General Terms and Conditions
General Purchasing Terms of PVA TePla Group*
1.1 Business deals with Suppliers - including future deals - shall not be subject to any other Purchasing Terms than those set forth herein. A change in these terms must be acknowledged by us in writing to be effective.
1.2 Our Purchasing Terms shall be generally applicable. No other purchasing terms conflicting with or differing from ours shall be accepted, unless we have given express written consent to regard them as valid. Our Purchasing Terms shall even prevail in cases when a Supplier shipment is unconditionally accepted by us having full knowledge of the Supplier’s conflicting or differing purchasing terms.
2. Quotation – Quotation Documents - Ordering
2.1 The Supplier understands that any of our orders shall be acknowledged within two weeks' time. Upon expiry of this time limit, we shall consider ourselves no longer bound by a placed order. Orders are only valid if placed or confirmed by us in writing.
2.2 We retain title of ownership and intellectual property of illustrations, drawings, calculations and other documents that have been provided to the Supplier. Such illustrations, drawings, etc., shall not be made available to any third party, unless we have expressly stated our written consent to do so, and are to be used for no other purpose than that of manufacturing to our order in such cases. Upon completion of an order, they shall be returned to us including possible copies unsolicited. Disclosure to third parties is prohibited.
2.3 Supplier quotations will be considered as firm and binding and involving no charges on our part.
3. Pricing - Terms of Payment
3.1 Prices shall be deemed firm and binding as indicated in our purchase order. Unless otherwise stipulated in any written agreement, the price of "delivered free" shall be considered to include also packaging. The reshipment of packaging shall require a separate agreement.
3.2 Invoices can only be handled if containing an order number as indicated in our purchase order and required under our ordering practice. The Supplier will be held responsible for all consequences resulting from a failure to comply with this requirement.
3.3 Supplier's receivables shall be payable before a goods shipment has completely arrived and the related set of correctly compiled invoicing documents been duly received.
3.4 Unless anything to the contrary has been agreed in writing, we shall pay the sales price fourteen (14) days from delivery and receipt of invoice with 3% discount, or thirty (30) days net from delivery and receipt of the invoice.
3.5 We shall be entitled to set-off and retention as stipulated by law. 3.6 The Supplier shall only be able to assign, pledge or otherwise transfer amounts receivable from us, if he has procured our prior written consent to do so.
4. Delivery Date
4.1 A delivery date shall be final, firm and binding for fulfilment by the Supplier as contained in our order placement (fixed date in accordance with article 376 German Commercial Code). For compliance with a delivery date, the day on which expected complete delivery of goods on our premises shall be decisive. The Supplier shall be under obligation to promptly give written notice if circumstances occur or become known to him that render a specified delivery date unrealistic.
4.2 It will be the Supplier's responsibility to procure all subdeliveries and services as may be necessary to fulfil contractual deliveries and services, including without fault on the Supplier's part.
4.3 If there is a default in delivery, we shall be entitled to claims under statutory law. Notably, we may demand compensation of damage from nonperformance rather than contractual fulfilment, after a non-dispensable reasonably fixed grace period has expired.
4.4 In the event of failure to deliver, we shall be entitled to charge a penalty of 1% of the ordered value per week commencing in default, but not more than 10% of the ordered value. We also reserve claims for compensation of further damage. Where we make such claims for compensation of damage, penalties will be set off against any such further damage. We shall be obliged to state our reservation of charging penalties when settling the invoice that follows a late delivery at the very latest. 4.5 Partial deliveries or deliveries ahead of schedule shall only be permissible if our prior written consent has been obtained. They shall not bind us to effect partial payment or payment ahead of schedule.
5. Transfer of Risk - Documents
5.1 Risk passes to us as soon as the goods have been fully delivered to us.
5.2 The Supplier shall state our correct order number on all shipping papers and delivery notes. Failure to do so will inevitably cause delays in document handling. No responsibility will be assumed for such delays on our part.
6. Warranty Claims - Notice of Defects
6.1 We shall inspect incoming goods for non-conforming quality and quantity within a reasonable period of time. A defect notice shall be deemed as properly served if dispatched to the Supplier two weeks from receipt of a goods shipment at the latest. In the case of hidden defects, this two weeks' notice period shall not be deemed to commence before knowledge of a defect is actually obtained.
6.2 If goods at the time of arrival on our premises are found to contain defects, we shall have an initial option to demand a remedy of defects or a replacement. A rework will be considered to have failed after the first unsuccessful attempt.
6.3 The Supplier shall bear all expenditure as may be required to remove a defect or provide a replacement.
6.4 If a reasonably fixed grace period has unsuccessfully expired, we shall, at our own option, be entitled to reduce the sales price or withdraw from the contract. We also expressly reserve our right to demand compensation of damage and related expenditures.
