General terms & conditions
Christian Maier GmbH & Co. KG
1. General – Oral Side Agreements – Offers
1.1. The following General Terms and Conditions (hereinafter referred to as “Conditions”) shall be exclusively applicable for our performance of deliveries and services (hereinafter referred to as “Performance”). We do not accept any conflicting or deviating terms and conditions of yours or any such terms and conditions which are not specified by these Conditions unless we have explicitly agreed to their validity in writing. This shall also apply even if we carry out deliveries and services without reservation with knowledge of the conflicting or deviating terms and conditions or any such terms and conditions which are not specified by our Conditions or if you refer to the validity and applicability of your own terms and conditions in your inquiry, your order or otherwise in connection with the performance of the contract.
1.2. Our Conditions shall apply only to companies within the meaning of the German Civil Code BGB article 14.
1.3. Our salespeople are not entitled to make oral side agreements.
1.4. Unless specifically stipulated otherwise, our range of service offers and price quotations shall be non-binding and subject to confirmation. The order shall become binding only after it has been confirmed by us in writing or when it was accepted conclusively by delivering the performance or by issuing an invoice.
1.5. Any contract with you is concluded under the condition precedent that necessary export licenses, where appropriate, have been granted and that there aren’t any other impediments due to export or delivery regulations which have to be observed by us as the exporter/dispatcher or by one of our suppliers.
1.6. Unless specifically stipulated otherwise, any images, drawings, calculations and other documents which contain valuable know-how or valuable information with regard to products, applications or projects shall remain our property and shall be subject to our copyright even if we cede the products to you. It shall not be allowed to replicate them or make them available to third parties without our prior written consent.
1.7. The prices stated in our quotation / our order confirmation are based on the calculation in being at the time of submitting the quotation / confirming the order. If a substantial change in the prices for raw materials – at least 10% – occurs within three months after conclusion of the contract, we shall be entitled to raise the agreed-upon prices by the attributable additional costs. The buyer shall be informed accordingly.
2. Delivery – Delivery Time – Extension of the Delivery Deadlines – Partial Performance
2.1. Unless specifically stipulated otherwise, the agreed-upon delivery times specified for the Performance are not fixed dates as a general principle (German Civil Code BGB art. 323(2)(2), German Commercial Code HGB art. 376).
2.2. The performance period shall begin as soon as all details have been clarified and both contractual partners have come to an agreement about any and all conditions of the business transaction. Requirements for adherence to the performance periods are:
– that any and all documents which you have to supply arrive at our company in a timely manner;
– that any and all permits and clearances which you have to obtain have been granted in time;
– that your contractual obligations, in particular your payment obligations, have been fulfilled completely and within the stipulated time.
2.3. Unless specifically stipulated otherwise, the delivery deadline shall be considered as met when the operable consignment has left our works within the agreed upon period of delivery.
2.4. Our delivery obligations shall be subject to our having received the correct goods in a timely manner from our supplier(s) unless we are responsible for the incorrect or delayed delivery to us.
2.5. The performance period shall be extended appropriately if
– the failure to comply with the performance period can be ascribed to an incident of force majeure, i.e. unforeseen circumstances beyond our control and for which we are not responsible (such as administrative measures and regulatory actions (no matter if they are valid or invalid), fire, flooding, storms, explosions, or other natural disasters). This applies even if such an incident occurs during a delay in delivery or at one of our presuppliers;
– we did not receive early enough the required permits which had to be obtained by you or documents from third parties;
– you failed to give us required details on schedule.
2.6. As far as is deemed reasonable, we shall be entitled to partial performance which we are respectively allowed to charge separately.
2.7. If the delivery is delayed by your request or due to circumstances for which you are responsible, we shall be entitled to charge you with the costs incurred due to storage of the goods after giving notice of the readiness for dispatch. These costs shall come to at least 0.5% of the invoice amount per week or part thereof, however, they shall not exceed a total of 5% of the invoice amount. It shall remain unforbidden to both parties to provide evidence that higher, lower or none storage costs incurred at all. The statutory rights to withdraw from a contract and to seek damages shall remain unaffected.
3. Force Majeure – Cancellation – Failure of Suppliers to Deliver
3.1. If we are unable to deliver a performance within an appropriate period due to an incident of force majeure (see item 2.4), both parties shall have the right to withdraw from the contract or parts thereof. The same applies to any subsequent inability to perform the contract beyond our responsibility and control. Any liability claims due to such a cancellation of the contract shall be excluded. If a party intends to withdraw from a contract for the aforementioned reasons, this party shall be obliged to inform the other party immediately.
