General Conditions of Purchase – CI Composite Impulse GmbH & Co
Issue: December 2019
Applicable in business transactions with companies, legal entities under public law and special funds under public law.
1. General provisions
1.1 Our Conditions of Purchase apply exclusively; we will only recognize General Terms and Conditions of the Supplier which conflict with, or deviate from, our Conditions of Purchase to the extent that we have provided our express consent thereto in textual form. The acceptance of goods or deliveries from the Supplier (hereinafter referred to as the contractual object) or payment for these does not signify consent.
2. Conclusion of the contract and contractual amendments
2.1 Orders, framework agreements, acceptances, call-off contracts, supply contracts and other legal transactions to be concluded between ourselves and the Supplier as well as all amendments and supplements require the text form.
2.2 Our enquiries of the Supplier are only invitations to the Supplier to issue an offer.
2.3 Quotations are binding and are provided free of charge, unless expressly agreed otherwise.
2.4 The Supplier must confirm our order promptly and in textual form within 5 working days of receipt, at the latest, or we will be entitled to cancel our order.
2.5 Within the scope of what is reasonable for the Supplier, we may request amendments to the contractual object in construction and design. Any effects of such amendments, in particular, in respect of increased or reduced costs and changes to delivery deadlines, are to be regulated appropriately and by mutual agreement. Amendments by the Supplier require prior consent by us in textual form in order to be effective.
2.6 The Supplier undertakes to personally review drawings, calculations, specifications and other instructions from us, within the scope of its general and particular specialist knowledge for errors and inconsistencies and, where appropriate, to notify us without delay and in textual form of any concerns so that these can be clarified.
2.7 The Supplier bears the procurement risk for the goods.
3. Delivery deadlines, transfer of risk and shipping
3.1 Delivery deadlines and periods specified in the order or call-off are binding.
3.2 The delivery must, unless otherwise agreed, be made to us or to a place of delivery specified by us DDP in accordance with Incoterms 2010.
3.3 For compliance with the delivery deadline or delivery period, receipt of the contractual object and the shipping documents by ourselves or by the receiving point is determinative.
3.4 Where agreed deadlines are not upheld, statutory provisions will apply. Insofar as the Supplier experiences difficulties with respect to manufacturing, obtaining the primary materials, compliance with delivery deadlines or there are similar circumstances, which prevent the Supplier from delivering on time or with the level of quality agreed, the Supplier must inform us immediately.
3.5 Unconditional acceptance of a delayed delivery or service does not represent a waiver by us of any entitlement to compensation as a result of the delayed delivery or services, this will apply until complete payment owed by us for the relevant delivery or services.
3.6 Partial deliveries are strictly prohibited, unless we have expressly consented to these or these are reasonable for us.
3.7 Where the Supplier has agreed to carry out installation or assembly and unless otherwise agreed, subject to deviating provisions, the Supplier will bear all necessary ancillary expenses such as, for example, travel expenses or provision of tools.
3.8 In the case of deliveries deviating from the ordered quantities and for deliveries ahead of schedule, we reserve the right to refuse acceptance of the delivery at the expense of the Supplier or to adjust the value of the invoice accordingly.
3.9 The Supplier, unless otherwise agreed, provides standard, appropriate, clean packaging at its own expense and guarantees that the goods are protected from typical transport damages, corrosion, penetration of impurities or moisture by the packaging. The Supplier will be liable for all damages arising from non-compliance with this provision. Packaging is included in the price. If, exceptionally, other arrangements have been made, the packaging shall be calculated at cost price. If requested by us, the supplier shall select the packaging specified by us and ensure that the packaging protects the goods from damage.
3.10 The Supplier warrants that the goods do not contain any materials, which fall within the scope of the prohibition on hazardous substances in EC Directive 2011765/EU (RoHS). The Supplier further warrants that materials incorporated in the goods and their use(s) are either already registered or exempt from the registration duty according to (EC) Regulation No. 1907/2006 (REACH Regulation) and that, if required, the certification issued under the REACH regulation is available. The Supplier will also, if necessary, compile the Safety Data Sheet in accordance with Annex II of the REACH Regulation and provide this to us. Where the goods delivered are classified as dangerous goods under international regulations, the Supplier will inform us of this, at the latest upon confirmation of the order.