6.5 Non-conformities in previously agreed goods properties will already be deemed as considerable if individual goods functions can only be used to a limited degree.
6.6 The statutory period for limitation of warranty claims will be as stipulated by law. The beginning of the statutory period for limitation is at the time of final acceptance of the entire system by our customer. A refusal as provided for under section 203 clause 1 of the German Civil Code shall be stated in writing. For mended or replaced delivery items the statutory term starts to run anew.
6.7 In the event of Supplier's failure to begin fault removal immediately following our request to do so, we shall, in cases of urgency, and, notably to prevent imminent danger, be able to remove such faults ourselves or have them removed by a third party at the Supplier's cost.Acceptance, tests, payments or acceptance of submitted drawings by us do not discharge the Supplier from his warranty obligations.
7. Retention of Title – Our Provided Materials & Parts - Tools - Secrecy
7.1 Retention of Supplier's title shall only become part of a contract if deemed null and void on payment of the price that has been agreed for goods delivered under retention of title, and in cases where we are entitled to resell and reprocess such goods in normal business operations. Except as described herein, no other type of Supplier's retention of title shall be accepted.
7.2 Where we provide the Supplier with parts or materials, we shall retain title to such parts or materials. Any processing or transformation thereof by the Supplier shall be deemed to have been performed on our behalf. Where parts or materials are provided to the Supplier with retention of our title and processed together with other objects not in our possession, we shall acquire coownership of the resulting product to the same extent in which the value of our provided parts or materials relate to that of the other parts involved at the time of processing.
7.3 Where our provided parts or materials are inseparably combined with other parts not in our possession, we shall acquire co-ownership of the resulting product to the same extent in which any parts under retention of our title relate to the value of the other components that are involved at the time of combination. Should parts or materials be combined in such a manner that the Supplier's component has to be regarded as the main component, it is understood that the Supplier shall grant us a right of proportional co-ownership. The Supplier shall keep our sole or partial property in safe custody in such cases.
7.4 We shall retain title to any tools that are manufactured to our order. The Supplier will be under obligation to employ such tools for no other purpose than that of manufacturing goods to our orders.
7.5 The Supplier shall, at his own cost, provide fire, water and theft insurance coverage for any tools in our possession on reinstatement value terms. He shall carry out necessary maintenance and inspection work duly in time and at his own cost. We shall be immediately notified of any malfunction. If no such notice is given through his own fault, claims for compensation of damage will remain unaffected.
7.6 The Supplier shall keep all provided samples, drawings, calculations and other documents and information in strict confidence. They may not be disclosed to any third party, unless with our express approval. This secrecy requirement shall survive the completion of a contract. It expires if and to the extent that the manufacturing knowledge which is contained in furnished illustrations, drawings, calculations and other documents, enters the public domain.
8. Industrial Property Rights – Rights of Use
8.1 The Supplier warrants that no right of a third party is infringed as a result of his deliveries. He agrees to indemnify and hold us harmless upon first written notification against any and all claims by a third party. This indemnification commitment shall also apply to any expenditure or damage that we incur or suffer due to, or in connection with, an asserted third-party claim.
8.2 Exclusive rights of use and industrial property rights to illustrations, drawings, product descriptions and data sheets are hereby assigned to us inasmuch as such illustrations, drawings, etc., have been compiled or manufactured to our order. We shall own the sole and exclusive right to utilize and exploit these results.
8.3 We shall be entitled to publish any results that were produced or compiled on our behalf. Any publication by a Supplier shall require our prior written approval.
8.4 The period of limitation is 10 years and begins to run from conclusion of contract.
9. Product Liability – Indemnification – Liability Insurance
9.1 Where the Supplier is responsible for a product damage situation, he shall, upon first notification, indemnify us from third-party claims for compensation of damage to the extent that such damage was caused under his own control and organizational responsibility and he is himself liable externally.
9.2 In such cases, the Supplier shall also refund any expenditure resulting from, or in connection with, a recall action that is carried out on our part. We shall notify the Supplier of the content and scope of a projected recall action as far as this appears possible and reasonable, and provide him with a possibility to state his position.
9.3 The Supplier shall maintain a product liability insurance with a coverage of 2.5 million Euros per personal injury or property damage event. Where we are entitled to ongoing claims for compensation of damage, these shall remain unaffected.
10.1 We point out that we will process the data we receive from customers according to the provisions of the German Data Protection Act. Personal data will also be stored by company groups and delivery centres (Section 28, 33 of the German Data Protection Act).
