Special Terms and Conditions of Supply, Services and Payment
(hereinafter Special Terms and Conditions)
ReadPost Gesellschaft mbH is member of the Bremerhaven Chamber of Commerce and supports the distribution and are based on the conditions recommended by ZVEI (Zentralverband der Elektrotechnischen Industrie, Frankfurt, Germany). However, with respect to typical conditions for delivery of items and typical circumstances with set to work of delivered items, these Special Terms and Conditions shall apply.
1. General Provisions
(1) Seller and Buyer agree on Supply, Services and Payment in a written Agreement.
(2) For all contractual relations between the Buyer and the ReadPost Gesellschaft, hereinafter named “Seller“ - the Special Terms and Conditions set forth herein below shall apply exclusively in addition to the written Agreement and not superseding any part of that Agreement.
(3) Any further terms and conditions conflicting with or deviating from the Special Terms and Conditions shall not be recognized by Seller unless the Seller explicitly consents to the application thereof in writing. The Special Terms and Conditions of the Seller shall apply even if the Seller performs delivery to Buyer without reservation notwithstanding his knowledge of terms and conditions of the Buyer conflicting with or deviating from these Special Terms and Conditions.
(4) The Seller shall be entitled to withdraw from the Agreement of Supply, Services and Payment, hereinafter named “Agreement“, in the event the Buyer disagrees with these Special Terms and Conditions. In such a case all claims on the part of the Buyer shall be excluded.
(5) All Agreement reached between the Buyer and the Seller and for the purpose of executing the Agreement shall be laid down in the Agreement in writing.
(6) The Special Terms and Conditions of the Seller shall also apply to all future business transactions with the Buyer.
(7) The Buyer shall undertake to inform the Seller when it cannot be excluded that the products delivered by the Seller are delivered to third parties according to § 13 BGB (German Civil Code) – also built into other products.
(8) The Seller reserves the unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and any other documents; they may only be made accessible to third parties given the prior written approval of the Seller. Drawings and other documentation forming part of quotations shall be returned immediately to Seller if the assignment is not placed or the Agreement otherwise terminated. The aforementioned provision shall not apply if the listed documents are generally accessible.
(1) The Agreement shall only come into effect through an order confirmation of the Seller transmitted in writing or electronically. Until then, the offers of the Seller, especially but not limited to design, prices and deadlines, shall be subject to confirmation and not binding unless expressly defined as “binding”. For the scope of the delivery or performance only the order confirmation shall be relevant.
(2) The documents on which the offer of the Seller is based like illustrations, drawings and weight indications are established with care but are only approximate unless otherwise specified. Indicated measurements and units are not binding unless they are expressly defined as binding. Changes that only slightly modify or improve the performances shall be reserved as far as they can be reasonably expected from the Buyer. The Seller shall not be liable to the Buyer for the suitability of goods and performances for an intended application presented by the Buyer.
3. Buyer’s obligation to cooperate
(1) The Buyer shall name a responsible, technically qualified professional administrator of his company who will be available to the Seller to supply any necessary information, and who will take the decisions that are necessary for realizing the order or obtain them without delay. The Seller shall involve the named professional of the Buyer wherever necessary for executing the order.
(2) The Buyer shall create all prerequisites necessary for a proper completion of the order. In particular, the Buyer shall guarantee that all necessary cooperation of the Buyer or his vicarious agents shall be rendered in time, in the necessary scope and free of charge for the Seller.
(3) If the execution of the order requires the modification or extension of software of the Buyer, the latter has to provide a responsible, technically qualified professional software specialists of his company to execute the modification and/or support the Seller at the request of the Seller.
(4) If the execution of the order requires the operation of a machine of the Buyer he shall provide responsible, technically qualified professional operators of his company.
(5) The Buyer-specific documents needed for the execution and any other necessary in-house information must be provided by the Buyer to the Seller even without special request.
(6) The Buyer shall be liable for delays or errors in the order execution if these result from performance data submitted by him, wrong or incomplete indications or any other circumstances for which he is responsible.