3.11 The Supplier must provide us with appropriate assistance in obtaining customs and other public benefits and will provide evidence and documentation that we request in this regard, in particular, certificates of origin.
3.12 Hazardous goods according to GGVF and GGVE (ADR, RID) are generally to be cleared through customs freely.
3.13 Export Controls and Customs
3.14 The Supplier is obliged to inform us, as early as possible before the delivery date and in writing, of any licensing requirements for its goods according to currently applicable German, European (EU) and US-American export, customs and foreign trade law, as well as according to export, customs and foreign trade law of the country of origin of the goods.
3.15 If the Supplier violates its obligations as per Par. 1, it shall bear all expenses and damages, as well as any other disadvantages (e.g. additional charges of foreign import duties, fines) that should arise to us from the violation. This shall not apply if the Supplier is not responsible for the breach of obligations.
4. Force majeure
4.1 Force majeure, riots, official interventions or other unavoidable events release us and the Supplier, for the duration of the disruption and in the scope of its effects, from our performance obligations.
5. Pricing and payment terms
5.1 Prices are fixed prices. All additional delivery costs (customs duties, packaging, transportation, insurance) must be indicated separately by the Supplier in its offer and, with the exception of statutory VAT and in the absence of contrary, written agreement, must be borne by the Supplier. Increases in the price of the contractual object, including increased additional delivery costs, require our prior, written consent in order to be effective.
5.2 Insofar as no other agreement has been reached, invoices must be settled either within 14 days less 2% cash discount or within 30 days without a discount as of the payment due date and receipt of the invoice and goods or provision of the services. Payment is made subject to invoice verification.
5.3 We are entitled to the right of set-off, the right of retention and the right to plead non-performance of the agreement within the limits of statutory regulations. We are, in particular, entitled to retain payments due, so long as we are entitled to make claims against the Supplier arising from incomplete or defective services.
6.1 The Supplier guarantees, that its goods and services possess the characteristics, qualities and features specified in the order and correspond to the specifications, drawings, samples and other descriptions provided by us.
6.2 The Supplier is obliged to carry out quality assurance of a suitable nature and scope, corresponding to the current state of the art.
6.3 The Supplier must adhere to all the agreed technical characteristics and also establish and certify a quality management system which is in line with the recognised rules according to DIN EN ISO 9001.
6.4 If initial or selection samples are required, the Supplier may not proceed to series production until our written approval has been provided.
6.5 We expect the Supplier to consistently bring the quality of the products supplied to us in line with the most recent state of the art and to alert us of potential improvements and technical changes. Changes in the contractual object delivered by the Supplier, however, always require our prior written consent.
6.6 The Supplier warrants and guarantees that all legal and environmental requirements of the Federal Republic of Germany are met.
7. Notification of defects
7.1 We must notify the Supplier of defects in the contractual object as soon as these are identified in the normal course of business, within 10 working days. In this respect, the Supplier shall waive any plea for late notification of defects. Our obligation to examine for defects and to notify defects is limited to examination of quantitative details on the relevant delivery note and to visually discernible shipping damage upon delivery (visual defects). Any further obligation to examine for defects and to notify defects does not form part of these Conditions and the Supplier expressly waives its right to object to notification of defects carried out improperly according to § 377 German Commercial Code.
7.2 Our payment does not represent recognition that the delivery is free from defects.
8.1 The Supplier is responsible for the defect-free condition of the contractual objects. In particular, it warrants that the contractual objects use the latest technological advances, comply with generally-recognized technical safety regulations issued by competent authorities and professional associations and are in accordance with relevant legislation.
8.2 Statutory provisions in relation to material defects and defects in title will apply, unless otherwise agreed hereinafter.
8.3 As a matter of principle, we have the right to choose the kind of subsequent performance. The Supplier can reject the kind of subsequent performance that we choose if this is only possible at unreasonable costs for the Supplier.