10.2 Unless otherwise specified in a purchase order, place of fulfilment shall be our registered place of business.
10.3 For Suppliers who qualify as a merchant under the terms of the German Commercial Code, as a legal person under public law or a Federal Special Fund, our company’s registered place of business shall be the exclusive legal venue for any dispute arising from, or in connection with, this contractual relationship - whether directly or indirectly - unless legal requirements prescribe a different legal venue as compulsory. We shall however be entitled to file action against the Supplier with the court of competence at the Supplier's registered place of business.
Terms of Service of PVA TePla Group*
Unless otherwise agreed, service orders are subject to the following conditions for the repair and maintenance of machines and systems.
The following clauses are valid in addition to the terms of sales and delivery of the PVA TePla AG except as agreed otherwise in the confirmation of order.
1. Conclusion of contract, general information:
1.1 If a non-disputed written confirmation of order is present, then this is decisive for the content of the contract and the scope of the repairs. Collateral agreements and changes of the contract require written confirmation of the contractor.
1.2 If the object of repair is not delivered by the contractor, then the customer must inform the contractor of the existence of commercial industrial property rights with regard to the object, insofar that the contractor is not in default, the customer shall release the contractor from any possible third party claims from commercial industrial property rights.
2. Repairs that cannot be accomplished
2.1 The services rendered for the submission of an estimate of cost as well as additional expenditures incurring for which proof is to be provided of (debugging time = labour time) will be charged to the customer, if the repairs cannot be carried out by the contractor for reasons which are beyond the contractor’s control, in particular because
- the reported error does not occur during the inspection,
- spare parts cannot be acquired,
- the customer culpably fails to com ply with the deadline agreed to,
- contract is cancelled during implementation.
2.2 The object of repair must be returned to its original state only at the express request of the customer and for reimbursement of the costs, unless the work performed was not necessary.
2.3 In case of repairs that cannot be accomplished, the contractor shall not be liable for damages on the repair object, the breach of contractual accessory obligations or for damages that have not occurred on the repair object itself, irrespective of the legal grounds the customer quotes as reference. This limitation of liability does not apply in cases of intent or gross negligence of the owner or supervising employee of the contractor.
3. Cost information, cost recommendation
3.1 If possible, the customer will be informed of the estimated repair price at the time of contractual conclusion, otherwise the customer can set a cost limit.
- If the repair cannot be carried out at this cost or the contractor considers
- additional work necessary during the repairs, then the contractor must obtain
- the customer’s consent if the costs indicated are exceeded by more than 15%.
3.2 If a cost recommendation with binding prices is desired prior to implementation of the repairs, then this is to be expressly requested by the customer. Such a cost recommendation is only binding if it has been made in writing and it is stated that it is binding.
4. Price and payment
4.1 The contractor is entitled to request appropriate advance payment at the time of conclusion of the contract.
4.2 For the calculation of the repairs, the prices for parts and material used, special services as well as prices for labour, travel and transport costs are each to be listed separately. If the repair is carried out as a result of a binding cost recommendation, then it is sufficient to make reference to the cost recommendation, whereby only deviations in the scope of performance are to be listed separately.
4.3 The value added tax will be calculated to the respectively valid amount and charged to the customer.
4.4 Any adjustment of the invoice on the part of the customer must be made in writing four weeks after receiving the invoice at the latest.
4.5 The payment is to be made at the time of acceptance and delivery or transmission of the invoice without deduction of a discount.
4.6 Withholding of payments or offsetting as a result of any counterclaims of the customer disputed by the contractor is not permitted.
4.7 The assignment of existing claims or other rights vis a vis the contractor is not permitted.
5. Cooperation and technical support of the customer for repairs outside of the plant of the contractor
5.1 The customer must assist the repair personnel at his own expense during repair work.
5.2 The customer must take special measures needed to protect against personal injury and property damage at the place of repair. He must also inform the repair supervisor about existing special safety guidelines insofar that these are relevant for the repair personnel. He will inform the contractor of violations made by the repair personnel of such safety guidelines. In case of severe violations, the customer can refuse the offender access to the repair site after consulting with the repair supervisor.
5.3 The customer is obliged to provide technical support at his own expense especially with regard to the following:
a) Provision of suitable back staff needed in the amount required for the repairs and for the required amount of time, the back staff must follow the orders of the repair supervisor. The contractor assumes no liability for the back staff. If a defect or damages are made by the back staff as a result of instructions of the repair supervisor, then the regulations of Sections 10 and 11 apply, correspondingly.
b) Execution of all construction, bedding and scaffolding work including the procurement of the necessary building materials.
c) Provision of the necessary devices and heavy equipment as well as the necessary articles of daily use and materials.
d) Provision of heating, lighting, power, water incl. the necessary connections.
e) Provision of dry and lockable rooms needed for the repair personnel to store their tools
f) Protection of the repair site and materials against harmful influences of any kind. Cleaning of the repair site.
g) Provision of suitable lounges and workrooms (with heating, lighting, bathroom and washing facilities) and first aid for the repair personnel.
h) Provision of materials and execution of all other actions that are necessary for the adjustment of the repair object and for the implementation of tests as planned in the contractual agreement.