4. Supplies and Performance
(1) Supply and/or performance times shall be deemed observed when the Seller notifies the Buyer about his readiness for dispatch within the agreed deadlines and/or coordinates a date with him for rendering the performance. Adequate partial deliveries or partial performances and customary or acceptable deviations from the order quantities are permissible unless the partial delivery or partial performance is of no interest to the Buyer.
(2) For supply and performance delays due to force majeure and to further events, which not only essentially complicate the delivery for the Seller temporarily or make it impossible
– this especially includes break downs, strike, lockout, official instructions, shortage of raw materials, difficulties in the energy supply, mobilization, riots, etc, even if they occur at the Sellers of the Seller or their subSellers.
– the Seller shall not be liable, even for bindingly agreed deadlines and dates. They entitle the Seller to respectively postpone the supply and/or performance by the duration of the interference plus an appropriate starting-up time or to withdraw from the Agreement completely or partially as regards the not yet fulfilled part.
(3) As far as the event of force majeure takes more than three months, following the setting of an adequate period of grace the Buyer shall be entitled to withdraw from the Agreement as regards the not yet fulfilled part. In the event the delivery period is extended or in the event the Seller is released from his obligation, Buyer shall not be entitled to any claims for damages.
(4) Seller can only refer to the abovementioned circumstances if he immediately notifies the Buyer.
(5) Provided that the Seller is responsible for the non-compliance of bindingly agreed deadlines and dates or if he is in delay Buyer shall be entitled to a delay compensation amounting to 0,5% for every completed week of the delay; in total, however, a maximum of 5% of the invoice value of the supplies and performances affected by the delay.
(6) Buyer’s claims for damages due to delayed supplies as well as claims for damages instead of performance exceeding the limits specified in No 4 (5) above shall be excluded in all cases of delayed supplies even upon expiry of a time set to the Seller to effect the supplies. This shall not apply in cases of mandatory liability based on intention, gross negligence, or due to injury of life, body or health. Cancellation of the Agreement by the Buyer based on statute shall be limited to cases where Seller is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Buyer.
(6) Buyer shall declare within a reasonable period of time whether the Buyer cancels the Agreement due to the delayed supplies or insists on the supplies to be carried out.
(7) Seller shall render his services according to state-of-the-art pursuant to the performance requirement. Specifications by the Buyer need to be in writing and have to be made known to the Seller before the conclusion of the Agreement.
(8) Orders shall be executed by observing the principles of proper execution of work through qualified employees or service partners authorized by the Seller. The selection of the appointed employees and service partners shall be reserved to the Seller.
(9) The services shall be carried out, to the degree necessary for the proper execution of the order, at the Buyer or the Seller. If the services are carried out at the Buyer he shall provide sufficient working means and work places to the employees of the Seller. Buyer has no competence to issue instructions to the employees of the Seller. The employees of the Seller shall not be included in the business operations of Buyer.
(10) Seller shall be entitled to render the performance in adequate parts as long as this does not lead to unacceptable additional expenses for the Buyer.
(11) If dispatch or shipment is delayed at the Buyer’s request by more than one month after notice of the readiness for dispatch was given, the Buyer may be charged, for every month commenced, storage charges amounting to 0,5 % of the price of the items of the supplies; but in no case more than a total of 5%. The contractual parties may prove that higher or, as the case may be, lower storage costs have been incurred.
Buyer undertakes to keep all illustrations, drawings, calculations and any other documents and information he received strictly confidential; they may only be disclosed to third parties with the express written consent of the Seller. The obligation to secrecy shall remain effective after the termination of this Agreement. It shall not expire until and insofar the manufacturing knowledge contained in the illustrations, drawings, calculations and any other documents provided is in the public domain. Accordingly, Buyer shall commit his employees to secrecy.
6. Prices, Shipment, Packaging
(1) Prices, fees as well as incidental expenses shall be calculated according to the written Agreement. If there are none foreseen Seller shall be entitled to calculate the list prices of the current ReadPost Gesellschaft mbH price list and fees (as per specific hourly rates of Seller that are sent on request) valid at the day the performance is rendered. In the absence of specific prices for the relevant performance the generally accepted market price shall be deemed agreed. On principle, the prices and fees do not include commuting expenses, travel expenses, packaging expenses, freight expenses and insurance in the event the performance is rendered somewhere else than the business place of Seller. These costs are invoiced to the Buyer separately and according to the principles pursuant to clause 6 (2). All prices and fees are ex works excluding packaging plus the respectively valid legal turnover tax. If there is an accelerated way of transportation at the request of Buyer he shall bear any hereby arising additional costs.