8.4 In the event that the Supplier fails to begin to rectify defects promptly following our request for rectification, we are entitled, in urgent cases, in particular to avert danger or major damage, to carry out rectification work ourselves or to contract third parties to do so.
8.5 In the event of defects in title, the Supplier will indemnify us against any third party claims, unless it is not responsible for the defects in title.
8.6 Claims for defects become statute-barred – except in cases of fraudulent intent – in 3 years, unless the item has been used for a building structure according to its usual purpose and has caused defects in that structure. The limitation period commences upon delivery of the contractual object (transfer of risk).
8.7 For contractual objects, which cannot continue in operation during examination for defects and/or removal of defects, the warranty period already commenced will extend by the period of operational interruption.
8.8 In the event of exchange, or in cases where the rectified contractual object displays the same defect or where a defect occurs as a consequence of rectification, the limitation period will begin to run again.
8.9 Where we incur costs as a result of the defective delivery of the contractual object, in particular, shipping, travel, labour, installation, dismantling or materials costs or where the costs of an incoming goods inspection exceed the customary costs, the Supplier must bear these costs.
8.10 Other claims by us as a result of breach of contract or violation of other obligations remain unaffected.
9. Product liability
9.1. In the event that a claim is made against us on the basis of product liability, the Supplier undertakes to indemnify us against such claims by third parties, if and to the extent that a fault is caused by the contractual object delivered by the Supplier. This will only apply in cases of fault-based liability where the Supplier is at fault.
9.2. In the instances at Article 9.1, the Supplier will cover all costs and expenses, including any costs of taking legal action.
9.3. In all other respects, statutory provisions shall apply.
9.4. Prior to a recall campaign, which results, in whole or in part, from a defect in the contractual object delivered by the Supplier, we will inform the Supplier, providing it with the opportunity to collaborate and discuss with us how to implement the campaign effectively, unless notification of, or collaboration by, the Supplier is impossible on account of particular urgency. Insofar as a recall campaign results from a defect of the contractual object delivered by the Supplier, the Supplier will bear the costs of the recall campaign.
9.5. The Supplier undertakes to take out business and product liability insurance to cover all risks arising in connection with the supply of the contractual objects, which also includes recall measures with global coverage and a coverage amount of at least 5,000,000.00 euros per event of damage and shall maintain this insurance cover for the duration of the supply relationship and for five years following its expiry. Upon request, the Supplier will issue a corresponding certificate of insurance to us.
10. Execution of works
10.1 The Supplier’s personnel, who execute works in fulfilment of the contract on works premises belonging to us or to third parties specified by us, must observe the provisions of the work regulations set down by us or by the third parties specified by us. Liability for accidents suffered by such personnel on these premises is excluded, insofar as such accidents are not caused by wilful or grossly negligent breach of obligations by our legal representatives or vicarious agents.
11. Provision/retention of title
11.1 Materials, parts, containers and specialist packaging provided by us remain our property. These must only be used in accordance with their intended purpose. Processing of materials and assembly of parts is effected on our behalf. It is agreed that we will have co-ownership of the object produced at the ratio of the value of the goods provided to the value of the object manufactured using materials and parts provided by us, which, to this extent, will be kept in safe custody for us by the Supplier.
12. Non-disclosure and Advertising
12.1 The Contracting Parties undertake to treat as trade secrets all business and technical details not in the public domain, which they become aware of in the course of their commercial relationship.
12.2 Drawings, models, templates, samples and other objects must not be provided nor otherwise made accessible to unauthorized third parties and must only be used for the purposes of the respective contract between the Supplier and ourselves and not for any other purpose of the Supplier. Reproduction of such items is only permissible within the scope of operational requirements and copyright provisions.
12.3 Subcontractors must be bound by the same obligations.
12.4 The Contracting Partners may only advertise their business ties with prior, written permission.
13.1 The Supplier undertakes to comply with statutory regulations covering employment rights, environmental protection and health and safety and to strive to reduce the adverse effects of its activities on people and the environment. In this respect, the Supplier shall make every feasible effort to establish and develop a management system in accordance with ISO 9001 and a management system in accordance with ISO 14001. Further, the Supplier shall observe the basic principles of the UN Global Compact Initiative. These relate primarily to the protection of international human rights, collective bargaining rights, the elimination of forced labour and child labour, the elimination of discrimination in employment and occupation, responsibility for the environment and anti-corruption.
