Unless agreed otherwise in writing, the following conditions shall apply to the contractual relationship. Any deviating conditions of the customer shall not apply unless we have expressly agreed to them being valid. The following conditions shall also apply if the supplier delivers to the customer without reservation upon knowledge of conditions of the customer that deviate from the supplier’s conditions.
I. VALIDITY OF THE VDMA CONDITIONS
In principle, the General Terms and Conditions recommended by the VDMA (Verband deutscher Maschinen- und Anlagenbau e. V.) as referred to below shall apply:
1. For the delivery of machines, machine elements, machine accessories or other items, the “General Terms and Conditions for the Delivery of Machines for Domestic Business”, valid as of 2019 (“VDMA Terms and Conditions of Delivery”; we will be pleased to send you a text version of the “VDMA Terms and Conditions of Delivery” free of charge upon request);
2. For assembly work, the “General Terms and Conditions of Mechanical Engineering for Domestic Assembly Work”, valid as of 2019 (“VDMA Terms and Conditions of Assembly”; we will be pleased to send you a text version of the “VDMA Terms and Conditions of Delivery” free of charge on request);
3. For repairs to machines and plants, the “VDMA Terms and Conditions of Mechanical Engineering for Repairs to Machines and Plants for Domestic Business”, valid as of 2019 (“VDMA Terms and Conditions of Repair”; we will be pleased to send you a text version of the “VDMA Terms and Conditions of Delivery” free of charge on request);
4. If the contractual relationship covers not only deliveries but also assembly work, the “VDMA Terms and Conditions of Delivery (Clause 1)” shall apply to the deliveries and the “VDMA Terms and Conditions of Assembly (Clause 2)” shall apply to the assembly work, unless otherwise agreed.
II. ADDITIONAL CONTRACTUAL CONDITIONS FOR ALL SERVICES
For all contractual relationships, irrespective of which of the types of services mentioned in I. are involved, the following additional contractual conditions shall apply in addition to the relevant VDMA conditions and in case of doubt they shall take priority:
1. Foreign transactions, applicable law, contract language
a) Our General Terms and Conditions including the VDMA conditions referred to shall also apply to foreign business transactions.
b) German law shall apply exclusively to all contractual relationships, including future services, with the exception of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).
c) The contract language is German. If the contract or parts of the contract are also written in a language other than German, the German version shall be binding in the event of contradictions. Translations serve merely to facilitate understanding.
2. Additional liability limits
a) Compensation for delay can only be demanded if the customer has, in writing, granted us a reasonable grace period of at least six working days after the occurrence of the delay and the delay still continues after the expiry of the grace period.
b) Irrespective of all other liability limits, our liability – regardless of the legal basis, i.e. also for liability for defects – shall in any case be limited to the foreseeable damage, except in the case of intent or liability based on the Product Liability Act (ProdHaftG).
3. Deterioration of the customer’s assets
a) If we become aware of circumstances which result in a substantial deterioration or a considerable endangerment of the customer's assets and which give rise to justified doubts regarding the fulfilment of the customer’s contractual obligations, we shall be entitled to refuse to perform the service incumbent upon us until the customer provides consideration or furnishes security for it.
b) If the customer does not provide consideration or furnish security within a reasonable period of time, we may withdraw from the contract or terminate it. This shall also apply if our service has been rendered in whole or in part.
4. Defect report
At our express request, a report of defects shall be drawn up upon acceptance of our services, which shall include in particular all defects which the customer reserves the right to assert. The defect report shall be signed by representatives of both contracting parties.
5. No power of representation for our technicians
Our technicians are not entitled to make legally binding declarations. Our customer service department is exclusively responsible for contract processing.
6. No liability for faulty materials provided
In the event that damage occurs as a result of faulty materials provided by the customer or that the work as a whole is subject to defects for these reasons, the customer shall indemnify the supplier against any claims.
III. ADDITIONAL CONTRACTUAL CONDITIONS FOR THE DELIVERY OF MACHINES AND OTHER ITEMS
In addition to the VDMA Terms and Conditions of Delivery (I.1) and the additional contractual conditions for all services (II.), the following special contractual conditions shall apply – in case of doubt with priority – to the delivery of machines, machine elements, machine accessories and other items:
1. Responsibility of the customer for documents to be provided
a) The customer assumes sole responsibility for plans, documents, drawings, samples and the like, insofar as they are to be provided by the customer. In particular, the customer shall be responsible for ensuring that the documents submitted or their implementation do not infringe the industrial property rights of third parties.
b) In particular, the supplier shall not be obliged vis-à-vis the customer to check whether any third-party industrial property rights are infringed by the submission of offers on the basis of execution drawings submitted by the customer in the event of execution.
c) If the supplier nevertheless becomes liable, the customer shall indemnify the supplier in the event of claims for compensation.
2. Additional costs for repair work abroad
If repairs are to be carried out on delivery items which the customer has already dispatched to a foreign client, the customer shall bear the additional costs arising from the repair work abroad, in particular the additional costs for the provision of the supplier’s technicians and auxiliary staff.
3. Warranty limitation for production according to drawing
In the case of production according to the customer’s drawing, the supplier is only liable – irrespective of other warranty and liability limitations – for the execution according to the drawing.
4. Withdrawal and reduction of the delivery price
If the supplier is in default with the repair or replacement or if it is unsuccessful for other reasons, the customer may withdraw from the contract or demand a reduction in the delivery price.
5. Retention of title
We deliver exclusively under a comprehensive extended and prolonged retention of title. In this regard, the special contractual conditions regarding retention of title at FIBRO (Rotary Tables), valid as of June 1992, shall apply. We will be happy to send you a free text version upon request.
IV. ADDITIONAL CONTRACTUAL CONDITIONS FOR ASSEMBLY
In addition to the VDMA Terms and Conditions of Assembly (I.2) and the additional contractual conditions for all services (II.), the following special contractual conditions shall apply – in case of doubt with priority – to assembly work, even where such work is performed together with deliveries (cf. 1.4)
1. Assembly price
a) The assembly work shall as a rule be invoiced on the basis of time and other expenditure at the rates applicable at the time the order is placed for assembly services, which will be sent to you free of charge upon written request if these are not enclosed.
b) The materials required for assembly shall be invoiced in accordance with the quantity actually required at the prices valid at the time the assembly work is carried out.
2. Invoicing and payment
a) Invoicing for assembly work completed shall as a rule be carried out following acceptance. However, we reserve the right to demand appropriate weekly or monthly payment instalments in accordance with the progress of assembly. If assembly is interrupted at the request of the customer for a significant period of time, we may invoice the assembly services performed up to that point.
b) The invoices are due for payment immediately after receipt without any deduction.
c) The withholding of payments or set-offs due to any counterclaims of the customer disputed by us are not admissible.
3. Proof of performance
a) At the request of our technical staff, the customer shall acknowledge the services rendered on the work reports at least once a week, but at the latest after completion of the assembly work.
b) The proofs of performance signed by the customer are as a rule an incontestable basis for invoicing.