General Terms of G.A.S. Gesellschaft für analytische Sensorsysteme mbH
I. GENERAL PROVISIONS
Legal relations between Supplier and Purchaser in connection with
supplies and/or services of the Supplier (hereinafter referred to as
“Supplies”) shall be solely governed by the present GL. The Purchaser’s
general terms and conditions shall apply only if expressly accepted by
the Supplier in writing. The scope of delivery shall be determined by
the congruent mutual written declarations.
2. The Supplier
herewith reserves any industrial property rights and/or copyrights
pertaining to its cost estimates, drawings and other documents
(hereinafter referred to as “Documents”). The Documents shall not be
made accessible to third parties without the Supplier’s prior consent
and shall, upon request, be returned without undue delay to the Supplier
if the contract is not awarded to the Supplier. Sentences 1 and 2 shall
apply mutatis mutandis to the Purchaser’s Documents; these may,
however, be made accessible to those third parties to whom the Supplier
has rightfully subcontracted Supplies.
3. The Purchaser has the non-exclusive right to use standard software and firmware,
provided that it remains unchanged, is used within the agreed
performance parameters, and on the agreed equipment. Without express
agreement the Purchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.
5. The term „claim for damages” used in the present GL also includes claims for indemnification for useless expenditure.
II. PRICES, TERMS OF PAYMENT, AND SET-OFF
1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.
If the Supplier is also responsible for assembly or erection and unless
otherwise agreed, the Purchaser shall pay the agreed remuneration and
any incidental costs required, e. g. for traveling and transport as well
3. Payments shall be made free Supplier’s paying office.
4. The Purchaser may set off only those claims which are undisputed or nonappealable.
III. RETENTION OF TITLE
The items pertaining to the Supplies (“Retained Goods”) shall remain
the Supplier’s property until each and every claim the Supplier has
against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier’s security interests exceeds the value of all secured
claims by more than 10 %, the Supplier shall release a corresponding
part of the security interest if so requested by the Purchaser; the
Supplier shall be entitled to choose which security interest it wishes
2. For the duration of the retention of title, the
Purchaser may not pledge the Retained Goods or use them as security, and
resale shall be possible only for resellers in the ordinary course of
their business and only on condition that the reseller receives payment
from its customer or makes the transfer of property to the customer
dependent upon the customer fulfilling its obligation to effect payment.
3. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
Where the Purchaser fails to fulfil its duties, fails to make payment
due, or otherwise violates its obligations the Supplier shall be
entitled to rescind the contract and take back the Retained Goods in the
case of continued failure following expiry of a reasonable remedy
period set by the Supplier; the statutory provisions providing that a
remedy period is not needed shall be unaffected. The Purchaser shall be
obliged to return the Retained Goods. The fact that the Supplier takes
back Retained Goods and/or exercises the retention of title, or has the
Retained Goods seized, shall not be construed to constitute a rescission
of the contract, unless the Supplier so expressly declares.
IV. TIME FOR SUPPLIES; DELAY
Times set for Supplies shall only be binding if all Documents to be
furnished by the Purchaser, necessary permits and approvals, especially
concerning plans, are received in time and if agreed terms of payment
and other obligations of the Purchaser are fulfilled. If these
conditions are not fulfilled in time, times set shall be extended
reasonably; this shall not apply if the Supplier is responsible for the
2. If non-observance of the times set is due to force
majeure such as mobilization, war, rebellion or similar events, e. g.
strike or lockout, such time shall be extended accordingly. The same
shall apply if the Supplier does not receive its own supplies in due
time or in due form.
3. If the Supplier is responsible for the
delay (hereinafter referred to as “Delay”) and the Purchaser has
demonstrably suffered a loss therefrom, the Purchaser may claim a
compensation as liquidated damages of 0.5 % for every completed week of
Delay, but in no case more than a total of 5 % of the price of that part
of the Supplies which due to the Delay could not be put to the intended
4. Purchaser’s claims for damages due to delayed Supplies
as well as claims for damages in lieu of performance exceeding the
limits specified in No. 3 above are excluded in all cases of delayed
Supplies, even upon expiry of a time set to the Supplier to effect the
Supplies. This shall not apply in cases of mandatory liability based on
intent, gross negligence, or due to loss of life, bodily injury or
damage to health. Rescission of the contract by the Purchaser based on
statute is limited to cases where the Supplier is responsible for the
delay. The above provisions do not imply a change in the burden of proof
to the detriment of the Purchaser.
5. At the Supplier’s
request, the Purchaser shall declare within a reasonable period of time
whether it, due to the delayed Supplies, rescinds the contract or
insists on the delivery of the Supplies.
6. If dispatch or
delivery, due to Purchaser’s request, is delayed by more than one month
after notification of the readiness for dispatch was given, the
Purchaser may be charged, for every additional month commenced, storage
costs of 0.5 % of the price of the items of the Supplies, but in no case
more than a total of 5 %. The parties to the contract may prove that
higher or, as the case may be, lower storage costs have been incurred.
