General Terms and Conditions
The General Terms and Conditions of Start›Ing GmbH are based on the General Conditions for the Supply of Products and Services of the Electrical and Electronics Industry (“GL”)* for commercial transactions between businesses
as of June 2011
* The original German text shall be the governing version.
Article I: General Provisions
1. Legal relations between Supplier and Purchaser in connection with suppliesand/or services of the Supplier (hereinafter referred to as “Supplies”) shall besolely governed by the present GL. The Purchaser’s general terms and conditionsshall apply only if expressly accepted by the Supplier in writing. The scopeof delivery shall be determined by the congruent mutual written declarations.
2. The Supplier herewith reserves any industrial property rights and/or copyrightspertaining to its cost estimates, drawings and other documents (hereinafter referredto as “Documents”). The Documents shall not be made accessible to thirdparties without the Supplier’s prior consent and shall, upon request, be returnedwithout undue delay to the Supplier if the contract is not awarded to the Supplier.Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents;these may, however, be made accessible to those third parties to whom theSupplier has rightfully subcontracted Supplies.
3. The Purchaser has the non-exclusive right to use standard software and firmware,provided that it remains unchanged, is used within the agreed performanceparameters, and on the agreed equipment. Without express agreement thePurchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable to accept for thePurchaser.
5. The term „claim for damages” used in the present GL also includes claims forindemnification for useless expenditure.
Article II: Prices, Terms of Payment, and Set-Off
1. Prices are ex works and excluding packaging; value added tax shall be added atthe then applicable rate.
2. If the Supplier is also responsible for assembly or erection and unless otherwiseagreed, the Purchaser shall pay the agreed remuneration and any incidentalcosts required, e. g. for traveling and transport as well as allowances.
3. Payments shall be made free Supplier’s paying office.
4. The Purchaser may set off only those claims which are undisputed or nonappealable.
Article III: Retention of Title
1. The items pertaining to the Supplies (“Retained Goods”) shall remain the Supplier’sproperty until each and every claim the Supplier has against the Purchaseron account of the business relationship has been fulfilled. If the combinedvalue of the Supplier’s security interests exceeds the value of all secured claimsby more than 20 %, the Supplier shall release a corresponding part of the securityinterest if so requested by the Purchaser; the Supplier shall be entitled tochoose which security interest it wishes to release.
2. For the duration of the retention of title, the Purchaser may not pledge theRetained Goods or use them as security, and resale shall be possible only forresellers in the ordinary course of their business and only on condition that thereseller receives payment from its customer or makes the transfer of property tothe customer dependent upon the customer fulfilling its obligation to effect payment.
3. Should Purchaser resell Retained Goods, it assigns to the Supplier, alreadytoday, all claims it will have against its customers out of the resale, including anycollateral rights and all balance claims, as security, without any subsequent declarationsto this effect being necessary. If the Retained Goods are sold on togetherwith other items and no individual price has been agreed with respect tothe Retained Goods, Purchaser shall assign to the Supplier such fraction of thetotal price claim as is attributable to the price of the Retained Goods invoiced bySupplier.
4. (a) Purchaser may process, amalgamate or combine Retained Goods withother items. Processing is made for Supplier. Purchaser shall store the newitem thus created for Supplier, exercising the due care of a diligent businessperson. The new items are considered as Retained Goods.
(b) Already today, Supplier and Purchaser agree that if Retained Goods arecombined or amalgamated with other items that are not the property ofSupplier, Supplier shall acquire co-ownership in the new item in proportionof the value of the Retained Goods combined or amalgamated to the otheritems at the time of combination or amalgamation. In this respect, the newitems are considered as Retained Goods.
(c) The provisions on the assignment of claims according to No. 3 above shallalso apply to the new item. The assignment, however, shall only apply tothe amount corresponding to the value invoiced by Supplier for the RetainedGoods that have been processed, combined or amalgamated.
(d) Where Purchaser combines Retained Goods with real estate or movablegoods, it shall, without any further declaration being necessary to this effect,also assign to Supplier as security its claim to consideration for the combination,including all collateral rights for the prorata amount of the value thecombined Retained Goods have on the other combined items at the time ofthe combination.
5. Until further notice, Purchaser may collect assigned claims relating to the resale.Supplier is entitled to withdraw Purchaser’s permission to collect funds for goodreason, including, but not limited to delayed payment, suspension of payments,start of insolvency proceedings, protest or justified indications for overindebtednessor pending insolvency of Purchaser. In addition, Supplier may, upon expiryof an adequate period of notice disclose the assignment, realize the claims assignedand demand that Purchaser informs its customer of the assignment.