3.2. We shall be exempted from our delivery obligation if, through no fault of our own, we are not supplied with the correct merchandise required for fulfilling the contract on schedule and we are thus unable to deliver the ordered goods to our contractual partner as agreed upon in the contract. This shall apply in any event where fixed dates are concerned.
4. Reservation of Ownership
4.1. Pending the full payment of all your liabilities from the business relationship with us, we shall remain the owner of the delivery items (goods subject to retention of title). This shall also apply if the price for certain Performances specified by you has been paid. In such a case, the reservation of ownership shall serve as backing of the outstanding balance claims. If the reservation of ownership is attached to specific requirements or formal regulations in your country, you shall be obliged to point them out to us and to ensure the compliance at your expense.
4.2 The goods subject to retention of title shall have to be stored separately from other goods and shall have to be marked as such.
4.3. Combining, mixing or processing the delivery item shall always be done for us as the manufacturer, but without any commitment for us. If the (joint) ownership lapses due to combining, mixing or processing, it shall herewith be considered to be agreed upon that the (joint) title to the new goods passes to us proportionate to the ratio of the invoice amounts of the combined, mixed or processed products. You shall preserve the (joint) ownership for us free of charge.
4.4. Resellers shall be permitted to resell the goods in the ordinary course of business subject to withdrawal. We shall be allowed to withdraw this right if you suspend payments, if you are in default of payment or if there are actual indications of a deterioration of your financial situation after conclusion of the contract or if other facts become known after conclusion of the contract which justify the assumption that our entitlement to counter-performance is jeopardized by insufficient solvency. As a precaution, you shall already assign to us now all receivables resulting from resale or any other legal cause where goods are concerned to which we have a (joint) title amounting to the invoice value of the corresponding delivery item. At our request, you shall be obliged to give a written declaration of assignment. You shall be revocably authorized to collect any assigned receivables in your own name in the ordinary course of business. The authorization for collection can be revoked on the same conditions as the right for resale in the ordinary course of business.
4.5. Pledging of the goods or assignments of accounts receivable shall not be permitted. If third parties make any pledging, confiscation or other injunctions or interventions, they shall be made explicitly aware of the privileged property, and you shall be obliged to inform us about the same such immediately.
5. Delivery Conditions – Passage of Risks – Incoterms – Transport Insurance
5.1. Unless specifically stipulated otherwise, delivery is done “ex works” (as per the Incoterms in the version respectively effective at the time, currently Incoterms 2010) delivered at a place specified in our quotation or our order acceptance or, unless no place of destination is specified in our quotation/acceptance, “ex works” Heidenheim.
5.2. Unless specifically stipulated otherwise, the risk of accidental destruction or of accidental deterioration of the goods shall pass to you on delivery of the good to the carrier, at the latest, however, when the goods leave the delivery warehouse. This shall also apply when we take care of shipping. If the dispatch is delayed through your fault, the risk shall pass to you from the moment you were notified of the goods being ready for shipment.
5.3. If internationally customary terms of shipment and risk of loss are used in the contract, they shall be construed in accordance with the international rules for the interpretation of terms customary in trade (as per the Incoterms in the version respectively effective at the time, currently Incoterms 2010).
5.4. The conclusion of a transport insurance by us shall only be done upon agreement and at your costs.
6. Claims for Defects – Obligation to Notify about Defects
6.1. Unless specifically stipulated otherwise, the quality and the suitability for use are exclusively and conclusively regulated and specified in the datasheet for the corresponding product or in the operating instructions for the corresponding product.
6.2. In the event of a justified and timely notice of defects, the buyer shall have a subsequent performance claim. We shall have the right of choice with regard to the form of subsequent performance, such as removal of defects or delivery of a defect-free product.
6.3. Complaints about incomplete or incorrect consignments must be made to us in writing immediately, at the latest within one week after delivery (obvious defects) or the discovery of the defect. Otherwise the assertion of claims for defects shall be excluded.
6.4. We do not agree to a restriction of your duty to inspection and objection (in particular the one resulting from German Commercial Code HGB art. 377).
6.5. Claims for defects shall expire by limitation within 12 months after passage of risks. This shall not apply to claims for defects referred to products which are subject to wear; such products shall expire by limitation within 12 months after passage of risks. Aforementioned clauses shall not apply if the legislation pursuant to the German Civil Code BGB articles 438(1)(2), 438(3), 479(1) and 634(a) stipulates longer periods of limitation nor for the liability for damages resulting from the injury of life, body or health nor for the liability for damages resulting from intentional or grossly negligent violation of duties.
