1. Application, conclusion of contract
1.1 The following general terms and conditions of sales and services (ALLB) of Verkehrsautomatisierung Berlin GmbH (VAB) shall apply for all their sales and services, unless this is particularly explicitly precluded, or contrary arrangements have been made in writing. They also apply to all future deliveries, services or offers to the customer, even if these have not been separately agreed again. The customer’s general terms and conditions shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in every case, for example even if we unconditionally carry out the delivery / service to the customer with the knowledge of the customer‘s general terms and conditions.
1.2 Our offers are made without obligation. This also applies if we have provided the customer with technical documentation (e.g. drawings, plans, calculations, cost estimates), other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights. The order by the customer is then considered a binding contractual offer. We are then entitled to accept this contractual offer. Acceptance can either be declared in writing, e.g. by order confirmation, or by delivery of the goods or performance of the service to the customer.
1.3 The following general terms and conditions of sales and services (ALLB) of Verkehrsautomatisierung Berlin GmbH (VAB) shall apply exclusively for all their sales and services. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) have priority over these terms and conditions. A written contract or our written confirmation is authoritative for the content of such agreements, subject to proof to the contrary. Contracts with the customers as well as collateral agreements, supplements and amendments to the respective contractual relationships must be in writing. The written form for the purposes of these terms and conditions is also complied with by fax and e-mail (text form). The parties to the contract shall confirm oral arrangements in writing.
2. Remuneration and terms of payment
2.1 Remuneration is calculated according to the contractually agreed prices.
2.2 All agreed prices are net prices ex works excluding packaging and freight costs.
2.3 Cash discounts, other discounts or other concessions must be agreed separately in writing. The value added tax applicable on the day of invoicing will be indicated separately in the invoice.
2.4 Packaging and freight costs are invoiced at cost price.
2.5 In the case of reasonable partial deliveries, VAB shall be entitled to invoice these partial deliveries separately. This applies in particular for orders that are made in partial deliveries on account of the scope of delivery or at the customer‘s request or for which the customer specifies the time of receipt of the deliveries ready for dispatch by VAB.
2.6 VAB reserves the right to adjust its prices at its reasonable discretion to the development of the costs which are relevant for the price calculation, i.e. if cost reductions or cost increases have occurred following the conclusion of the contract. A price increase may be considered and a price reduction made if, for example, due to collective wage agreements, cost increases or reductions for the procurement of energy, raw materials or other costs arise. In the event of cost increases and/or cost reductions, VAB will check to what extent the cost increases or cost reductions will not be fully or partially offset by increases or reductions in other areas. In exercising our reasonable discretion, we will choose the respective dates of the price change in such a way that cost reductions are not taken into account according to more unfavourable standards for the customer than cost increases. We will provide the customer with evidence of the corresponding cost increases/cost reductions upon request.
2.7 All payments shall be made against invoice. They are due for settlement within 14 days of the invoice date without deduction. The Customer shall only be entitled to a right of retention of the remuneration if this is explicitly provided for in the delivery and service contract or if the Customer‘s claim is legally established or undisputed. If the Customer is in default of payment, VAB shall be entitled to demand default interest calculated on the basis of the base interest rate prevailing at the time in accordance with the statutory provisions.
2.8 If an acceptance date for the delivery has been agreed with the customer and this is not adhered to by the customer for reasons for which we are not responsible, we shall be entitled to invoice the customer for the goods before delivery. This invoice is then due for settlement within 14 days after the date of the invoice.
3. Deliveries, services, delivery time
3.1 Deliveries and services are performed in accordance with recognized scientific and technical standards. Their scope is determined by the specifications which are the subject of the respective supply and service contracts.
3.2 Deliveries and services are rendered on the agreed dates according to the order confirmation or contract. In the event of delays in delivery, VAB shall only be liable to the extent that it is responsible for the causes.
3.3 As soon as the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the delivery passes to the customer. VAB is, however, obliged to store the delivery properly at the customer‘s expense.
3.4 In the case of deliveries of user software, its usability is only guaranteed if it is properly installed on the EDP systems provided for this purpose and if the installation instructions are observed and if it is operated by trained personnel. In these cases, the customer is responsible for the installation, implementation and parameterization of the software. If VAB is to assume these tasks, the parties will agree this separately.
3.5 Recording and storing customer-specific data is only included in the scope of delivery of VAB if this is agreed upon or the object of the service to be provided.
3.6 Dates and deadlines must be in writing. VABs compliance with binding deadlines and dates presupposes the timely and proper fulfilment of the customer‘s obligations. If the customer does not fulfil his obligations to cooperate and VAB cannot thereby complete the project or parts thereof within the agreed time, the period specified in the schedule shall be extended accordingly. §§ 642 and 643 German Civil Code shall apply.
3.7 To the extent that VAB produces or substantially changes movable objects and/or software, the parties will carry out an acceptance. In this case and insofar as acceptance is provided for certain services by law, the following shall apply:
3.7.1 As soon as VAB is ready for performance, it will inform the customer in writing of its readiness for acceptance.
3.7.2 The customer will then check the services for contractual condition. The testing period begins upon receipt of notification of readiness for acceptance by the customer and lasts for two weeks. The customer shall carry out the inspection in such a way that even those performance components which are used only irregularly or at fixed intervals, for example annually, are comprehensively tested and tested. The customer must document the inspection. If the customer fails to check and notify within the above-mentioned period, warranty for these defects shall be excluded. The same applies if
such a defect becomes apparent at a later date. Section 377 HGB applies.