(2) Surcharges for opened packaging units are expressly reserved. In the event the minimum order value of EURO 100,00 net per order is not reached a handling lump sum of EURO 15,00 net shall be charged,
(3) Shipment shall be effected at the risk of Buyer. The risk of accidental destruction and accidental deterioration shall be passed to the forwarder with the delivery, to the Buyer at the latest when leaving the plant. If the shipment is delayed for reasons the Seller is not responsible for the passing of the risk shall be effected with the notification of the readiness to deliver.
(4) The selection of the adequate transportation means (airplane, railway, automobile) is incumbent on the Seller. Seller shall choose a transportation means suitable to the cause. Any accruing expenses for assembly fitters and other personnel of the Seller shall be regulated according to the relevant valid tax laws of the respective country (Federal Tax Sheet Part 1) for journeys abroad. For journeys within the country, the lump-sum amounts for additional costs for meals in according with German LStrR 39 shall be applied. When using a car, EURO 0,80 shall be charged for each kilometre driven.
(5) Leasing pallets shall remain property of Seller and have to be returned in impeccable condition with the next delivery. The return of equivalent or similar pallets shall be permitted. If the return is not effected within one month after delivery we shall invoice costs of sales. The Buyer shall be entitled to return transport packages of Sellers’ deliveries to Sellers’ registered office. The packages must be clean, free from foreign matters and sorted by substances. Otherwise Seller shall be entitled to charge the Buyer for the additional costs incurred for the disposal.
7. Invoicing, payment and assignment of claims
(1) Invoices shall become due within 30 days after invoicing and delivery to Seller without deduction. If the performance within scope of work as described in Agreement has not yet been accepted at least half of the invoice shall be due for payment.
(2) Agreed payment periods shall be deemed observed when the amount to be paid is available to the Seller at the due date. Cheque and bills shall only be accepted on account of performance. There is no entitlement that the Seller accepts the aforementioned payment means.
(3) Buyer shall only have a retention right as regards claims from the same contractual relationship that are uncontested or against which no legal recourse is possible. In the latter case, he may retain the payment of compensation with defects of parts of the delivery or performance only to the amount that corresponds to the value of the defect delivery or performance.
(4) Payments shall first be used by Seller to clear older debts of Buyer. In the event that interest has already been incurred the Seller shall be entitled to set-off the payments, first with the interest and finally with the principal claim.
(5) If Buyer delays payment Seller shall be entitled to charge interest to the legal amount valid at the time.
(6) In the event the solvency of Buyer is doubted, especially in case of outstanding payment, suspension of payment, quest for a compromise settlement or a moratorium on the part of Buyer, the whole claim of Seller shall immediately become due. The same shall apply if insolvency procedures are opened over the assets of Buyer or the opening was refused because of lack of assets. In this case, Seller may demand advance payments or securities and revoke payment targets. After payment entry, Seller shall completely bring about his performances towards Buyers. The right for withdrawal from the Agreement shall not be affected.
(7) An assignment of the claim or collection through third parties shall be permissible.
(8) Buyer shall only have the right to set-off claims that have become final or are uncontested.
8. Provision of Materials and Parts
Devices, machines or any other accessories provided to Buyer on loan or on hire shall remain the property of Seller. These items must be clearly identified by Buyer as property of Seller any may only be used for the agreed purposes. Buyer shall treat them with care and protect them against the access of third parties. Buyer shall immediately inform Seller in writing in case of loss or damage as well as with seizure or other impairments through third parties. In cases of seizure or impairments Buyer shall indicate the property of Seller. Buyer shall replace Seller all damages and costs that are generated by a possible violation of this obligation and hence necessary investment measures against accesses of third parties. If Seller carries working material and/or working means for rendering his performance Buyer shall provide him free of charge with a suitable possibility for safely storing them.