6.6. Following claims for defects shall be excluded, including but not limited to:
– if inspection was not carried out and objection to a defect was not made within the time and in the proper manner pursuant to art. 6.3 and 6.4;
– if a subsequent and unauthorized modification was made to the delivery item except where a defect did evidently not occur because of such a modification;
– if defects resulted from natural wear, unintended use or inappropriate storage.
6.7. You shall be only allowed to claim damages from us in accordance with item 8.
6.8. In the case of defects of quality, the Seller shall, at his discretion, repair, deliver again or renew free of charge those parts of the delivery/performance which are defective, provided such defects did already exist when the risk passed to the Purchaser.
(a) For the purpose of undertaking any repairs or replacement deliveries which, at the Seller’s reasonable discretion seem necessary, the Purchaser shall afford the needed time and opportunity. The parties shall make the appropriate arrangements. If the Seller is not granted such opportunity, the Seller shall be relieved from the liability for defects and the resulting consequences. The Purchaser shall only be entitled to repair the defect himself or have the defect repaired by third parties at the cost of the Seller in the case of imminent danger to operational safety or to prevent disproportionately great damages, in which cases the Seller is to be notified immediately. If the repair fails, the Purchaser shall be entitled to withdraw from the contract, notwithstanding any other compensation claims, provided the Seller fails to repair or deliver a replacement within a reasonable period granted to him by the Purchaser under consideration of the legal exceptions.
If the defect is of a trivial nature, the Purchaser shall only be entitled to reduce the price. The right to reduce the price shall be excluded in all other cases whatsoever.
Claims for defects shall also be excluded in the case of damages which were caused after the passage of risk due to incorrect or negligent treatment, excessive loads, usage of unsuitable media, defective mounting, incorrect maintenance, chemical/electrochemical/electrical influences, unsuitable installation site, lack of stability, unsuitable securing measures as well as natural or environmental influences and other external influences provided such influences were not part of the contract. All claims whatsoever shall be excluded if the Purchaser or third parties or any other persons tamper with the delivered goods in an unauthorized way.
(b) If the expenses required for repair or replacement deliveries are increased due to the fact that the delivered goods were moved to a location other than the representation of the Purchaser, such expenses shall be borne by the Purchaser.
(c) Any costs/expenses incurred in repairs/replacement deliveries shall be borne by the Purchaser if a defect can be proven not to be present. This shall also apply if claims are barred by the statute of limitations or time-barred (according to German Commercial Code HGB art. 377). The Seller shall be entitled to determine the prices for his goods and services (German Civil Code BGB art. 315 et seq.)
(d) Any further liability claims or compensation claims or other claims whatsoever of the Purchaser shall be excluded, notwithstanding articles 7. and 8.
7. Industrial and Intellectual Property Rights – Defects of Title
7.1. Unless specifically stipulated otherwise, we shall be obliged to deliver the Performance free from industrial property rights of third parties (hereinafter referred to as “Property Rights”) solely in the land of the place of manufacture and delivery. “Property Rights” within this meaning are patents, utility models, registered designs, and trademarks, including their corresponding patent application, as well as intellectual property rights. If a third party raises justified claims against you for the infringement of Property Rights by Performance which we delivered and which you made use of in accordance with the contract, we shall be liable to you within the deadline stipulated in item 6.5 as follows:
7.2. In case that an industrial or intellectual property right of a third party has been infringed, we shall either acquire the usage right to the performance in question or modify the performance in question in such a way that the industrial property right is no longer infringed or replace the performance at our discretion and at our expenses. If this is impossible under reasonable conditions, you shall have the legal rights of withdrawal/reduction. Our obligation to pay damages shall be follow the stipulations of item 8.
7.3. The aforementioned obligations shall only be valid if and as far as you have immediately notified us in writing about the claims raised by third parties, if you have not admitted to the infringement and if all defensive measures and settlement conferences are left to us.
7.4. In case of infringements by products of other manufacturers which we delivered, we shall have the choice to assert our claims against the respective manufacturer and presupplier for the account of the customer or to assign this right to the customer. In such cases, any claims against us shall only be accepted in accordance with this item 7. if we fail to enforce our aforementioned claims against the manufacturers and presuppliers or if such claims have no prospect of success, for example due to an insolvency.
7.5. Your claims shall be excluded if you are exclusively responsible for the infringement of the industrial property right.
7.6. Your claims shall further be excluded if the infringement has been caused by any particular specifications which were made by you, by an application which we could not foresee or by any subsequent unauthorized modification of the Performance by you.
7.7. Any claims against us or our vicarious agents due to defects of title other than or exceeding those regulated in this item 7. shall be excluded.