3.7.3 The customer shall not interrupt the inspection if insignificant defects occur and only limit it to the extent that the defects make it necessary.
3.8 With the successful end of the testing period, the service shall be deemed to have been accepted without the need for a declaration by the customer. VAB shall inform the customer of this circumstance by notifying him that the goods are ready for acceptance. The customer can only prevent automatic acceptance by written declaration that there is an obstacle to acceptance. The customer shall confirm acceptance in writing at the request of VAB.
4. User’s obligation to cooperate
4.1 Immediately after conclusion of the contract, the customer shall appoint suitable employees who shall provide VAB with all information and documents necessary or useful for the performance of the contractually agreed services. An employee is to be named as the responsible contact person whose information on organizational and content-related questions is binding.
4.2 If work has to be repeated due to incorrect or incomplete information provided by the customer, the customer shall bear the costs for such additional work.
4.3 The customer shall ensure that competent personnel qualified to operate the equipment and programs are available during the period in which the services are handed over.
4.4 The customer shall assist VAB in fulfilling the order to the required extent at no cost. He is obliged, for example, to provide his employees with his computer/IT systems, necessary premises, as well as data and other facilities. Upon request, he shall grant VAB direct access to his systems, in particular to the software and the respective computer programs and systems.
5.1 The work of VAB shall generally be carried out in VAB offices during normal business hours. However, work at the customer‘s premises is permissible. This requires a corresponding agreement. No fee shall be paid for the use of the customer‘s rooms and facilities.
5.2 VAB is entitled to use subcontractors within the scope of the performance of the contract. It will notify the customer of this.
6. Rights of use
6.1 Upon complete payment of the remuneration owed according to the respective contract, the customer shall receive an irrevocable, non-exclusive, perpetual and non-transferable right to use the software created or delivered by VAB. The number of workstations on which this software is used can be limited when the license is issued. The software may only be used by a maximum number of natural persons at the same time corresponding to the licenses purchased by the customer. The additional use includes the installation of the software, loading into the working memory and the intended use
by the customer.
6.2 Copyright, also copyright to modified or reproduced programs, remain with VAB.
6.3 The user is not permitted to reproduce supplied software for the purpose of transfer or sale. This also applies for deployment at subsidiary companies or similar associated companies. Software for the user’s own usage may only be deployed and copied within the framework agreed upon. The customer is entitled to make a back-up copy if this is necessary to secure future use. The customer shall visibly affix the note „Back-up copy“ and a copyright notice of VAB to the back-up copy. Furthermore, the customer is only entitled to decompile and duplicate the software to the extent provided for by law. However, this only applies subject to the condition that VAB has not made the necessary information available to the customer on request within a reasonable period of time.
6.4 The granting of rights to software source codes, including those in the form of copying, editing, etc., is not included in the granting of rights and must be agreed separately in writing.
6.5 If the customer uses the software to an extent that exceeds the acquired rights of use qualitatively, i.e. with regard to the type of permitted use, or quantitatively, e.g. with regard to the number of licenses acquired, he shall immediately purchase the rights of use necessary for the permitted use. If he fails to do so, VAB will assert his rights. VAB is also entitled, however, at its discretion, to demand that the customer refrain from exceeding the rights of use.
7. Warranty and liability
7.1 The warranty period is generally 24 months. Individual agreements on the warranty period may deviate from the regular period and shall have priority. The period begins on the delivery date, but no later than the start of operational use. Operational use is available at the latest 90 days after delivery. The earlier date for the beginning of the warranty period shall apply in every case.
7.2 Any defects reported within this period shall be remedied free of charge. If the notified defect cannot be determined during an inspection, the Customer shall bear the costs of the inspection, in particular if the complaints are based on incorrect use or on the presence of other faults for which VAB is not responsible.
7.2 If the delivery and service are based on software, VAB is prepared to carry out maintenance, servicing and further development for an unlimited period of time from the time of acceptance. The customer can make use of this service within the framework of a maintenance contract to be concluded separately.
7.3 The warranty obligation and the right to program maintenance expire for programs that are changed without authorization. With regard to warranty claims, it remains the customer‘s right to prove that the defects are not attributable to unauthorized changes to the software. The burden of proof lies with the customer.
7.4 VAB can also fulfil its obligation to rectify defects by providing the customer with a new program version. VAB shall be entitled, at its own discretion, to remedy the defect or make a replacement delivery. VAB shall be entitled to render warranty on the Customer‘s premises. VAB shall also fulfil its obligation to rectify the defects by providing updates with an automatic installation routine on its homepage or via a download link and by offering the Customer telephone support to solve any installation problems that may arise.
7.5 VAB is liable in respect of damages attributable to it for intent and gross negligence in accordance with the statutory provisions.
7.6 VAB shall only be liable for minor negligence in the event of breach of essential contractual obligations. Essential contractual obligations are those whose fulfilment characterizes the contract and on which the customer may rely. In this case, the liability is limited to the amount of damages foreseeable and typical for the contract. Liability for any further consequential damages, lack of economic success, indirect damages and claims of third parties is excluded.
7.7 The limitations of liability shall not apply to claims based on intent and gross negligence, injury to life, body or health, fraudulent intent, insofar as the Product Liability Act is applied or in the case of warranty pledges.
7.8 The customer is obliged to inform VAB before conclusion of the contract in writing about special risks, atypical possibilities of damage and unusual amounts of damage.
8. Retention of proprietary rights
VAB reserves the right to reclaim the deliveries and services as well as documentation provided to the customer if the agreed payments are not made in full.