9. Retention of Title
(1) Until the fulfilment of all claims, including any balance claims from account current, which Seller is entitled to for any cause in law against Buyer now or in future, the Seller shall be granted the following securities which he will release on demand at his discretion as far as their value sustainable exceeds the claims by more than 10%.
(2) The goods shall remain property of Seller. Processing or transformation is always executed for Seller as manufacturer, however, without obligation for him. If the property or co-property of Seller lapses by connection, it is agreed now already that the property or co-property of Seller in the uniform matter passes to Buyer ad valorem (invoice value).
(3) Buyer keeps the property or co-property of Seller with the caution of an ordinary business man and without charge. Goods in which Seller is entitled in property or co-property shall in the following be referred to as Reserved Goods.
(4) Buyer shall be entitled to process and sell the Reserved Goods in the ordinary course of his business dealings as long as he is not in arrears. Pledging or collateral assignments are inadmissible. The claims resulting from further sale or a further legal justification (insurance, unlawful act) with regard to the reserved goods (including any balance claims from account current) Buyer now already assigns as security to the full extent to Seller. Seller shall revocably authorize Buyer to collect the claims assigned to Seller for him on his behalf. This authorization for collection can be revoked only when Buyer does not properly fulfil his payment obligations.
(5) On access of third parties to the reserved goods, especially pledging, Buyer shall point out the property of Seller and immediately inform him so that Seller can enforce his property rights. As far as third parties are not able to reimburse Seller for legal or extrajudicial costs generated in this connection, Buyer shall be liable for this.
(6) Any claim put forward under the retention of title clause may be construed as a withdrawal from the agreement, only if explicitly so declared by the Seller. On behaviour of Buyer contrary to the Agreement – in particular at default in payment – Seller shall be entitled to withdraw from the Agreement and to demand the reserved goods.
(7) Furthermore, the provisions of the clause of retention of title is extended to the case that the Buyer resells the goods to a sub-purchaser in the normal course of business, in which case it is stipulated that the proceeds of such resale or the debt due to the Buyer from the sub-purchaser are held by the Buyer on behalf of the Seller; and where the Buyer incorporates the goods in some other product in whatever fashion, in which case it is provided that title to the end product will not pass to the Buyer until the indebtedness to the Seller is discharged.
(1) Buyer may not refuse the acceptance of deliveries due to minor defects.
(2) Buyer shall adhere to acceptance procedures defined and provided by Seller unless special acceptance procedures are explicitly declared in the Agreement.
(1) All supplies and performances owed by Seller shall be effected carefully and properly according to the respective state-of-the-art technology as well as the relevant safety regulations. Warranty shall not be assumed for test products not yet released but used in the development stage of Buyer; pre-series devices and/or prototypes or for services. Within these services, however, Seller shall assume liability that he will work carefully and professionally.
(2) After the successful acceptance according to special acceptance procedures and under the Agreement, only an objection to the work due to concealed defects is possible. After having identified the defect it must be reprehended immediately, at the latest, however, within three (3) working days. If no complaint is effected within two (2) weeks after the defect was identified the work shall be deemed approved by Buyer. The complaint must detail the defects in writing.
(3) In case of simple purchase under the Agreement, the provisions of § 377 HGB (German commercial code) shall be applicable. A waiver by Buyer is expressly objected.
(4) Within justified complaints all those parts or performances have to be remedied, newly delivered or newly rendered free of charge at the discretion of Seller that display a quality defect provided that its cause already existed at the time the risk was passed. The expiry of the fixed term for newly delivered goods or newly created works with appropriate use shall be twelve months after transfer of risk to Buyer, when the latter is a merchant unless another period is stipulated by mandatory law. Towards users the legal provisions shall apply.
(5) Seller shall be granted the opportunity of subsequent performance within an adequate period of time.
(6) Any claims of Buyer because of expenses made necessary for the purpose of subsequent performance, especially costs for transportation, labour and material, shall be excluded if the expenses increase because the subject of the delivery was subsequently brought to another place than the registered seat of Buyer unless such transportation is consistent with its intended use.
