Gen­er­al terms and con­di­tions of deliv­ery and sale of Qual­i­ty Automa­tion GmbH

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§ 1 Scope

Our terms and con­di­tions of deliv­ery and sale shall apply exclu­sive­ly; we do not recog­nise any terms and con­di­tions of the cus­tomer which con­tra­dict or devi­ate from our terms and con­di­tions of deliv­ery and sale unless we have express­ly agreed to their valid­i­ty in writ­ing. Our terms and con­di­tions of deliv­ery and sale shall also apply if we car­ry out the deliv­ery to the cus­tomer with­out reser­va­tion in the knowl­edge that the customer’s terms and con­di­tions con­tra­dict or devi­ate from our terms and con­di­tions of deliv­ery and sale. Our terms and con­di­tions of sale shall only apply to com­pa­nies with­in the mean­ing of Sec­tion 310 I Ger­man Civ­il Code (BGB).

§ 2 Object of the contract

Once the con­tract has been signed, changes to the ordered appliances/equipment shall only be bind­ing fol­low­ing a detailed writ­ten request from the cus­tomer and writ­ten con­fir­ma­tion by Qual­i­ty Automa­tion GmbH. The deliv­ered machin­ery and equip­ment com­ply in all respects with the EEC Machin­ery Direc­tive, Coun­cil Direc­tive of 14/06/1989 (Machin­ery Direc­tive) (89/392/EEC.91/386/EEC.93/44/EEC.93/68/EEC), as well as all cur­rent sup­ple­ments or nation­al laws in which the direc­tive was implemented.

§ 3 Price Adjustment

If there are more than four months between the plac­ing of the order and deliv­ery, Qual­i­ty Automa­tion GmbH is enti­tled to increase the quot­ed prices accord­ing­ly in case of a change in the prices of its sup­pli­ers and/or in case of cur­ren­cy fluc­tu­a­tions or in case of a change in cus­toms and import duties after the con­clu­sion of the con­tract. How­ev­er, this price increase may not exceed 15% of the orig­i­nal price. In the same way and to the same extent Qual­i­ty Automa­tion GmbH is oblig­ed to reduce the prices in case of cost reduc­tions. Cost increas­es and cost reduc­tions are bal­anced. Both cost reduc­tions and cost increas­es will be proven by Qual­i­ty Automa­tion GmbH to the cus­tomer upon request as soon as and as far as they have occurred.

§ 4 Default

If the client fails to make a pay­ment when it becomes due, they shall be in default with­out a reminder. In this case Qual­i­ty Automa­tion GmbH is enti­tled to charge the statu­to­ry default inter­est. This does not exclude the asser­tion of fur­ther dam­ages caused by default.

§ 5 Reten­tion of title

All deliv­ered appliances/equipment remain the prop­er­ty of Qual­i­ty Automa­tion GmbH until receipt of all pay­ments from the sup­ply con­tract. In the event of breach of con­tract by the cus­tomer, and espe­cial­ly in the event of default, Qual­i­ty Automa­tion GmbH is enti­tled to take back deliv­ered appliances/equipment. Tak­ing back the appliances/equipment con­sti­tutes a with­draw­al from the con­tract. After tak­ing back the appliances/equipment, Qual­i­ty Automa­tion GmbH is autho­rised to sell them, the pro­ceeds of sale are to be cred­it­ed against the customer’s lia­bil­i­ties — minus rea­son­able sales costs.

The cus­tomer is oblig­ed to treat the deliv­ered appliances/equipment with care; in par­tic­u­lar, they are oblig­ed to insure them suf­fi­cient­ly at their own expense against fire, water and theft dam­age at replace­ment val­ue. If main­te­nance and inspec­tion work is nec­es­sary, the cus­tomer must car­ry this out in good time at their own expense.

The pro­cess­ing or trans­for­ma­tion of the deliv­ered appliances/equipment by the cus­tomer is always car­ried out for Qual­i­ty Automa­tion GmbH. If the deliv­ered appliances/equipment are processed with oth­er objects that do not belong to Qual­i­ty Automa­tion GmbH, Qual­i­ty Automa­tion GmbH will acquire co-own­er­ship of the new object in the ratio of the val­ue of the deliv­ered appliances/equipment (final invoice amount, includ­ing VAT) to the oth­er processed objects at the time of pro­cess­ing. In all oth­er respects, the same shall apply to the object result­ing from pro­cess­ing as to the appliances/equipment deliv­ered under reten­tion of title.