5.4 The technical support of the customer must guarantee that the repair work can be begun immediately after the repair personnel has arrived and carried out without delay up to acceptance by the customer. To the extent that special plans or instructions of the contractor are required, then the customer will make these available in good time.
5.5 If the customer does not fulfil his obligations, then the contractor is entitled on notification, but in no way obliged, to carry out the actions for which the customer was responsible in the customer’s place and at the customer’s expense. In such cases the contractor is - following notification - entitled to abandon the repair work. For the rest, the legal rights and claims of the contractor remain unaffected.
6. Transport and insurance during repair work in the plant of the contractor
6.1 Unless otherwise agreed in writing, the customer will be invoiced for delivery and pickup of the repair object carried out at his request, including any packing and loading, otherwise the repair object shall be delivered by the customer at his own expense to the contractor and after implementation of the repairs picked up again by the customer at the contractor.
6.2 The customer bears the transport risk.
6.3 At the wish of the customer, the transport costs for delivery and if necessary for pickup will be insured against the insurable transport risks, e.g. theft, breakage, fire.
6.4 No insurance protection exists during the repair time in the plant of the contractor. The customer is responsible for ensuring that the existing insurance protection continues to cover the repair object, e.g. with regard to fire, tap water, storm and machine breakage insurance during the repair time. Only at the express request of the customer and at his own expense can insurance protection be taken out for these risks.
6.5 If the customer is in default of acceptance, then the contractor can charge storage fees for storing the object in his plant. The contractor can also store the repair object elsewhere at his discretion. Costs and risks of storage shall be borne by the customer.
7. Repair period
7.1 The information on the repair periods are based on estimates and are therefore non-binding.
7.2 The agreement of contractually binding repair work, which must be expressly described as being binding in writing, can only be requested by the customer if the scope of the work has been exactly determined.
7.3 The binding repair period is considered kept if the repair object is available by the end of the period for customer acceptance or in the event of a planned test contractually agreed to for their execution.
7.4 In case of additional and supplementary orders made at a later time or in case of additional necessary repair work, then the repair period agreed on will be extended correspondingly.
7.5 If the repair work is delayed as a result of measures resulting from work disputes, in particular strike and lock-out as well as the occurrence of Acts of God which the contractor has no control of, then to the extent that it can be proven that such obstacles have a significant influence on the finishing of the repairs, an appropriate extension of the repair period shall be granted, this also applies if such conditions occur after the contractor is in default.
7.6 If damages occur for the customer that are proven to be the result of the contractor’s inability to keep the deadline, then the customer is entitled under exclusion of additional claims to demand default damages which amount to 0.5% for each full week of delay, however, a maximum of 5% of the entire repair price for the respective part of the object to be repaired by the contractor that cannot be used on time as a result of the delay.
7.7 If the customer grants the contractor who is in default an appropriate period of grace with express declaration that after lapse of this period he will then refuse to accept the repair work, and if the subsequent period of grace is not kept, then the customer is entitled to withdraw from the contract. Additional claims do not exist – irrespective of 11.3.
8.1 The customer is obliged to accept the repair work as soon as he has been informed of their completion and as soon as any contractually planned test of the repair object has taken place. If the repair work does not comply to the contractual agreement, then the contractor is obliged to remedy any defects. This does not apply if the defects are nonessential for the interest of the customer or if they are based on a condition that can be attributed to the customer. If there is an insignificant defect present, then the customer may not refuse acceptance of the repair work if the contractor expressly acknowledges his obligation to remedy the defect.
8.2 If the acceptance is delayed without the contractor being at fault, then the acceptance is considered to have taken place two weeks after the repair work has been indicated as being complete.
8.3 With the acceptance of the repair work, the liability of the contractor is no longer applicable for obvious defects, if the customer has not asserted his right to reserve the right to claim for a certain defect.
9. Retention of title, extended lien
9.1 The contractor retains the title to all accessories, spare parts, exchangeable aggregates used until receipt of all payments from the repair contract. Additional security agreements can be made.
9.2 Due to his claims from the repair contract, the contractor is entitled to a lien on the repair object of the customer, which is now in his possession as a result of the contract. The lien can be asserted also for claims from work, spare part deliveries and other services previously carried out insofar as they are associated with the repair object. The right of lien only applies to other claims from the business relationship, if these are undisputed and legally binding.
