Terms and Conditions

General Terms and Conditions
- Contract for Work and Services –
- Purchase Contract –
I. Scope
1. The following terms and conditions are part of all
offers and of all user’s contract acceptance
declarations and are basis for all sales and deliveries
of the user including consulting services and
information. They are considered as accepted at the
latest as of receipt of goods or performance carried
out by the user.
2. Adverse general terms and conditions of the
contracting party are excluded, even if the user of
these general terms and conditions does not
contradict them explicitly.
3. In case of supplementary or follow-up orders of the
type listed under I.1 these general terms and
conditions will apply correspondingly. They become
effective at the latest at the time of acceptance of the
corresponding delivery or performance.
4. Inasmuch as deliveries of products of hardware and
software are object of the contract, the respective
user’s conditions will apply additionally in their
correspondingly valid version.
II. Subject Matter of the Contract
1. Pre-contractual information, in particular offers,
descriptions and cost estimates are considered as
subject to change except if explicitly agreed upon
otherwise.
Information, details given in leaflets, data sheets and
indications made with regard to technical applications
shall be considered as information only and shall
supply general knowledge. If not agreed upon
otherwise, they will not become part of the contract.
Only the user’s written order confirmation will be
applying with regard to the subject matters and scope
of the contract.
Contract amendments and oral additional agreements
will become effective only after written confirmation.
If the contract is part of the business of a mercantile
trade of a merchant, the user’s written order
confirmation will be applying with regard to the
subject matters and scope of the contract.
2. The user reserves himself the right to carry out
technical amendments during the execution of the
order if they became evident from the technical
development’s progress or if in the individual case
they turn out to be relevant in the interest of the
performance capability of the installation.
III. Prices
1. The prices quoted by the user are understood without
legal added value tax, if the added value tax has not
been explicitly indicated; for the purchase order the
prices are understood ex works or ex stock,
respectively; packing and installation are not included
in the price, except agreed upon otherwise. Should
the added value tax be increased after contract
conclusion, the user is entitled to increase it to the
same extent.
2. If a price agreement binding for the user has been
achieved, he can nevertheless amend the prices in
case the performance of the user shall be carried out
more than four months after contract conclusion if
subsequently the delivery or performances are
directly or indirectly involved and become more
expensive by newly added public charges, additional
expenses, freight costs or the increase thereof or
other legal actions or a change of cost factors such
as labour costs and material costs on which the
user’s prices are based. If owing to the stated
circumstances the price exceeds the price agreed
upon by more than 10%, the contracting party is
entitled to withdraw from the contract and cancel it,
respectively. This will not apply if the user has
explicitly and in writing confirmed a fixed price.
IV. Delivery Times, Delivery and Transfer of
Perils
1. The execution and delivery, respectively will start as
soon as possible at the latest within approximately six
weeks after contract conclusion unless the user has
made an explicit and binding statement in writing. The
execution and delivery time, respectively starts with
the day of receipt of the user’s order confirmation at
the contracting party, however, not prior to the
clarification of all execution details and fulfilment of
other preconditions to be provided by the contracting
party.
2. In case of force majeure and other unforeseeable,
extraordinary circumstances for which the user
cannot be blamed as for example difficulties in
procuring material, interruptions of operation, strike,
lockout, lack of transportation means, governmental
interventions, difficulties in energy supplies etc. –
even if they occur with pre-suppliers – the execution
and delivery time will extend to the duration of the
obstruction as well as an appropriate lead time if the
user is obstructed to punctually meet his obligations.
If the delivery or the performance are rendered
impossible due to the stated circumstances
respectively the user is entitled to a right of refusal to
carry out the performances owing to personal or
practical unreasonableness, the user will be relieved
from his obligation to execute the work and will be
disengaged from his contractual obligations,
respectively. In case the delay in the execution is
lasting for more than two weeks, the contracting party
will be entitled to withdraw from the contract. If the
execution and delivery time, respectively is extended
or if the user is relieved from his obligation of
execution and performance, the contracting party
cannot derive any claim for damages thereof. The
user may relate to the stated circumstances only if he
informs the contracting party immediately. The
contracting party’s right for withdrawal after fruitless
expiry of appropriate days of grace set by the user,
remains unaffected.
3. The user is entitled to partial performances to a
reasonable extent.
4. In case of a contract for work and services the perils
are being transferred to the contracting party on the
day of acceptance of the work. This will also apply to
partial acceptances, in case these can be effected
owing to type and nature of the work.
If no acceptance is required by the contracting party,
the performance is considered as accepted after the
expiry of 12 working days after written information
about the completion. The putting into operation
replaces the acceptance. Afore-mentioned
regulations will also apply to partial acceptances. The
acceptance cannot be refused or delayed because of
minor deficiencies.