6. The Purchaser shall inform the Supplier forthwith of any seizure or other act ofintervention by third parties. If a reasonable interest can be proven, Purchasershall, without undue delay, provide Supplier with the information and/or Documentsnecessary to assert the claims it has against its customers.
7. Where the Purchaser fails to fulfill its duties, fails to make payment due, orotherwise violates its obligations the Supplier shall be entitled to rescind the contractand take back the Retained Goods in the case of continued failure followingexpiry of a reasonable remedy period set by the Supplier; the statutory provisionsproviding that a remedy period is not needed shall be unaffected. The Purchasershall be obliged to return the Retained Goods. The fact that the Suppliertakes back Retained Goods and/or exercises the retention of title, or has the RetainedGoods seized, shall not be construed to constitute a rescission of the contract,unless the Supplier so expressly declares.
Article IV: Time for Supplies; Delay
1. Times set for Supplies shall only be binding if all Documents to be furnished bythe Purchaser, necessary permits and approvals, especially concerning plans,are received in time and if agreed terms of payment and other obligations of thePurchaser are fulfilled. If these conditions are not fulfilled in time, times set shallbe extended reasonably; this shall not apply if the Supplier is responsible for the delay.
2. If non-observance of the times set is due to:
(a) force majeure, such as mobilization, war, terror attacks, rebellion or similarevents (e. g. strike or lockout);
(b) virus attacks or other attacks on the Supplier’s IT systems occurring despiteprotective measures were in place that complied with the principles of propercare;
(c) hindrances attributable to German, US or otherwise applicable national, EUor international rules of foreign trade law or to other circumstances forwhich Supplier is not responsible; or
(d) the fact that Supplier does not receive its own supplies in due time or in dueform
such times shall be extended accordingly.
3. If the Supplier is responsible for the delay (hereinafter referred to as “Delay”)and the Purchaser has demonstrably suffered a loss therefrom, the Purchasermay claim a compensation as liquidated damages of 0.5 % for every completedweek of Delay, but in no case more than a total of 5 % of the price of that part ofthe Supplies which due to the Delay could not be put to the intended use.
4. Purchaser’s claims for damages due to delayed Supplies as well as claims fordamages in lieu of performance exceeding the limits specified in No. 3 above areexcluded in all cases of delayed Supplies, even upon expiry of a time set to theSupplier to effect the Supplies. This shall not apply in cases of liability based onintent, gross negligence, or due to loss of life, bodily injury or damage to health.Rescission of the contract by the Purchaser based on statute is limited to caseswhere the Supplier is responsible for the delay. The above provisions do not implya change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier’s request, the Purchaser shall declare within a reasonable periodof time whether it, due to the delayed Supplies, rescinds the contract or insistson the delivery of the Supplies.
6. If dispatch or delivery, due to Purchaser’s request, is delayed by more than onemonth alter notification of the readiness for dispatch was given, the Purchasermay be charged, for every additional month commenced, storage costs of 0.5 %of the price of the items of the Supplies, but in no case more than a total of 5 %.The parties to the contract may prove that higher or, as the case may be, lowerstorage costs have been incurred.
Article V: Passing of Risk
1. Even where delivery has been agreed freight free, the risk shall pass to thePurchaser as follows:
(a) if the delivery does not include assembly or erection, at the time when it isshipped or picked up by the carrier. Upon the Purchaser’s request, theSupplier shall insure the delivery against the usual risks of transport at thePurchaser’s expense;
(b) if the delivery includes assembly or erection, at the day of taking over in thePurchaser’s own works or, if so agreed, alter a successful trial run.
2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performanceof assembly or erection, the taking over in the Purchaser’s own works, orthe trial run is delayed for reasons for which the Purchaser is responsible or ifthe Purchaser has otherwise failed to accept the Supplies.
Article VI: Assembly and Erection
Unless otherwise agreed in written form, assembly and erection shall be subject tothe following provisions:
1. Purchaser shall provide at its own expense and in due time:
(a) all earth and construction work and other ancillary work outside the Supplier’sscope, including the necessary skilled and unskilled labor, construction materials andtools;
(b) the equipment and materials necessary for assembly and commissioningsuch as scaffolds, lifting equipment and other devices as well as fuels andlubricants;
(c) energy and water at the point of use including connections, heating andlighting;
(d) suitable dry and lockable rooms of sufficient size adjacent to the site for thestorage of machine parts, apparatus, materials, tools, etc. and adequateworking and recreation rooms for the erection personnel, including sanitaryfacilities as are appropriate in the specific circumstances; furthermore, thePurchaser shall take all measures it would take for the protection of its ownpossessions to protect the possessions of the Supplier and of the erectionpersonnel at the site;
(e) protective clothing and protective devices needed due to particular conditionsprevailing on the specific site.