7.8. If a result eligible for protection under property rights ensues from the contractual obligations, we shall be exclusively entitled to any and all property rights to this result unless you were significantly involved in creating this result. In such a case or in any other cases in which a result eligible for protection under property rights was created together by both parties, we shall be in agreement that we shall at the very least be entitled to a gratuitous non-exclusive right to utilization without any restrictions whatsoever to territory, time or content.
8.1. We shall be liable for damages and for refunding wasted expenditures within the meaning of the German Civil Code BGB (hereinafter referred to as “Damages”) due to defects in the Performance or due to infringement of other contractual or non-contractual obligations, in particular from tortious acts but only in case of intent or gross negligence. The foregoing limitation of liability shall not apply for injuries of life, body or health, for the acceptance of a warranty or a procurement risk, for the infringement of essential contractual obligations nor for liabilities in accordance with the product liability law.
8.2. The damages due to infringement of essential contractual obligations shall be limited to refunding damages typical for the contract which we should have foreseen upon conclusion of the contract as possible consequences owing to circumstances discernible to us unless they were caused by intent or gross negligence or if the liability is due to injury of life, body or health, the acceptance of a warranty or a procurement risk or in accordance with the product liability law.
8.3. Any and all limitations of liability shall apply to our vicarious agents to the same extent.
8.4. The aforementioned regulations do not imply a change in the burden of proof to your disadvantage.
8.5. Significant contractual obligations within the meaning of items 8.1. and 8.2. are such obligations the fulfillment of which allows the proper execution of the contract in the first place and the observing of which you may constantly trust.
9.1. Our prices are net prices. They are valid “ex works” (as per the Incoterms in the version respectively effective at the time, currently Incoterms 2010). Costs for packaging, transportation, insurance, customs duties in case of exportation as well as any fees and other public charges shall be invoiced additionally unless specifically stipulated otherwise.
9.2. We will charge a low-price surcharge of € 25.00 net on orders with a merchandise net value of less than € 75.00.
10. Payment Conditions – Offsetting – Securities – Assignment
10.1. . Unless specifically stipulated otherwise, you shall make the payment net within 14 days after receipt of an invoice – however, not before the arrival of the goods.
10.2. You shall be eligible to the rights of retention and set-off only if your counterclaims have been legally established, uncontended, accepted by us or if the claim is closely related to a mutuality of obligations. Moreover, you shall only be entitled to exercise a right of retention if and as far as your counterclaim is based on the same contractual relationship.
10.3. If there are actual indications of a deterioration of your financial situation after conclusion of the contract or if other facts become known or discernible after conclusion of the contract which justify the assumption that our claim to counter-performance may be jeopardized by an insufficient solvency we shall be entitled to demand appropriate securities for our Performance and / or to revoke the times possibly allowed for payment and to do so for any other outstanding accounts as well. If you fail to provide the appropriate securities demanded by us within a reasonable period of time, we shall be allowed to withdraw from the contract. Already existing claims from delivered Performances or due to default as well as our rights arising from German Civil Code BGB art. 321 shall remain unaffected.
10.4. The assignment of claims from this contractual relationship shall only be permissible by our prior written agreement. You shall not be entitled to our giving such a consent. German Commercial Code HGB 354(a) shall remain unaffected.
11. Return of Electrical Appliances – Return of Packaging
11.1. Provided that we are obliged to do so by statutory regulations (e.g. pursuant to the Electrical Appliance Law), we shall, upon your request, take back the delivered goods after termination of usage and properly dispose of them in accordance with the statutory regulations. The costs for such a return and disposal shall be borne by you.
11.2. Provided that we are obliged to do so by statutory regulations, we shall take back the transport packaging upon your request. The costs for such a return of the transport packaging shall be borne by you.
12. Place of Fulfillment – Place of Jurisdiction – Applicable Law
12.1. All legal relations arising out of or in connection with the execution of this contract shall be governed by and construed and enforced in accordance with the laws of the Federal Republic of Germany. The parties hereto expressly exclude the application of the UN Purchase Provisions/CISG.
12.2. Place of fulfillment for any and all obligations from the contractual relationship is Heidenheim.
12.3. It shall be agreed that the local district court Heidenheim is place of jurisdiction for all legal disputes which fall under the subject-matter cognizance of local district courts and that the regional district court Ellwangen is place of jurisdiction for all legal disputes which fall under the subject-matter cognizance of regional district courts. We shall be entitled to optionally file a lawsuit at your place.
