GTC EMS Elektro Metall Schwanenmühle GmbH
1. General Terms and Conditions
1.1 For all – also future – contracts between Elektro Metall Schwanenmühle GmbH, Business Park Schwanenmühle, 66851 Horbach, Germany (hereinafter also referred to as “Seller”), with entrepreneurs, legal entities under public law as well as with special funds under public law having their registered office in the Federal Republic of Germany (hereinafter also referred to as “Customer”), the following terms of delivery shall apply exclusively with regard to deliveries of all EMS products and related services (“Delivery Items”).
1.2 Deviating general terms and conditions of customers shall not bind the seller. Deviating terms and conditions are hereby expressly rejected.
1.3 The contract as well as any amendments, collateral agreements, declarations regarding its termination and other declarations and notifications shall be made in writing, unless otherwise agreed in these Terms and Conditions.
2. Offer and Conclusion of Contract
2.1 All offers of the Seller are subject to change without notice, unless they contain a specific acceptance period.
2.2 The Seller may accept orders or purchase orders within fourteen days of receipt. If the order confirmation contains insignificant changes or additions, acceptance shall be deemed to have been granted if the Customer does not object within four weeks.
2.3 All agreements between the Seller and the Customer must be in writing to be effective.
2.4 Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are not guaranteed quality features, but descriptions or identifications of the delivery or service.
3. Intellectual Property
3.1 Plans and other documents and aids of a physical and non-physical nature – also in electronic form – shall remain the intellectual property of the Seller. They may only be used to the extent permitted by the Seller and may not be modified, reproduced or made available to third parties. At the request of the Seller, the Client shall return these items to the Seller in full. The Customer may not assert any right of retention against this claim for return.
3.2 Insofar as delivery items or parts thereof are protected by industrial property rights or copyrights, the Seller shall grant the Customer a non-exclusive and non-transferable right to use them in accordance with the contract. Otherwise, the exploitation rights shall remain with the Seller or the manufacturer. Reproductions or adaptations require the prior written consent of the Seller.
3.3 Company, brand and other marks on the delivery items may neither be removed nor changed.
4 Software Rights of Use
4.1 All software products and software documentation contained in the delivery items of the Seller are protected by copyright for the Seller or the software manufacturers from whom the Seller has acquired a license. All copyrights and exploitation rights shall remain with the Seller and/or the software manufacturers. The Customer shall observe the copyrights and exploitation rights and in particular shall not delete or change the copyright notices.
4.2 Upon payment of the agreed purchase price (if no separate purchase price is agreed for the software: upon delivery of the delivery items), the Seller shall grant the Customer the non-exclusive, non-transferable right for an unlimited period of time to use the software products and their documentation within the Customer’s company in accordance with the contract. The right of use refers to the specific scope of delivery in which the software is implemented or to the contractually agreed scope of use of the software. The Customer is not entitled to pass on the software to third parties. This shall not apply to the passing on of integrated software in the (re)sale of complete delivery items with reference to the Seller’s copyrights and exploitation rights or those of the software manufacturers.
4.3 Any reproduction of software and documentation shall require the prior written consent of the Seller. Exempt from this provision is the making of a backup copy, provided that the Customer provides it with the appropriate copyright notices of the original. In the event of a sale or other permanent transfer of the delivery items with the transfer of integrated software to third parties, the Customer shall either hand over the backup copy to the third party or destroy it. The prior written consent of the Seller shall also be required for any processing and modification of the software, unless such processing and modification has been expressly approved. With the execution of a software processing and modification by the Customer, any warranty claim against the Seller shall expire.
4.4 In the event of violations of these provisions, the Seller reserves the right to terminate the rights of use and to assert claims for damages.
4.5 If necessary, the Seller shall submit further provisions of the software manufacturers to the Customer.
5. Prices and payment
5.1 The prices shall apply to delivery “ex works” (exW – ex works: Business Park Schwanenmühle, 66851 Horbach, Germany; according to Incoterms of the latest version), however, excluding packaging and insurance. The prices shall be subject to value added tax at the applicable rate, and in the case of export deliveries to customs duties as well as fees and other public charges.
5.2 Prices shall be quoted in Euro as a matter of principle. At the request of the customer, offers will also be made in foreign currency. In this case, the current exchange rate of this currency to the Euro shall be used as a basis. Offers in foreign currencies shall generally only be valid for a period of two weeks. The Contractor reserves the right to adjust offers due to changes in the exchange rate to the Euro after the expiry of the two-week period.
5.3 A price adjustment is also possible if the cost of materials and/or production costs have increased by 10% since the date of the offer and the Seller can credibly demonstrate a corresponding price increase. In this case, the Seller shall be entitled to adjust the price accordingly.
