Membraflow control systems GmbH GTC 2021/04
General provisions / Scope
All current and future deliveries, services and offers are based exclusively on these General Terms and Conditions (GTC). They shall apply even in the absence of a subsequent separate agreement. Any terms and conditions of the Buyer shall only become effective if we expressly agree in writing to execute the agreement on these terms and conditions. In this case, our terms and conditions also apply if and insofar as they do not contradict the terms and conditions of the Buyer. We expressly point out that the clauses listed under ‘Plant engineering’ do not apply exclusively, but in addition to those under ‘Commercial’. The data generated in connection with the contractual relationship between the Buyer and us will be stored by us for the purpose of data processing, but will not be passed on to third parties.
I. Offers and conclusion of contract
1. Our offers are non-binding and do not expire unless they are expressly stated to be binding or specify a certain deadline for acceptance. We reserve the right to correct obvious calculation and spelling errors or errors apparent to the Buyer.
2. The legal relationship between the Buyer and us shall be governed solely by the written agreement – including these General Terms and Conditions. Agreements concluded with our employees or representations made by them will be replaced by the written agreement, unless it is expressly evident from them that they continue to apply in a binding manner.
3. Supplementary agreements and amendments require our written confirmation in order to be valid.
4. Our contractual relationships with foreign customers are governed by German law.
II. Prices and payment terms
1. Our prices apply to the scope of services and delivery listed in the order confirmations and are in EUR ex works, plus costs for transport, packaging, freight charges, customs and fees and other public charges. Additional or special services shall be charged separately.
2. Our invoices for goods deliveries, after-sales services and repairs must be paid without deduction according to the order confirmation. If the Buyer defaults on a payment, we may charge default interest at the respective bank rates, at the minimum interest at the rate of 5% above the base interest rate. If the Buyer defaults on the payment of older invoices or on the acceptance of ordered items, we may withhold outstanding deliveries until the default has been remedied or deliver them against prepayment or a bank guarantee.
3. Unless a fixed price has been agreed, we reserve the right to make reasonable price adjustments due to changes in labour, material, and distribution costs for deliveries made 3 months or later after conclusion of the contract.
4. Buyers can only set off their claims against our claims if the Buyer’s counterclaim is uncontested or based on a legally enforceable title.
5. If there is a significant delay in the project progress through no fault on the part of the Contractor, we reserve the right to bill services rendered as partial performance. The nature and scope of the partial performances to be invoiced will be determined by us.
1. All deliveries are made ex works Aalen.
2. The delivery date is always determined by agreement, after complete technical clarification and subject to the absence of unforeseeable obstacles outside our scope of performance. Compliance with the delivery period is conditional on the Buyer assuming all obligations incumbent on the Buyer, such as the provision of all necessary regulatory certificates or licenses or the payment of a deposit. If that is not the case, the delivery period will be reasonably extended.
3. We shall not be liable for impossibility of delivery or delivery delays if such impossibility or delay is caused by events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, shipping delays, strikes, lawful lockouts, shortfalls in labour, energy or resources, difficulties in obtaining any required administrative approvals or measures, or in the case of non-delivery, or late or incorrect delivery by upstream suppliers) and does not fall in our sphere of responsibility. To the extent that such events impair or prevent our delivery or performance and such impairment is not merely of a temporary nature, we shall be entitled to rescind the contract. In case of obstacles of a passing nature, the delivery dates or periods will be postponed for as long as the obstacle persists plus a reasonable lead time.
4. If the dispatch or acceptance of the delivery item is delayed for reasons for which the Buyer is responsible, then the costs incurred due to the delay shall be charged to Buyer, beginning four weeks after notification of readiness for dispatch.
5. The Buyer must immediately check the delivery for content and completeness, as well as for transport damage. The Buyer can only assert claims against us from loss of transport goods or from transport damage if they have identified them without undue delay, obtained a damage report from the carrier and sent it to us.
6. If we fail to meet an agreed delivery date, the Buyer must allow us a reasonable grace period for performance. The delivery period begins on the day on which we have confirmed the order placed with us and is deemed to have been complied with if the shipment has left our factory during the period.
IV. Place of fulfilment, shipping, packaging, transfer of risk, acceptance
1. Aalen shall be the place of performance for all claims arising from the contract, including claims arising from bills of exchange, cheques and similar documents, for damages and from the rescission and termination of the contract.
2. We shall be determine the manner of shipping and packaging at our due discretion. The Buyer shall be responsible for the disposal of used equipment and waste materials, including packaging material.