Supplementary Conditions for Software
If we cede software (hereinafter referred to as “Software”) to you for use in return for payment or free of charge as part of our Performance or in connection with our Performance, the following additional regulations shall apply. In case of contradictions between the aforementioned and the subsequent regulations with regard to Software, the following regulations shall take preference:
13. Usage Rights
13.1. We grant you the non-exclusive right to use the software as intended. The extent of the intended use results from the datasheet which comes with the respective Software or from the operating instructions which come with the respective Software. The right to utilization shall be limited to the agreed upon period of time. In the absence of such an agreement, the right to utilization shall be unlimited in time.
13.2. Unless specifically stipulated otherwise, you shall be allowed to use the Software exclusively with the hardware mentioned in the datasheet or in the operating instructions. In the absence of such a mention, it shall only be allowed to use the Software together with the hardware included in the delivery. The utilization of the Software with other devices requires our prior written consent. In case of a culpable violation of this commitment, we shall be entitled to demand an appropriate additional payment. Any claims exceeding the aforementioned shall remain unaffected.
13.3. If several devices are specified in the datasheet or in the operating instructions, you shall only be allowed to run the Software on one of these devices at a time (single user license) unless a multi-user license has been agreed upon by way of exception (cf. art. 14.11.). If a device comes with several workstations on which the Software can be used independently, the single user license shall cover only one workstation.
13.4. The Software shall be ceded for use exclusively in machine-readable form (object code).
13.5. You shall be allowed to make only one replication of the Software which must not be used for any other purposes than for backup (backup copy). The backup copy must be labeled as such in a clearly visible way and must be marked with the copyright notice of the manufacturer. Apart from that you shall only be allowed to replicate the Software if a multi-user license has been agreed upon by way of exception.
13.6. With the exception of the cases stipulated in the Copyright Law art. 69(e) (Decompiling), you shall not be entitled to alter, reconvert or decode the Software nor extract elements thereof. You shall not be allowed to remove alphanumerical or other identifying information from the data carriers and must transfer them unchanged to every backup copy.
13.7. If important grounds exist, we shall grant you the revocable right to confer the right to utilization of the Software to third parties. However, you shall only be allowed to pass the Software on to third parties if it is passed on together with the device which you bought in connection with the Software. In case of conferring the right to utilization to third parties, you shall ensure that the third party is not granted any rights to utilization of the Software which exceed those appertaining to you in accordance with these Terms and Conditions and the related data sheet or the related operating instructions, and that at the very least the obligations resulting from these Conditions with regard to the Software are imposed on the third party. If the Software is passed on, you shall not be allowed to keep any copies of the Software.
13.8. You shall not be entitled to grant any sublicenses.
13.9. If you cede the Software to third parties, you shall be responsible for observing any potential export requirements, and you must dispense us from any duties and claims resulting from any culpable violation of duties. In such a case, you shall cease to use the program completely, remove any and all installed copies of the program from your computers and delete any and all copies from all other data carriers or hand them over to us unless you are obliged by law to keep them on file for a longer period. By our request, you shall confirm the thorough completion of the aforementioned measures in writing or, if needed, state your reasons for a longer retention in writing. Furthermore, you shall explicitly stipulate with the third party that they have to observe the extent of the rights granted in accordance with this agreement. Splitting the acquired licensed volume packages is not permissible.
13.11. In order to run the Software on several devices or simultaneously at several workstations, you shall require a right to utilization which has to be agreed upon separately. The same applies for the utilization of the Software in networks even if the Software will not be replicated in such a case. In the aforementioned cases (hereinafter referred to as “multi-user license”), the subsequent regulations (a) and (b) shall apply in addition and are given priority to the regulations as per items 14.1. to 14.10.:
(a) Precondition for a multi-user license shall be an explicit confirmation in writing given by us concerning the number of permissible replications which you shall be allowed to make of the Software and concerning the number of devices or workstations the Software shall be allowed to be used on. Item 14.7 shall apply to multi-user licenses, however, with the proviso that you shall only be allowed to confer the multi-user licenses to third parties if they are conferred as a whole and together with all devices on which the Software may be used.
(b) You shall be obliged to observe the directions concerning replication which we have transmitted together with the multi-user license. You shall be obliged to keep track of the whereabouts of all replications and submit the records to us on demand. All data carriers must be marked with the copyright notice and the serial numbers of the manufacturer.
14. Passage of Risks
If Software is ceded by means of electronic communication media (e.g. via the Internet), the risk of accidental destruction and accidental deterioration of the Software shall pass to you when the Software leaves our sphere of influence (e.g. during downloading).
15. Duties to Collaborate and Liability
15.1. You shall be obliged to take all necessary and reasonable measures to prevent or limit any damages caused by the Software. In particular, you shall ensure that regular backups of programs and data are made.