(7) Any recourse claims of Buyer against Seller according to § 478 BGB (German civil code, recourse of entrepreneur) shall exist only to the extent that his Buyer is a consumer, and Buyer has not entered into any contract with his Buyer going beyond the mandatory statutory claims. Item 11 (6) shall apply mutatis mutandis to the scope of the Buyer’s recourse claim against Seller pursuant to § 478 sect. 2 BGB (German civil code).
(8) Liability for any damages shall be excluded to the extent they are not expressly determined in the aforementioned provisions, also to the extent they did not occur on the delivery item itself. Excluded from this shall be damages caused by intention or gross negligence of owner; executive or vicarious agents of Seller or resulting from culpably infringement of relevant contractual duties. In the latter case, however, liability shall only be assumed for the typically occurring, predictable damage. Furthermore, the exclusion of liability shall not be applicable in cases in which with defects of the delivery item, liability is assumed for injuries to life, body or health or for damages of things caused by privately used items.
(9) The claim for warranty expires when the result of the performance and/or execution or the delivery item of Seller were modified. If the Buyer refuses Seller to view and inspect the objected defects, or if he rectifies them without prior approval of Seller, the claim for warranty shall also expire unless Buyer had to immediately act himself because of the risk of deterioration. The claim for warranty shall not refer to natural wear and tear and not to damages that arise after the risk has passed as a result of incorrect or careless treatment, overuse, unsuitable operating resources and due to electrical and/or mechanical influences going beyond the proper use.
(10) Should there be a serial defect in exceptional cases, Seller at his discretion shall replace or repair the affected devices of this series. If the product of Seller in this connection is built in another product, the contractual parties shall jointly agree if and to what extent the products have to be exchanged or repaired. In this case, Seller shall replace Buyer’s justified costs upon prior coordination and written Agreement with Buyer. Buyer may claim the regulation of this sub-section exclusively within the warranty period. Serial defects are defects in which the materials and components delivered by Seller have a defect frequency that lies distinctively outside the usually expected values or the values indicated by Seller. A series defect shall especially exist when the number of objected materials exceeds 8% of the quantity delivered within a period of three months.
12. Liability / other claims for damages
(1) Any further liability for damages other than those provided for in item 11 shall be excluded, regardless of the legal nature of the asserted claim. This shall, in particular, apply to claims for damages resulting from culpa in contrahendo, due to other breaches of obligations or due to claims in tort for the compensation of property damage in accordance with § 823 BGB (German civil code).
(2) The limitations of Buyer’s claims pursuant to item 12 (1) shall also apply if Buyer does not require damages but performance, and instead of said performance asserts useless expenditure.
(3) Insofar as the liability for damages towards Buyer is excluded or limited, this shall also apply with respect to the personal liability for damage of employees, members of staff, co-operators, representatives and vicarious agents of Seller.
(4) The compensation of damages caused to Buyer by the use of unreleased test products, pre-series devices and/or prototypes still in the development phase shall be excluded.
13. Withdrawal / Cancellation
(1) If the delivery or performance is subsequently rendered impossible for reasons Seller is responsible for Buyer shall be entitled to withdraw from the Agreement. In the event of partial impossibility he shall be entitled to withdraw as regards the part of the contractual performance whose fulfilment has become impossible. If the partial fulfilment of the Agreement is no longer of interest to Buyer he may withdraw from the Agreement as a whole. In such cases, Buyer shall only be entitled to compensation in damages under the conditions stipulated in item12.
(2) In the event Seller is not responsible for the impossibility of fulfilling the Agreement, the Agreement shall be adjusted by mutual consent as far as economically reasonable. Otherwise both contractual parties may withdraw from the Agreement fully or partially.
(3) If the expiry of usage rights is connected with the withdrawal from the Agreement or the cancellation Buyer shall undertake to immediately return to Seller the original as well as all copies and partial copies as well as any modified copies of software programs connected with other program materials, specifications and other copyrighted documents of Seller or to destroy them upon prior Agreement with Seller. This shall not apply as far as there are legal obligations as regards their retention. Buyer shall immediately point this out to Seller in writing. When software is returned, these “Special Terms and Conditions” shall be expanded by the provisions of the Special End User License Agreement (EULA) of the Seller. In case of conflicts between the provisions of EULA and these “Special Terms and “ the provisions of EULA shall take priority.