5. The seller’s branch office will be the place of
fulfilment when a purchase order has been
concluded. The contracting party will bear the costs
for the shipment of the purchase object ex domicile of
the branch office of the user. If no agreements have
been made regarding the shipment, this will be made
at the user’s discretion. In doing so, the user is not
obliged to choose the most favourable type of
shipment.
If the contracting party is an entrepreneur, the perils
of destruction or damage of the goods will be
transferred to it as soon as the goods have left the
works or the stock even though delivery free of
charge has been agreed upon. On the contracting
party’s request, the goods will be insured at its
expense against damages of break, transportation
and fire.
6. If on the contracting party’s request or for reasons to
be stood in for by it (creditor’s delay) the
performances or delivery will be delayed, the perils
are transferred to the contracting party for the time of
the delay.
The corresponding costs for waiting time, allocation
and storage and further necessary travels of the
user’s assistants are to be borne by the contracting
party.
V. Erection and Maintenance of Installations
For any type of erection, installation and maintenance
the following regulations will apply if not agreed upon
otherwise in writing:
A. The contracting party has to assume and to
punctually provide for the following at his own
expense:
An assistant team such as sub-workers and, if
required, brick layers, carpenters, metal-workers,
crane operators, other expert workers with all tools
required in necessary quantities, all ground, bedding,
mortising, scaffolding, plastering, painting or other
extra work outside the user’s sector of business
including the required building materials, power
supply and water including the necessary
connections up to the point of use, heating and
general lighting, at the place of installation for the
storage of machine parts, devices, materials, tools
etc. sufficiently large, appropriate dry and lockable
rooms and for the installation personnel appropriate
work and recreation premises including all sanitary
facilities; in addition, the employer has to take all
steps at the site for the contractor and the property of
the installation personnel of the contractor which he
would take for the protection of his own property,
protective clothing, and protective facilities which are
required because of special circumstances of the
mounting site and which are out of the contractor’s
sector of business.
2. On time, prior to the start of the installation works the
contracting party has to make available without being
requested the necessary details about the position of
sub-surface mounted power supply lines, gas or
water-pipes or similar installations as well as the
necessary static details.
3. The contracting party commits itself to confirm daily
or weekly according to the user’s choice to the
erector and his installation personnel the labour hours
performed. Furthermore, it confirms the completion of
the erection or installation on forms provided by the
user.
4. The contracting party will bear the costs for the
correct disposal according to the regulations for the
environmental protection of built-in parts and
components which have to be dismounted or
replaced.
B. If the user has assumed the installation or
maintenance against individual billing, the following
conditions in addition to those under A. are
considered as agreed upon:
1. The contracting party will pay to the user the cost
rates agreed upon at the placing of the order for
labour time and additional fees for overtime, night-,
Sunday and public holiday work, for work under
hindered circumstances as well as for planning,
supervision and documentation. This applies
accordingly to the material consumption including cutoffs
and to the erection and the connection of the
installation as well.
2. Lead times, travelling times and walking times as well
as feedbacks are considered as labour time and in
doing so the actual expenses will be invoiced for
travels to and from the site which include in particular
labour and vehicle’s costs
3. Furthermore, the following costs will be paid
separately:
Travelling costs, costs for transportation of tools and
personal baggage, for freight and packing, for the
delivery of all materials and devices as well as
ordered technical documents; at the user the usual
expense allowances and extra pay for labour time
and for days of rest and public holidays as well.
C. For diagnosis and removal of temporarily occurring
(intermitting) faults, repeated checks and work and
services may become necessary. Insofar, the
contracting party has to equally bear the costs if
repeated work assignments of the user will become
necessary..
VI. Payment
1. Our invoices will become due 5 days as of date of
invoice.
2. In case the contracting party gets into delay, with
reservation of assertion of a further damage, interests
according to § 288 BGB will be charged.
3. Payments must be effected to the user only, but not
to his representative.
4. Instalments become due as follows: 30% at placing of
the order, 30% at the start of installation and 30%
when the installation is handed over. In case the
instalments are not effected punctually, the user is
entitled to cease his further activity or to postpone it
until payment has been made.
5. The acceptance of cheques, drafts and other
securities is made only on account of performance
under the usual reserve of their redemption, their
possibility of discounting and the contracting party will
assume all costs which may arise in connection with
their redemption. Discount and note charges are at
the contracting party’s expense and will become due
immediately.
6. For partial deliveries the user is on demand entitled to
corresponding partial payments.