The cus­tomer is enti­tled to resell the appliances/equipment owned by Qual­i­ty Automa­tion GmbH in the ordi­nary course of busi­ness. Pledg­ing or trans­fer by way of secu­ri­ty is not per­mit­ted. As a pre­cau­tion­ary mea­sure, the cus­tomer here­by assigns to Qual­i­ty Automa­tion GmbH all claims aris­ing from the resale or any oth­er legal rea­son with respect to these appliances/equipment in the amount of the final invoice amount (includ­ing VAT) of the claim of Qual­i­ty Automa­tion GmbH. Qual­i­ty Automa­tion GmbH revo­ca­bly autho­ris­es the cus­tomer to col­lect the claims assigned to it for its account in its own name. This col­lec­tion autho­ri­sa­tion can only be revoked if the cus­tomer does not prop­er­ly meet their pay­ment oblig­a­tions. If this is the case, Qual­i­ty Automa­tion GmbH may demand that the cus­tomer dis­clos­es the assigned claims and their debtors, pro­vides all infor­ma­tion nec­es­sary for col­lec­tion, hands over the rel­e­vant doc­u­ments and informs the debtors of the assignment.

Qual­i­ty Automa­tion GmbH is oblig­ed to release the secu­ri­ties to which it is enti­tled upon request of the cus­tomer to the extent that the real­is­able val­ue of the secu­ri­ties exceeds the claims to be secured by more than 10%; the selec­tion of the secu­ri­ties to be released is at the dis­cre­tion of Qual­i­ty Automa­tion GmbH.

§ 6 Deliv­ery period

Deliv­ery will be made at the time spec­i­fied in the con­tract. The begin­ning of the deliv­ery peri­od stat­ed by Qual­i­ty Automa­tion GmbH requires the clar­i­fi­ca­tion of all tech­ni­cal ques­tions. Com­pli­ance with the deliv­ery oblig­a­tion fur­ther requires the time­ly and prop­er ful­fil­ment of the oblig­a­tions of the cus­tomer. The objec­tion of non-per­for­mance of the con­tract remains reserved.

If the cus­tomer is in default of accep­tance or if they cul­pa­bly vio­late oth­er oblig­a­tions to coop­er­ate, Qual­i­ty Automa­tion GmbH is enti­tled to demand com­pen­sa­tion for the dam­ages incurred by Qual­i­ty Automa­tion GmbH in this respect, includ­ing any addi­tion­al expens­es. Fur­ther claims or rights are reserved.

Pro­vid­ed that the con­di­tions of the pre­vi­ous para­graph are met, the risk of acci­den­tal loss or acci­den­tal dete­ri­o­ra­tion of the deliv­ered appliances/equipment shall pass to the cus­tomer at the point in time at which the cus­tomer is in default of accep­tance or debtor’s default.

The deliv­ery dead­line shall be con­sid­ered met if the deliv­ery leaves the Qual­i­ty Automa­tion GmbH plant before the dead­line. Qual­i­ty Automa­tion GmbH is enti­tled to make par­tial deliv­er­ies at any time. In case of non-com­pli­ance with this deliv­ery dead­line, the cus­tomer is enti­tled to set Qual­i­ty Automa­tion GmbH a rea­son­able grace peri­od in writ­ing, of at least four weeks. In the event of cul­pa­ble non-com­pli­ance with this grace peri­od, the cus­tomer may with­draw from the con­tract. With regard to the asser­tion of claims for dam­ages, § 11 of these gen­er­al terms and con­di­tions of deliv­ery and sale shall apply accord­ing­ly. Cir­cum­stances or events that make it impos­si­ble or con­sid­er­ably more dif­fi­cult for Qual­i­ty Automa­tion GmbH or its sup­pli­ers to deliv­er (e.g. strike, lock­out, short­age of raw mate­ri­als or ener­gy, traf­fic and oper­a­tional dis­tur­bances, war or riots) inter­rupt the deliv­ery oblig­a­tion for the dura­tion of the hindrance.

§ 8 Draw­ings /Samples /Constructions

All draw­ings, sam­ples, mod­els and cal­cu­la­tions pre­pared for the exe­cu­tion of the con­tract remain the prop­er­ty of Qual­i­ty Automa­tion GmbH. They must be kept secret by the cus­tomer, may not be copied or used for oth­er pur­pos­es and must be hand­ed over to Qual­i­ty Automa­tion GmbH imme­di­ate­ly upon request. A right of reten­tion for these draw­ings, sam­ples, mod­els and cal­cu­la­tions is excluded.

§ 9 Acceptance

The pre­lim­i­nary accep­tance includes the fun­da­men­tal exam­i­na­tion of the tech­ni­cal func­tions required for the process in the Qual­i­ty Automa­tion GmbH plant. Qual­i­ty Automa­tion GmbH will inform the cus­tomer in writ­ing of the pos­si­ble date of the pre­lim­i­nary accep­tance at least one week in advance. A pre­lim­i­nary accep­tance will only take place if the cus­tomer con­firms this date with­in two days. If no con­fir­ma­tion is received by this dead­line, this shall be deemed to be a waiv­er of the pre­lim­i­nary accep­tance. The final accep­tance is car­ried out with­in 14 days of instal­la­tion and com­mis­sion­ing and includes a com­plete check of the tech­ni­cal func­tions required for the process. Defects which become appar­ent dur­ing pre­lim­i­nary accep­tance and accep­tance shall be doc­u­ment­ed in a list of defects which shall be signed by both par­ties to the contract.

§ 10 Claims and rights due to defects

The claims and rights due to (legal and mate­r­i­al) defects are lim­it­ed to those defects of the device which are not due to nat­ur­al wear and tear with­in the scope of the con­trac­tu­al use or to improp­er treatment/use. The peri­od of lim­i­ta­tion for claims and rights due to defects is one year for new­ly man­u­fac­tured goods or work per­for­mances and six months for used goods. §§ 438 para­graph 1, No.2, 634a para­graph 1 No. 2 BGB remain unaf­fect­ed. A short­en­ing of the lim­i­ta­tion peri­od shall not apply to lia­bil­i­ty for intent or fraud­u­lent intent. With regard to oth­er claims for dam­ages, § 11 of these terms of deliv­ery and sale shall apply.

If Qual­i­ty Automa­tion GmbH’s oper­at­ing or main­te­nance instruc­tions are not fol­lowed, if mod­i­fi­ca­tions are made to the deliv­ered appliances/equipment, if parts are exchanged or if con­sum­ables are used that do not com­ply with the orig­i­nal spec­i­fi­ca­tions, all claims for defects caused by these are void. The lim­i­ta­tion peri­od for the war­ran­ty rights begins with the date of accep­tance. Qual­i­ty Automa­tion GmbH must be noti­fied imme­di­ate­ly of any defects that become appar­ent with­in the lim­i­ta­tion peri­od for the war­ran­ty rights. Any claims for defects shall ini­tial­ly be based on sub­se­quent per­for­mance in the form of the repair or replace­ment of the appliance/equipment sub­ject to com­plaint. Qual­i­ty Automa­tion GmbH may at its own dis­cre­tion decide whether the defec­tive appliance/equipment is to be sent to Qual­i­ty Automa­tion GmbH at its own expense for repair and sub­se­quent return to the cus­tomer, or whether the cus­tomer is to keep the defec­tive appliance/equipment ready and a Qual­i­ty Automa­tion GmbH ser­vice tech­ni­cian is to be sent to the cus­tomer to car­ry out the repair. If such an attempt at sub­se­quent per­for­mance remains unsuc­cess­ful even after the cus­tomer has set a rea­son­able grace peri­od, the cus­tomer shall be enti­tled to demand rescis­sion or reduc­tion. Any claims and rights due to defects pre­sup­pose that the cus­tomer is not in default with his con­trac­tu­al pay­ment oblig­a­tions. This does not apply to statu­to­ry rights of reten­tion. In the event that the appliances/equipment to be man­u­fac­tured by Qual­i­ty Automa­tion GmbH are inte­grat­ed into a process sequence, such as a pro­duc­tion line, at the customer’s premis­es, the con­tract­ing par­ties agree that the claims and rights due to defects only apply to the parts man­u­fac­tured by Qual­i­ty Automa­tion GmbH. No war­ran­ty is giv­en for the func­tion­al­i­ty of oth­er parts of the process unit or the process unit as a whole. With regard to the func­tion­al effi­cien­cy of the inter­faces, a war­ran­ty is only giv­en inso­far as the cus­tomer has not devi­at­ed from the details they pro­vid­ed regard­ing these interfaces.

Only the direct cus­tomer is enti­tled to claims and rights due to defects and these are not transferable.

§ 11 Lim­i­ta­tion /exclusion of lia­bil­i­ty for damages

Qual­i­ty Automa­tion GmbH is liable accord­ing to the statu­to­ry pro­vi­sions if the cus­tomer asserts claims for dam­ages based on intent or gross neg­li­gence of the rep­re­sen­ta­tives or vic­ar­i­ous agents of Qual­i­ty Automa­tion GmbH. As far as Qual­i­ty Automa­tion GmbH is not accused of an inten­tion­al breach of con­tract, the lia­bil­i­ty for dam­ages is lim­it­ed to fore­see­able, typ­i­cal­ly occur­ring damage.

Qual­i­ty Automa­tion GmbH is also liable in accor­dance with the statu­to­ry pro­vi­sions if it cul­pa­bly vio­lates an essen­tial con­trac­tu­al oblig­a­tion; in this case, how­ev­er, the lia­bil­i­ty for dam­ages is also lim­it­ed to fore­see­able, typ­i­cal­ly occur­ring damage.

The lim­i­ta­tions of lia­bil­i­ty shall also apply if the cus­tomer demands com­pen­sa­tion for use­less expens­es instead of com­pen­sa­tion for the damage.

Lia­bil­i­ty for cul­pa­ble injury to life, limb or health remains unaf­fect­ed; this also applies to manda­to­ry lia­bil­i­ty under the Prod­uct Lia­bil­i­ty Act.

Unless oth­er­wise reg­u­lat­ed above, lia­bil­i­ty for dam­ages is excluded.

The lim­i­ta­tion or exclu­sion of lia­bil­i­ty for dam­ages also applies with regard to the per­son­al lia­bil­i­ty for dam­ages of the employ­ees, staff, rep­re­sen­ta­tives and vic­ar­i­ous agents of Qual­i­ty Automa­tion GmbH.

§ 12 Con­fi­den­tial­i­ty

In the absence of any sep­a­rate con­fi­den­tial­i­ty agree­ments, the con­tract­ing par­ties under­take to use the knowl­edge and expe­ri­ence acquired dur­ing the plan­ning and exe­cu­tion of the con­tract exclu­sive­ly for the exe­cu­tion of this con­tract. The con­tract­ing par­ties shall be oblig­ed to main­tain absolute secre­cy towards third par­ties with regard to all busi­ness mat­ters which become known to them through the exe­cu­tion of this con­tract and the results obtained in the broad­est sense, in par­tic­u­lar data, reg­u­la­tions, sam­ples, draw­ings and designs.

§ 13 Miscellaneous

All changes and amend­ments to the con­tract must be made in writ­ing to be effec­tive. A pos­si­ble inva­lid­i­ty of indi­vid­ual con­trac­tu­al pro­vi­sions shall not affect the remain­ing pro­vi­sions of the con­tract. Invalid con­trac­tu­al pro­vi­sions shall be replaced by such pro­vi­sions which come clos­est to the eco­nom­ic pur­pose of the invalid pro­vi­sion. The same applies to any con­trac­tu­al gaps. The place of juris­dic­tion for all dis­putes aris­ing from the con­trac­tu­al rela­tion­ship is Aachen for both par­ties. Unless oth­er­wise stat­ed in the order con­fir­ma­tion, Qual­i­ty Automa­tion GmbH’s place of busi­ness is the place of per­for­mance. The law of the Fed­er­al Repub­lic of Ger­many applies exclu­sive­ly. The pro­vi­sions of the Unit­ed Nations Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods (CISG) shall not apply.