(4) If the delivery or performance becomes subsequently impossible for reasons the Buyer is responsible for; if he cancels the Agreement without the right to cancel or without a reason to cancel; or if Buyer withdraws from the Agreement he shall replace Seller any incurred expenses, costs and any other direct and indirect damages.
14. Quality Assurance
Seller shall maintain a qualified environment and quality management system according to DIN EN ISO 14001 and DIN EN ISO 9001-2000.
15. Product liability
As far as the Seller is liable to pay compensation for a defect according to the provisions of the Product Liability Act, the extent of liability shall exclusively be subject to the regulations of this law. Any further liability shall expressly require written Agreement.
16. Construction modifications, illustrations and descriptions
Seller reserves the right to modify the construction at any time; however, he is not obligated to apply such modifications to products already delivered. The illustrations, dimensions, descriptions, technical details as well as packaging units indicated in the respective catalogues are not binding; Seller expressly reserves the right for modifications.
(1) For all documents, devices or suchlike handed over to Seller for the purpose of delivery or performance Buyer shall guarantee that copyrights of third parties are not violated hereby. Seller shall point out rights of third parties known to him to Buyer. Buyer shall indemnify Seller against any claims by third parties and any damages arising to him. In the event Seller is forbidden to perform, manufacture or deliver by a third party under reference to a copyright belonging to him Seller shall be entitled to stop work and demand replacement for his expenses – without examination of the legal situation. Any documents, devices and suchlike submitted to Seller that did not lead to the order shall be returned on request against reimbursement of costs. Otherwise Seller shall be entitled to destroy them three (3) months after having placed the offer.
(2) Seller shall reserve property rights and copyrights on any samples, patterns, drawings, cost estimates, calculations and similar information in physical or incorporeal form – including electronic form. Such information may not be disclosed to third parties.
(3) As far as software is built in the products of Seller, Buyer shall receive from Seller a non-exclusive right for using the programs (simple single licence) for the duration of the Agreement and under the Special End User License Agreement (SEULA).
(4) If Buyer is authorized by Seller for multiple licences of the program, then the following use conditions shall apply to each particular of these licences. The term “Program“ comprises the original program, all duplications (1 copy) thereof as well as parts of the program even if they are linked with other programs. A program consists of machine-readable instructions, audio-visual contents and the relevant licence material. Furthermore, the licence provisions of the respective program manufacturer shall be effective.
(5) Buyer undertakes to ensure that everybody who uses this program observes this Special End User Licence Agreement (SEULA). In the absence of extended Agreement Buyer may only use the program simultaneously on one computer. A “use“ of the program exists when the program is in the main memory or on a storage medium of a computer. A program that is installed on a network server only for the purpose of distributing the program shall be deemed as not used.
(6) The licence fees raised by Seller shall be scaled in the frequency of the use (for number of users per instance); the resources (for example processor size) or a combination of both. If the access to a program is controlled by a licence administration program, then copies may be produced and stored on all machines that stand under the control of this licence administration program but the use must not exceed the total number of granted number of instances of users or resources.
(7) Buyer may run a data protection according to codes of practice and create the necessary backups of the programs. If the manual is on a data carrier it may be printed out in paper. Buyer may not alter or remove any copyright notes of Seller. Buyer shall not be entitled to use, copy, process or transfer the program into another form of expression or translate it in any other way than herein described if such conversion is not stipulated by express legal provisions. Buyer shall not be entitled to rent or lease the program or to grant sub-licences unless under extended Agreement.
(8) With the end of the usage right limited in time or by effectiveness of a cancellation all usage rights in the programs shall expire as well as any copies or written documentations on promotion means which Buyer obtained from Seller. Buyer shall delete all stored programs from his computers unless he is obligated legally to a longer retention period. The other collateral duties of Buyer towards Seller shall continue to exist beyond a possible cancellation or a termination of the Agreement respectively the extended Agreement.