7. Independently from the maturity of possibly accepted
and credited drafts, all receivables of the user
become due immediately if the terms of payment are
not complied with or the user gets to know
circumstances which are suited to reduce the
creditability of his contracting party.
8. If the contracting party withdraws from the contract
(order cancellation) without the user having given a
reason for this or if the user declares his withdrawal
from the contract or cancels the contract, for reasons
for which the contracting party is responsible, the
contracting party is bound to reimburse the costs
already incurred as well as the loss of profit by a lump
sum of max. 30% of the compensation agreed upon.
The contracting party is liable to prove that costs and
profit have not incurred in this amount or have been
lost, respectively. Thereupon, the charging will be
effected only up to the proven amount.
9. The contracting party is entitled to compensation only
if the counter claim is beyond dispute and has been
established as final and absolute.
VII. Reservation of Propriety Rights
All goods remain the user’s propriety (goods under
reservation) until all claims have been fulfilled which
existed at the time of contract conclusion – for
payment by cheque or draft until redemption - no
matter for which legal reason and even then, if
specifically denominated claims have already been
paid.
If the contract is part of the business of a mercantile
trade of a merchant, paragraph 1 will apply also for
future or conditional claims also from contracts
concluded simultaneously or at a later time.
Regarding the goods under reservation, the
contracting party is bound to omit any interference
with the property and in case of an access by a third
party to inform the user immediately. Costs in this
respect having incurred owing to interventions are to
be borne by the contracting party.
If the value of the securities exceeds the user’s claim
by more than 20%, he will on demand of the
contracting party release securities in this respect
according to his choice.
VIII. Claims and Rights because of Deficiencies
1. If the object of the contract has deficiencies, the
contracting party is entitled to claim firstly
supplementary performance (rework or replacement
delivery) within an appropriate grace period, the user
having the option of rework or replacement delivery.
In case of rework the user is entitled to two attempts.
If the rework remains without success, is impossible
or connected with unreasonably high costs, the
contracting party is entitled according to the user’s
choice to withdraw from the contract (withdrawal) or
to reduce the payment (reduction). In case of
delayed, refused or severally failed rework the right of
withdrawal (cancellation of the contract) or reduction
(reduction of the reimbursement) remains unaffected.
If the contracting party is an entrepreneur, there will
not be any rights to claim damages for defects if only
insignificant deviations from the appearance and
workmanship agreed upon or insignificant detriments
of the suitability of the object of the contract are
concerned. In case construction work is subject of the
liability of defects, a withdrawal from the contract is
excluded.
2. a)If a purchase contract is involved, the period of
limitation for supplementary performance, withdrawal
or reduction for new things is two years, for used
things one year. The time limit starts with the delivery
of the object of purchase. If the contracting party is an
entrepreneur, the period of limitation is one year for
new things, supplementary performance, withdrawal
and reduction are excluded for used things.
b)If a contract for work and services is concerned, the
period of limitation for supplementary performance,
withdrawal and reduction is one year. The time limit
starts with the acceptance of the installation or in the
absence of an acceptance with the putting into
operation of the installation.
c) These periods of limitation will apply only if attempts
of repair, maintenance or technical amendments have
not taken place at the object of the contract, neither
by the contracting party nor third parties, the
contracting party is behaving in accordance with the
contract, the object of the contract has been
operated, maintained and used correctly and obvious
deficiencies have been indicated in writing to the user
within two weeks as of transfer of perils,
undistinguishable deficiencies at discovery at the
latest, however, within the periods of limitation have
been indicated to the user in writing.
d) In the case of the existence of deficiencies, the
contracting party (employer/buyer) is entitled to the
right of retention if this is in an appropriate relation to
the deficiencies and the probable costs of
supplementary performance (in particular removal of
defects).
3. The user draws attention to the fact that an erection
of software absolutely free of faults, especially in case
of complex software systems according to the today’s
state of the art is technically not feasible respectively
not at reasonable costs.
Object of this liability for defects is a programme
which is suitable according to the programme
description for the common use and for the assumed
use according to the contract.
a) The user warrants that the programme carrier is free
of any material and production defects when it is
handed over to the contracting party.
b) For the freedom of defects of the programmes
outside the object of this liability for defects, no
liability for defects can be assumed for the abovestated
reasons. In particular, the user will not assume
any liability that the programme functions will be
sufficient for the contracting party’s requirements or
cooperate in the selection made by it. The contracting
party equally bears the responsibility for the selection,
the installation and the use as well as for the intended
results thereof.
If programmes are used for customer-owned
hardware, the liability for defects extends only to the
software supplied , but not to the interaction with the
hard- and software provided by the contracting party.
4. For the removal of defects, the contracting party has
to grant discretionarily the necessary time and
opportunity.
