supplying a new item that is not defective, at our option. In the case of rectification of the defect, we shall bear all necessary expenses incurred for the purpose of defect rectification, in particular transportation, travel, labor and material costs, insofar as these do not increase as a result of the deliverables having been taken to a place other than the place of performance.
(8) If supplementary performance fails, the customer shall be entitled to demand rescission of the contract or reduction of the purchase price, at its option.
(9) By way of derogation from the statutory provisions, we shall be liable only insofar as the customer asserts damage claims based on wrongful intent or gross negligence. This limitation of liability to wrongful intent or gross negligence shall also apply to our representatives or authorized agents. Unless intentional breach of contract can be attributed to us, our liability for damages shall be limited to the foreseeable loss or damage typically occurring.
(10) In all other respects, we shall be liable in accordance with the statutory provisions insofar as we culpably breach a material contractual duty; in any event, however, our liability for damages shall be limited to the foreseeable loss or damage typically occurring.
(11) Liability on account of culpable injury to life, body or health shall remain unaffected; this shall also apply to mandatory liability under the Produkthaftungsgesetz [Product Liability Act].
(12) Liability shall be excluded except where otherwise provided for above.
(13) The customer shall have recourse claims against us under Section 478 BGB only insofar as it has not entered into any agreements with its customer that go beyond the statutory defect-related claims.
(14) The limitation period for defect-related claims is 12 months, calculated from the passage of risk.
(15) The limitation period in the event of supplier recourse under Sections 478, 479 BGB shall remain unaffected; it shall expire no earlier than two months after the point in time when the customer has fulfilled the consumer’s claims.
X. Returns / Implementation of Supplementary Performance
(1) Defective products shall be sent or delivered quoting the model and serial number, along with a copy of the delivery or billing documents and a detailed description of the fault, to the address specified in the returns form, or, if agreed, to the supplier.
(2) No new warranty periods with regard to the defect-related claims and rights shall enter into effect as a result of the replacement of individual parts, component assemblies or entire units. This shall not apply to limitation of claims regarding the parts affected by the rectification of defects.
(3) In all other respects, our respective current terms and conditions of return shall apply. You can request a copy of these terms and conditions by emailing: firstname.lastname@example.org.
XI. Entire Liability
(1) We shall not accept any liability for damages over and above what is provided for in Section IX, irrespective of the legal nature of the claim asserted. This shall particularly apply to damage claims arising from culpa in contrahendo, on account of other breaches of duty or tort claims for compensation for property damage under Section 823 BGB. In the case of invitations for tenders and the awarding of contracts (public or under private law), the provisions of the VOB [German Construction Contract Procedures] or VOL [Regulations on Contract Awards for Public Supplies and Services] shall not apply; our general terms and conditions of business shall apply instead. We shall not be liable for loss or damage not incurred on the supplied item itself; in particular, we shall not be liable for loss of data, lost profit or other financial losses incurred upon the customer.
(2) Liability for injury to life, body or health where this is attributable to us as well as mandatory liability under the Produkthaftungsgesetz shall remain unaffected.
(3) The limitation under subsection 1 shall also apply where, instead of a claim for compensation for the loss or damage, the customer demands the reimbursement of expenses incurred in vain, in lieu of performance.
(4) Where liability for damages in relation to us is excluded or limited, this shall also apply with regard to personal liability for damages on the part of our employees, workers, personnel, representatives and authorized agents.
(5) We shall not be liable for loss of data or for the restoration of data or other consequential loss or damage resulting therefrom if the loss or damage would not have occurred had proper data backups been carried out within the customer’s sphere. Proper data backups require that the customer backs up its data on every business day in accordance with the state of the art, in particular that the customer makes backup copies in machine-readable form so that these data can be restored with reasonable effort and expense. Liability for loss of data shall be limited to the typical restoration-related effort and expense that would be incurred had proper data backups been carried out.
(6) We shall not reimburse any costs of examination or handling in the event that delivery fails or is not in accordance with the contract. If, as a result of failed deliveries to us or deliveries to us that are not in accordance with the contract, our customers are able to claim damages, additional costs or examination costs regardless of existing provisions limiting liability, our supplier shall be obliged to reimburse us for these costs and to indemnify us against such claims.
(1) As a rule, delivery shall take place only after prior payment (payment in advance), unless otherwise agreed.
(2) In the case of delivery on account, the arrangements shall be agreed upon separately. If the customer fails to adhere to the separately agreed payment terms, invoices shall be due and payable immediately, unless otherwise agreed. If payment via SEPA direct debit has been agreed, and the customer has issued a corresponding SEPA direct debit mandate to us, the following shall apply:
a) The upcoming direct debit shall ordinarily be announced by us together with the invoice (or via another channel of communication agreed upon with the customer) by no later than 1 (one) calendar day before the direct debit falls due (prenotification). The amount debited may, in any individual case, deviate from the amount communicated in the statement/invoice or prenotification if the customer received credits and/or corrections, or individual transactions were canceled, during the period between the creation of the statement/invoice or the transmission of the prenotification and the due date. The amount debited may, in any individual case, deviate from the amount communicated in the individual statement/invoice or prenotification if the customer has issued a SEPA mandate to us as a framework mandate for multiple contractual relationships, and the customer receives, as agreed, a separate statement/invoice – and accordingly separate prenotification – for each contractual relationship, but the respective statement/invoice amounts have the same due date. In this case, the full amount (= sum total from both statements/invoices) shall be collected as of the due date. The customer shall ensure that there are sufficient funds in the bank account designated in the SEPA mandate, and that we can collect the amounts due. This obligation shall apply even if, in any individual case, the customer does not receive a prenotification or does not receive a prenotification in due time.
b) In the case of bank charge-backs or in similar cases of failed payment actions, we shall pass on any incurred bank fees to the customer, unless the customer is not at fault or proves that the actual costs incurred were lower.
(3) A payment shall be deemed to have been made when the amount is at our disposal.
(4) Any prompt payment discounts possibly granted shall be applied only if all invoiced amounts due have been paid on time. The date when we receive payment shall be determinative.
(5) If the customer defaults on payment, we shall be entitled to charge annual interest at a rate of 9 % above the base rate from the day after the start of default. We reserve the right to prove and claim a higher amount of loss or damage caused by default. In the event of default in payment, all discounts, prompt payment discounts and other rebates shall cease to apply.
All claims shall become due and payable immediately if the customer defaults on payment or culpably fails to comply with other material obligations arising from the contract, or if we become aware of circumstances likely to reduce the customer’s creditworthiness, particularly if the customer has discontinued payments and/or insolvency proceedings are pending. In these cases, we shall be entitled to hold back or refuse to perform deliveries still outstanding or to perform these only in exchange for advance payment or the provision of security.
XIII. Use of the Products and Services
The products and services are intended for customary commercial use in accordance with the operating instructions, and not for use in critical safety or security systems, nuclear power plants, military installations, medical equipment with life-sustaining functions, aircraft, or for the manufacture of weapons. No liability shall be assumed for any use in these areas.
XIV. Industrial Property Rights and Copyrights
(1) We shall only be liable for claims arising from infringement of third-party property rights and/or copyrights (hereinafter: “Property Rights”) when the products and/or services are used in the manner stipulated in the contract, and at least one of such rights from a family of property rights has been published either in Germany or by the European Patent Office. Where a third party asserts legitimate claims against the customer on account of an infringement of Property Rights by products and/or services supplied by us and used in accordance with the contract, we shall be liable to the customer within the period stipulated in Sec. VIII, no. 13 as follows:
a) We shall, at our option, either obtain a right of use for the products and/or services in question or modify these such that the Property Right is not infringed, or replace them. If it is not possible for us to do this on reasonable terms, the customer shall have the statutory rights of rescission and price reduction.
b) Our duty to pay damages shall be governed by Sec. IX.
c) The obligations specified above shall apply only insofar as the customer notifies us in text form, without delay, of the claims asserted by the third party and does not acknowledge an infringement, and the rights to take measures to defend against such claims and to negotiate a settlement remain reserved to us. If the purchaser stops using the supplied item for reasons of damage mitigation or other good cause, it shall point out to the third party that such cessation of use does not constitute acknowledgment of a Property Right infringement.