9. Non-disclosure, data protection
9.1 All documents marked as confidential, which employees of VAB receive from the customer for the performance of their activities, regardless of their origin, as well as all other business and trade secrets, business methods and figures, drawings and sketches, pictures and other documents that come to their knowledge in connection with the performance of the activity shall be kept secret with due diligence.
9.2 The non-disclosure obligation shall also apply after termination of the contract.
9.3 All documents or data carriers containing the above information that may be in the possession of VAB shall be handed over to the customer upon termination of the contract.
9.4 VAB can add the customer‘s name to a reference list for marketing purposes and disclose that a business relationship exists to him and that this contract was concluded with the customer; all other advertising references require the prior consent of the customer. The customer’s data is stored in a database. VAB processes customer data in compliance with applicable data protection standards, such as the Federal Data Protection Act and the EU General Data Protection Regulation. The customer has a right to object to the use of his data at any time. More details on data protection and the rights of people concerned are regulated in our data protection declaration.This can be found on our homepage at https://www.vaberlin.com/footer/info/informationen/datenschutz.
9.5 Section 9.1 applies analogously to documents provided by VAB customers. The customer must treat the documents and information confidentially and is not entitled to make such documents and information accessible to third parties. If he receives such information and documents in connection with the preparation of the contract, he is obliged to return them to us at no cost if the contract is not concluded.
10. Choice of law and place of jurisdiction
10.1 German law shall apply exclusively with exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 The place of jurisdiction for all disputes arising from the contractual relationship is Berlin if the customer is a merchant, a legal entity under public law or a special fund under public law. However, we are free to appeal to the court responsible for the customer‘s place of business.
Should individual clauses of these terms and conditions be wholly or partially void or ineffective, this shall not affect the effectiveness of the remaining clauses. Instead, the statutory regulations shall apply.
General Terms and Conditions of Verkehrsautomatisierung Berlin GmbH for the Purchase of Supplies, Works and other Services
I. General provisions
1. Basic terms
1. For any and all contractual relations by and between, on the one hand, the Verkehrsautomatisierung Berlin GmbH (hereinafter referred to as „Buyer“) and, on the other hand, the supplier and contractual partner who provide for the Buyer supplies, works and other services (each of these suppliers and contractual partner hereinafter individually referred to as „Contractor“) solely these General Terms and Conditions for the Purchase of Supplies, Works and other Services (hereinafter referred to as „General Conditions“) and, if any, specifically concluded contractual agreements shall apply. Unless otherwise explicitly agreed upon in writing, any and all general terms and conditions of the Contractor deviating from the General Conditions shall not be applicable. The General Conditions shall also apply solely where the Buyer despite its knowledge of any deviating general terms and conditions of the Contractor accepts any supplies, works or other services by the Contractor without reservation. The General Conditions, however, shall not apply if and insofar as mandatory law provides deviating provisions.
1.2 These General Conditions shall also govern likewise all future contractual relations between the Buyer and the Contractor which applies even in case that the application of the General Conditions is not specifically agreed upon thereto.
1.3 The scope of performance shall be exclusively defined by the contract concluded upon and subject to a prior order by the Buyer. Any and all provisions which the parties have agreed upon for the purpose of the execution of the contract shall be made by written agreement which applies also to all supplements and later modifications.
1.4 The Contractor shall refer in every correspondence with the Buyer including but not limited to any acceptance of orders, invoices and shipping documents, to the order number determined by the Buyer.
1.5 The term „Services“ used in these General Conditions shall mean and comprise the total of any and all supplies, works and other services unless specific reference is made to supplies, works or other services as such.
1.6 The Buyer reserves any and all property rights to all of his depictions, plans, drawings, sketches, calculations and other technical documentations (such technical documentation by the Buyer hereinafter jointly referred to as „Buyer’s Documentation“) as well as all intellectual property rights embodied in this Buyer’s Documentation. Upon execution of the Services the Contractor shall return such Buyer’s Documentation promptly and without prior request to the Buyer. The same shall apply to any and all depictions, plans, drawings, sketches, calculations and other technical documentations which are produced by the Contractor for the purpose of the execution of the Services (such technical documentation hereinafter jointly referred to as “Service Documentation”). As to the property rights with respect to the Service Documentation, the parties hereby agree that the Buyer shall become the sole owner of them and that the Contractor shall hold them in safe custody for the Buyer; with respect to any intellectual property rights in relation to the Service documentation and whether these exist or are embodied therein, the Buyer shall, unless he anyway owns or holds such intellectual property rights, be granted the right to use and exploit such intellectual property rights without limitations and in perpetuity throughout the world. Unless otherwise agreed upon, the provisions as per Sec. V.5.1 shall apply correspondingly with respect to the Buyer’s Documentation and Service Documentation; thus, in particular, the Contractor shall be obliged to keep the Buyer’s Documentation and Service Documentation confidential towards third parties and solely to make use of them for the execution of the contract concluded with the Buyer.
1.7 With regard to any software being part of the Services the Buyer shall be entitled to make use of this software including the documentation within the scope of the contractual use of the Services, unless further rights are granted. Furthermore, the Contractor shall ensure that this software shall be properly protected by, in particular, but not limited to virus protection programs being the state of the art and directed against viruses, Trojans and other malware.
1.8 In case that the Buyer provides, or the Contractor makes or otherwise procures at the expenses of the Buyer, gadgets, tools, models, devices, products or other means of production (all such means of production hereinafter referred to as “Production Items”) , the following shall apply.
1.8.1 The Buyer shall become the owner of any and all Production Items having been procured by the Contractor at the expenses of the Buyer upon the settlement of these expenses by the Buyer (all such Production Items having been procured by the Contractor at the expenses of the Buyer whereby the expenses have been settled by the Buyer, hereinafter referred to as “Settled Production Items”).