The Supplier undertakes to continue to supply us only with original parts from leading manufacturers.
13.2 If the Supplier acts unlawfully on repeated occasions and/or in spite of a corresponding warning, and fails to provide evidence that the infringement of the law was remedied insofar as possible and that appropriate measures were taken to avoid future infringements of the law, we reserve the right to withdraw from existing contracts or to terminate them without notice.
14. Transfer and use of performance resources
14.1 We will obtain title to appliances, models, tools, samples, drawings and other documentation prepared by the Supplier based on our instructions, against payment. From this point, such items will be on loan to the Supplier from us. Operating materials may only be used in the course of performance of the offer or to execute the contractual object or services ordered. Absent prior, written permission from us, these may not be made accessible to third parties nor used for deliveries to third parties. They must be kept in safe custody by the Supplier, for no charge and at its own risk, and returned to us upon our request at any time, without the Supplier being able to rely on a right of retention, unless the Supplier has a contractual right of ownership to the same.
15. Protected rights
15.1 The Supplier warrants that no third-party rights are infringed within the Federal Republic of Germany and the EU in connection to its deliveries.
15.2 The Supplier’s indemnity obligation pertains to all expenses inevitably incurred through or in connection with the claims asserted by a third party.
15.3 The Supplier’s aforementioned obligation to meet claims does not apply if the Supplier has produced the delivered contractual object based on drawings, models, or other equivalent descriptions or indications provided by us and does not know or is not required to know, in relation to the goods developed by the Supplier itself, that property rights are being thereby violated.
15.4 The limitation for these indemnity claims is 3 years from the time at which we become aware of the claim asserted by a third party.
16. Other provisions
16.1 The place of performance for payments is our business headquarters as recorded in the Commercial Register.
16.2 The laws of the Federal Republic of Germany shall apply, excluding conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.3 Insofar as the Supplier is a merchant, a legal entity under public law or special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship shall be our business headquarters. We are also entitled to initiate claims at the Supplier’s registered office.
16.4 If an individual provision of these Conditions or of the additional concluded agreements is or becomes ineffective, the validity of the remaining Conditions shall be unaffected thereby. The contractual partners undertake to replace the ineffective provision with a provision that comes as close as possible to the economic purpose of the original provision. The same applies in the event of any omissions.
Sales Conditions – CI Composite Impulse GmbH & Co
Issue: December 2019
1.1 These Sales Conditions apply to all entrepreneurs, legal entities under public law and special funds under public law.
1.2 Our deliveries and services are provided solely on the basis of the conditions hereinafter.
1.3 The Purchaser’s terms and conditions which are not expressly accepted by us are not valid.
2. Offers and Conclusion of the Contract
2.1 Our offers are subject to change and non-binding, unless we have expressly designated them as binding in textual form. Declarations of acceptance by the Purchaser shall, insofar as they constitute offers pursuant to Section 145 of the German Civil Code, become binding only through written confirmation on our part. We shall endeavour to accept orders by the Purchaser within 5 days of receiving the order.
2.2 We reserve unrestricted rights of ownership and copyright to cost estimates, drawings, files and other documents; they may not be made accessible to third parties. Drawings, files and other documents that are part of offers shall be returned immediately upon request if the order is not placed with us.
2.3 The information and illustrations contained in brochures, catalogues, technical data sheets constitute approximate values, as customary in the industry, unless we have expressly designated them as binding.
3. Long-term and call-off contracts / Price adjustment
3.1 Contracts of indefinite duration may be terminated with 3 months’ notice.
3.2 For long-term contracts (contracts with a term of more than 12 months and contracts of indefinite duration), where there is a significant change to wage, materials or energy costs, each Contractual Partner is entitled to require appropriate price adjustment taking account of these factors.
3.3 For call-off contracts, unless otherwise agreed, binding quantities must be notified to us by request at least 3 months prior to the delivery date.
