General Terms and Conditions
I. General
1. The following terms of Digatron Power Electronics GmbH - hereinafter referred to as Supplier - are the basis of all contracts and offers. The placing of an order or acceptance of a delivery implies the acceptance of these terms. Supplier shall not be bound by deviating terms of the other party of a contract - hereinafter referred to as Customer-, even without explicit objection, except that these terms are explicitly accepted in writing.
2. These General Conditions of Supply and Delivery are applicable only if Customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal person under public law or a special fund under public law.
3. For orders placed on behalf of third parties or on their account, the intermediating party is liable jointly and severally with Customer for all obligations resulting from the contract.
II. Conclusion of contract, scope of supplies or services
1. The offers of Supplier are subject to alteration and without obligation. They are made with the reservation that Supplier him-self is furnished correctly and in good time.
2. The contract shall be concluded upon Supplier's written confirmation of the acceptance of the order or upon performance of the delivery.
3. All declarations shall be set down in writing. This also applies to collateral agreements and alterations of the contract.
4. Protective devices will be supplied to the extent required by law or expressly agreed upon.
5. All supplies or services shall be governed by the rules of the Verband Deutscher Elektrotechniker (Association of German Electrical Engineers) insofar as safety of supplies or services is concerned. Deviations are permissible if the same safety standard will be achieved by different means.
6. Supplier reserves all titles and property rights, and rights originating from copyright on cost estimates, drawings and other documents; such may not be disclosed to third parties without prior consent of Supplier. All drawings and other documents pertaining to quotations shall immediately be returned on request if the order is not placed with Supplier. Foregoing sentences 1 and 2 shall apply accordingly to documents of Customer. They may, however, be made available to those third parties, which perform services or supplies for Supplier in cases where this is permitted.
III. Prices
Where supply offered does not include set-up or installation, prices quoted are ex works, excluding packing.
IV. Retention of title
Title to all goods is retained by Supplier until each and every claim of Supplier against Customer originating in the business relations has been duly satisfied. Customer shall only be entitled to resell the goods in the ordinary course of his business. Customer hereby transfers all claims against his clients or third parties, arising from resale, to Supplier to the amount of the sum total of the invoice (including turnover tax) of the claim of Supplier, regardless of a possible processing before resale.
Supplier hereby accepts the transfer. Customer shall remain entitled to collect the sum due even after the transfer. This shall not affect the right of Supplier to collect the sum due.
Supplier engages not to collect the sum due as long as Customer meets his obligation to pay, is not put in default and especially no application for insolvency proceedings is made or cessation of payments occurs; but if this will be the case, Supplier may demand that Customer informs him about the assigned claims and their debtors, gives every information necessary for collection, hands over the related documents and gives notice of the transfer to the debtors (third parties).
V. Conditions of payment
1. Payments shall be made free paying-office of Supplier.
2. Customer is put in default if the term of payment is exceeded. Customer shall pay interest on the money debt during the period of default. The rate of default interest is 8% per annum above the basic interest rate. The right to claim additional damage caused by default is not excluded hereby.
3. Customer may set off only such claims as are undisputed or finally determined. Customer may exercise a right of retention only as far as it arises from the same contractual relationship.
VI. Period for supply of deliveries or services
1. The period for supply shall begin as soon as an agreement between Customer and Supplier exists in writing. Timely supply is conditioned upon timely receipt of all documents to be furnished by Customer, necessary licenses and releases, timely clarification and approval of plans, and observance of the terms of payment agreed upon and all other obligations. If these conditions are not timely fulfilled, the period for supply shall be appropriately extended.
2. Above period shall be deemed to have been met:
a) where supply does not include set-up or installation, if the goods, ready for operation, have been delivered to the carrier or picked up within the agreed period. If delivery is delayed for reasons for which Customer is responsible supply shall be deemed timely if notice that goods are ready for shipment has been given within the agreed period;
b) where supply includes set-up or installation, if such set-up or installation has been completed within the agreed period.
VII. Transfer of risk
Risk shall pass to Customer, even if C & F delivery has been agreed upon:
1. Where supply offered does not include set-up or installation: whenever goods ready for operation have been delivered to carrier or picked up. Goods are packed in standard export packing. Shipment shall be carried out to the best of Supplier's judgment. At the request and expense of Customer, goods shipped will be insured by Supplier against breakage, damages in transit or fire.
2. Where supply offered includes set-up or installation: the day Customer has taken over goods for operation. Assumption hereto is that the taking over for operation shall take place immediately following set-up or installation having been declared ready for operation. If the take over has been delayed for more than 14 days, then risk shall pass to Customer.
3. If shipment delivery, commencement or execution of set-up or installation is delayed at the request of Customer or for reasons within Customer's responsibility, risk shall pass to Customer for such period of delay. Supplier, however, undertakes to effect at Customer's expense such insurances as requested by Customer.
VII. Transfer of risk
A.
Insofar as nothing to the contrary has been agreed upon in writing the following provisions shall apply to set-up and installation of any kind.
1. Customer shall provide at his expense and in due time:
a. In sufficient number, auxiliary personnel such as labourers and, if necessary, bricklayers, carpenters, fitters, crane operators and other skilled labour along with the required tools;
b. all earth work, foundations, civil engineering, mortising, scaffolding, plastering, painting and other work not usual in Supplier's trade including necessary materials;
c. such objects and materials as are necessary for set-up and setting into operation, e.g. props, wedges, bases, cement, cleaning and sealing materials, lubricants, fuel etc., furthermore scaffolds, lifting gear and other devices;
d. power and water including the necessary connections up to point of use, heating and general lighting;
e. suitable and dry rooms of sufficient size at the site which can be locked for storage of machinery-parts, equipment, materials, tools, etc. as well as adequate working rooms and accommodation for Supplier's personnel, including reasonable sanitary installations. Furthermore Customer must follow the same provisions for safeguarding the property of Supplier and erection personnel at the site as he would for his own;
f. protective clothing and protective devices which are necessary owing to particular conditions at site and which are not usual in Supplier's trade.
2. Before commencement of set-up work, Customer must make available of his own accord necessary information concerning all concealed electric cabling, gas- or waterpipes and the like as well as necessary information on statics.
3. Before commencement of set-up or installation, the parts required for initiating the work must be at hand, and all masonry, carpentry and other preparatory work must be so far advanced that set-up or installation may begin immediately upon arrival of set-up or installation personnel and proceed without interruption. In particular, the accommodation roads and the site for set-up or installation itself must be level and clear, foundations must be dry and set, foundation walls erected and backfilled, and in the case of indoor work, the rendering of walls and ceilings must be complete and especially, doors and windows must have been fitted.
4. If installation, set-up or commencement of operation is delayed owing to circumstances, particularly at the site, for which Supplier may not be held responsible, Customer shall bear the reasonable costs for stand-by time and any additional travelling expenditures of erection or installation personnel.
5. Working hours shall be certified at weekly intervals to set-up or installation personnel by Customer to the best of his knowledge. Moreover, Customer shall immediately confirm in writing to set-up or installation personnel completion of set-up or installation work.
6. Supplier shall not be liable for any work executed by his set-up or installation personnel or other agents that is not related to supplies and set-up or installation or insofar as it has been initiated by Customer.
B.
If Supplier has undertaken to provide set-up or installation on an actual cost basis, the following conditions shall apply in addition to those as under A:
1. Customer shall make payments to Supplier according to rates of charge for working hours agreed upon at time of order together with premiums for overtime, night, Sunday or holiday work, work under unusually difficult conditions, planning and supervision.
Time spent for preparations, travelling, errands and reporting shall be deemed as working hours.
2. Moreover, the following costs shall be paid separately:
a) Travelling expenditures, costs for transport of tools and personal luggage;
b) Daily allowance for working hours as well as for rest days and holidays.
IX. Acceptance
1. Goods delivered shall be accepted by Customer even if they show minor defects.
2. Customer may reject partial deliveries only if their acceptance is unreasonable.
X. Liability
1. If, in the case of justified complaints, Customer demands supplementary performance, Supplier may, at his option, remove the defect or supply a thing free from defects. If Customer chooses the termination of the contract when the legal conditions for this have been met, Customer shall not be entitled to claim compensation additionally.
2. If Supplier is liable for damages caused by slight negligence, according to legal provisions and in compliance with these terms, his liability shall be limited. Supplier shall be liable only in case of breach of an essential duty. His liability shall be limited to losses foreseeable at the time of the conclusion of the contract. This limitation of liability is not applicable if loss arises out of death, injury to body or health. As far as losses are covered by an insurance concluded by Customer for the concerned case of damage (except insurance of fixed sums), Supplier shall be liable only for related disadvantages suffered by Customer, for instance higher insurance premiums or interest disadvantages which occur before claim settlement by the insurer. Supplier shall not be liable for losses caused by a defect by slight negligence, except if loss arises out of death, injury to body or health. Regardless of a fault of Supplier, his liability in case of fraudulent concealment of a defect, in case of a guarantee or according to the provisions of the product liability law (Produkthaftungsgesetz) shall remain unaffected. The personal liability of statutory agents, vicarious agents and employees of Supplier for losses arising out of slight negligence shall be excluded.
3. Supplier shall not be liable for fair wear and tear or for damages arising after transfer of risk caused by wrong or negligent handling, excessive stress, unsuitable operating facilities, faulty construction works, unsuitable soil conditions, and such chemical, electrochemical or electrical impacts as were not assumed at the time the contract was concluded. Supplier shall likewise not be liable for modifications or repairs carried out by Customer or by a third party.
4. For delivery of OEM products, Supplier's liability is limited to assignment of Supplier's liability claims against the supplier of the OEM product. In the case that a fault occurs, Supplier is obliged to name to Customer the supplier of the OEM product, including the latter's complete postal address.
5. The liability in case of default of delivery is exclusively settled in section VI. 3. Section X is not applicable.
XI. Duty to examine and object to defects, limitation of action for claims in respect of defects
1. The compliance with the duties to examine and to object to defects according to § 377 HGB (German Commercial Code) is a prerequisite for the legal rights of Customer in respect of defects.
2. The notice of defect shall be made in writing or via fax or e-mail.
3. The period of limitation for claims in respect of defects is one year.
XII. Place of jurisdiction, law in force
1. German law shall be exclusively applicable. The application of the collision rules (EGBGB) and of the UN Sales Convention (CISG) is excluded.
2. Exclusive venue for all present and future claims arising from the business relations, including claims based on a bill of exchange or a check, shall be Aachen. Supplier shall be entitled to sue Customer also at the court of his residence.
3. The same venue shall apply if Customer has no general venue in Germany, if Customer moves his residence or ordinary place of abode out of Germany after the conclusion of the contract or if his residence or ordinary place of abode is not known at the time of commencement of the suit.
XIII. Supplementary conditions for software
If supplies or services are referred to as "SOFTWARE" in the purchase agreement, the attached Supplementary Conditions for Software will apply in addition to the above.
Supplementary conditions for software
In addition to general conditions for products and services
1. The terms and conditions set out hereafter will apply to contractual relations in which Supplier grants to Customer licenses regarding Software Products. The Supplementary Conditions for Software will be applicable supplementing the "General Conditions of Supply and Delivery for Products and Services" (at the present time DIGATRON 6/2002).
2. "Software Products" shall mean all positions shown separately in contracts regarding supplies and services, concluded between Supplier and Customer, which are named as "Software".
3. Supplier is the owner of the copyright of the software produced by him. Supplier reserves the sole copyright and all further rights.
4. Supplier shall grant to Customer a right of use of the Software Products as described in the following. Customer shall acquire property rights or exclusive rights of use only if this is explicitly stipulated.
5. As far as Software Products of producers other than Supplier is supplied, the licensing conditions of these producers will have priority over these Supplementary Conditions for Software which will then be applicable as a supplement.
6. Scope, terms and details of use are agreed as set out hereafter:
a) Supplier grants to Customer a non-exclusive, non-assignable right of use of the Software Product. As far as not concluded otherwise in the contract, the duration shall be identical with the time of use of the hardware.
b)As far as not concluded otherwise in the contract, Customer shall acquire a right to use the Software Product on a single hardware. A right to use the Software Product on several hardware units must be stipulated separately.
c) Except when Supplier has explicitly consented, Customer shall not be entitled
- to draw copies of the Software or any documentation possibly made available.
- to use the Software Product or parts of it outside the granted use of right.
d) Customer shall not pass Software Products, Documentation or copies of it to third parties without the prior written consent of Supplier.
e) The use of the Software Product is made possible by delivery of a data storage medium containing the program and of the documentation. Supplier reserves the right to choose the most appropriate way for the installation of the Software Product.
f) If the use of the Software Product becomes impossible or unreasonable by Customer encountering loss of data, Supplier will provide the Software Product for re-installation against reimbursement of the costs. In this case Supplier shall be entitled to install the latest version of the Software Product, except that Customer proves that this would lead to an unreasonable prejudice in the particular case and pays the additional expenses.
g) Introduction or training or similar services are not included in the price of the Software Product and shall be ordered and paid separately.
h) The licence covers the version of the Software Product which is the latest at the time of the conclusion of the contract or at the time of the first installation. Supplier shall not be obliged to maintain the Software Product except that a maintenance contract with extra fees has been concluded.
i) Supplier will provide support related to the use of the software, including telephone conversation, only in the frame of a separate agreement providing extra fees.
7. Supplier ensures that the software is in the agreed quality upon the passing of the risk or that - as far as the quality has not been agreed - it is fit for the use specified in the contract.
At present state of art, it is not possible to produce software programs working completely faultless, especially if the software programs will be combined with other programs or if several hardware units will work together. Subject matter of each license contract is a software program which is basically usable for the use specified in the contract. Supplier does not guarantee for faults related to the choice of software, for an installation by Customer himself or for the correct functioning of the software if it is used together with hardware or software which has not been supplied by Supplier. The same applies if Customer has discussed the scope of his order with Supplier before ordering.
8. In all cases in which Customer is put in default (because of non-payment for the right of use, maintenance or any other claim related to the use of the software), Supplier shall be entitled to interdict the further use of the software; a setting of a deadline shall not be necessary. Supplier shall give notice to Customer in writing.