(9) For any case of offence against one of the duties regulated under item 17 (3) to 17 (7) Buyer shall pay Seller a contractual penalty of 10 % of the overall order value to the exclusion of the plea of connection with any previous act of contravention, at least, however, EUR 2.000,00.
18. Industrial property rights; deficiencies in title
(1) Unless otherwise agreed in writing, Seller shall provide the supplies free from third parties’ industrial property rights and copy-rights (hereinafter referred to as “IPR“) with respect to the country of the place of destination only. If a third party asserts a justified claim against the Buyer based on an infringement of an IPR with respect to the supplies made by Seller and than used in conformity with the Agreement, Seller shall be liable to Buyer within the time period for warranty stipulated in item 11 (4) as follows:
a) Seller shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the supplies concerned or whether to modify the deliveries such that they no longer infringe the IPR or replace them. If this would be impossible for the Seller under reasonable conditions, Buyer may cancel the Agreement or reduce the remuneration pursuant to the applicable statutory provision.
b) The liability of Seller to pay damages shall be governed by item 11 and/or 12.
c) The above obligations of Seller shall only apply if the Buyer immediately notifies Seller of any such claim asserted by the third party in writing, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of Seller. If the Buyer stops using the supplies in order to reduce the damage or for other good reason, he shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
(2) Claims of Buyer shall be excluded if he is himself responsible for the infringement of an IPR.
(3) Claims of the Buyer shall also be excluded if the infringement of the IPR is caused by specifications made by the Buyer, to a type of use not foreseeable by Seller or to the deliveries being modified by the Buyer or being used together with products not provided by Seller.
(4) In addition, with respect to claims by the Buyer pursuant to item 18 (1) a) above, items 11 (5) and (7) shall apply mutatis mutandis in the event of an infringement of an IPR.
(5) Where other defects in title occur, item 11 shall apply mutatis mutandis.
(6) Any other claims of the Buyer against Seller and its agents or any such claims exceeding the claims provided for in this item 18, based on a defect in title, shall be excluded.
19. Obligations German ElektroG
(1) Buyer represents and guarantees that he will effect the disposal of the goods or devices after the end of their usage, at own cost and according to all applicable legal provisions and standards. He shall waive any claim against Seller out of, and indemnify and hold harmless Buyer against any and all claims, also of third parties, in connection with § 10 sect. 2 of the German ElektroG (obligation of manufacturer to take back goods or devices).
(2) In case Buyer passes goods to commercial third parties and does not transfer by respective contract the obligation to effect the disposal and to reiterate such transfer of obligation to their further Buyers as well, Buyer shall be obliged to take back and effect the disposal of the goods after end of their usage, at own cost and according to all applicable legal provisions and standards.
(3) All rights and claims of Seller against Buyer regarding said representations and guarantees, said transfer of obligations, said waivers, indemnifications and hold harmless obligations, shall not become time-barren under any statute of limitations of actions until two years after the definite end of usage of the respective goods or devices. The two year’s term for suspension of the statute of limitation of action shall not begin earlier than with the receipt of a written information of Buyer to Seller regarding the end of usage of the goods or devices.
20. Transmission of order
Seller shall be entitled to pass on the order or relevant parts of the order to third parties without the prior written approval of Buyer. Seller shall be liable for the third party as for an own vicarious agent.
21. Data protection
The contractual parties shall treat personal data of the other contractual party in accordance with the German Federal Data Protection Law and respective international obligations.
22. Transfer of risk
(1) Even where delivery has been agreed freight free, the risk shall pass to the Buyer as follows:
a) if the supplies do not include assembly or erection, at the time when the supplies are shipped or picked up by the carrier. Upon request and costs of Buyer, the Seller shall insure the supplies against the usual risks of transport;
b) if the supplies include assembly or erection according to Agreement, at the scheduled day of taking over in the own works or, if so agreed, after a performed fault free trial run.
(2) The risk shall pass to the Buyer the schedule date if dispatch, shipping, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which Buyer is responsible or if the Buyer has otherwise failed to accept the supplies.