Additional costs, which result from a late request or subsequent changes to the order with respect to timing or quantity made by our partner, will be borne by the latter, and our calculations will be determinative in this context.
4.1 Where the other Contractual Partner identifies documentation and knowledge as confidential or has an obvious interest in maintaining their secrecy, each Contractual Partner will use all such documentation (including designs, models and data) and knowledge, which it obtains under this business relationship, only for the agreed joint purposes and will keep such documentation and knowledge secret, applying the same care as it does for its own analogous documentation and knowledge.
4.2 This obligation comes into effect from the point in time at which the documentation or knowledge was first acquired and expires 36 months after termination of the business relationship.
4.3 The obligation does not apply to documents and knowledge which are generally known or which were already known to the Contractual Partner on receipt without being obliged to maintain secrecy, or which are subsequently transmitted by a third party entitled to pass them on or which are developed by the receiving Contractual Partner without using confidential documents or knowledge of the other Contractual Partner.
5. Samples and production equipment
5.1. Unless otherwise agreed, the production costs for samples and production equipment (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies for means of production which have to be replaced as a result of wear and tear.
5.2. The costs for maintenance and proper storage, as well as the risk of damage or destruction of the production equipment, are borne by us for the period of the calculated service life. The costs for requested tool changes and replacement shall be borne by the Purchaser.
5.3. If the Purchaser should suspend or terminate the collaboration during production of the samples or production equipment, all production costs incurred up to that point shall be charged to the Purchaser.
5.4. The production equipment remains in our possession, even if it has been paid for by the Purchaser, at least until the completion of the delivery contract. The Purchaser is subsequently entitled to reclaim the production equipment if an amicable agreement on the time of handover has been reached and the Purchaser has fully complied with its contractual obligations. In addition, the manufacturer’s technical knowledge which is incorporated in the equipment must be appropriately reimbursed, in addition to the full cost of the equipment.
5.5 We shall store the production equipment free of charge for three months after the last delivery to the Purchaser. We then request the Purchaser to give directions in writing on further use of the goods within 6 weeks. Our obligation to store the equipment ends if no statement is made within the 4-week time period or no new order is placed.
5.6 Purchaser-related production equipment may be used by us for deliveries to third parties only with the Purchaser’s prior written consent.
6.1 Unless otherwise agreed, the prices shall apply “ex works”, excluding packaging, freight, postage and insurance. These amounts will be invoiced separately.
6.2 VAT at the statutory rate is added to the price.
7. Payment terms
7.1 All invoices are due for payment without deduction within 30 days of the invoice date.
7.2 If it is undisputed that we have delivered partially defective goods, our Purchaser is nevertheless obliged to pay for the faultless part, unless the partial delivery is of no interest to him. In all other cases, the Purchaser may set off counter-claims only with legally established or undisputed claims.
7.3 If the due date is exceeded, we shall be entitled to charge interest on arrears in the amount of the rate charged by the Bank to us for overdrafts, but at least 9 percentage points above the applicable base interest rate of the European Central Bank.
7.4 In the event of a delay in payment, we may, after notifying the Purchaser in writing, suspend performance of our obligations until payment has been received.
7.5 Cheques shall be accepted only by arrangement and only on account of performance. Bills of exchange will not be accepted.
7.6 If it becomes apparent after conclusion of the contract that our claim for payment is endangered by the Purchaser’s inability to pay, we may refuse performance and set a reasonable period of time within which the Purchaser must settle with delivery versus payment or provide security. In the event of refusal by the Purchaser or fruitless expiry of the deadline, we are entitled to withdraw from the contract and demand compensation for damages.
8.1 In principle, delivery times are non-binding and approximate. In the event of uncertainty, the delivery period begins with dispatch of the confirmation of order by us. For delivery times to be complied with, the Purchaser must submit all required documents in a timely manner, we must receive any necessary authorisations and releases punctually, and all contractual obligations must be met by the Purchaser, in particular the agreed terms of payment. If these requirements are not fulfilled in time, the delivery deadline shall be suitably extended. This does not apply if we are responsible for the delay.