15.2. You shall be obliged to take suitable measures in order to safeguard the Software against access by unauthorized third parties. In particular, all copies of the contractual software as well as the login credentials shall be kept in a safe place.
15.3. If you culpably violate these regulations, we shall not be liable for any consequences resulting thereof, especially not for the recovery of lost or damaged data or programs. The aforementioned regulations do not imply a change in the burden of proof.
16. Defects of Quality
16.1. Claims for defects of quality with regard to the Software shall expire by limitation within 12 months after passage of risks. Aforementioned clauses shall not apply if the legislation pursuant to the German Civil Code BGB articles 438(1)(2), 438(3), 479(1) and 634(a) stipulates longer periods of limitation nor for the liability for damages resulting from the injury of life, body or health nor for the liability for damages resulting from intentional or grossly negligent violation of duties.
16.2. Only if you can prove that there are reproducible deviations from the specifications included in the final version of the datasheet or the operating instructions shall such deviations count as defects of quality with regard to the software. A defect of quality does not exist, however, if it does not occur in the last version of the software ceded to you and if the utilization of this version is reasonable for you.
16.3. You shall be obliged to check the software for apparent defects immediately after receipt and to inform us immediately if there are any defects, otherwise the warranty for such defects is excluded. The same shall apply if such a defect occurs at a later time. German Commercial Code HGB article 377 shall be applicable.
16.4. There shall be no claims for defects
– in case of damages which result from incorrect or negligent handling of the software,
– in case of damages caused by specific outside influences which were not presupposed according to the contract,
– in case of modifications made by you or third parties and the consequences resulting thereof,
– in case the software was extended by you or a third party beyond an interface provided for this purpose,
– in case the software is not compatible with the data processing environment you are utilizing.
16.5. In the case of Software, the entitlement for supplementary performance is fulfilled as follows: at our own discretion, we shall either remedy the defect (“Subsequent Improvement”) or deliver a new issue level (update) as replacement or a new version (upgrade) provided we have them available or can obtain them with reasonable expenditure. In case of defects of title, we shall, at our own discretion, obtain a legally sound option for use of the software or modify the software in such a way that the rights of third parties are no longer infringed.
17.1. The Seller is liable without limitation
– in case of intent or gross negligence,
– for the injury of life, limb or health,
– in accordance with the directives of the product liability law as well as
– within the limits of a warranty accepted by the Seller.
17.2. In case a breach of duty which is essential for accomplishing the contractual purpose (cardinal duty) has occurred as a result of simple negligence, the amount of the liability of the Seller is limited to the damage which was predictable and is typical for the type of business in question.
17.3. The Seller shall not be subject to any further liability.
17.4. The aforementioned limitation of liability shall also apply to the personal liability of employees, agents and bodies of the Seller.
18. Industrial and Intellectual Property Rights – Defects of Title
If a third party raises justified claims due to the infringement of Property Rights with reference to the Software, we shall be liable pursuant to item 7. within the deadline stipulated in item 17.
19. Data Protection
For all information in connection with the handling of user data please refer to our separate Data Privacy Statement.
20.1. All information and documents of the respective other party which are marked as confidential or which have to be considered as confidential in view of the circumstances, in particular information about operational procedures, commercial relationships, and expertise, shall be regarded as “Confidential Information”.
20.2. The parties shall have an agreement of non-disclosure of confidential information.
20.3. Confidential information shall be exempt from this obligation if
(a) it is verified that the information has already been known to the recipient upon conclusion of the contract or has been made known to them afterwards through a third party without the infringement of a non-disclosure agreement, statutory regulations or regulatory actions.
(b) the information was publicly known upon conclusion of the contract or was made known publicly afterwards provided this was not due to an infringement of this contract;
(c) the information must be disclosed because of statutory obligations or by the order of a court or government agency. As far as permissible and feasible, the recipient committed to disclosure shall inform the other party in advance and give them the opportunity to take legal action against the disclosure.
20.4. The parties shall only allow such advisors access to confidential information who are governed by professional secrecy or on who obligations were imposed which correspond to the secrecy obligations of this contract. Furthermore, the parties shall only disclose confidential information to such employees who need to know them for executing this contract and commit such employees to confidentiality which shall extend beyond the time of their employment, i.e. after they have left the company, to the extent permitted by the labor law
20.5. Every culpable violation against these regulations shall entail a contractual penalty amounting to EUR 5000.-. Any claims of the infringed party in addition to the above shall remain unaffected.