23. Assembly and erection
Unless otherwise agreed in writing, assembly and erection shall be subject to the following provisions:
Buyer shall provide at its own expense and in due time:
a) all earth and construction work and other ancillary work outside the typical scope of the Seller, including the necessary skilled and unskilled labour, construction materials and tools,
b) the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants, c) energy and water at the point of use including connections, heating and lighting,
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances. Furthermore, the Buyer shall take all measures he would take for the protection of his own possessions to protect the possessions of the Seller and of the erection personnel at the site,
e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
(2) Before the erection work starts, the Buyer shall make available of his own accord any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
(3) Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly/erection and any preparatory work must have advanced to such a degree that assembly/erection can be started as agreed and carried out without interruption. Access roads and the assembly/erection site itself must be level and clear.
(4) If assembly , erection or commissioning is delayed due to circumstances for which Seller is not responsible, Buyer shall bear the reasonable costs incurred for idle times and any additional travelling of the Seller or the erection personnel.
(5) Buyer shall attest to the hours worked by the erection personnel towards the Seller at weekly intervals and Buyer shall immediately confirm in writing if assembly, erection or commissioning has been completed.
(6) If, after completion, the Seller demands acceptance of the supplies, Buyer shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the supplies are put to use, after completion of an agreed test phase, if any.
24. Cessation of payment, insolvency
If a Buyer ceases payment a provisional insolvency administrator shall be appointed, insolvency proceedings are opened up over his assets or if there are protests of a bill or protests of a cheque against him Seller shall be entitled to withdraw fully or partially from the Agreement without this giving way to any claims against the Seller. If Seller withdraws from the Agreement the performances rendered so far shall be settled at contracted prices.
25. Regulations on export
Buyer is informed that the export of the supplied products, information, software and documents (jointly referred to as Products) according to the relevant valid export regulations of the Federal Republic of Germany, the European Union and/or the United States of America – eg on the basis of their nature or intended use or end destination– may be subject to authorization or excluded and violations may be prosecuted. Therefore Buyer shall guarantee that all national or international relevant export regulations are strictly observed and that any necessary authorizations are obtained. In this regard Buyer shall in particular check and ensure that
• in the event the Products may only be delivered with an authorization of the respective, in particular national authorities, for an arms-related, nuclear or weapon-related technical use and/or to a military recipient, this authorization is obtained in advance;
• no companies or persons contained in the Denied Persons List (DPL) of the American Department of Trade and Industry are delivered with goods originating from the US, or software or technology from the US;
• no company or persons contained in the Special Designated Nationals Lists and Blocked Persons List of the American Treasury Department or the Terrorist List of the EU are supplied with Products;
• the relevant UN Resolutions, EG Directives and German Laws as well as lists of the respective German authorities are observed;
• the Entity List of the American Department of Trade and Industry is observed;
• no persons are supplied who are listed on the Unverified List of the American Department of Trade and Industry. Seller shall label information, software and documentation in relation to obligations to obtain authorization pursuant to German and EU export control lists and U.S. Commerce Control List. In the event the aforementioned obligations are violated by the Buyer he shall indemnify Seller upon the initial request from any claims and compensate any damages which Seller or licensor of Seller, third parties or governmental and/or international authorities and/or organisations claim towards the Seller.
On request, Seller shall name Buyer the relevant contacts for further information.
26. Contract language, correspondence
The contract language shall be German or English. Any correspondence and other documents shall be written in German or English. This shall also apply to all other documents. If the contractual partners in addition use another language, the German or English wording shall have priority.
27. Partial invalidity
Should parts of these General Terms and Conditions of Delivery and Payment be or become invalid, the validity of the remaining provisions shall not be affected; the same shall apply to the filling of loopholes of these General Terms and Conditions of Delivery and Payment.
28. Place of jurisdiction
Place of jurisdiction is DE27570 Bremerhaven, Germany, if the Buyer is a merchant. However, Seller shall reserve the right to assert his claims at any other permissible place of jurisdiction.
(2) In addition, exclusively non-unified German law shall be applicable, notably the BGB/HGB. The provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (UN Sales Convention) shall be excluded.
Bremerhaven, May 02nd, 2009 ReadPost Gesellschaft mbH, Bremerhaven, Germany