10.1 After acceptance of the repair work, the contractor shall be liable for defects of the repair work also including the lack of expressly ensured properties that occur within six months after acceptance under exclusion of all other claims of the customer irrespective of No. 6 and 11 to the extent that he must remedy the defect. The customer is to report determined defects immediately in writing to the contractor. His right to have the defect remedied is only valid for six months from the time of reporting the defect.
10.2 The deadline for the defect liability will be extended by the duration of the downtime of the repair object caused by the subsequent improvement work.
10.3 The contractor shall not be liable, if the defects are non-essential for the interest of the customer or if they are based on a condition that can be attributed to the customer. This especially applies with regard to parts supplied by the customer.
10.4 Faulty modifications or repair work performed, for example, on the part of the customer or a third party without prior consent of the contractor will cancel the liability of the contractor for the consequences resulting therefrom. Only in urgent cases of endangerment of the operational security and to avoid larger damages that are out of scale, whereby the contractor is to be immediately informed or if the contractor is in default in remedying the defect, the customer has the right to remedy the defect himself or have the defect remedied by a third party and to demand from the contractor compensation for the necessary costs.
10.5 The costs incurring directly as a result of the improvement shall be borne by the contractor insofar as the complaint is proven to be justifiable, the costs of the replacement piece including shipping and handling as well as the appropriate costs of dismounting and installation. Further, if this is justly in individual cases, then the costs shall be borne for the necessary hiring of service technicians and back staff. For the rest, the customer shall bear the costs.
10.6 If the contractor culpably allows an appropriate respite for the remedy of defects lapse without any results, then the customer has a right to reduction. The customer’s right of reduction also exists in other cases of failure to remedy the defect. Only if the repair work is proven to be of no interest to the customer despite reduction, then the customer shall be entitled to withdraw from the contract after giving notice.
11. Other liability of the contractor, exclusion of liability
11.1 If parts of the repair object are culpably damaged by the contractor, then the contractor is to repair this or deliver a new at his sole discretion and at his own cost. The replacement obligation is limited to the amount of the contractual repair price insofar as no intent or gross negligence of the owner or the supervising employee of the contractor exists.
11.2 If the repair object of the customer cannot be used in accordance with the contract due to culpable action of the contractor as a result of failure to provide adequate consultation or recommendations as well as other contractual accessory obligations or the provision of faulty consultation or recommendations - in particular with regard to the instructions for operation and maintenance of the repair object - then the regulations of Sections 10 and 11, 1. and 3. apply correspondingly under exclusion of additional claims.
11.3 The customer cannot assert any other additional claims against the contractor that exceed those agreed to in these provisions, especially claims for compensation, including those from extra contractual action or other rights due to any disadvantages associated with the repair work, irrespective of the legal grounds the customer quotes. This exclusion of liability does not apply in case of intent or gross negligence of the owner or supervising employee of the contractor or in cases of personal injury or property damage to privately used objects in cases of faulty repair work in accordance with the product liability act. This also does not apply to the absence of properties that have been expressly ensured if the assurance served to protect the customer from damages that did not occur on the repair object itself.
If the repair work is performed outside of the plant of the contractor and devices or tools of the contractor are damaged at the place of repair and this occurs at no fault of the contractor or if the devices or tools are lost at no fault of the contractor, then the customer is obligated to compensate these damages. This excludes damages occurring as a result of normal wear and tear.
13. Data Protection
We wish to point out that we will process the data we receive from customers according to the provisions of the German Data Protection Act. Personal data will also be stored by company groups and delivery centres (Sections 28 and 33 of the German Data Protection Act).
14. Place of Jurisdiction, Applicable Law
14.1. These Conditions of Service and all legal relationships between customers and the contractor are subject to the laws of the Federal Republic of Germany to the exclusion of the provisions of the UN Convention on the International Sale of Goods (CISG).
14.2. The court where the headquarters of the contractor are located shall have sole responsibility for all disputes arising from the contractual relationship if the customer is a general merchant, a legal entity under public law or a special fund under public law as defined by the German Commercial Code. The contractor can also call upon the court responsible for the branch of the contractor in charge of the repair work or the court responsible for the customer.
General Terms of Sale of PVA TePla AG, Wettenberg
1.1 None of our deliveries, services and offers are subject to any other rules than the General Terms of Sale set forth herein. This shall also apply to any future business even though it may not have been expressly stipulated otherwise. Any counter-confirmation made by a Buyer with reference to his own business or purchasing terms is hereby contradicted.