V. PASSING OF RISK
1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
if the Supplies do not include assembly or erection, at the time when
the Supplies are shipped or picked up by the carrier. Upon the
Purchaser’s request, the Supplier shall insure the Supplies against the usual risks of transport at the Purchaser’s expense;
b) if the Supplies include assembly or erection, at the day of taking over in the Purchaser’s own works or, if so agreed, after a fault-free trial run.
The risk shall pass to the Purchaser if dispatch, delivery, the start
or performance of assembly or erection, the taking over in the
Purchaser’s own works, or the trial run is delayed for reasons for which
the Purchaser is responsible or if the Purchaser has otherwise failed
to accept the Supplies.
VI. ASSEMBLY AND ERECTION
Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:
1. The Purchaser shall provide at its own expense and in due time:
a) all earth and construction work and other ancillary work outside the Supplier’s scope, including the necessary skilled and unskilled labor, construction materials and tools,
b) the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and
c) energy and water at the point of use including connections, heating and lighting,
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site,
e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
Before the erection work starts, the Purchaser shall unsolicitedly make
available any information required concerning the location of concealed
electric power, gas and water lines or of similar installations as well
as the necessary structural data.
3. Prior to assembly or
erection, the materials and equipment necessary for the work to start
must be available on the site of assembly or erection and any
preparatory work must have advanced to such a degree that assembly or
erection can be started as agreed and carried out without interruption.
Access roads and the site of assembly or erection must be level and
4. If assembly, erection or commissioning is delayed due
to circumstances for which the Supplier is not responsible, the
Purchaser shall bear the reasonable costs incurred for idle times and
any additional traveling expenditure of the Supplier or the erection
5. The Purchaser shall attest to the hours worked by
the erection personnel towards the Supplier at weekly intervals and the
Purchaser shall immediately confirm in written form if assembly,
erection or commissioning has been completed.
6. If, after
completion, the Supplier demands acceptance of the Supplies, the
Purchaser shall comply therewith within a period of two weeks. In
default thereof, acceptance is deemed to have taken place. Acceptance is
also deemed to have been effected if the Supplies are put to use, after
completion of an agreed test phase, if any.
VII. RECEIVING SUPPLIES
The Purchaser shall not refuse to receive Supplies due to minor defects.
VIII. DEFECTS AS TO QUALITY
The Supplier shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”,) as follows:
Defective parts or defective services shall be, at the Supplier’s
discretion, repaired, replaced or provided again free of charge,
provided that the reason for the Defect had already existed at the time
when the risk passed.
2. Claims for repair or replacement are
subject to a statute of limitations of 12 months calculated from the
start of the statutory statute of limitations; the same shall apply
mutatis mutandis in the case of rescission and reduction. This shall not
apply where longer periods are prescribed by law according to Sec. 438
para. 1 No. 2 (buildings and things used for a building), Sec. 479 para.
1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a
building) German Civil Code (“BGB”), in the case of intent, fraudulent
concealment of the Defect or non-compliance with guaranteed
characteristics (Beschaffenheitsgarantie). The legal provisions
regarding suspension of the statute of limitations (“Ablaufhemmung”,
“Hemmung”) and recommencement of limitation periods shall be unaffected.
3. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
In the case of notification of a Defect, the Purchaser may withhold
payments to an amount that is in a reasonable proportion to the Defect.
The Purchaser, however, may withhold payments only if the subject-matter
of the notification of the Defect involved is justified and
incontestable. The Purchaser has no right to withhold payments to the
extent that its claim of a Defect is time-barred. Unjustified
notifications of Defect shall entitle the Supplier to demand
reimbursement of its expenses by the Purchaser.
5. The Supplier
shall be given the opportunity to repair or to replace the defective
good (“Nacherfüllung”) within a reasonable period of time.
repair or replacement is unsuccessful, the Purchaser is entitled to
rescind the contract or reduce the remuneration; any claims for damages
the Purchaser may have according to No. 10 shall be unaffected.
There shall be no claims based on Defect in cases of insignificant
deviations from the agreed quality, of only minor impairment of
usability, of natural wear and tear, or damage arising after the passing
of risk from faulty or negligent handling, excessive strain, unsuitable
equipment, defective civil works, inappropriate foundation soil, or
claims based on particular external influences not assumed under the
contract, or from non-reproducible software errors. Claims based on
defects attributable to improper modifications or repair work carried
out by the Purchaser or third parties and the consequences thereof are
8. The Purchaser shall have no claim with
respect to expenses incurred in the course of supplementary performance,
including costs of travel, transport, labor, and material, to the
extent that expenses are increased because the subject-matter of the
Supplies has subsequently been brought to another location than the
Purchaser’s branch office, unless doing so complies with the normal use
of the Supplies.