5. The liability for defects does not concern natural wear
and tear, furthermore it does not include damages
which came into existence because of faulty or
negligent treatment, excessive stress, weather
influences, force majeure, unsuitable operating
means, poor construction work, unsuitable building
ground and such chemical, physical, electromagnetic
or electric influences which are not subjected to the
contract.
6. Any changes of use intended by the contracting party
are to be indicated to the user and are to be agreed
upon with him. If the contracting party omits to make
such indication or agreement, it will lose any liability
claim for defects.
7. The user will not assume any liability for defects for
products/performances provided by the contracting
party.
IX. Liability
1. The user is liable only for deliberate act and gross
negligence, with the exception of injuries of life, body
and health. This limitation applies also to legal
representatives and vicarious agents of the user.
Inasmuch as a duty is violated the adherence of
which is of special importance to achieve the purpose
of the contract (fundamental contractual obligation),
the user is liable for slight negligence as well. A
liability for direct and unforeseeable damages as well
as for consequential harm caused by defect and lost
profit, absence of savings, damages to property
because of claims of third parties or other
consequential damages is also limited to deliberate
act and gross negligence even in case of violation of
a fundamental contractual obligation. In addition to
that, there exists no further liability of the user.
If the contracting party is an entrepreneur, the user’s
liability is limited to foreseeable damages at the time
of the contract conclusion even in case of gross
negligence; furthermore, a liability for gross
negligence is excluded if the damage is due to the
violation of a minor contractual obligation by a
vicarious agent.
2. A liability in addition to that will not be assumed,
especially there is no liability for damages caused as
consequence of criminal acts (as for example
robbery, theft, theft by housebreaking) towards
persons, the property, assets of the contracting party
or third persons. In any case claims for
indemnification are excluded for consequential
damages, as for instance non-functioning of the
installation, burglary, costs of the police or fire
brigade, respectively and possibly security companies
as well as in case of danger alarm messages
provided that no compelling legal regulations about a
liability for deliberate act and gross negligence are
opposed to these liability limitations.
3. The user is not liable for the work carried out by his
vicarious agents provided that the work is not
connected to the deliveries and services agreed upon
or if it has been directly prompted by the contracting
party.
4. Possible irregularities in the fulfilment of contractual
obligations of the user are to be immediately
indicated to him in writing for removal, otherwise no
rights can be derived thereof.
5. Consulting services by the user’s personnel or by
representatives assigned by him are given without
any obligation. They are based on the user’s present
state of knowledge and experience and are made to
the best of knowledge. Liability claims are excluded in
as far as the user cannot be blamed for an deliberate
act and gross negligence.
X. Applicable Law, Place of Fulfilment and
Place of Jurisdiction
1. For the privity between the user and the contracting
party the Law of the Federal Republic of Germany will
apply.
2. If the contract is part of the business of a mercantile
trade of a merchant, the domicile of the user will be
the exclusive place of fulfilment and place of
jurisdiction.
XI. Storage of Data
The user is entitled to process and store the data
about the contracting party received in connection
with the business relation in the sense of the Federal
Data Protection Act as far as this seems to be
appropriate in the scope of the execution of the
contract.
XII. Miscellaneous
1. The offers and the planning documents of the user is
copyrighted material and without his written
permission it must not be neither copied nor
transferred. In case of offence, the contracting party
will be hold responsible for indemnification.
2. The programmes left for use by the user is
copyrighted material. The contracting party commits
itself to use them only for itself and only in the scope
of it’s commercial activity.
With the acceptance of the programmes it commits
itself to neither copy them nor to have them copied
without the user’s consent nor to make any copies of
the programme descriptions nor to have them copied
and to make the programmes or copies thereof at no
time available to unauthorized third parties. In case of
offence, the contracting party is hold responsible for
indemnification.
2. For transmissions via the public telephone network or
other transmission media, the user does not offer a
higher safety for the connection and the transmission
of messages than the own safety of this transmission
service (provider).
3. Any fees which are claimed by the network operator,
police, fire brigade or third parties owing to the
agreed upon deliveries and performance will be at the
contracting party’s expense.
4. The user is entitled to use other reliable enterprises in
fulfilment of his obligations.
5. The user is not bound to procure replacement parts if
this is connected only with an inappropriate economic
expense or a procurement is, indeed, impossible.
6. If one of the afore-mentioned regulations becomes
ineffective, the validity of the other regulations is not
affected. In case of legal ineffectiveness of a clause,
the contracting party is bound to stipulate a new
regulation with the user, which for the intended
purpose comes as close as possible to the ineffective
clause.
© BHE – AGB110509