1.8.2 The Contractor shall handle the Production Items provided by the Buyer and the Settled Production Items (these Production Items and the Settled Production Item hereinafter jointly referred to as „Provided Means“) with due care and mark these Provided Means as property of the Buyer and, as far as possible, store them separated from the other items of the Contractor.
1.8.3 The Contractor shall use the Provided Means solely fort the execution of Services for the Buyer. Furthermore, the Contractor shall provide at his costs for insurance coverage against damages by fire, water and theft at replacement value for each Provided Means at a value exceeding 100.00 € net (excluding VAT). The Contractor hereby also assigns, and the Buyer hereby accepts such assignment, any and all insurance claims for indemnification in order to be sure. Unless otherwise agreed upon, the Contractor shall properly and timely and at his expenses perform the necessary measures for inspection and maintenance and servicing and repair as well as their safe and protected storage. The Contractor shall announce any incidents or any threads thereto to the Buyer forthwith in writing. The Contractor shall liable to the Buyer for any and all damages caused by an at least negligent default of the Contractor thereto; any further claims by the Buyer shall remain unaffected by this provision.
1.8.4 The Contractor shall be obliged to hand over forthwith the Provided Means to the Buyer upon his request. Any right of retention in respect of the Provided Means by the Contractor shall be excluded.
1.9 For all contracts for supplies, the provisions as per Sec. II and V, in addition to this Sec. I,. shall apply. For all contracts for works, the provisions as per Sec. III and V, in addition to this Sec. I. shall be applicable. For all contracts for other services, the Sec. IV and V, in addition to this Sec. I, shall apply.
2. Conclusion of contract / order by Buyer
2.1 The conclusion of a contract is subject to a prior order by the Buyer. Orders by the Buyer shall be only valid if they are made or confirmed by at least electronical means (´”Textform” as per Sec. 126 b German Civil Code (“Bürgerliches Gesetzbuch”)).
2.2 A contract may be concluded subject to and in accordance with the provisions as follows.
2.2.1 In case that the Contractor has submitted a prior offer, a contract shall be concluded by the placement of an order thereto by the Buyer.
The Contractor shall be obliged to submit prior offers to the Buyer upon his request which applies in particular but not limited to works and other services.
2.2.2 In case that there is no offer by the Contractor, a contract shall be concluded as follows.
- The Buyer may place an order. Unless agreed otherwise, the Contractor thereupon shall be obliged to accept the order immediately, by the latest, however, within a period of 3 working days.
- If and insofar the Contractor does not accept the order within the aforementioned period or if his acceptance deviates from the terms and conditions of the order, a contract shall be solely deemed concluded if the Buyer has not opposed to the acceptance of the Contractor within a period of 5 working days upon receipt of the acceptance.
3. Prices / payment terms / rendering of payment
3.1 Any and all prices agreed upon in the contracts (including all standard respective unit as well as lump sum prices) shall be binding fixed prices.
3.2 The Contractor may submit his invoices to the Buyer upon execution of the Services in writing; invoices via online may be only made subject to prior consent of the Buyer. Each such invoice shall be only deemed submitted properly if and insofar they in accordance with the contractual stipulations state in addition to the order number the date of the Buyer’s order and comply with the requirements of the German Turnover Tax regulations (“Umsatzsteuerrecht”). Notwithstanding any further requirements, any payment claim by the Contractor against the Buyer shall at least only become due and payable subject to the fulfillment of the aforesaid requirements.
The Contractor shall be solely responsible for all consequences due to his non-compliance with these provisions. Moreover, the Buyer shall be entitled to return any such invoice not fully compliable with the aforementioned provisions to the Contractor and the Contractor shall be obliged to properly complete or amend such non-compliant invoices. Any further rights by the Buyer shall remain unaffected by this.
3.3 Unless otherwise agreed upon, all payments shall be in € (EUR).
3.4 Unless otherwise agreed upon, the Buyer shall render the payment on any due payment claims by the Contractor within a period of 14 days including a 3 % cash discount or a period of 30 days net, such period starting with the receipt of a proper invoice as per Sect. I.3.2 first para, at the earliest, however, upon the proper delivery or after proper performance of the works or services and, if applicable, the acceptance thereof.
The Buyer may exercise his right for a cash discount also if he offsets or withholds payments for justified reason.
3.5 Any payments by the Buyer is made under the reservation to amend or to have returned such payments in case that upon rendering of the payment an invoice turns out to be incorrect or any reasons to object the payment should arise.
3.6 Payments by the Buyer shall not be deemed as acceptance of Services to be executed in accordance with the contract.
4. Performance of Services
4.1 The contractually agreed Services may only be deviated from or be modified subject to the prior written approval by the Buyer. This applies in particular but not limited to modifications regarding supplies and works to the materials used thereto and regarding Services in general to the constructive design or process.
4.2 The Contractor shall engage for the execution of the Services, in particular but not limited to works and other services, sufficiently qualified staff and shall prove this upon request by the Buyer by supporting evidence.
4.3 When rendering the Services, in particular but not limited to the execution of works and other services, the Contractor shall use its best effort to cooperate with any third party engaged by the Buyer. In case of any problems as to such cooperation, the Contractor shall advise the Buyer thereof immediately and in writing.
4.4 The Contractor shall not be entitled to perform the Services in single portions or steps or before the contractual time of execution unless agreed upon beforehand in writing. In the case of supplies and works the Contractor shall also specify the remaining portions of such services in the shipping documents. Unless otherwise agreed upon, the payment terms shall remain unaffected by such partial or advanced rendered Services.