9. The Purchaser’s right of recourse against
the Supplier pursuant to Sec. 478 BGB is limited to cases where the
Purchaser has not concluded an agreement with its customers exceeding
the scope of the statutory provisions governing claims based on Defects.
Moreover, No. 8 above shall apply mutatis mutandis to the scope of the
right of recourse the Purchaser has against the Supplier pursuant to
Sec. 478 para. 2 BGB.
10. The Purchaser shall have no claim for
damages based on Defects. This shall not apply to the extent that a
Defect has been fraudulently concealed, the guaranteed characteristics
are not complied with, in the case of loss of life, bodily injury or
damage to health, restrictions to liberty and/or intentionally or
grossly negligent breach of contract on the part of the Supplier. The
above provisions do not imply a change in the burden of proof to the
detriment of the Purchaser. Any other or additional claims of the
Purchaser exceeding the claims provided for in this Article VIII, based
on a Defect, are excluded.
IX. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT;
DEFECTS IN TITLE
Unless otherwise agreed, the Supplier shall provide the Supplies free
from third parties’ industrial property rights and copyrights
(hereinafter referred to as “IPR”) with respect to the country of the
place of delivery only. If a third party asserts a justified claim
against the Purchaser based on an infringement of an IPR by the Supplies
made by the Supplier and used in conformity with the contract, the
Supplier shall be liable to the Purchaser within the time period
stipulated in Article VIII No. 2 as follows:
a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions.
b) The Supplier’s liability to pay damages is governed by Article XI.
The above obligations of the Supplier shall apply only if the Purchaser
(i) immediately notifies the Supplier of any such claim asserted by the
party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier’s discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
Claims of the Purchaser are also excluded if the infringement of the
IPR is caused by specifications made by the Purchaser, by a type of use
not foreseeable by the Supplier or by the Supplies being modified by the
Purchaser or being used together with products not provided by the
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
5. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
Any other claims of the Purchaser against the Supplier or its agents or
any such claims exceeding the claims provided for in this Article IX,
based on a defect in title, are excluded.
X. IMPOSSIBILITY OF PERFORMANCE; ADAPTATION OF CONTRACT
To the extent that delivery is impossible, the Purchaser is entitled to
claim damages, unless the Supplier is not responsible for the
impossibility. The Purchaser’s claim for damages is, however, limited to
an amount of 10 % of the value of the part of the Supplies which, owing
to the impossibility, cannot be put to the intended use. This
limitation shall not apply in the case of mandatory liability based on
intent, gross negligence or loss of life, bodily injury or damage to
health; this does not imply a change in the burden of proof to the
detriment of the Purchaser. The Purchaser’s right to rescind the
contract shall be unaffected.
2. Where unforeseeable events
within the meaning of Article IV No. 2 substantially change the economic
importance or the contents of the Supplies or considerably affect the
Supplier’s business, the contract shall be adapted taking into account
the principles of reasonableness and good faith. To the extent this is
not justifiable for economic reasons, the Supplier shall have the right
to rescind the contract. If the Supplier intends to exercise its right
to rescind the contract, it shall notify the Purchaser thereof without
undue delay after having realized the repercussions of the event; this
shall also apply even where an extension of the delivery period has
previously been agreed with the Purchaser.
XI. OTHER CLAIMS FOR DAMAGES; STATUTE OF LIMITATIONS
The Purchaser has no claim for damages based on whatever legal reason,
including infringement of duties arising in connection with the contract
2. The above shall not apply in the case of mandatory
liability, e. g. under the German Product Liability Act
(“Produkthaftungsgesetz”), in the case of intent, gross negligence, loss of life, bodily injury or damage to health, or breach of a condition which goes to the root of the contract (“wesentliche Vertragspflichten”).
However, claims for damages arising from a breach of a condition which
goes to the root of the contract shall be limited to the foreseeable
damage which is intrinsic to the contract, unless caused by intent or
gross negligence or based on liability for loss of life, bodily injury
or damage to health. The above provision does not imply a change in the
burden of proof to the detriment of the Purchaser.
3. To the
extent that the Purchaser has a claim for damages, it shall be
timebarred upon expiration of the statute of limitations pursuant to
Article VIII No.
2. The same shall apply to the Purchauser’s claims in connection with actions undertaken to avoid any damage (e. g. callback). In the case of claims for damages under the German Product Liability Act, the statutory statute of limitations shall apply.
XII. VENUE AND APPLICABLE LAW
If the Purchaser is a businessman, sole venue for all disputes arising
directly or indirectly out of the contract shall be the Supplier’s place
of business. However, the Supplier may also bring an action at the
Purchaser’s place of business.
2. Legal relations existing in
connection with this contract shall be governed by German substantive
law, to the exclusion of the United Nations Convention on contracts for
the International Sale of Goods (CISG).
XIII. SEVERABILITY CLAUSE
legal invalidity of one or more provisions of this Agreement in no way
affects the validity of the remaining provisions. This shall not apply
if it would be unreasonable for one of the parties to be obligated to
continue the contract.