Christian Maier GmbH & Co.KG
Wuerzburger Strasse 67-69
89520 Heidenheim – Germany
Tel. +49 7321 317-0
General Terms and Conditions Christian Maier GmbH & Co. KG
General terms of sale
Maier America LLC
Maier America, LLC (“Seller”) hereby confirms receipt of Buyer’s order (“Purchase Order”) and agrees to sell to Buyer the goods described in the Purchase Order subject to any variations contained in Seller’s acceptance and the following conditions (“Terms of Sale”). Additional or different terms in Buyer’s Order are rejected and are not binding upon Seller unless such terms are accepted in writing by Seller.
2. Purchase Price and Payments
Seller’s price is payable in U.S. dollars, F.C.A. Seller’s place of business unless otherwise specifically indicated. Terms of payment are 30 days, unless otherwise specifically indicated. All invoices paid after due date will be assessed a late payment charge of 1.5% per month. Buyer may only set off own claims against Seller’s claims if those claims have been recognized by Seller or if they are evidenced by a final enforceable court or similar decision.
3. Taxes and Assessments
Unless otherwise specified, prices quoted by Seller exclude taxes and assessments including but not limited to, sales, use, value added or excise taxes, duties, imposts, and other charges or assessments which are the sole liability of Buyer. If Buyer asserts no sales tax is due, it shall furnish Seller a valid, executed tax exemption certificate for the jurisdiction where the sale is deemed to be made.
4. Delivery, Title and Risk or Loss
Title and risk of loss of any goods delivered hereunder shall pass to Buyer upon Buyer’s receipt thereof. In the event that the goods are shipped to the Buyer, risk of loss passes to the Buyer upon Seller’s delivery of the goods to the shipper/transport company. Unless otherwise stated in writing by Buyer (i) Seller may select packing, shipment, routing and carrier (ii) goods will be packaged according to industry standards and special packaging will be subject to additional charges (iii) lots or installment deliveries shall be deemed covered by a separate contract and any rejection or revocation of acceptance of one lot or installment shall affect only such lot or installment and shall not impair the value of the balance of the Purchase Order (iv) 5 days of grace shall be allowed on each delivery and (v) quantities which do not vary more than 5% shall be deemed to comply with the Purchase Order.
Packaging materials used by Seller that are specifically designated as “leased” either in the invoice or the freight papers, shall be returned by Buyer, at Buyer’s costs, to Seller no later than two (2) months after the agreed upon delivery. Failure to return such materials in a condition that they can be reused by Seller or in a timely manner shall entitle Seller to claim from Buyer the costs for replacing such packaging materials. Other packaging materials provided by Seller may only be reused by Buyer once any trademarks, logos, etc. of Seller have been removed.
6. Force Majeure
Seller shall not be responsible for any delays or non-performance caused in whole or in part, directly or indirectly, by strikes, accidents, embargoes, fire, floods, inability to obtain materials, labor or services, conditions arising from government orders or regulations, war or national emergency, Acts of God, and any other cause, similar events to the foregoing which are deemed beyond Seller’s reasonable control. Buyer may not refuse delivery on grounds of an event of Force Majeure.
7. Security Interest
Seller reserves a purchase money security interest in goods sold hereunder equal to the price. Said interest shall be released on receipt of payment in full. Upon request, Buyer agrees to sign and give UCC forms to Seller for filing. Buyer’s refusal to deliver a duly signed UCC authorizes Seller to sign and record this document and a UCC form as attorney-in-fact for Buyer to perfect said security interest of Seller.
8. LIMITED WARRANTY
EXCEPT AS OTHERWISE PROVIDED IN A SEPARATE WRITTEN AGREEMENT BETWEEN SELLER AND BUYER, SELLER WARRANTS ITS GOODS WILL CONFORM TO THE AGREED UPON PURCHASE SPECIFICATIONS AND BE FREE FROM DEFECTS AND DEFICIENCIES IN WORKMANSHIP AND MATERIALS FOR A TERM OF TWELVE (12) MONTHS FROM THE DATE OF SALE OF SUCH GOODS TO THE PURCHASER AS SPECIFIED IN SHIPMENT DOCUMENTS FOR EACH PRODUCT. IN THE EVENT OF A VALID WARRANTY CLAIM, SELLER MAY REPAIR OR REPLACE THE RETURNED GOODS AT ITS SOLE DISCRETION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS OR MERCHANTABILITY. EXCEPT AS MAY BE OTHERWISE PROVIDED IN A SEPARATE WRITTEN AGREEMENT WITH BUYER, SELLER LIMITS ALL CLAIMS OF ALL PERSONS FOR LOSSES OR DAMAGES, TO THE FULLEST EXTENT PERMITTED BY LAW, SUFFERED BY ANY OF THE FOREGOING, TO THE VALUE OF THE COST OF REPAIR OR REPLACEMENT OF ANY DEFECTIVE GOODS AND NO ACTUAL DAMAGES SUCH AS FOR LOST PROFIT, LOSS OF PRODUCTION, PROPERTY DAMAGE, SPECIAL DAMAGES, CLAIMS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES CLAIMED BY OR THROUGH SUCH INJURED PARTY ASSERTING SUCH CLAIMS ARE COMPENSABLE FOR BREACH OF THIS WARRANTY. WARRANTY CLAIMS MUST BE IN WRITING ACCORDING TO SELLER’S PROCEDURES EXISTING AT THE TIME OF THE CLAIM AND MADE WITHIN FOURTEEN (14) DAYS OF DISCOVERY OF THE DEFECT. THE LIMITED WARRANTY SET FORTH ABOVE SHALL NOT APPLY TO WEAR PARTS, PRODUCTS IMPROPERLY ALTERED, MODIFIED, APPLIED OR INSTALLED, ABUSED, INADEQUATELY MAINTAINED, USED IN VIOLATION OF SELLER’S INSTRUCTIONS OR DAMAGED BY MALFUNCTION OF COMPONENTS SUPPLIED BY OTHERS.
9. Patents and Other Intellectual Property Rights
In the event Buyer supplies designs, specifications or instructions which are incorporated into the goods sold hereunder, or modifies any goods or combines them with other products, Buyer warrants that such goods will not infringe any patent, trademark, copyright or other intellectual property of another, and Buyer agrees to indemnify, hold harmless and defend Seller, its affiliates, successors, assigns, customers and users from and against any and all such losses, damages, liabilities, claims and demands (including attorney’s fees) and lawsuits at law or equity for infringement of any patents, trademarks, copyrights or other intellectual property rights pertaining to the goods arising from Buyer’s designs, specifications or instructions.
10. Postponement and Cancellation
Notice of Buyer regarding postponement in shipment schedule must be received by Seller in writing at least 10 days prior to the original scheduled shipment date. Postponements of more than 30 days may result in additional charges to Buyer. An Order may be cancelled by Buyer only upon receipt of (i) payments due Seller on that Order (ii) costs incurred by Seller to the date of cancellation including but not limited to incremental costs of processing the cancellation and a portion of the profit it would have obtained but for the cancellation. The profit portion payable shall be calculated as a percent of the total profit represented by the price of the goods delivered to the price of goods of the total Order so cancelled.
Except as provided below, the parties agree to submit disputes to an arbitrator in Atlanta, Georgia applying the American Arbitration Association Rules. The proceedings shall be in English, and any enforceable decision shall be enforceable in any court of competent jurisdiction according to the laws of the state of Georgia and the United Nations Convention for the Enforcement and Recognition of Arbitral Awards unless the nature of the dispute is suitable to injunctive relief thereby affording a party the right to pursue redress in court without proceeding to arbitration.
The parties incorporate the Georgia Uniform Commercial Code trade terms and definitions and expressly exclude the United Nations Convention on the International Sale of Goods. The parties submit to personal and subject matter jurisdiction of the courts of Georgia and accept its law as the controlling law. In the event of a dispute, neither party shall be entitled to claim consequential or incidental damages such as lost profits, special damages, exemplary or punitive damages.
13. Default and Remedies
If Buyer commits or suffers an act of bankruptcy, reorganization, merger, change in control, dissolution or bulk transfer, or violates the terms of an agreement with Seller, in addition to other remedies Seller may declare itself insecure and suspend performance of Buyers’ Purchase Orders until receiving adequate assurance of performance or treat such event as a default. The parties are entitled to exercise all remedies available at law or in equity which are cumulative and may be exercised at any time and in any combination allowed by law. If Seller reasonably believes the financial condition of Buyer does not justify shipment on the within terms, Seller may make a written demand for full or partial payment in advance, suspend its performance until such payment is received or cancel any order.
This document represents the complete agreement between the parties with respect to the goods sold hereunder. No modification hereof shall be effected by any receipt or acknowledgment of Seller of any Order containing additional or different terms. If any provision herein shall be held to be invalid, illegal or unenforceable, these Terms of Sale shall be construed as if such provision is not contained herein, and such invalidity, illegality or unenforceability shall not affect any other provision herein. Buyer shall not disclose to anyone outside its employ the Terms of Sale. On request of Seller, Buyer shall return any proprietary or Confidential Information or property of Seller.