4.5 The Contractor shall perform the Services exclusively by himself. Any engagement of third parties is subject the prior written consent by the Buyer.
4.6 The Contractor shall advise the Buyer on any concerns as to the execution of the Services determined by the Buyer forthwith, by the latest, however, before the beginning of their execution.
4.7 Unless otherwise determined by the Buyer, the Contractor shall mark the Services as having been provided by him.
5. Periods and set terms for the performance of Services
5.1 The periods and set terms shall have binding effect and shall be strictly observed by the Contractor.
5.2 The Contractor shall inform the Buyer immediately and in writing in case that any circumstances occur or become aware to the Contractor that the stipulated periods and set terms for the Services cannot be complied with; furthermore, the Contractor shall advise the Buyer on the reasons as well as the probable duration of the delay. Any further rights by the Buyer shall remain unaffected by this. Furthermore, any and all rights shall remain unaffected even in case that the Buyer accepts a delayed performance of the Services.
6. Intellectual property rights
With respect to any and all intellectual property rights (including protectable inventions, designs and copyrights) gained either according to the aim strived for, or within the process of execution of the contract, in particular but not limited to contracts on works and other services, the Buyer shall, unless he anyway owns or holds such intellectual property rights or unless otherwise agreed upon, be granted the right to use and exploit such intellectual property rights without limitations and in perpetuity throughout the world such right to use and exploit deemed fully remunerated by the consideration rendered according to the respective contract.
7. Quality standards / quality assurance
7.1 Any and all Services performed by the Contractor shall fully comply with the contractual specification including in particular, as far as available and applicable, the plans and other information, as well as, in the following range and order and in accordance to the state of the art at the time of rendering the Services, the technological state of the art, the relevant ISO- and CE- and DIN-standards, regulations on safety, marking and admission, the regulations for the prevention of accidents, the regulations and directives by employers’ liability insurance association and the competent supervisory public authorities and the German Technical Control Association (“TÜV”), the latest directives of the German Association of Engineers (“VDI”) and the legal provisions.
7.2 In case that the execution of contract is based on or related to a tested sample or process, and notwithstanding the obligation to comply with the aforementioned rules and in particular the contractual provisions, the technical standard and the quality of the sample and the process shall be deemed agreed as minimum standard.
7.3 Furthermore, the Contractor shall carry out by himself a quality assurance on these Services including appropriate testing and measuring and other control procedures which shall be suitable in type and scope and correspond to the technological state of the art and which shall be proven by the Contractor towards the Buyer upon request by the latter. The Contractor shall keep records of the quality assurance including the tests carried out and archive them for a period of 10 years. The Buyer shall be entitled at any time to inspect the documents and to make copies.
7.4 Moreover, upon request by the Buyer the Contractor shall conclude a corresponding agreement on quality assurance with the Buyer.
8. Foreign trade legislation
8.1 The Contractor shall be obliged to render his Services including in particular but not limited to supplies and works in full compliance with the national and international customs and foreign trade legislation (hereinafter jointly referred to as “Foreign Trade Legislation”). The Contractor shall provide to the Buyer in writing at the latest within 2 weeks upon conclusion of the contract all information and documents and other papers which the Buyer requires to comply with the Foreign Trade Legislation and thereby in particular for the export, import and re-export. This comprises in particular but is not limited to
- all applicable export list numbers including the export control classification numbers pursuant to the US Commerce Control List („ECCN“);
- the statistical goods numbers pursuant to the current goods allocation of the foreign trade statistics and the „HS („Harmonized system“) code“; and
- the determinability of the country of origin (non-preferential origin) and, if requested by Buyer, a supplier declaration on the preferential origin (in case of a supplier from the EU respective EEA) or certificates of preference (in the case of suppliers from outside of the EEA).
8.2 The duties of the Contractor pursuant to Sec. I.8.1 shall be an essential contractual obligation.
II. Specific provisions on supplies
1. Scope of delivery / Environmental aspects / long term procurement
1.1 The Contractor shall deliver as part of the supplies also any and all necessary protective equipment and certificates of origin, and storage, assembly and operating instructions as well as security data sheets all issued in the official EU-languages, and any and all information required for the maintenance and repair of the supplies as such.
1.2 The Contractor shall use environmentally friendly products and processes for the procurement, production and transport of the goods to be delivered within economic and technical feasibility and shall upon request by Buyer prove this by corresponding certificates.
1.3 The Contractor hereby represents and warrants that he shall have both the delivered goods as well as spare parts thereto available for supply to the Buyer for a period of 3 years after their delivery on reasonable terms. If the Contractor intends to cease the procurement or the production of this product or spare parts after expiry of such fixed period he shall be obliged to inform the Buyer immediately in writing and grant to the Buyer the opportunity to place a final order thereto.
In addition to the provisions as per Sec. I.3 the following shall apply.
2.1 Unless otherwise agreed upon in writing, all prices shall comprise the delivery „DDP (Incoterms 2010)“ at the place of business of the Buyer or another place of delivery in Germany determined by the Buyer including the costs for marking, packing, transport and insurance.
2.2 The Contractor shall be responsible for the take-back and disposal of any packaging (including the transport material) at his costs unless the Buyer decides to keep it.
3. Delivery / transfer of risk / shipment / delivery time / refusal of supplies in case of force majeure
3.1 Unless otherwise in writing agreed, deliveries shall be made „DDP (Incoterms 2010)“ at the place of business of the Buyer or another place of delivery in Germany determined by him.