1.2 Any provision made between us and a Buyer in order to execute a contract shall be stipulated in a written contract.
2. Offer and Conclusion of Contract
2.1 Our quotations are non-binding, unless the binding force of a quotation has been explicitly stipulated in writing. Your orders shall have no binding contractual force and effect unless we have sent our written order acknowledgement.
2.2 Drawings, illustrations, weights, measures, and other performance data shall only be binding if expressly stipulated in writing.
2.3 We retain title of ownership and copyright of all tender documents, illustrations, drawings, calculations and other documents. These must not be disclosed to any third party.
2.4 Written documents which are clearly marked as "confidential" are subject to secrecy requirements. The Buyer shall procure our express written approval before he may disclose a document of such type to a third party.
3. Prices, Terms of Payment, Set-Off, Retention
3.1 Unless otherwise agreed, prices are quoted ex works.
3.2 Unless otherwise specified, we consider ourselves bound by the prices quoted in our firm and binding offers for four weeks commencing at the date of offering.
3.3 Prices are always quoted before VAT, which will be separately shown in the invoice at the rate that is legally binding on the date of invoicing.
3.4 Unless otherwise stipulated, our invoices shall be payable in full and exempt from postage and charges fourteen (14) days from the date of invoice. The date on which payment is received on our account will be decisive. Despite any Buyer statement to the contrary, we shall be entitled to initially set payments off against previous debts. The Buyer will then be duly informed about applied settlement procedures. Where such previous debts have incurred additional costs and interest, we shall be entitled to set due payments off against such costs in the first place, then against such interest, and finally against the primary obligation.
3.5 Partial deliveries entitle us to issuing an invoice for the respective part.
3.6 Any deduction of discount shall require a special written agreement.
3.7 If the Buyer defaults, we may, at our own option, charge annual interest of eight percentage points above the respective base interest rate as laid down in section 247 of the German Civil Code from the day on which a default situation begins. This shall not affect our right to claim further compensation of damage from the Buyer.
3.8 If circumstances become known to us, which cast doubt on the Buyer’s creditworthiness, notably, if a cheque and/or a bill of exchange is not cleared, or payment discontinues, we will be within our rights to call in the total amount due, even though we may have previously accepted cheques. Furthermore, advance payment or the provision of securities may be demanded in such cases.
3.9 The Buyer shall only be entitled to claim setoff if his counter-claims have been found to be lawful or indisputable or are acknowledged on our part. He may only use this right of retention to the extent that his counter-claim is based on the same contractual relationship and has been found to be lawful or indisputable or is acknowledged on our part. The assignment of existing claims against us or other rights vis a vis us is not permitted.
4. Delivery Time, Partial Deliveries, Default in Accepting
4.1 Dates and/or periods of delivery shall require our written confirmation to be firm and binding. Unconfirmed dates and/or periods of delivery are in no case binding. All technical, commercial and official conditions must have been settled and fulfilled for a quoted delivery period to begin.
4.2 Stipulated delivery deadlines will be met subject to the proviso that we obtain correct and timely self-supplies ourselves. We shall notify the Buyer of any imminent delays as soon as possible.
4.3 We may, at any time, perform partial deliveries and render partial services. The return of packaging requires the conclusion of a separate agreement.
4.4 Our compliance with contractual delivery and performance commitments shall require the timely and proper fulfilment of the Buyer’s obligations.
4.5 The delivery period is met when the delivery items are handed over to the first carrier or when the Buyer is notified of our readiness to ship before or on the expiring date.
4.6 In the case of delay due to Acts of God, industrial action, or other events beyond our control, a reasonable extension of the delivery period will be in place, however not exceeding six months extension.
4.7 If the Buyer defaults in accepting or fails to meet any of his obligations to cooperate, we shall be entitled to claim compensation of damages we have suffered therefrom, including additional expenses if any. In this case, the risk of accidental loss/destruction or accidental deterioration of sold products shall pass to the Buyer at the moment when the Buyer defaults in accepting.
4.8 Should damage for the Buyer arise caused by a delay which is in our responsibility, the Buyer has the right to claim compensation for delay. This amounts to 0.5% for each full week of delay, but in total not exceeding 5% of the value of the respective part of the entire delivery which due to the delay cannot be used in time or not according to contract.
5. Assembly, Initiation, Service
For assembly, initiation or service work the respective complementary terms apply, which we will provide on request.
6. Passing of Risk
The risk of goods deliveries shall pass to the Buyer as soon as a shipment has been handed over to the person responsible for its transportation, or has left our storage facility for dispatch (shipping date). If a shipment becomes impossible or delayed through no fault of our own, the risk shall pass to the Buyer upon notification of our readiness to ship.