3. The risk passes to the Buyer upon handover to the third party commissioned to carry out the shipping. This also applies to partial deliveries or if we have agreed to provide other services as well (e.g. commissioning). The risk shall pass to the Buyer even if caused by the Buyer occur, in particular if the delivery is ready for dispatch and such readiness has been notified to the Buyer.
1. All wear parts including the ceramic elements and seals are excluded from the warranty. Also excluded are all defects, disadvantages and damage resulting from improper handling by the Buyer (e.g. improper storage at their premises, operating errors).
2. If the cause of the defect is attributable to any fault on our part, the Buyer is entitled to damages if the conditions set forth in clause VII., hereof are met.
3. In the case of defects in components of other manufacturers that we cannot remove for licence-related or factual reasons, we shall assert – at our choice – our warranty claims against the manufacturers and suppliers on behalf and for the account of the Buyer or assign such claims to the Buyer. In the case of such defects, warranty claims against may be asserted against us subject to fulfilment of the other prerequisites and in accordance with these General Terms and Conditions only if the aforementioned claims have been unsuccessfully asserted against the manufacturer and suppliers or if there is no prospect of success, for example due to insolvency.
4. Any delivery of used goods agreed in an individual case with the Buyer shall be subject to the exclusion of any liability for material defects.
VI. Proprietary rights
1. In accordance with this clause VI., we warrant that the delivered item is free of industrial property rights and the copyright of third parties.
2. In the event that the delivered item infringes an industrial property right or copyright of a third party, we will, at our discretion, modify the delivered item, replace it or provide the Buyer with the right of use. Any compensation claims of the Buyer are subject to the limitations of clause VII. of these General Terms and Conditions.
VII. Liability for damages caused by fault
1. Our liability for damages, irrespective of their legal base, in particular for impossibility or default of performance, defective or faulty delivery, breach of contract, violation of duties during contract negotiations and tort is limited – to the extent that such liability is based on fault – by the provisions of this clause VII.
2. We shall not be liable in the event of simple negligence on the part of our corporate bodies, legal representatives, employees or other vicarious agents, insofar as such actions do not constitute a violation of essential contractual obligations. Essential contractual obligations include the obligation to make timely delivery and install the delivered item, the absence of material and legal defects that impair its functionality or usability more than insignificantly, as well as duties to provide advice, protection and care that are intended to enable the Buyer to make use of the delivered item in accordance with the provisions of the contract or are intended to protect the life and limb of the Buyer’s personnel or to protect the Buyer’s property from significant damage.
3. Claims for damages pursuant to clause VII.2 are limited to the damage, which we had foreseen upon the conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen with due diligence and care. Indirect loss and consequential damage due to defects of the delivered item will be compensated only if such damage can be typically expected if the delivered item is used in conformity with its intended purpose.
4. The above exclusions and limitations to our liability apply to the same extent for the benefit of our corporate bodies, legal representatives, employees and other vicarious agents.
5. In cases where we provide technical information or advice, and if the information we provide is not covered by the contractually agreed scope of performance owed by us, such information shall be provided free of charge and subject to the exclusion of all liability.
6. The limitations of this clause VII. shall not apply to our liability for intentional conduct, warranted properties or for injury to life, body or health or pursuant to the Product Liability Act.
VIII. Retention of title and assignment by way security
1. The contractual item delivered by us remains our property until all receivables from the Buyer arising from the contractual relationship and the business relationship as a whole with us have been settled. If the Buyer processes, transforms or combines the contractual item, this is always done on our behalf. If the delivered item is modified in this manner, we as the contractor will acquire co-ownership of the new item. The processed, transformed or combined item shall be deemed to have been delivered subject to retention of title.
2. The resale of the items delivered subject to retention of title is only permitted in the ordinary course of business. Before complete fulfilment of their obligations to us, the Buyer may neither pledge nor transfer the items by way of security. As long as the retention of title remains in effect, the Buyer must notify us without undue delay by registered letter in the event of an intervention by creditors, in particular the pledging of the systems, and, moreover, bear the costs of measures to eliminate such intervention, in particular intervention processes, if they cannot be collected from the intervening party. The same applies to other interventions by third parties.
3. Until full and complete satisfaction of the Buyer’s obligations to us, the Buyer shall assign their claims from the resale of the goods supplied by us to us in the amount stated on our invoice by way of security; this shall apply in particular to the payment of the purchase price under this contract.