5.4 Changes to the delivery item to be carried out by the Seller at the request of the Customer after conclusion of the contract shall only be binding on the Seller if agreed in writing. The Customer shall bear all additional costs arising therefrom.
5.5 Payments according to agreements.
5.6 The Seller shall be entitled at any time to require the Customer to secure the price by a letter of credit from a major bank.
5.7 All payments shall be made net no later than 30 days after the invoice date. Payments may, at Seller’s option, be offset against other outstanding claims. All payments shall be deemed to have been made only when the Seller can dispose of them without reservation.
5.8 The Customer shall only have the right to withhold payments or to offset them against counterclaims to the extent that its counterclaims are undisputed or have been legally established.
5.9 If the Customer does not immediately meet his due payment obligations despite a reminder, the Seller shall be entitled:
Make all outstanding payments due immediately;
withhold services from contracts not yet fulfilled;
to withdraw from the contract after a reasonable period of grace and to claim damages.
5.10. If the Customer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at 9% points above the respective prime rate;
5.11. The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Customer and as a result of which payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
6. Delivery and delivery time
6.1 Deliveries shall be made as agreed.
6.2 Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed.
6.3 Compliance with the delivery period shall be subject to the condition that the order has been fully clarified, all approvals have been granted and all documents, payments and securities to be provided by the Customer have been received by the Seller in due time. The delivery time shall be extended appropriately if the aforementioned prerequisites are not all fulfilled in due time.
6.4 The delivery time shall be reasonably extended in the event of delays in delivery caused by force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials, raw materials or energy, transport delays, strikes, lawful lockouts, difficulties in obtaining the necessary official permits, or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to provide the delivery or service and the hindrance is not only of a temporary nature, the Seller may withdraw from the contract.
Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Seller.
6.5 Partial deliveries are permissible.
7. Transfer of risk, acceptance
7.1 The passing of risk shall be governed by the agreed delivery clause pursuant to Section 5.1. In the event of partial performance and the rendering of other services, the risk shall nevertheless pass in accordance with the delivery clause. The Seller shall insure the delivery item against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer’s expense.
7.2 After delivery of the delivery items, the Seller shall request the Customer to immediately accept the delivery items. If defects are found, they must be reported to the Seller without delay.
8.1 In the event of a defect, the Seller shall, at its discretion, first be obliged and entitled to remedy the defect or to make a replacement delivery. In the event of rectification of the defect, the Seller shall bear the necessary expenses, unless these are increased because the delivery item is located at a place other than the place of performance. The rectification shall be deemed to have failed at the earliest with the second unsuccessful attempt, unless further attempts to rectify the defect are reasonable and acceptable to the Customer due to the subject matter of the delivery.
8.2 The Customer shall be entitled, at its option, to reduce the purchase price (reduction) or to withdraw from the contract and to claim damages in lieu of performance in accordance with the statutory provisions in Clause 10 if the Seller seriously and finally refuses subsequent performance or if subsequent performance has failed, is unreasonable for the Customer or a reasonable deadline for subsequent performance has been set without success. This shall not apply if the Seller is entitled to refuse subsequent performance on the basis of statutory provisions.
8.3 Claims for defects shall be excluded if the Seller was not notified of the defect without delay. The warranty shall also not apply in the event of only insignificant deviations from the agreed quality, in the event of only insignificant impairment of usability, in the event of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or as a result of special or external influences which are not assumed under the contract, as well as in the event of non-reproducible software errors. If improper modifications are made by the party or by third parties, there shall also be no claims for defects for these and the resulting consequences.
Defects of title
8.4 If the use of the delivery items within the statutory periods leads to the infringement of industrial property rights or copyrights at the place of delivery, the Seller shall, at its discretion, either procure for the Customer the right to further use or modify the delivery items in such a way that the infringement of industrial property rights or copyrights no longer exists.
If this is not possible under economically reasonable conditions, the Seller shall take back the delivery items and refund the purchase price less an amount taking into account the use and condition of the delivery items upon their return.
In addition, the Seller shall indemnify the Customer against undisputed or legally established claims of the owners of the property rights or copyrights concerned.
8.5 The aforementioned obligations are conclusive for the case of infringement of property rights and copyrights. They shall only apply if
the Customer immediately notifies the Seller of the asserted infringement of property rights or copyrights, the Customer supports the Seller to a reasonable extent in defending the asserted claims, the Seller reserves the right to take all defensive measures, including out-of-court settlements, the delivery items were not manufactured or modified according to the instructions of the Customer, and
the infringement of rights has not been caused by the fact that the Customer has modified the delivery item on its own authority or has used it in a manner contrary to the contract.
9. Statute of limitations
Warranty claims due to a material defect or defect of title shall become statute-barred one year after acceptance, but no later than 18 months after delivery.