8.2. Unless otherwise agreed, we deliver “ex works”. The notification of readiness for dispatch or collection by us is determinative for compliance with the delivery date or delivery period.
8.3 In cases of force majeure and any other event beyond our control and influence, such as natural disasters, mobilization, war, insurgency, strikes and lockouts, official restrictions on imports and exports, unforeseen obstacles to production or deliveries – on our premises or those of our subcontractors – the delivery period deadline shall be reasonably extended. We will inform the Purchaser of the beginning and end of such circumstances as promptly as possible.
8.4 If we incur a delay and cause the Purchaser to incur a loss as a result of this, the Purchaser is entitled to demand a flat-rate compensation for delay. It shall amount to 0.5% of the value of the part of the total output which cannot be used on time or in accordance with the contract as a result of the delay for every full week of delay, up to a maximum of 5% of the value.
8.5 Both damage claims by the Purchaser due to default in delivery and compensation in lieu of performance exceeding the limits specified at Article 8.6 are excluded in all cases of delayed delivery, even after expiry of any delivery deadline set for us. This will not apply in the event of mandatory liability for intent, gross negligence or injury to life, limb or health. The Purchaser may only withdraw from the Contract within the scope of statutory provisions, insofar as the delay to delivery is attributable to us.
8.6 The Purchaser undertakes to notify us, upon our request, within a reasonable period, as to whether it intends to withdraw from the Contract as a result of the delay or continues to require delivery.
9. Shipping and transfer of risk
9.1 Goods notified as ready for dispatch shall be accepted by the Purchaser without delay. Otherwise, we shall be entitled to dispatch them or to store them at the expense and risk of the Purchaser, at our own discretion.
9.2 In the absence of special arrangements, we choose the means of transport and the transport route.
9.3 The risk shall pass to the Purchaser when the goods are handed over to the railway company, the freight forwarder or carrier, or when they are placed into storage, but no later than leaving the factory or warehouse, even if we have taken over delivery.
10. Retention of title
10.1 We retain title to the delivered goods until full receipt of all claims arising from the business relationship with the Purchaser.
10.2 The Purchaser is entitled to sell these goods in the ordinary course of business as long as its obligations arising from the business relationship with us are met in a timely manner. However, the Purchaser may neither pledge the goods subject to retention of title nor assign them as security. The Purchaser is obliged to secure our rights in the case of resale on credit of the goods subject to retention of title.
10.3 In the event of breaches of obligations by the Partner, in particular delay in payment, we shall be entitled to withdraw from the contract and to take the goods back after fruitless expiry of a reasonable deadline set for the Purchaser; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Purchaser is obliged to surrender the goods.
10.4 The Purchaser hereby assigns to us as security all claims and rights arising from the sale or, if applicable, the authorised rental of goods to which we have ownership rights. We hereby accept the assignment.
10.5 Any processing or treatment of the goods subject to retention of title shall always be carried out by the Purchaser on our behalf. If the goods subject to retention of title are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed or mixed items at the time of processing or mixing.
If our goods are combined or inseparably mixed with other movable objects to form a single object and if the other object is to be regarded as the main object, the Purchaser shall transfer to us proportional co-ownership insofar as the main object belongs to him. The Purchaser shall hold ownership or co-ownership on our behalf. For the rest, the same shall apply to items created by processing or combination or mixing as to reserved goods.
10.6 The Purchaser must inform us immediately of any enforcement measures by third parties on the reserved goods, claims assigned to us or other securities by handing over the documents required for an intervention. This also applies to interferences of any other kind.
10.7 If the value of the existing securities exceeds the secured claims by more than 20 percent in total, we are, at the request of the Purchaser, obliged to release securities of our choice.
11. Warranty and liability
11.1 The condition of the goods is defined exclusively by the agreed technical delivery specifications. In the event that we are to make deliveries in accordance with drawings, specifications, models etc. by our Partner, the latter bears the risk of suitability for the intended purpose. The point in time at which risk is transferred is decisive in determining whether the condition of the goods complies with the contract. The goods manufactured by us are tested only on a random basis. A 100% inspection of the goods requires an express written agreement.
