General Terms and Conditions of Sale (“T&C”)
Scope of Application. (a) This T&C shall apply to any manufacturing, deliveries or offers of products and/ or services (hereinafter jointly “Products”) by Servotronix GmbH (hereinafter the “Seller”), even if they are not expressly agreed on. This T&C are part of any contracts concluded between Seller and contractual partners (hereinafter referred to as “You” or „Customer„, together with Seller the “Parties”) about the manufacturing, sale and delivery of Products.
(b) Deviations from these T&C shall only apply if they have been approved by Seller in writing. The omission by Seller to object to Customer’s general terms and conditions shall not be deemed as approval for their incorporation.
(c) This T&C shall only apply only to offers directed at entrepreneurs within the meaning of sec. 14 German Civil Code (BGB).
Purchase Orders; Confirmation and Cancellation of Purchase Orders. (a) Orders to Seller for Products shall be placed via purchase orders delivered to Seller in writing (hereinafter a “PO”). A PO placed by You shall only become binding following Seller’s written confirmation of such PO (hereinafter a “Confirmed PO”).
(b) A PO which has not been explicitly approved by Seller in writing within thirty (30) days following its receipt by the Seller shall be deemed declined.
(c) You may cancel a Confirmed PO at any time with 30 days prior written notice to Seller. Following such cancellation, You shall pay Seller a reasonable cancellation charge requested by the Seller, which will take into account any and all expenses incurred by Seller and commitments made by Seller in reliance upon such Confirmed PO, but in no event less than a minimum of twenty-five percent (25%) of the total PO Price.
(d) The cancellation charge shall amount to one hundred percent (100%) of the total PO Price if the cancellation of the Confirmed PO is done on or following the earlier of the following two dates: (i) the date on which the manufacturing of the Products ordered under the Confirmed PO commences, or (ii) four (4) weeks prior to the Delivery Date agreed under the Confirmed PO.
(e) Your rights in case of a defect of a Product remain unaffected from the foregoing subsections (c) and (d).
Prices. (a) All prices stated in the Confirmed PO (“PO Price(s)”) are based upon the current costs of the Seller and valid for the Confirmed PO (and order for Products made or delivered thereunder) only.
(b) Prices communicated under a non-binding proposal by Seller are valid for seven (7) days only (unless otherwise stated in the non-binding proposal).
(c) Unless specified otherwise under the Confirmed PO, the PO Price does not include any applicable sales or use taxes, customs, duties or other taxes and fees and other charges and levies, including, without limitation, handling, shipping, insurance and other similar charges (jointly “Additional Charges”). Any Additional Charges which the Seller may be required to pay within or for the delivery of Your Products will be either added to Your PO or separately invoiced to You by the Seller.
(d) Split shipments of the quantities stated under Your Confirmed PO may require additional set up charges unless otherwise specified in Your Confirmed PO.
(e) The PO Prices of all Products scheduled for delivery later than six (6) months following the date of a Confirmed PO may be increased by the Seller upon 30 days’ notice for good cause, e.g. to reflect higher costs on Seller for increase in wage rates, material prices, etc.).
Terms of Payment. (a) Unless expressly stated otherwise under the Confirmed PO, terms of payment for all PO Prices are net 30 days from the receipt of the invoice.
(b) Notwithstanding the above and any specified payment terms agreed under the Confirmed PO, Seller shall be entitled to execute outstanding deliveries only against advance payment or provision of security if the Seller becomes aware after the date of the Confirmed PO of any circumstances which are likely to significantly reduce Your creditworthiness or/ and which endanger the payment of the outstanding PO Prices under any Confirmed PO.
(c) In the event of default of payment (a “Default”) and the lapse of further grace period for payment set by Seller of at least 10 days, the total prices set forth in your PO shall become immediately due and payable. If not all Products ordered under a Confirmed PO have been delivered, Seller may upon occurrence of a Default further cancel the unperformed portion of Your PO after expiration of the grace period pursuant to the foregoing sentence at its full discretion.
(d) In the event that Seller elects to cancel the unperformed portion of Your PO pursuant to section 4.(c), any discount granted to You based on the quantity of Products shall be repealed and the increase in the unit cost of the Products already delivered shall be immediately due and payable by You. The list price of Seller at the time of the delivery of the Products shall apply.
(e) Any defaulted payment shall bear default interest in an amount of 9-percentage points above base interest rate Further claims for damages remain unaffected.
Point of Delivery. (a) Unless expressly agreed otherwise under the Confirmed PO, all deliveries of Products shall be made Ex-Works (Incoterms 2010) – Seller’s premises (as shall be defined by the Seller under the Confirmed PO).
(b) Once Products have been made available to You at the Seller’s premises or an agreed deviating point of delivery (“Delivery”), risk of loss, damage or destruction of the Products shall be borne by You.
Delivery; Delays in Delivery. (a) All scheduled delivery dates (“Delivery Date(s)”) stated in Your Confirmed PO are approximate, unless a fixed period or date has been expressly agreed under the Confirmed PO.
(b) All Delivery Dates are subject to Seller’s prompt receipt from You (in writing) of all information, if any, necessary in order to manufacture, package and deliver the Products to You. Delivery Dates shall be deemed to be extended by the period of time during which You fail to comply with Your obligations towards the Seller following a respective notice by Seller.
(c) If a fixed Delivery Dates has been agreed, such Delivery Date shall not be of the essence ((relatives) Fixgeschäft) unless expressly agreed otherwise under the Confirmed PO. In the event of a delay of a fixed Delivery Date (a “Delay”), Seller shall be entitled to a reasonable grace period. You may only rescind from the Confirmed PO based on the Delay if delivery has not been executed by Seller after expiration of the grace period. Regardless of the foregoing, you may rescind from the Confirmed PO without a further grace period if acceptance of the delivery cannot reasonably be expected of You as a result of the Delay.
(d) Seller shall in no event be liable for any indirect damages, including, but not limited to, consequential damages arising from or in connection with any Delay in the delivery of any Product(s) to you.
(e) Your further rights in the event of a Delay in accordance with section 8 and 9 of the T&C remain unaffected.
Retention of Title. (a) Title of any Product shall pass to you only following full payment of the respective PO Prices to Seller for such Products delivered under the applicable Confirmed PO.
(b) You may use the Product subject to retention of title and resell it in the ordinary course of business as long as you are not in default of payment. However, you may not pledge the Product or assign as security before full payment of the PO Price. You hereby assign to the Seller by way of security any claims for payment you may have against your customer arising from the resale of Products and any claims you may have against your customer or third parties in respect of the Product from any other legal grounds (in particular claims arising from tort and claims for insurance benefits) (altogether the “Assigned Claims”). The Seller accepts this assignment.
(c) You may collect the Assigned Claims on your own account in your own name for the Seller as long as the Seller does not revoke this authorisation. The Seller’s right to collect the Assigned Claims itself shall not be affected; however, the Seller shall not collect the Assigned Claims and shall not revoke your authorization as long as you fulfil your payment obligations. In the event of a Default the Seller may demand information of the respective Assigned Claims and that you inform the respective debtors of the assignment and hand over all documents as well as all information which the Seller requires to collect the Assigned Claims.
(d) Any processing or transformation (Verarbeitung, Einbau, Vermischung) of the Product subject to retention of title by you shall always be carried out on the Seller’s behalf. If the Product subject to retention of title is processed with other items which do not belong to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of Product subject to retention of title (invoice amount including value added tax) to the other processed items at the time of processing. The same shall apply to any new item resulting from the processing. If the Product subject to retention of title is inseparably combined or intermixed with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the Product subject to retention of title (invoice amount including value added tax) to the other combined or intermixed items at the time of the combination or intermixing. If the Product subject to retention of title is combined or intermixed in such a way that your item is to be regarded as the main item, you and the Seller hereby agree that you shall assign to the Seller pro rata co-ownership of this item. The Seller accepts this assignment. You shall keep the resulting item (owned or co-owned by the Seller) in custody for the Seller.
(e) If the value of the collateral granted for the benefit of the Seller under this Section exceeds the amount of secured claims by more than 10 %, you shall be entitled to demand that the Seller insofar release securities of the choice of the Seller.
Warranty.(a) Seller warrants, to you only, that all Products supplied to You will be: (i) if applicable, of the kind described in the applicable Specifications and scope of work document, subject to Seller’s explicit, prior, written approval of such Specifications and scope of work document, and (ii) will be free from defects in material or workmanship, under normal use and prescribed maintenance (the “Warranty”).
(b) The warranty period for Products shall be 12 (twelve) months (unless a longer period is explicitly stated under a Confirmed PO) from the date of Delivery of the Products (the “Warranty Period”). This period does not apply to claims for damages arising from death, injury to health or physical injury or from intentional or grossly negligent breaches of duty on the part of the Seller or its legal representatives or a person used to perform the Seller’s obligation (Erfüllungsgehilfe). In this case, the statutory warranty period shall apply.
(c) This Warranty shall not apply to any Products or damage thereto which after the Delivery: (i) have been subject to any alteration or negligent treatment, or repair or rework by any party other than the Seller, (ii) which is caused by improper storage, transport, mishandling, improper installation or maintenance and/or abuse or misuse, (iii) which results from Your (and/or anyone on your behalf) use of the Product with incompatible and/or defective equipment, (iv) which results from any modification or integration with any other product(s), (v) due to a failure to perform user maintenance as outlined in published Product materials and/or caused by usage in an environment not meeting the operating specifications set forth in the user manual, or (vi) caused by fire, flood, or any other occurrence outside of Seller’s control, unless You can prove that the damage in question resulted from a defect of the Product.
(d) In the event of a warranty claim, the Seller shall remedy the defects at its sole discretion by repair or replacement, without charge. The Warrant extents to any Products or part thereof which within the Warranty Period is proven to Seller’s satisfaction to have been defective, provided that you shall have notified Seller of the defect within the Warranty Period and returned after prior consultation with the Seller such Products to Seller to establish your claim; provided, further, that Seller will bear transportation costs for the return of repaired or new Products to you and costs incurred in repairing or replacing any Products which are shown to be defective during the Warranty Period, but you shall pay for all installation costs and for all transportation costs incurred in sending Products to the Seller for their repair or replacement.
(e) The Warranty shall apply to repaired or replaced materials or Products for three (3) months following redelivery to you or the end of the Warranty Period, whichever occurs later.
(f) The cost of any repairs made by Seller to Products no longer covered by this Warranty shall be borne solely by you. Seller makes no warranty as to the adaptation of the Products to any other products (including regarding to the embedding of the Products into your products) and any such adaptation and embedding shall be verified by you under your own responsibility and expense.
(g) You agree to maintain appropriate insurance to cover your risks and exposures. Without derogating from the provisions of any applicable law and/or from the foregoing, you specifically agree to maintain, at minimum, insurance coverage for any property and/or equipment (including, but not limited to, testing equipment), machinery, inventory (including such inventory that might have been provided by Seller at no cost or value to you) and/or finished Products that are stored or located at the Seller’s premises. All of your insurance policies (property, casualty, business interruption, product and professional liability policies, cargo and other insurance policies that are expected to be available in order to cover your exposure) (whether listed above or not) shall include: (i) a waiver of subrogation clause towards the Seller and its parent companies, subsidiary companies, Affiliates, shareholders, managers and employees (the „Additional Parties„), (ii) liability policies (other than workers compensation and employers liability) include a cross liability endorsement, and (iii) a primary/noncontributory clause in favor of the Seller’s insurance policies as well as a waiver of participation by your insurer towards the Seller’s policies. You agree to obtain and to keep in force, during the term of the PO and the Warranty Period all of the policies, and with regards to product liability or other „claims made“ basis policies for an additional period as long as legal liability might apply to the Seller or you.
You hereby waive, discharge and release the Seller and the Additional Parties from any and all liability for losses, damages and claims that you are entitled or should have been entitled for compensation to the extent policies as further detailed above have been purchased, maintained and uninterrupted. The above discharge also applies to losses, damages and claims within the level of deductible.
(h) You shall conduct an inspection of any Products (and parts thereof) promptly following Delivery; sections 377, 381 German Commercial Code (HGB) apply.
In the event of any damage or any other discrepancy, you shall provide Seller with a written notice thereof and with reasonable written evidence thereof within fifteen (15) days following Delivery (otherwise you shall be deemed to have accepted the Products and shall fully pay for them).
(j) All claims may be made solely by you (and not by your customers, end-users, Affiliates and/or any other third party). Any warranties and representations given by you to your customers and/or end-users shall be at your sole responsibility (and not Seller’s).
(k) Any rights to damages for defects shall be governed by the provisions in section 9 of the T&C.
Limitation of Liability. (a) Your claims for damages are excluded. This does not apply to claims for damages arising from (i) death, injury to health or physical injury or (ii) from the breach of material contractual duties (Kardinalpflichten) as well as (iii) liability for other damages based on an intentional or grossly negligent breach of duty by the Seller, its legal representatives or a person used to perform the Seller’s obligation. Material contractual duties are those the fulfilment of which is necessary to achieve the objective of the contract.
(b) In the event of a breach of material contractual duties, the Seller shall only be liable for the foreseeable damage typical of the contract if such damage was caused by slight negligence, unless Your claim to damages is arising from death, injury to health or physical injury.
(c) In the event of liability for simple negligence, the Seller’s liability for damages to goods and financial losses resulting from such damage shall further be limited to the total amount paid by you to Seller under the Confirmed PO per case of damage, even if it is a breach of material contractual obligations. This does not apply to claims for damages arising from death, injury to health or physical injury.
(d) The restrictions of this section 9 also apply in favor of the legal representatives of the Seller and in favor of persons used to perform the Seller’s obligations.
(e) The restrictions of this section 9 shall not apply if the Seller fraudulently concealed the defect or gave a guarantee for the quality of the Product. The same applies if You and the Seller have reached an agreement on the quality of the product (Beschaffenheitsvereinbarung).
(f) The provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected from the foregoing limitations.
Intellectual Property Rights. (a) You hereby agree and acknowledge that all intellectual property, know-how, and intellectual property rights in tangible and intangible form, the ownership, title and interest therein (including trade secrets, copyrights, moral rights, database rights and patents, proprietary rights and anything derived therefrom), related to and/or in connection with the Products, including, without limitation, the Products themselves and their elements, regardless of whether manufactured based on or without any Specifications provided by You, source and objects codes, designs, techniques, methods, documentation, inventions, work-for-hire, and anything that derives therefrom, is and shall remain at all times the property of the Seller only, and shall exclusively be owned by the Seller only, at all times and throughout the world (the “Seller Intellectual Property”).
(b) Neither you, nor your affiliates within the meaning of Sec. 15 et seq. German Stock Corporation Act (AktG) (hereinafter “Affiliates”) and/or any person or entity on your/their behalf, shall have any claim to any right of any kind, license rights (except for the non-exclusive right of use (einfaches Nutzungsrecht) necessary for the intended use of the Product), moral rights, compensation or reward in respect of any such Seller Intellectual Property.
(c) You will not at any time assert or claim any interest in, or do anything which may adversely affect, the validity or enforceability of any Seller Intellectual Property or any trademark, trade name, trade secret, patent, copyright, designation or logo belonging to or licensed to the Seller (including, without limitation, any act, or assistance to any act, which may infringe, or lead to the infringement of, any patent or copyright in the Products).
(d) This section 10 shall survive the performance, cancellation, expiration or termination of the Confirmed PO for any or no reason.
Your Specifications. (a) In the event Products have been manufactured in accordance with specifications provided by You (“Specifications”), You will indemnify, protect and hold harmless Seller on first demand against all law suits, and from all damages, claims, demands, costs and expenses, including all legal fees, for actual or alleged infringements of any intellectual property rights arising out of the manufacture, selling and/or marketing of the Products by Seller in accordance with specifications supplied by You or any of Your Affiliates.
(b) This Section 11 shall survive the performance, cancellation, expiration or termination of the Confirmed PO for any or no reason.
Confidentiality; reverse engineering. (a) You shall not (i) (at any time) disclose any Confidential Information of the Seller to any third party whatsoever, (ii) not (at any time) copy, modify, disassemble, decompile or reverse engineer any Product(s) or any Confidential Information of the Seller, (iii) use Confidential Information of the Seller only for the use of the Products in accordance with these T&C.
(b) “Confidential Information” shall mean any and all information data and/or know-how, whether written, oral, visual, electronic or otherwise in any medium of expression, and whether or not marked ‘Confidential’, which you (and/or any of your Affiliates) may receive, obtain, be exposed or have access to, regarding or which is related to, the Seller and/or any Affiliate thereof, its business, products (including without limitation, the Products) and/or technology and/or of any Affiliate thereof, including, without limitation, all inventions, developments, methods, processes, hardware, software, drawings, schematics, firmware, interfaces, designs, tooling, source codes, product specifications, research and development plans, customers and suppliers information, patents, trade secrets, trademarks, copyrights, design rights, or other forms of protection of industrial and/or intellectual property (whether registered, non-registered or in the process of application) of or in relation to the Seller and/or any Affiliate thereof, and any confidential and/or proprietary information of third-parties in the possession of the Seller and/or any Affiliate thereof.
(c) Exempt from the obligation to secrecy shall be Confidential Information:
that can be demonstrated to have already been known to You upon initiation of the contract or become known thereafter through third parties without any breach of a confidentiality agreement, of statutory provisions, or of administrative orders;
that was known to the general public, unless this was due to a breach of this contract;
that had to be disclosed based on statutory obligations on the order of a court or authority. As permissible and feasible, You shall inform the Seller in such event in advance, providing it with the opportunity to take action against the disclosure.
(d) Any disclosure of Confidential Information to third parties shall require the prior written approval of the Seller.
(f) You shall fully indemnify the Seller upon first demand for any losses or damages resulting from a breach of any of the foregoing duties. Due to the irreparable harm to the Seller which may result from a breach of this Section 12, the Seller shall have the right to obtain injunctive relief in the event of any such breach.
(g) This section 12 shall survive the performance, cancellation, expiration or termination of the PO for any or no reason.
No Waiver. (a) No delay or omission on the part of Seller in requiring performance by You or in exercising any right hereunder shall operate as a waiver of any provision hereof or of any right or rights hereunder.
(b) A waiver must be issued in writing and be signed by the Seller.
Assignment. (a) No transfer or assignment of any rights of you under or in connection with a Confirmed PO and this T&C and/or the Warranty contained herein shall be valid unless such assignment has been approved in writing by the Seller.
(b) Section 354a of the German Commercial Code (HGB) shall remain unaffected.
Severability. In the event that any condition, stipulation or provision contained in these T&C, is held to be invalid or unenforceable, for any reason whatsoever, or if the T&C contain gaps, all the remaining conditions, stipulations and provisions contained herein shall remain in full force and effect and shall be binding on You without any change. In place of the invalid, unenforceable or missing term, such valid term which comes closest to the Parties intention or which they would have reasonably agreed in light of the purpose of the respective contract, had they been aware at the conclusion of the contract that the relevant term was invalid, unenforceable or missing, shall be deemed to have been agreed with retroactive effect. In the event the scope and/or duration of any condition, stipulation or provision contained in these T&C exceeds and/or extends the scope and/or duration allowed by applicable law, such obligation shall be deemed to be in the maximum scope and duration allowed by applicable law.
Entire Agreement; Amendments; Headings; written form. (a) Notwithstanding anything to the contrary in any other document: these T&C: (i) shall govern every purchase(s) and order made by You from the Seller, and Your submission of any PO to the Seller shall be deemed as Your written consent to these T&C in their entirety, (ii) contain the entire, complete and final understanding and agreement between You and Seller with respect to the subject matters hereof, and (iii) supersede for all intents and purposes any previously signed and/or unsigned contracts, agreements, understandings and/or negotiations between You and the Seller (orally or in writing).
(b) You hereby acknowledge and accept that these T&C shall supersede all other T&C, including any which You may purport to apply under any document provided by You to the Seller (or anyone on its behalf) and/or any of its Affiliates (or anyone on their behalf) or which could be implied by trade custom, practice, or course of dealing.
(c) No modification of, or addition to, these T&C shall be effective unless made in writing and duly signed by You and Seller. Such also applies to a modification of this requirement of the written form.
(d) The headings of the sections of these T&C are intended for convenience purposes only, and shall not affect the meaning or interpretation of these T&C.
(e) Wherever an act and/ or confirmation is required under this T&C in writing reference is made to the written form pursuant to Sec. 126 of the German Civil Code (BGB).
Governing Law and Jurisdiction. (a) These T&C and any Confirmed PO shall be exclusively governed by the laws of the Federal Republic of Germany (without its conflict of law provisions). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these T&C.
(b) Exclusive court of venue for all disputes arising out of or in connection with these T&C (including, without limitation, claims for set-off or counter-claim) shall be, to the extent legally permissible, the district court (Landgericht) of Krefeld.
(c) Nothing in these T&C or in any other document shall prevent Seller from instituting proceedings, seeking and obtaining interlocutory and/or injunctive relief, concerning Seller Intellectual Property, Seller’s Confidential Information and/or any other rights of Seller, from any other court of competent jurisdiction in any other territory.