Terms and Conditions for Products & Services of GR2 GmbH
For the purposes of these Terms and Conditions, “Supplier” means the company indicated in the title; “Customer” means the person, firm, company or joint stock company issuing the order; “Products” means the products (including any software and documentation, as defined in paragraph 9), as described in the order confirmation of the Supplier; “Services” means the services described in the order confirmation of the Supplier. “Contract” means the written agreement (including these Terms and Conditions) for the supply of Products and/or the provision of services between the Customer and the Supplier; “Contract Price” means the price to be paid by the Customer to the Supplier for the Products and/or services, and “affiliate of the Supplier” means a company of the Rondot group, which is an affiliated company within the meaning of Section 15 AktG [Stock Corporation Act].
2.1 Orders must be issued in writing. They shall be accepted in accordance with these Terms and Conditions. Conditions of the Customer and any representations, warranties, guarantees or other statements that are not included in the offer or the order confirmation of the Supplier or to which the Supplier has not otherwise expressly agreed in writing are not binding on the Supplier.
2.2 The Contract is not valid until the day of acceptance of the order of the Customer by written order confirmation of the Supplier. In the event of differences between the Products and services as described in the offer of the Supplier and the Products and services as described in the order confirmation, the order confirmation is the benchmark.
2.3 Contract changes require written agreement between the parties. However, the Supplier reserves the right to make minor changes prior to delivery and/or improvements to the Products, provided that the function of the Products is not compromised and that neither the Contract Price nor the time of delivery are affected.
3. VALIDITY OF OFFER AND PRICES
3.1 The Supplier’s offer is valid during the period specified in the offer or, if no such period is specified, within thirty days from the date of the offer, if it is not withdrawn before that.
3.2 The prices are fixed prices for delivery within the period specified in the offer of the Supplier. They are understood (a) to exclude value added tax and (b) to exclude similar and other taxes, levies, duties or similar charges incurred in connection with the performance of the Contract outside Germany.
3.3 The prices of the Products are for delivery ex works from the place of delivery of the Supplier, excluding freight, insurance and handling and, unless otherwise stated in the offer of the Supplier, without packaging. If the Products have to be packed, the packing material cannot be returned.
4.1 All payments must be made without any set-off or counterclaim and without any deduction (unless required by law) within thirty days after receipt of the invoice in full in the currency specified in the offer of the Supplier, unless otherwise stipulated by the finance department of the Supplier. The invoicing of the Products shall take place on each occasion after notice of the readiness of the Products for dispatch to the Customer. The invoicing for services shall be monthly in arrears or on any earlier completion date. The Supplier reserves the right, without prejudice to its other rights, (i) to claim interest at the rate of 8% above the base rate according to Section 247 BGB [German Civil Code] for any default period, (ii) to suspend performance of the Contract (including the withholding of supplies) if the Customer does not make the due payments under the Contract or other agreements or is not expected to make them in the reasonable judgement of the Supplier and (iii) on the same conditions to demand a reasonable security for the payment.
4.2 Set-off by the Customer is permitted only with recognised or legally established claims. A lien can only be exercised by the Customer if it is based on the same contractual relationship.
5. DELIVERY TIME
5.1 Unless otherwise specified in the offer of the Supplier, all delivery or completion deadlines run from the conclusion of the Contract and must be regarded as estimates only, not involving any contractual obligations.
5.2 In the event of delay or prevention of the fulfilment of obligations under the Contract due to acts or omissions of the Customer or its agents (including failure to provide specifications and/or fully dimensioned design drawings and/or other information that the Supplier reasonably requests in order to promptly meet its contractual obligations), both the delivery time/completion period and the Contract Price shall be adjusted accordingly.
5.3 If delivery is delayed due to any act or omission of the Customer or if the Customer fails to take delivery, or does not provide adequate dispatch instructions after it has been notified of the dispatch, the Supplier may store the Products at the expense of the Customer in an appropriate manner. On the storage of the Products the delivery shall be deemed to have occurred, the risk on the Products shall pass to the Customer and the Customer shall make the appropriate payment to the Supplier.