11.2 We will not be liable for material defects caused by unsuitable or improper use, defective installation or commissioning by the Purchaser or a third party, fair wear and tear, defective or negligent handling, nor for the consequences of improper modifications and modifications made without our consent or maintenance work carried out by the Purchaser or third parties. The same applies for defects which reduce the value or suitability of the item to an insignificant extent.
11.3 The Purchaser is obliged to meet its obligation to inspect and submit complaints in compliance with Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) as a pre-requisite for making any claim on the basis of defects. Here, it must examine the delivery immediately or, at the latest, one week from receipt, for any defects and notify us where defects are discovered. If there is a defect that is imputable to us, we are entitled to choose whether to rectify the delivery or to replace it. Within the scope of supplementary performance, we are obliged to reimburse the Purchaser for the expenses required to remove the defective goods and for installation or fitting of repaired goods or subsequently delivered defect-free goods. Reimbursement of costs is excluded, insofar as expenses increase due to the fact that the goods are taken to another location after our delivery, unless this is in conformity with the intended use of the goods. This shall apply accordingly to claims for reimbursement of expenses by the Purchaser pursuant to Section 445a (seller’s recourse) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), provided that the last contract in the supply chain is not a consumer goods purchase. If one of the two types of subsequent performance or both prove impossible or unreasonable, we are entitled to refuse them. For as long as the Purchaser fails to meet payment obligations to an extent that reflects the defect-free portion of the performance, we are entitled to refuse subsequent performance.
11.4 If the rectification or replacement delivery do not occur within a reasonable period – in consideration of our delivery possibilities – or if the rectification and/or replacement delivery fail, the Purchaser may demand a reduction of purchase price or withdraw from the contract.
11.5 Unless otherwise provided for below (par. 7), further claims by the Purchaser are excluded, regardless of their legal grounds (in particular claims arising from a breach of principal or subsidiary contractual obligations, reimbursement of expenses with the exception of that pursuant to Section 439 II of the German Civil Code, unlawful acts or other tortious liability); this applies in particular to damages not caused to the delivery item itself and to claims for loss of profit; claims which do not result from the defectiveness of the object purchased are also included.
11.6 The preceding provisions also apply in the event of delivery of another item or a lesser quantity.
11.7 The exclusion of liability regulated in paragraph 5 does not apply insofar as an exclusion or limitation of the liability for damages from injury to life, limb, or health has been agreed upon and said injury is caused by an intentional or grossly negligent violation of duties by the user; the exclusion of liability does not apply either insofar as an exclusion or limitation of the liability for other damages is agreed upon and said damages are caused by a violation of the duties by a legal representative or agent of the user. Insofar as we culpably breach a contractual or material obligation, liability is not excluded, but limited to foreseeable damages that are typical of the agreement; it is otherwise excluded pursuant to par. 5. Furthermore, the exclusion of liability does not apply if under product liability law liability exists for personal injury or material damage to privately used objects. It also does not apply in the event of assumption of a guarantee and assurance of a feature, if a defect thereby covered triggers our liability. The above shall apply also to reimbursement of expenses.
11.8 Claims on subsequent performance, damages and reimbursement of expenses become time-barred one year after delivery of the purchased object. This does not apply to an object which has been used according to its usual purpose for a construction and has caused its defectiveness; in this case, claims shall only lapse after 5 years. Claims on reduction and exercise of the right to withdraw from the contract are excluded, insofar as the subsequent performance claim has lapsed. The Purchaser may, however, refuse payment of the purchase price in the event of clause 3 insofar as it would be entitled to do so based on withdrawal or reduction; in the event of exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the contract.
11.9 The Purchaser’s right of recourse against us in accordance with Section 445a (seller’s recourse) shall only exist insofar as the Purchaser has not made any agreements with its customer that exceed the statutory claims for defects.
12. Place of performance, place of jurisdiction and applicable law
12.1 The place of performance shall be our business headquarters.
12.2 Insofar as the Purchaser is a merchant, a legal entity under public law or special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship shall be our business headquarters. We are also entitled to initiate claims at the Purchaser’s registered office.
12.3 The laws of the Federal Republic of Germany shall apply, excluding conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods.