General terms of delivery
of SOREL GmbH Mikroelektronik, Reme-Str. 12, 58300 Wetter (Ruhr), Germany
§ 1 Applicability, form
(1) These General Terms of Delivery (GTD) shall apply to all our business relations with our customers (« Purchaser »). The GTD shall only apply if the Customer is a business (§ 14 BGB, German Civil Code), a legal entity under public law or a special fund under public law.
(2) The GTD shall apply in particular to contracts for the sale and/or delivery of movable goods (« goods »), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB, German Civil Code). Unless otherwise agreed, the GTD in the version valid at the time of the customer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTD apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if we carry out the delivery to the customer without reservation in the knowledge of the Purchaser’s general terms and conditions.
(4) Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTD. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the purchaser in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTD.
§ 2 Conclusion of contract, relevant documents
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or other documents (hereinafter: « Documents ») – also in electronic form.
(2) We reserve all property rights and copyrights to the documents which we provide to the Purchaser without restriction. The Documents may only be made available to third parties with our prior consent and shall be returned to us immediately upon our request if no contract is concluded. We may make documents that we receive from the buyer accessible to third parties within the scope and for the purpose of fulfilling the contract.
(3) The order of the goods by the Purchaser shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
(4) Acceptance can either be expressed in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
§ 3 Delivery deadline and delay in delivery
(1) The delivery deadline is agreed individually or is stated by us when the order is accepted. The delivery deadline is agreed individually or is specified by us when the order is accepted. If this is not the case, the delivery period for goods in stock is approx. four weeks from conclusion of the contract. In all other cases, in particular in the case of goods to be manufactured or adapted according to Purchaser specifications or discontinued goods, the delivery period shall be approx. eight weeks and shall begin with the conclusion of the contract, but at the earliest with the timely receipt of all documents, necessary permits, releases, in particular of plans, to be provided by the Purchaser, as well as the Purchaser’s compliance with the agreed terms of payment and other obligations (hereinafter: cooperation of the Purchaser), unless we are responsible for a delay in the cooperation of the Purchaser.
(2) If a specific delivery date has been agreed and the buyer fails to provide the timely cooperation of the Purchaser as provided for in paragraph (1), the delivery date shall be postponed until the cooperation has been completed plus a reasonable period of time.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible and in cases of force majeure, e.g. serious impairments in the health sector (including pandemics, epidemics, diseases), natural disasters (including storms, floods, earthquakes), industrial disputes, unrest, armed conflicts and acts of terrorist violence, we shall inform the Purchaser of this immediately and at the same time inform him of the expected new delivery deadline. If the service is not available even within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall reimburse any consideration already provided by the Purchaser without delay. In particular, the non-availability of the service in this sense is deemed to be the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the service in individual cases.
(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required.
(5) Both claims for damages by the Purchaser due to delayed delivery and claims for damages in lieu of performance exceeding the limits specified in paragraph (4) shall be excluded in cases of delayed delivery, even after expiry of a time set to the Purchaser to effect delivery.
(6) At our request, the Purchaser shall be obliged to declare within a reasonable period of time whether he withdraws from the contract due to the delayed delivery or insists on delivery. His right to withdraw from the contract expires if he does not declare his withdrawal before the expiry of the deadline.
(7) The rights of the Purchaser pursuant to § 8 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
- § 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is made ex works, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Purchaser, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, route, packaging) ourselves and to insure the goods adequately against the usual transport risks at the cost of the Purchaser.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the Purchaser upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. If the Purchaser is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the Purchaser is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, in particular at his express request, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation amounting to 1.0% of the price of the items of the deliveries per week (but not exceeding a total of 5% of the price of the items of the deliveries), beginning with the delivery period or – in the absence of a delivery period – with the notification of the readiness of the goods for dispatch.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Purchaser shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
(4) Partial deliveries shall be permitted, provided they are reasonable for the Purchaser.
(5) The Purchaser may not refuse to accept deliveries due to minor defects. Otherwise he shall be in default of acceptance.
§ 4a Provision of software
(1) Software (program and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other industrial property rights to the software as well as to other objects which we provide or make available to the buyer within the scope of the contract initiation and execution are exclusively entitled to us in the relationship of the contractual partners. Insofar as third parties are entitled to the rights, we have the corresponding rights of exploitation.
(2) The Purchaser shall only be entitled to use the program to process his own data in his own company for his own purposes. All data processing devices (e.g. hard disks and central units), onto which the programmes are copied or taken over in whole or in part, temporarily or permanently, must be located on the premises of the ordering party and must be in his direct possession. Further contractual rules of use (e.g. limitation to a number of workstations or persons) must be technically set up and practically observed. We hereby grant the customer the necessary authority for this use as a simple right of use, including the right to correct errors.