6. FORCE MAJEURE
6.1 The Contract (other than the obligation of the Customer to pay all amounts owed to the Supplier in accordance with the Contract) shall be suspended without liability in the event of delay or prevention of the performance of the Contract due to circumstances beyond the reasonable control of the party affected, particularly force majeure, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage, governmental decision or actions (including export or re-export bans or refusal to issue or revocation of applicable export licences) or labour unrest, strike, lockout or injunction. The Supplier is not required to deliver hardware, software or technology, or to provide the services committed, when, under import and export control, the government permits or statutory conditions for exemption from the permit requirement have not been met (in particular, according to the regulations applicable in the United States, the European Union and the jurisdiction in which the registered office of the Supplier is located or from which components of the Products are supplied) and the circumstances are not foreseeable for the Supplier and lie outside the influence of the Supplier. In the event of cancellation of issued government permits or in the event of a change of the applicable import and export regulations in such a way that the Supplier is prevented from performing the Contract, the Supplier is exempt from the contractual obligations without any liability of the Supplier.
6.2 In the event of delay or prevention of the fulfilment of the obligations of a party under this Section 6 for a period of more than 180 consecutive calendar days, either party may terminate the then unperformed part of the Contract by written notice to the other party, without liability, subject to the proviso that the Customer is required to pay the reasonable costs and expenses of any work and pay for all Products and services provided delivered up to the date of termination.
7. INSPECTION, TESTING AND CALIBRATION
7.1 The Products shall be tested before dispatch by the Supplier or manufacturer and, where possible, submitted to standard tests of the Supplier or the manufacturer. Additional tests or inspections (including inspections by Customer or its agent, or tests in the presence of the Customer or its agent and/or calibration) or the issue of certificates and/or the release of detailed test results require the prior written consent of the Supplier, for which the Supplier reserves the right to invoice. If the Customer or its agent fails to perform such tests, inspections and/or calibrations seven days after the readiness of the Products for these tests, they shall be performed and shall be deemed to have been carried out in the presence of the Customer or its agent. The Supplier’s declaration that the tests and/or inspections of the Products have been passed or that the calibration of the Products has been properly carried out is binding.
7.2 A precondition for warranty claims of the Customer is the proper performance by the Customer of the duty of examination and notification in accordance with Section 377 HGB [German Commercial Code].
8. DELIVERY, RISK AND OWNERSHIP
8.1 Deliveries are ex works. Dispatch and packaging will be handled by the Supplier only if agreed and then at its discretion and at the expense of the Customer.
8.2 The place of performance for all obligations arising from the contractual relationship is the head office of the Supplier, unless otherwise determined. The risk shall pass to the Customer with the transfer of the Products to the carrier, freight forwarder or other third party to perform the dispatch. The benchmark is the beginning of the loading process. This applies even if partial deliveries are made or the Supplier has also provided other services. If delivery or transfer is delayed as a result of circumstances for which the responsibility lies with the Customer, the risk passes to the Customer from the day when the Products are ready for delivery, if the Supplier has notified the Customer of this.
8.3 The retention of title agreed in what follows serves to secure all existing current and future claims of the Supplier against the Customer from the supply relationship existing between the parties.
8.3.1 The Products delivered by the Supplier to the Customer remain the property of the Supplier until full payment of all secured claims. The Products and the goods replacing them under this article and covered by the retention of title are hereinafter referred to as reserved goods.
8.3.2 The Customer shall store the reserved goods free of charge for the Supplier.
8.3.3 The Customer is entitled to process and sell the reserved goods up to the occurrence of a disposal event, in the ordinary course of business. Pledges and security agreements are not permitted.