1. Irrespective of their legal ground, all claims of the Buyer shall expire by limitation after 12 months; this also applies to the limitation of rights of recourse in the supply chain pursuant to section 445b(1) of the German Civil Code [BGB], provided the last contractual transaction in this supply chain is not a sale of consumer goods. The suspension of the limitation period pursuant to section 445b(2) BGB remains unaffected. The statutory periods shall apply for claims for damages pursuant to clause VII.2.
X. Use of software
1. If software is included in the scope of delivery, the Buyer shall be granted a nonexclusive right to use the software supplied including its documentation. It is provided for use with the delivered item. Use of the software on more than one system is not permitted. The Buyer may only copy, revise, translate the software or convert the object code into the source code to the extent permitted by law (sections 69a et seq. Of the Copyright Act [UrhG]). The Buyer agrees not to remove or modify manufacturer’s product information – in particular, copyright markings – without our prior express consent. All other rights to the software and documentation including copies shall remain with the supplier and/or the software supplier. Sub-licensing is not permitted.
XI. Final provisions
1. If the Buyer is a merchant, a legal person under public law or a special fund under public law, or if the Buyer does not have a general place of jurisdiction in Germany, then the place of jurisdiction for all disputes arising out of the business relationship between the Buyer and us shall be – at our choice – Aalen or the registered office of the Buyer. Under these circumstances, however, Aalen shall be the exclusive place of jurisdiction for claims against us. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.
2. The business relationship between the Buyer and us shall be governed by the law of the Federal Republic of Germany only. The United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 (CISG) does not apply.
3. If and to the extent that this contract or the General Terms and Conditions contain an inadvertent omission, the resulting gap will be deemed to have been filled with legally valid provisions, which the parties to the contract would have adopted in the light of the economic goal of the contract and the purpose of these General Terms and Conditions, if they had been aware of the gap.
I. Offers and conclusion of contract
1. We reserve the right to make technical changes resulting from legal regulations or that represent technical improvements, as well as the right to replace components with equivalent parts that have no negative impact on functionality.
2. We reserve ownership or copyright in all offers and cost estimates submitted by us as well as in the tools made available to the Buyer through planning services commissioned from us (drawings, illustrations, calculations, etc.). Without our consent, they may not be copied or made available to third parties, in particular to competitors.
1. Deliveries are made ex works, manufacturing location Membraflow control systems GmbH.
2. If the Buyer remains in default of acceptance of the system for more than four weeks or rejects acceptance, we are entitled after a grace period of 14 days either to rescind the contract or to demand performance of the contract or compensation for non-performance after the unsuccessful expiry of the grace period we have set. In the event of damages may demand 15% of the net sales price without proof, without prejudice to our right to claim and prove further damages. The Buyer can provide proof that we have not incurred any damage or less damage within the grace period of 14 days.
III. Place of fulfilment, shipping, packaging, transfer of risk, acceptance
1. The delivered item is deemed to have been accepted if
1.1. the item has been delivered and commissioning has been completed (in cases where we have agreed to provide commissioning as well),
1.2. we have notified the Customer with reference to the presumption of acceptance pursuant to clause IV. herein and have requested the Customer to accept the delivery,
1.3 twelve working days have passed since delivery and installation without any complaints if the Buyer has started using the delivered item (e.g. by commissioning it) and six days have passed since delivery or installation in this case.
2. Acceptance shall take place immediately after commissioning of the system and must be confirmed by a protocol. Any defects detected during acceptance must be remedied by the Contractor within a reasonable period of time. The Buyer may not refuse acceptance if insignificant defects are detected, which do not fundamentally impair the operation of the system. If acceptance is delayed for reasons for which the Contractor is not responsible, all costs caused by any additional, necessary travels to and from the site shall be borne by the Customer. Acceptance shall then be deemed to have taken place on the originally agreed acceptance date.
1. We warrant freedom from errors in the planning and execution of our systems in accordance with the respective state of the art and execution of the assembly work in accordance with good engineering practice, as follows:
1.1 The systems shall be subject to a warranty period of 12 months.
1.2 The warranty for systems begins with their delivery or, if acceptance is required, from the acceptance, but also if merely readiness for delivery exists on the part of the Contractor, but at the latest after 30 days.
1.3 We will fulfil our warranty obligations by repairing or replacing faulty system parts free of charge at the Buyer’s choice and by remedying defective customer service, repairs or other services free of charge. The Buyer is obliged to notify us of their claims without undue delay.
2. The warranty lapses if the system is modified by the Buyer or third parties without our consent to an extent that directly impacts the process in sequence and safety.