3.2 The goods shall be marked, packed, transported and insured properly (including but not limited to the observation of the regulations on the shipment of hazardous goods) and, if any, in accordance with the instructions of the Buyer.
3.3 The dispatch of the goods shall be notified to the Buyer upon the start of the shipment by a dispatch note. Any delivery shall enclose a bill of delivery. The dispatch notes, bills of delivery and consignment notes shall indicate in addition to the order number also the shipping address and the date of the order of the Buyer. In case of non-compliance of the Contractor with these obligations the Buyer may not be held liable for any delayed processing of the delivery.
3.4 Unless otherwise agreed upon in writing, the delivery times fixed in the contract shall be set with binding effect. The day of arrival of the goods at the place of business of the Buyer or another place of delivery in Germany determined by him shall be the decisive date for a delivery in time always subject in addition also to the Contractor’s full compliance with the provisions as per Secs. II.3.2 and II.3.3. Deliveries shall be made at the usual business hours.
3.5 In cases of Force Majeure including in particular natural disasters, war or other violent conflicts, riots, operational disruptions not being caused by Buyer due to at least negligence, strikes or sovereign acts, the Buyer shall be entitled to refuse the acceptance of supplies for the duration of the Force Majeure, this all without prejudice to further rights.
4. Warranty / limitation by expiry / examination on defects
4.1 Unless otherwise agreed upon in writing, the Buyer shall be entitled to warranty claims at the minimum pursuant to the legal statutes. Any and all further contractual or other claims by law shall remain unaffected by this.
4.2 Notwithstanding any other claims, the Buyer shall be entitled to remedy any warranty defect by himself at the expenses of the Contractor in case of imminent danger or specific urgency.
4.3 The limitation period shall be 3 years, such period starting with the transfer of risk unless otherwise determined pursuant the compulsory provision as per Sec. 445 b German civil law code („Bürgerliches Gesetzbuch“).
4.4 The Buyer shall be obliged to examine the delivered goods within an appropriate period of time. Any notification of defects shall be deemed to be in time if made within a period of 7 working days upon the proper delivery of the goods or, in case of hidden defects, upon their disclosure.
4.5 In case that in the course of the examination by the Buyer it is disclosed that the scope of defects, including but not limited to quality defects, as usual in the commercial practice is exceeded, the Buyer shall be entitled to deny further examinations and return all these supplies whereby such return shall not constitute a declaration of rescission unless otherwise determined. The Contractor shall assume all costs accrued by any further examination due to the excess of the aforesaid scope by his default.
4.6 The Contractor shall be obliged to examine the goods before their dispatch whether or not they comply with the specification pursuant to the contract and are free of any defects. The Contractor shall not be entitled to any right pursuant to Sec. 377 German Commercial Code (“Handelsgesetzbuch”) in case of a delivery infringing this obligation to control the goods before dispatch.
5. Erection and assembly
In case that the Contractor shall deliver in addition to the supplies also erection and assembly services he shall be obliged to inform himself prior to the start of such services about any work rules applicable with the Buyer and, when performing these services, to comply with these rules; the same shall apply with respect to any such services rendered to customers of the Contractor. Notwithstanding any further provisions on limitation and exclusion of liability of the Buyer, any and all claims due to accidents, or due to losses or damages or destruction of Contractor’s gadgets, tools, devices, materials or other items by the Contractor against the Buyer shall be excluded in case that the Contractor has not obeyed to this provision unless such accidents or damages are caused by the Buyer due to at least gross negligence.
III. Specific provisions on works
1. Offer / conclusion of contracts
In addition to the provisions as per Sec. I.2 the following shall apply.
The Contractor shall examine prior to offering all, if any, specifications including the Buyer’s specification and all other documents provided in connection with these works (all such specifications and the Buyer’s specification and other documents hereinafter referred to as “Specification”) as to faults, ambiguities or gaps. The Contractor shall then in its subsequent offer determine such faults, ambiguities or gaps which may affect the price. In case of lack of such determination in his offer the Contractor shall be deemed to have confirmed to the Buyer that the Specification is free of defects and proper and complete and that any and all claims on an additional remuneration thereto, if any, shall be excluded. Furthermore, the Contractor may not claim afterwards that the Specification was faulty or ambiguous or incomplete or that he undertook the examination on the basis of an error or not properly.
2. Scope of works / obligations of the Contractor
2.1 Unless otherwise agreed upon, the Contractor shall be obliged to execute the works in an extensive and comprehensive manner. Although there may be a detailed Specification, the Contractor in case of any uncertainty as to the scope of work shall be obliged to render all works in addition to the Specification which are necessary to achieve the aim of the contract to provide the contractually owed and proper and functional works.
2.2 Unless otherwise determined in the contract in writing, the Contractor shall arrange at his expenses for all official permits and other approvals required for the works to be performed.
2.3 As far as the Contractor is obliged to provide pursuant to the contract or customary standards documents to the Buyer, the Contractor shall submit them in duplicate and at least 5 working days prior to any examination and, if any, approval to be effected by the Buyer.
Notwithstanding such approval of documents, if any, by the Buyer, the Contractor shall remain solely responsible for the accurateness and, furthermore, the compliance with all legal and other provisions; such responsibility of the Contractor shall comprise also the liability for all consequences due to incorrect or incomplete documents.
2.4 The Contractor shall document the fulfilment of his contractual duties by proper and verifiable regular, at least monthly, established records and submit these records in writing by the 5th working day of the succeeding month to the Buyer.
3. Prices / terms of payment
In addition to the provisions as per Sec. I.3 the following shall apply.