2. Before the erection work starts, the Purchaser shall unsolicitedly make availableany information required concerning the location of concealed electric power,gas and water lines or of similar installations as well as the necessary structuraldata.
3. Prior to assembly or erection, the materials and equipment necessary for thework to start must be available on the site of assembly or erection and any preparatorywork must have advanced to such a degree that assembly or erectioncan be started as agreed and carried out without interruption. Access roads andthe site of assembly or erection must be level and clear.
4. If assembly, erection or commissioning is delayed due to circumstances forwhich the Supplier is not responsible, the Purchaser shall bear the reasonablecosts incurred for idle times and any additional traveling expenditure of the Supplieror the erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towardsthe Supplier at weekly intervals and the Purchaser shall immediately confirmin written form if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, thePurchaser shall comply therewith within a period of two weeks. The same consequencesas upon acceptance arise if and when the Purchaser lets the two-week periodexpire or the Supplies are put to use after completion of agreed test phases, if any.
Article VII: Receiving Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
Article VIII: Defects as to Quality
The Supplier shall be liable for defects as to quality (“Sachmängel”, hereinafterreferred to as “Defects”,) as follows:
1. Defective parts or defective services shall be, at the Supplier’s discretion,repaired, replaced or provided again free of charge, provided that the reason forthe Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 12months calculated from the start of the statutory statute of limitations; the sameshall apply mutatis mutandis in the case of rescission and reduction. This shallnot apply where longer periods are prescribed by law according to Sec. 438 para.1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right ofrecourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code(“Bürgerliches Gesetzbuch”), in the case of intent, fraudulent concealment ofthe Defect or non-compliance with guaranteed characteristics (“Beschaffenheitsgarantie”).The legal provisions regarding suspension of the statute of limitations(“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periodsshall be unaffected.
3. Notifications of Defect by the Purchaser shall be given in written form withoutundue delay.
4. In the case of notification of a Defect, the Purchaser may withhold payments toan amount that is in a reasonable proportion to the Defect. The Purchaser, however,may withhold payments only if the subject-matter of the notification of the Defect involved is justified and incontestable. The Purchaser has no right towithhold payments to the extent that its claim of a Defect is time-barred. Unjustifiednotifications of Defect shall entitle the Supplier to demand reimbursement ofits expenses by the Purchaser.
5. The Supplier shall be given the opportunity to repair or to replace the defectivegood (“Nacherfüllung”) within a reasonable period of time.
6. If repair or replacement is unsuccessful, the Purchaser is entitled to rescind thecontract or reduce the remuneration; any claims for damages the Purchaser mayhave according to No. 10 shall be unaffected.
7. There shall be no claims based on Defect in cases of insignificant deviationsfrom the agreed quality, of only minor impairment of usability, of natural wearand tear, or damage arising after the passing of risk from faulty or negligenthandling, excessive strain, unsuitable equipment, defective civil works, inappropriatefoundation soil, or claims based on particular external influences not assumedunder the contract, or from non-reproducible software errors. Claimsbased on defects attributable to improper modifications or repair work carried outby the Purchaser or third parties and the consequences thereof are likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in thecourse of supplementary performance, including costs of travel, transport, labor,and material, to the extent that expenses are increased because the subjectmatter of the Supplies has subsequently been brought to another location thanthe Purchaser’s branch office, unless doing so complies with the normal use ofthe Supplies.
9. The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478BGB is limited to cases where the Purchaser has not concluded an agreementwith its customers exceeding the scope of the statutory provisions governingclaims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis tothe scope of the right of recourse the Purchaser has against the Supplier pursuantto Sec. 478 para. 2 BGB.
10. The Purchaser shall have no claim for damages based on Defects. This shall notapply to the extent that a Defect has been fraudulently concealed, the guaranteedcharacteristics are not complied with, in the case of loss of life, bodily injuryor damage to health, and/or intentionally or grossly negligent breach of contracton the part of the Supplier. The above provisions do not imply a change in theburden of proof to the detriment of the Purchaser. Any other or additional claimsof the Purchaser exceeding the claims provided for in this Article VIII, based on aDefect, are excluded.
Article IX: Industrial Property Rights and Copyrights;Defects in Title
1. Unless otherwise agreed, the Supplier shall provide the Supplies free from thirdparties’ industrial property rights and copyrights (hereinafter referred to as “IPR”)with respect to the country of the place of delivery only. If a third party asserts ajustified claim against the Purchaser based on an infringement of an IPR by theSupplies made by the Supplier and used in conformity with the contract, theSupplier shall be liable to the Purchaser within the time period stipulated in ArticleVIII No. 2 as follows:
(a) The Supplier shall choose whether to acquire, at its own expense, the rightto use the IPR with respect to the Supplies concerned or whether to modifythe Supplies such that they no longer infringe the IPR or replace them. Ifthis would be impossible for the Supplier under reasonable conditions, thePurchaser may rescind the contract or reduce the remuneration pursuant tothe applicable statutory provisions;
(b) The Supplier’s liability to pay damages is governed by Article XII;
(c) The above obligations of the Supplier shall apply only if the Purchaser (i)immediately notifies the Supplier of any such claim asserted by the thirdparty in written form, (ii) does not concede the existence of an infringementand (iii) leaves any protective measures and settlement negotiations to theSupplier’s discretion. If the Purchaser stops using the Supplies in order toreduce the damage or for other good reason, it shall be obliged to point outto the third party that no acknowledgement of the alleged infringement maybe inferred from the fast that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringementof an IPR.
3. Claims of the Purchaser are also excluded if the infringement of the IPR iscaused by specifications made by the Purchaser, by a type of use not foreseeableby the Supplier or by the Supplies being modified by the Purchaser or beingused together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above,Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringementof an IPR.
5. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier or its agents or any suchclaims exceeding the claims provided for in this Article IX, based on a defect intitle, are excluded.
Article X: Conditional Performance
1. The performance of this contract is conditional upon that no hindrances attributableto German, US or otherwise applicable national, EU or international rules offoreign trade law or any embargos or other sanctions exist.
2. The Purchaser shall provide any information and Documents required for export,transport and import purposes.
Article XI: Impossibility of Performance; Adaptation of Contract
1. To the extent that delivery is impossible, the Purchaser is entitled to claimdamages, unless the Supplier is not responsible for the impossibility. The Purchaser’sclaim for damages is, however, limited to an amount of 10 % of thevalue of the part of the Supplies which, owing to the impossibility, cannot be putto the intended use. This limitation shall not apply in the case of liability based onintent, gross negligence or loss of life, bodily injury or damage to health; thisdoes not imply a change in the burden of proof to the detriment of the Purchaser.The Purchaser’s right to rescind the contract shall be unaffected.
2. Where events within the meaning of Article IV No. 2 (a) to (c) substantiallychange the economic importance or the contents of the Supplies or considerablyaffect the Supplier’s business, the contract shall be adapted taking into accountthe principles of reasonableness and good faith. To the extent this is not justifiablefor economic reasons, the Supplier shall have the right to rescind the contract.The same applies if required export permits are not granted or cannot beused. If the Supplier intends to exercise its right to rescind the contract, it shallnotify the Purchaser thereof without undue delay after having realized the repercussionsof the event; this shall also apply even where an extension of the deliveryperiod has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
1. Unless otherwise provided for in the present GL, the Purchaser has no claim fordamages based on whatever legal reason, including infringement of duties arisingin connection with the contract or tort.
2. This does not apply if liability is based on:
(a) the German Product Liability Act (“Produkthaftungsgesetz”);(
c) gross negligence on the part of the owners, legal representatives or executives;
(e) failure to comply with a guarantee granted;
(f) negligent injury to life, limb or health; or
(g) negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).
However, claims for damages arising from a breach of a fundamental condition ofcontract shall be limited to the foreseeable damage which is intrinsic to the contract,provided that no other of the above case applies.
3. The above provision does not imply a change in the burden of proof to thedetriment of the Purchaser.
Article XIII: Venue and Applicable law
1. If the Purchaser is a businessman, sole venue for all disputes arising directly orindirectly out of the contract shall be the Supplier’s place of business. However,the Supplier may also bring an action at the Purchaser’s place of business.
2. This contract and its interpretation shall be governed by German law, to theexclusion of the United Nations Convention on contracts for the InternationalSale of Goods (CISG).
Article XIV: Severability Clause
The legal invalidity of one or more provisions of this Agreement in no way affects thevalidity of the remaining provisions. This shall not apply if it would be unreasonablyonerous for one of the parties to be obligated to continue the contract.