7. Claims of the Buyer based on defects
7.1 Where we are shown to be responsible for a material defect in sold products, the Buyer shall be entitled to demand re-performance within a reasonable period of time.
7.2 A written notice of defect shall be given to us immediately on identification of a defect.
7.3 None of the Buyer's claims in connection with expenditures necessary for re-performance, notably, transporting, travel, labour and material costs, will be accepted where such expenditures increase, because an object of sale has been transferred to a location that is different from the place of fulfilment, unless such transfer is required for such object's intended use.
7.4 If defect removal fails within a reasonable time and/or no replacement can be provided or appears unreasonable, the Buyer may, at his discretion, demand a reduction in the sales price or cancel the contract. Damages may only be claimed if the conditions of paragraph 8. of these General Terms of Sale are fulfilled.
7.5 Insignificant defects and natural wear and tear shall void any claims of warranty.
7.6 Additional warranty terms for software: For software provided to the Buyer, we warrant compliance with our program specifications, if such software is installed in equipment as designated by us and in accordance with our guidelines. Warranty shall only be accepted for software faults that can be reproduced at any time. We warrant that any fault or defect which is non-insignificant for intended software use will be removed under these warranty terms, but reserve the right to eliminate software defects according to a priority scale of our choice. This shall be done by installing an enhanced software version and giving advice on workarounds or a method to eliminate the fault. We cannot warrant the software to run faultlessly in any userselected combinations which have not been specified by us.
7.7 Failure to observe our operating or maintenance instructions, or changes in goods delivered or services rendered, or any replacement with a part or use of a consumable that does not meet original product specifications, or existence of inappropriate chemical, electrochemical or electrical effects, inappropriate use, faulty assembly or initiation through the Buyer or a third party, shall void any warranty.
7.8 The statutory period for claims for defects is twelve months from the date of delivery.
7.9 The foregoing terms cover all commitments to provide claims of the Buyer based of defects in delivered products or services. No claims for defects of any other kind will be accepted. The legal provisions concerning the purchase of consumer goods shall remain unaffected.
8. Industrial property and copyrights
8.1 If a claim is made to the Buyer for infringement of an industrial property right or a copyright due to the use of goods delivered within one year from the date of shipment of such goods or rendering of such services, we shall assert the Buyer's right for continued use, always provided that the Buyer promptly gives written notice about any such claim by a third party and provided that we have full freedom to take necessary action for defence and outof- court settlement. If the continued use of delivered goods or services on reasonable economic terms proves impossible despite such defence and settlement efforts, we shall, at our own choice, modify or replace the particular goods for removal of their legal deficiencies or repurchase such goods by refunding the sales price that had been paid to us less a certain amount of depreciation corresponding to the age of goods delivered.
8.2 No claims shall be accepted if a legal rule has been violated due to the non-contractual usage of goods or services delivered. The rules in paragraph 9 will apply in all other aspects.
8.3 We shall assume no liability in the case of law offences by goods delivered if such goods or have been manufactured to the Buyer's engineering design documentation or other Buyer specifications. In fact, the Buyer will indemnify us from any possible claim.
9. Limitation of Liability
9.1 We are liable in contract, tort, or otherwise for loss or wasted expenditure subject always as follows:
a) In cases of intent, personal injury or liability under the German Product Liability Act our liability extends to the full loss; in cases of gross negligence, our liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care; in cases of absence of a guaranteed quality, our liability is limited to the amount of foreseeable loss that would have been prevented by the presence of the guaranteed quality.
b) In other cases: We are not liable except for breach of a major obligation and only up to the limits in the following subsection. A breach of a major obligation in the meaning of section 9.1 b) is assumed where the duty itself is a necessary prerequisite for the contractual performance, or where the breach of the relevant duty jeopardizes the purpose of the contract and where Customer could legitimately rely upon its fulfillment.
c) Where we are liable for loss of data, our liability will be restricted to the typical amount of efforts for data recovery that would have been required in the event of the Buyer's regular and risk-conforming saving of data.
Liability in cases under section 9.1 b) and c) is limited to 200,000 euros per incident and limited in total to 500,000 euros for all claims arising out of the Individual Contract or, in case this limitation of liability is not in an adequate proportion to the typical contractual risk our liability shall be limited to damage that is typical of and reasonably foreseeable with contracts of this kind.
9.2 Contributory fault and contributory negligence may be claimed.
9.3 All claims against us whether in contract, in tort, or otherwise for loss or wasted anticipatory expenditure are barred after a period of one year. That period begins at the point in time specified in the German Civil Code (BGB), section 199 (1). The time bar comes into effect not later than five years after the claim arises. The provisions in sentences 1 to 3 in this section do not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. The provisions in this section do not affect the other time bar for claims arising out of defects as to quality and defects in title.
10. Retention of Title
10.1 Pending the settlement of any receivables (including current account balance claims) from the Buyer at present or in the future – on whatever legal grounds - the following securities shall be provided to us. We shall, at our own option, relinquish these wholly or partially if their value clearly exceeds the value of receivables by more than 20%.
10.2 Shipments shall remain our property (goods sold with retention of title). Reprocessing or reshaping of goods shall always be regardedas performed on our behalf, but with no obligation on our part. We shall be entitled to coownership of the new property inasmuch as the value of goods sold with retention of title (invoiced value) relates to the new property. It will be the Buyer's responsibility to hold such new property in safe custody on our behalf and at his own expense. If the Buyer chooses to resell the new property, subparagraph 9.3 shall be applicable.
10.3 The Buyer may reprocess or resell goods under retention of title in normal business operations, as long as he is not defaulting. He shall be prohibited from pledging or depositing such goods for collateral security. Furthermore, the Buyer shall be responsible to insure goods that have been shipped with reservation of title against all common risks. For reasons of safety, the Buyer immediately assigns to us any receivables resulting from a resale or other legal grounds (insurance, unlawful acts) in connection with goods under retention of title (including any current account balance claims) in their full amount. The Buyer is hereby revocably authorized to collect such receivables he has assigned to us on our account, but on his own behalf. This collection authority can only be revoked if the Buyer fails to meet his commitments to pay in due course.
10.4 If a third party gains access to, or a hold on, goods shipped with retention of title, notably in the case of hypothecation, the Buyer shall clearly indicate to such third party that these are our property, delivering prompt notice thereof, in order to enable us to enforce our own property rights. Where such third party is unable to refund our costs in connection with necessary court or out-of-court proceedings, the Buyer shall be held liable.
10.5 Should in the Buyer’s country the validity of a retention of title be bound to particular formalities or other requirements, the Buyer will see to their fulfilment.
11. Rights in Software
11.1 The Buyer is granted a non-exclusive, nonassignable, unlimited (in time) right to use the software, including any of its updates, amendments, extensions and related documentation, which are part of our product deliveries, for no other purpose than that of operating the product for his own needs.
11.2 Except for what is quoted in subparagraph 10.1 above, the Buyer shall have no further rights in software and documentation. Notably, we shall remain the sole owner of intellectual property rights. The Buyer shall not disclose any software, documentation, including subsequently provided updates, amendments or extensions, to a third party, unless our prior written approval has been obtained, nor shall he change, copy or otherwise duplicate these, unless such duplicating is done to create a backup copy which must then be clearly marked as a backup copy.
11.3 Under the terms of section 69 e of the German Copyright Act, delivered program codes may be re-translated into other code forms (decompilation) if necessary to achieve interoperability between independently created software and the contractual software. Interfacing particulars required to achieve interoperability are available from us at minimal cost.
11.4 The concurrent storing, maintaining or application of software on more than one hardware product shall not be permissible. If the Buyer intends to operate given software on several hardware configurations at the same time, for example, in a multi-operator scenario, he shall acquire the corresponding number of program packages.
11.5 The Buyer shall take adequate precautions to prevent unauthorized access to software and documentation by third parties. He shall be responsible for keeping all delivered original data carriers and related backup copies in a place that is safe from access by third parties. The Buyer shall hold us harmless in the event of damage due to a breach of this obligation. He shall also properly instruct his personnel about the need to comply with these contractual requirements and the provisions of intellectual property law.
12.1 Unless otherwise explicitly agreed in writing, no information provided to us in connection with product or service orders shall be consideredas confidential.
12.2 We wish to point out that we will process the data we receive from purchasers according to the provisions of the German Data Protection Act. Personal data will also be stored by company groups and delivery centres (Sections 28, 33 of the German Data Protection Act).
13. Applicable Law and Legal Venue
13.1 These terms of business and all legal relations with the Buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN-Convention on Contracts for the International Sale of Goods.
13.2 For Buyers who qualify as a merchant under the terms of the German Commercial Code, as a legal person under public law or a Federal Special Fund, our company’s registered place of business shall be the exclusive legal venue for any dispute arising from, or in connection with, this contractual relationship - whether directly or indirectly - unless legal requirements prescribe a different legal venue as compulsory.
* PVA Industrial Vacuum Systems GmbH, PVA Crystal Growing Systems GmbH, PVA Löt- und Werkstofftechnik GmbH, PVA Control GmbH, PVA Vakuum Anlagenbau Jena GmbH, PVA TePla Analytical Systems GmbH, PVA Metrology & Plasma Solutions GmbH