3.1 The prices agreed upon shall include and cover any and all costs and expenses including but not limited to the costs for supplies, services, official permits and other approvals, and all other expenditures required for the proper execution of the works.
The Contractor shall not be entitled to an additional remuneration including but not limited to additional costs due to any changes to salaries or wages or material prices after conclusion of the contract. As to any costs due to overtime and night work and weekend and public holiday working, any remuneration thereto is subject to a prior order by the Buyer and an agreement on the prices thereto in writing.
3.2 Any final invoice shall be and become due only subject to the prior acceptance and the handover of all, if any, documents provided by the Buyer and any other relevant documents with respect to the execution of the works comprising in particular but not limited, if any, to the documentation to be rendered by the Contractor.
3.3 Unless otherwise agreed upon in writing, the Buyer shall be entitled to withhold a portion 5 % of the total final gross invoiced price (total remuneration without deductions as to any interim or down payments plus VAT) as security for the warranty period.
3.4 The Buyer has to effect payments pursuant to or out of an agreed payment schedule, if any, only subject to the prior fulfilment of the work steps set thereto in the payment schedule.
4.1 The Contractor shall arrange and provide at his expenses with respect to an acceptance by the Buyer any and all official and other acceptance confirmations and corresponding permits issued by the public and other authorities in charge including any preparatory measures comprising inter alia the providing and collecting of any and all test certificates, confirmations and other relevant documents required for the preparatory steps.
Any acceptance by the Buyer is subject to the prior and complete provision of, if any, all official and other acceptance confirmations and corresponding permits issued by the authorities in charge.
4.2 Unless otherwise agreed upon, the works upon their full and complete execution and upon accomplishment of the provisions pursuant to Sec. III.4.1 by the Contractor shall be then subject to a formal acceptance procedure. Unless otherwise agreed upon in writing, such formal acceptance procedure shall not be replaceable by an announcement of completion or start of the use of works by the Buyer or issuance of a final invoice.
The Contractor shall notify the completion of the works and, if any, the accomplishment of the provisions pursuant to Sec. III.4.1 in order to initiate the acceptance procedure whereby the Buyer shall be granted a reasonable period of time (at least 7 working days) upon such notification.
5.1 Unless otherwise agreed upon in writing, the Buyer shall be entitled to warranty claims at the minimum pursuant to the legal statutes. Any and all further contractual or other claims by law shall remain unaffected by this.
5.2 Notwithstanding any other claims, the Buyer shall be entitled to remedy any warranty defect by himself at the expenses of the Contractor in case of imminent danger or specific urgency.
5.3 Unless otherwise agreed in writing, each of the limitation periods as per Sec. 634a German Civil Code (“Bürgerliches Gesetzbuch”) shall be deemed to be extended by one year.
IV. Specific provisions on all other services (services other than supplies and works)
1. Time of performance / prices / services / proper and complete performance
1.1 Unless otherwise determined in writing, the performance times fixed in the contract shall be set with binding effect. The decisive date for the execution of the services in time shall be the date on which the services have been executed completely and free of any defects and where Sec. IV.1.4 is applicable, the services have been accepted pursuant thereto.
1.2 Unless otherwise agreed upon in writing, all prices shall comprise the execution of the other services free of charge at the place of business of the Buyer or another place of performance in Germany determined by the Buyer including, if any, the costs for marking, packing, transport and insurance.
1.3 Unless otherwise determined in the contract in writing, the Contractor shall arrange and provide at his expenses any and all, if any, required official permits and acceptance confirmations by the public and other authorities in charge including any preparatory measures comprising inter alia the providing and collecting of any and all test certificates, confirmations and other relevant documents required for the preparatory steps.
1.4 In case that the services due to their type are subject to an acceptance, the services shall be deemed accomplished with the day of acceptance. Such acceptance of the services of the Contractor shall be subject to a formal acceptance procedure whereby the Contractor shall notify the completion of the services and the Buyer then shall be granted a reasonable period of time (at least 7 working days) upon such notification.
Any acceptance by the Buyer is subject to the prior and complete provision of the official and other permits and acceptance confirmations pursuant to Sec. IV.1.3.
2. Warranties / claims due to breach of contract
2.1 Unless otherwise agreed upon in writing, the Buyer shall be entitled to warranty claims and claims due to breach of contract at the minimum pursuant to the legal statutes. Any and all further contractual or other claims by law shall remain unaffected by this.
2.2 Notwithstanding any other claims, the Buyer shall be entitled to remedy any warranty defect by himself at the expenses of the Contractor in case of imminent danger or specific urgency.
2.3 Unless otherwise agreed in writing, the limitation periods as per the legal statues shall be deemed to be extended by one year.
V. Final provisions
1. Manufacturer’s liability insurance coverage
Upon request by the Buyer the Contractor shall be obliged to conclude and maintain a manufacturer’s liability insurance and upon demand also prove it. Unless otherwise agreed upon in writing, such insurance shall cover an insured sum of 5 Mio. € for each bodily injury and of 5 Mio. € for each property damage.
2. Default of Services / liquidated damages / statutory legal claims / substitute performance
2.1 The Buyer shall be entitled to liquidated damages of 0.1 % per each delayed working day of the gross remuneration (including, if any, VAT) to be paid pursuant to the respective contract in case of a default of Services due to at least negligence by the Contractor (such default due to at least negligence hereinafter referred to as “Default”), limited altogether, however, to a total of 5 % of the gross remuneration with regard to the respective contract.
The Contractor shall be entitled to make a claim on such liquidated damages in deviation of the provision pursuant to Sec. 341 para 3 German Civil Code (“Bürgerliches Gesetzbuch”) also by the time of effecting the last payment pursuant to the respective contract (and in case of works by the time of the final payment).
2.2 Furthermore, the Buyer shall be entitled to claims pursuant to the legal statutes.
2.3 In case that the Buyer upon Default by the Contractor has carried out Services at the expenses of the latter by way of substitute performance by a third party, the Contractor shall be obliged to hand over to the Buyer all required documents and information and to arrange towards the third party the right to use any required intellectual property rights whereby the provision as per Sec. I.1.6 shall remain unaffected by this.
3. Safety / Product liability / indemnity against liability / product liability insurance
3.1 If the Buyer informs the Contractor that the Services are destined for specific countries named by the Buyer (such countries hereinafter referred to as “Destined Place”), the Contractor shall undertake to perform the Services also under observation of the safety regulations including but not limited to accident prevention and environmental protection and industrial and machine safety, applicable at the Destined Place.
3.2 If claims are asserted against the Buyer by a third party due to product liabilities of the Contractor, the Contractor shall be obliged to indemnify the Buyer from any and all claims upon first demand by the Buyer. Such obligation of the Contractor to indemnify the Buyer shall comprise any and all reasonable expenses arising out or related to the claims directed against the Buyer by the third party including but not limited to the expenses incurred to the Buyer due to his legal defence, if any.
3.3 Furthermore, the Contractor shall be obliged within his liability for claims and damages according to Sec. V.3.2 to reimburse to the Buyer any expenditures pursuant to Secs. 683, 670 German Civil Code (“Bürgerliches Gesetzbuch”) or pursuant to Secs. 830,840 and 426 German Civil Code (“Bürgerliches Gesetzbuch”) due to any recall effected by the Buyer. As far as possible and reasonable, the Buyer will inform the Contractor in advance on content and scope of any recall measure and provide to him the opportunity to comment thereon.
Any further rights of the Buyer shall remain unaffected.
3.4 The Contractor shall provide an adequate insurance coverage against all risks out or in relation to his product liability as per Secs. V.3.2 and V.3.3 including the recall risk, at the minimum, however, an insurance covering an insured sum of 3 Mio. € for bodily injury and of 3 Mio. € for property damages.
4. Intellectual property rights
4.1 The Contractor shall be liable that no third-party rights are infringed by and in relation to the Services provided by the Contractor.
4.2 If claims are asserted against the Buyer by a third party due to such infringement as per Sec. V.4.1the Contractor shall be obliged to indemnify the Buyer from any and all claims upon first demand by the Buyer. Such obligation of the Contractor to indemnify the Buyer shall comprise any and all reasonable expenses arising out or related to the claims directed against the Buyer by the third party including but not limited to the expenses incurred to the Buyer due to his legal defence, if any.
4.3 The limitation period for such claims shall be 5 years such period starting with the transfer of risk or, with respect to other services not foreseeing an acceptance or the accomplishment, with the completion of these other services.
5. Secrecy / limited use
5.1 The Contractor shall be obliged to keep all depictions, plans, drawings, sketches, calculations and other technical documentations as well as know-how and other technical information of the Buyer strictly confidential and in particular not to disclose or otherwise make available to any third party, and only to make use of it within and for the duration of the respective contract. The obligation to secrecy and limited respective after termination or ceasing of the contract interdicted use shall continue to last and shall only cease if and insofar the technical knowledge embodied in these depictions, plans, drawings, sketches, calculations and other technical documentations as well as know-how has become generally known.
5.2 The existence of the business relation and any orders by and contractual relations with the Buyer as well as all contractual terms and conditions as well as all related commercial and technical details and also all provided Services and their details shall be deemed business secrets of the Buyer. The Contractor shall not be entitled to disclose them or make them otherwise available to third parties without prior written approval by the Buyer.
6. Compliance with the provisions of the Minimum Wage Law
6.1 The Contractor hereby states and confirms that he fully complies with the provisions of the Minimum Wage Law with respect to the staff in particular employed for, if any, the performance of the works as per Sec. III and other services as per Sec. IV and that he shall prove this upon request by the Buyer. The Buyer shall be furthermore entitled to control this Contractor’s compliance with this obligation whereby the Buyer shall be allowed to examine the records and documentation of the Contractor by a chartered accountant or another professional required by law to observe secrecy.
6.2 In case that the Contractor has engaged third parties for the performance of in particular the works as per Sec. III and the other services as per Sec. IV, he shall be obliged to ensure by corresponding contractual agreements that the third party as well as any further parties and any subcontractors thereto being engaged by the third party comply with the obligations of the Minimum Wage Law in favour of the Buyer. Such contractual agreement concluded between the Contractor and the third party and again between the third party and all further parties and any subcontractors thereto shall comprise in particular also the right of the Buyer to ask for evidence and to undertake controls towards the third party and the further parties and any subcontractors thereto.
7. Place of jurisdiction / place of performance / governing law
7.1 Place of jurisdiction shall be Berlin-Charlottenburg (Germany). However, the Buyer at his option shall also be entitled to institute legal proceedings to any other competent court.
7.2 Place of performance shall be the place of business of the Buyer.
7.3 The law of Germany shall apply.
8.1 The Contractor shall be entitled to assign any and all claim or other right against the Buyer only subject to the prior written approval of the Buyer whereby the provision pursuant to Sec. 354 German Commercial Code (“Handelsgesetzbuch”) shall remain unaffected.
8.2 Unless explicitly confirmed in writing by the Buyer, any retention of title including the simple retention of title shall be excluded.