10.1 The Seller shall be liable to the Customer in the following cases:
In the event of intent as well as gross negligence on the part of the management or executive employees,
in case of culpable violation of essential contractual obligations, in case of simple negligence limited to the damage reasonably foreseeable for the type of contract,
in the event of culpable injury to life, limb or health,
if the Seller is liable under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item
or in the event of non-compliance with warranty promises as well as fraudulently concealed defects.
11. Retention of title *
11.1 Unless otherwise agreed, the delivery items (goods subject to retention of title) shall remain the property of the Seller until full payment of all claims to which the Seller is entitled from the business relationship with the Customer and any claims arising in the future – including balance claims from current account.
11.2 The Customer shall treat the reserved goods with care. He shall insure them at his own expense against damage by fire, water and theft.
11.3 The Customer shall be entitled to sell the reserved goods in the ordinary course of business. The Customer may neither pledge the reserved goods nor assign them as security. He shall be obliged to secure the rights of the Seller in case of a credited resale of the reserved goods. The Customer hereby assigns to the Seller in full, by way of security, the Customer’s claims against its customers arising from a resale of the reserved goods as well as the Customer’s claims against its customers or third parties arising from other legal grounds (in particular claims arising from tort and claims for insurance benefits), including all current account balance claims. The Seller hereby accepts the assignment. The Customer may collect these claims assigned to the Seller for its account in its own name on behalf of the Seller as long as this authorization is not revoked. This shall not affect the Seller’s right to collect the claims itself; however, the Seller shall not assert the claims itself and shall not revoke the authorization to collect as long as the Customer duly meets its payment obligations. However, if the Customer acts in breach of contract – in particular if it is in default of payment of a claim for payment – the Seller may demand that the Customer discloses the assigned claims and the respective debtors to the Seller, notifies the respective debtors of the assignment and hands over to the Seller all documents and provides all information that the Seller requires to assert the claims.
11.4 The Customer shall support the Seller in taking measures to secure and, if necessary, to enforce the Seller’s retention of title. Insofar as third parties assert rights to the delivery item or dispose of it, the Customer shall notify the Seller without delay.
11.5 If the Customer is in default of payment or otherwise seriously violates the contract, the Seller shall be entitled to take back the delivery item. The taking back as well as the seizure of the delivery item by the Seller shall not be deemed a withdrawal from the contract.
11.6 If the retention of title is not effective in the above form under the law of the country of destination, the Customer shall cooperate in establishing a security interest for the Seller in accordance with the provisions of its country.
12. Final provisions
12.1 The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be the place of performance. However, the Seller shall be entitled to sue the Customer at any court having jurisdiction by law. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
12.2 The relations between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and excluding the conflict of laws, private international law.
12.3 The Customer may only transfer the rights arising from this contract to third parties with prior written consent.
* Supplementary clause to extended retention of title:
The following simple and extended retention of title is agreed:
- The items of the Supplies (Retained Goods) shall remain the property of the Supplier (Seller) until all claims to which the Supplier is entitled against the Purchaser (Customer) under the business relationship have been satisfied. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests when releasing the security interests.
- For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be permitted only to resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of title to the customer conditional upon the customer fulfilling its payment obligations.
- If the customer resells goods subject to retention of title, he already assigns his future claims from the resale against his customers with all ancillary rights – including any balance claims – to the supplier by way of security, without any further special declarations being required. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Purchaser shall assign to the Supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier.
- a) The Purchaser shall be permitted to process the Retained Goods or to mix or combine them with other items. The processing shall be carried out for the Supplier. The Purchaser shall keep the resulting new item for the Supplier with the due care of a prudent businessman. The new item shall be deemed to be goods subject to retention of title.
b) The Supplier and the Purchaser agree already now that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. To this extent, the new item shall be deemed to be reserved goods.
c) If the Purchaser combines the Retained Goods with real property or movable property, it shall also assign to the Supplier by way of security its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the combined Retained Goods, to the other combined goods at the time of combination.
d) The provision on the assignment of claims according to No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed goods subject to retention of title invoiced by the Supplier.
- Until revoked, the Purchaser shall be authorized to collect assigned claims from the resale. In the event of good cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser’s collection authorization. In addition, the Supplier may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realize the assigned claims and demand disclosure of the assignment by way of security by the Purchaser to the Customer.
- In the event of seizure, attachment or other dispositions or interventions by third parties, the Customer shall notify the Supplier without delay. If a justified interest is substantiated, the Purchaser shall immediately hand over to the Supplier the documents required to assert its rights against the Customer.
- In the event of a breach of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to rescind the contract in addition to taking back the Retained Goods after expiry of a reasonable period of grace granted to the Purchaser; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The Purchaser shall be obliged to surrender the goods. The taking back or seizure of the reserved goods by the Supplier shall not constitute a rescission of the contract unless the Supplier has expressly declared such rescission.
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