8.3.4 If the reserved goods are processed by the Customer, it is agreed that the processing shall take place on behalf and for the account of the Supplier as manufacturer, and the Supplier will acquire direct ownership or – if the processing of materials is performed by several owners or the value of the processed items is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created items in the proportion of the value of the reserved goods to the value of the newly created items. In the event that no such acquisition of ownership by the Supplier occurs, the Customer hereby assigns its future ownership or (in the mentioned ratio) co-ownership of the new item to the Supplier as collateral. If the reserved goods are mixed with other objects to form a single item or are inseparable and if one of the other items is to be regarded as the main item, the Customer shall, as far as the main item belongs to it, assign proportionate ownership of the uniform item in the ratio mentioned in sentence 1 to the Supplier.
8.3.5 In the event of resale of the reserved goods, the Customer hereby assigns by way of security any resulting claim against the buyer – in the case of co-ownership of the Products by the Supplier in proportion to the co-ownership – to the Supplier. The same applies to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or tort claims for loss or destruction. The Supplier revocably authorises the Customer to collect the claims assigned to the Supplier in its own name. The Supplier may revoke this authorisation only in the event of liquidation.
8.3.6 If third parties gain access to the reserved goods, in particular by way of attachment, the Customer shall immediately indicate the ownership status of the Supplier and inform the Supplier of the situation in order to enable it to enforce its ownership rights. If the third party is not able to reimburse the Supplier for the judicial or extrajudicial costs arising in this context, the Customer shall be liable for them to the Supplier.
8.3.7 The Supplier shall release the reserved goods and the items or claims taking their place on request at its discretion insofar as their value exceeds the amount of the secured claims by more than 50%.
8.3.8 If the Supplier withdraws from the Contract for breach of Contract by the Customer, in particular default of payment (recovery case), it is entitled to claim the reserved goods.
9. DOCUMENTATION AND SOFTWARE
9.1 The ownership of the copyrights to software and/or firmware that have been added to the Products or provided for use with the Products (software) and to the documentation supplied with the Products (documentation) remain with the Supplier or another party which has delivered the software and/or documentation to the Supplier and is not hereby transferred to the Customer.
9.2 Unless otherwise determined in these conditions, the Customer is hereby granted the non-exclusive, royalty-free right to use the software and documentation in connection with the Products, provided that the software and documentation is not copied (except to the extent that this is expressly permitted by applicable law), and the Customer will keep the software and the documentation strictly confidential and not disclose them to others or let others have access to them (except for the standard operating and maintenance manuals of the Supplier). The Customer may transfer the above licence to another party that buys, rents or leases the Products, provided that the other party confirms the terms of this Section 9 in writing and acknowledges them as binding.
9.3 Without prejudice to paragraph 9.2 the use of certain software (as determined by the Supplier) by the Customer will be exclusively subject to the relevant licence conditions of the affiliate of the Supplier or a third party.
9.4 The Supplier and its affiliates shall retain ownership of all inventions, designs and methods produced or developed by them, and under this Contract, except for the provisions in Section 9, no commercial or non-commercial intellectual property rights are granted.
10. LIABILITY FOR MATERIAL DEFECTS
10.1 The Supplier warrants that the Products and services meet the quality agreed on transfer of risk. Unless otherwise agreed, the agreed quality corresponds to the specifications of the Supplier announced in the applicable order confirmation.
10.2 If the Products or services do not meet the agreed quality on transfer of risk, the Supplier guarantees to carry out a subsequent performance in such a way as to choose to either repair and replace the parts in question (repair) or replace the Products or services with defect-free Products or services (redelivery).
10.3 The Supplier can rework several times in response to a defect, and decide, at its discretion, to switch from repair to redelivery. It shall bear all costs of repair, in particular transport, travel, labour and material costs, provided that they do not arise because the Products were transported to a place other than the place of performance.
10.4 The Customer may grant the Supplier a reasonable period of at least four weeks to provide the repair, demand a reduction in the event of failure of the repair during the period after the deadline or, if the defect is not insignificant, withdraw from the Contract. Damages can only be claimed in accordance with Section 12.
10.5 Claims and rights due to defects shall expire one year after delivery. Claims for damages due to defects shall expire on the statutory deadline if they are derived from loss of life, bodily injury or damage to health or gross negligence of the Supplier.
10.6 The Supplier is not liable for ordinary wear and tear in material provided by the Customer, workmanship of the Products by the Customer, damage due to improper storage, improper installation or operation, lack of proper maintenance, or damage due to modification or repair not previously authorised in writing by the Supplier. The Supplier is also not liable for the use of non-authorised software or non-authorised spare or replacement parts. The costs incurred by the Supplier for the investigation and remedy of such defects shall be borne by the Customer on demand. The Customer is at all times exclusively responsible for the completeness and accuracy of all information provided by it.
10.7 For Products or services which the Supplier acquires from a third party (but not from affiliates of the Supplier), for the purpose of resale to the Customer, the Supplier shall assign all warranty rights against the third party to the Customer. The Supplier is still required to give the guarantee set out in the preceding clauses to the Customer, but on the basis that the Customer has previously tried in vain to enforce the warranty rights assigned to it against the third party.
11. LIABILITY FOR THIRD PARTY RIGHTS
11.1 The Supplier warrants that there are no patents or other proprietary rights of third parties at the time of transfer of risk that could be asserted with respect to the Products or services within the scope of the intended use. The above Sections 10.2 to 10.5 and 10.7 shall apply appropriately.
11.2 The Supplier’s liability is excluded if a patent or intellectual ownership right of a third party is infringed because the Supplier has complied with a design placed at its disposal by the Customer or an instruction issued by the Customer, or because the Products have been used in a manner, for a purpose, in a country or in combination with other Products or other software, if the Supplier has not been notified of this before the conclusion of the Contract.
11.3 The Customer is required to inform the Supplier, for the duration of this warranty, at the earliest opportunity in writing, if a third party, with regard to the Products or the service, asserts any patent or other proprietary right or claim in court or out of court. The Customer shall give the Supplier an opportunity to comment, prior to recognition of a claim made by a third party in court or out of court. The Supplier shall be given, on request, the authority to conduct the negotiations or legal proceedings with the third party for its own account and under its own responsibility. The Customer shall be liable to the Supplier for any loss or damage arising out of its culpable breach of the above obligations.
11.4 The Customer warrants that the use of a design made available by it or compliance with instructions given by shall not mean that the Supplier for its part infringes patents or other proprietary rights in the fulfilment of its contractual obligations. The Customer shall indemnify the Supplier against any reasonable costs and damages incurred by the Supplier based on the breach of this warranty by the Customer.
12.1 The Supplier is liable to the Customer for damages caused by gross negligence or by intent. However, in the event of breach of fundamental contractual obligations, the Supplier shall be liable for each fault of its personnel (legal representatives, managerial employees and other agents).
12.2 Except for intentional causation of damage by personnel of the Supplier or grossly negligent causation of damage by the legal representative or officer of the Supplier, there shall be no liability of the Supplier for indirect damages, especially not for the compensation of lost profits, unless such damages are covered by the scope of protection of a warranty explicitly assumed.
12.3 Except in the event of intentional causation of damage by personnel of the Supplier or grossly negligent causation of damage by legal representatives or senior employees of the Supplier, the Supplier’s liability shall in all cases be limited to the amount of the typically foreseeable damages at the time of the conclusion of the Contract.
12.4 Claims for damages for loss of life, bodily injury and damage to health, breach of a warranty given by the Supplier expressly and in writing as well as warranties under the Product Liability Act shall remain unaffected.
13. STATUTORY AND OTHER PROVISIONS
13.1 In the event of extension or restriction of the contractual obligations of the Supplier based on the adoption or amendment of a law or regulation, rule or statute with the force of law after the date of the Supplier’s offer, which affects the performance of the obligations of the Supplier under the Contract, the Contract Price and the delivery time shall be adjusted accordingly and/or performance of the Contract shall be suspended or terminated, as appropriate. A price adjustment shall not be made if the delivery can be performed within 4 months after the Contract.
13.2 Unless otherwise required by applicable law, the Supplier is not responsible for the collection, treatment, recovery or disposal of (i) the Products or any part of the Products, if they are deemed by law to be “waste” or (ii) any objects for which the Products or any part of them are replacements. If the Supplier is required under current law to dispose of the Products or any part of the Products as “waste”, the Customer shall, if it is not prohibited from doing so by applicable law, pay the Supplier in addition to the Contract Price either (i) the standard charge for the disposal of these Products or (ii) if it there is no such standard fee to the Supplier, the costs of the Supplier (including all handling, transportation and disposal costs and a reasonable overhead rate) for the disposal of these Products.
13.3 The Customer’s personnel, as long as they are located on the premises of the Supplier, must comply with the applicable operating rules of the Supplier and the reasonable instructions of the Supplier, in particular the rules and instructions regarding safety and electrostatic discharge.
14. COMPLIANCE WITH LAWS
The Customer confirms that the receipt and use of hardware, software, services and technology by it shall comply with all applicable laws, regulations, ordinances and regulations relating to import, export control and sanctions in their current versions, including, without limitation, such laws, regulations, ordinances and regulations in the European Union and in the jurisdictions in which the Supplier and the Customer are domiciled or from which, where relevant, deliveries are made and the conditions of all related permits, authorisations, general licences or licence exemptions. The Customer shall by no means use the hardware, software, or technology in infringement of applicable laws, regulations, orders or requirements, or the condition of any licences, permits or licence exemptions, transfer, release, export or re-export conditions. The Customer further undertakes not to engage in activities which expose the Supplier or any of its affiliated companies to the risk of penalties under laws or regulations of any relevant jurisdiction which prohibit improper payments, including, but not limited to, kickbacks to officials of any government, authority, institution or department, to political parties or officials of a political party or candidates for public office, or any employee of the Customer or the Supplier. The Customer agrees to comply with all applicable legal, ethical and other requirements.
15. LATENESS, INSOLVENCY AND TERMINATION
The Supplier shall, without prejudice to its other rights, be entitled to terminate the Contract in whole or in part, by notifying the Customer in writing, if the Customer is in default with the performance of its contractual obligations and does not, within thirty days after written notice of default by the Supplier, either remedy the problem, if such a remedy is possible within the period specified, in an appropriate manner or, if a remedy is not possible within the period, take action to remove the default.
16.1 A waiver by either party with respect to a breach or default or any right or remedy as well as a regular practice does not constitute a permanent waiver of any other breach or default or any other right or other remedy, unless such waiver is given in a written document signed by the party to be bound by it.
16.2 In the event of invalidity or unenforceability of any article, sub-article or other provision of the Contract, the validity of the remaining provisions shall not be affected. The Parties undertake, in the event of the invalidity or unenforceability of any provision, to replace it by a provision which comes closest to the economic purpose intended by the invalid or unenforceable provision.
16.3 The Customer may not assign its rights and obligations under this Agreement without the prior written consent of the Supplier. 16.4 The Supplier enters into the Contract as a primary project partner. The Customer agrees to maintain contact with regard to the proper fulfilment of the Contract only with the Supplier.
16.5 THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE NOT SOLD FOR USE IN ANY NUCLEAR OR RELATED FACILITIES AND ARE NOT INTENDED FOR SUCH USE. The Customer (i) accepts the Products and services with the above restrictions, (ii) agrees to notify any subsequent customer or user of this limitation in writing, and (iii) gives an undertaking to defend and indemnify the Supplier and the affiliates of the Supplier against all claims, losses, liabilities, processes, judgments and claims for damages including reimbursement of incidental damage and consequential damage resulting from the use of the Products or services in any nuclear or associated facilities, regardless of whether the particular claim is based on tort, Contract, or any other basis, including allegations that the Supplier’s liability is based on negligence or statutory liability.
16.6 The Contract is governed in all respects by the laws of the Federal Republic of Germany to the exclusion of the UN Vienna Sales Convention 1980. The exclusive legal venue for all disputes arising from the Contract is Berlin. However, the Supplier may also sue the Customer at the Customer’s domicile.
16.7 The headings to the Sections and paragraphs of the Contract are for guidance only and shall not affect the interpretation.
16.8 All notices and claims in connection with the Contract must be in writing.