(2) The customer shall have no claims insofar as the Property Right infringement is attributable to the customer.
(3) Furthermore, the customer shall have no claims insofar as the Property Right infringement is caused by specific specifications from the customer, by an application that we were unable to foresee or as a result of the customer having altered the supplied item or having used it together with products and/or services not supplied by us.
(4) The customer shall indemnify us against all third-party claims except where we are liable under Sec. XI (1) – (5).
(5) The contractual partners undertake to notify each other in text form, without delay, of any risks of infringement that come to their knowledge, and of any alleged infringements, and provide each other with an opportunity to counter such claims by mutual agreement.
(6) At the customer’s request, we shall provide information on the use of published and unpublished Property Rights and Property Right applications of our own, and those used under license, in the products and/or services supplied.
(7) Any provision of software programs shall be in accordance with the respective licensor’s terms of license. The scope of services regarding the software shall ensue from the licensor’s terms of license as well as the service specifications and other user instructions printed.
XV. Use of Company Logos
(1) The customer agrees that we may use its name and its company logo for reference purposes. The customer’s company logo shall be designated as a reference for these purposes. If the business relationship ends, a corresponding additional note (… until + year) shall be added to the customer’s company logo, starting from the year after the business relationship has ended. This shall not establish any further right to the provision of information regarding the contractual relationship or the details thereof. The customer may revoke this consent in text form with effect for the future. Advertising material already created or commissioned by us at the time of revocation shall not be affected by the revocation of consent.
(2) The customer shall be permitted to use our name and our company logo exclusively for reference purposes during the business relationship, with the inclusion of a note indicating its purpose as a reference, unless we expressly object in text form to such use.
XVI. Export Restrictions / Prohibitions
(1) The provision of products and/or services to the customer shall be subject to the statutory and official provisions and regulations. These include national and international provisions, export control provisions and embargoes, also insofar as these have been ordered by organizations (European Union, United Nations, etc.) or third countries. In the case of unilateral orders issued by third countries, this provision shall apply only if non-compliance will lead to a market restriction or an adverse effect on our company or our employees and/or organs, and this is not reasonable for us on the basis of equitable discretion.
(2) The contractual partners undertake to supply all information and documents required for the exportation, transportation or importation. Delays due to export inspections or permit procedures shall invalidate time limits and delivery periods. If the necessary permits are not granted, the contract shall be deemed not to have been entered into with regard to the parts thereof affected; there shall be no damage claims in this regard or with regard to aforementioned time limit overruns. The costs of any permit procedure or export license shall be borne solely by our customer.
XVII. Maintenance of Secrecy / Data Protection
The customer shall maintain confidentiality in respect of all information that is made available to it in connection with the deliveries or the daily collaboration and that is clearly identifiable as our trade or company secrets on the basis of other circumstances. These matters shall be kept secret indefinitely, and this information shall not be recorded or passed on to third parties or exploited in any way, unless this is necessary for attaining the purpose of the contract.
XVIII. Internet Use
Our Internet offering may possibly include links to websites of other companies or organizations. We have no influence over the current design, content or authorship of the websites linked to. These are outside of our sphere of influence. The provider of the website linked to shall be solely liable for illegal, incorrect or incomplete content, in particular for loss or damage incurred as a result of the use or non-use of such information presented on external websites.
XIX. Place of Performance, Place of Jurisdiction and Applicable Law
(1) The place where our company’s registered office is situated shall be the place of performance for deliveries and payments arising from contracts based on these General Terms and Conditions of Sale and Delivery.
(2) The place where our company’s registered office is situated shall be the place of jurisdiction for all disputes ensuing between the parties from or in connection with contracts based on these General Terms and Conditions of Sale and Delivery, including any lawsuits relating to a check. However, we shall also be entitled to file a lawsuit at any other court.
(3) The legal relations between the contracting parties shall be governed exclusively by the laws applicable in the Federal Republic of Germany, excluding the UN Sales Convention.
(4) This shall also apply to claims that are based not on a contract, but on tort claims, in-rem claims or claims under the law on unjust enrichment.