(3) The Purchaser may make the backup copies of the programmes required for safe operation. The backup copies must be kept in a safe place and, as far as technically possible, must bear the copyright notice of the original data carrier or the version of the software transmitted online. Copyright notices, trademarks and product labels may not be deleted, changed or suppressed. Copies that are no longer required must be deleted or destroyed. The user manual and other documents provided by us may only be copied for internal company purposes.
(4) The software may only be made available to third parties by sale in perpetuity and without any right of return or repurchase option. In doing so, the Purchaser shall be obliged to impose the reservations, restrictions on use and other conditions regulated in this § 4a on his customers as well. In the event of infringement, he shall be obliged to compensate us for any damage resulting therefrom. In the event of transfer, the buyer must hand over to the purchaser all copies of the programmes (including, if available, the backup copies mentioned in paragraph (3)) or destroy the copies not handed over.
(5) All other acts of exploitation, in particular renting, lending and distribution in physical or non-physical form, use of the software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) are not permitted without our prior written consent.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply ex works, plus statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 paragraph (1)), the Purchaser shall bear the transport costs ex works and the costs of any transport insurance requested by the Purchaser. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.
(3) The purchase price is due and payable within 30 (in words: thirty) days from invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the above payment period, the Purchaser shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial interest on arrears (§ 353 HGB, German Commercial Code) against merchants remains unaffected.
(5) The Purchaser shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the Purchaser shall remain unaffected, in particular in accordance with § 7 paragraph (6) sentence 2 of these GTD.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardised by the lack of ability to perform on the part of the Purchaser, we shall be entitled to withdraw from the contract in accordance with the statutory provisions on refusal of performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unacceptable items (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(1a) Until complete payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), the buyer has only a provisional right of use of software, which is only subject to the law of obligations and revocable.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Purchaser must inform us immediately in writing if an application is made for the opening of insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures).
(3) In the event of conduct on the part of the Purchaser in breach of contract, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously set the Purchaser a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revocation according to (c) below, the Purchaser is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
- Retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party’s right of ownership remains in effect after processing, mixing or combining with goods of a third party, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under reservation of title.
- The Purchaser hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Purchaser mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
- In addition to us, the Purchaser remains authorised to collect the claim. We undertake not to collect the claim as long as the Purchaser meets his payment obligations to us, there is no defect in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with paragraph 3. However, if this is the case, we can demand that the Purchaser informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Purchaser’s authority to further sell and process the goods subject to retention of title.
- If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Purchaser.
§ 7 Claims for defects by the Purchaser
(1) The rights of the Purchaser in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) shall be governed by the statutory provisions, unless otherwise provided for in these GTD. Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product. Only the Purchaser as our contractual partner shall be entitled to claims for defects.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s details which are the subject of the individual contract or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on the quality of the goods. Insofar as the quality has not been agreed, the statutory regulation shall be applied to determine whether or not there is a defect (§ 434 (1) sentences 2 and 3 BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the Purchaser has not pointed out to us as being decisive for his purchase.
(3) Non-reproducible software errors shall not constitute a claim for defects by the Purchaser. In the case of repeat orders or series deliveries, customer-specific software is deemed to have been approved by the Purchaser in the sense of a technical acceptance.
(4) Warranty claims shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or that occurs due to special external influences that are not provided for under the contract. If the Purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the resulting consequences.
(5) We are generally not liable for defects which the Purchaser was aware of at the time of conclusion of the contract or was unaware of through gross negligence (§ 442 BGB). Furthermore, the Purchaser’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect is discovered during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within five working days, by Purchasers outside of Germany within ten working days of delivery, and defects that were not apparent during inspection must be reported in writing within the same periods from the time of discovery. If the Purchaser fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.
(6) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification of defects) or by delivering a defect-free item (replacement delivery).
In the case of material defects of software, subsequent performance shall be effected at our discretion by eliminating the defect, by delivering software which does not have the defect, or by showing possibilities to avoid the effects of the defect.
At least two attempts at rectification must be accepted due to a defect, and at least three attempts at rectification due to a software defect. An equivalent new program version or the equivalent previous program version without the defect shall be accepted by the Purchaser if this is reasonable for him. The installation of software is the responsibility of the Purchaser.
Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(7) We shall be entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(8) The Purchaser shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
In the case of software defects, the Purchaser shall support us in the analysis of the error and elimination of the defect, in particular by specifically describing any problems that occur, providing us with comprehensive information and granting us the time and opportunity necessary for the elimination of the defect. We may, at our discretion, remedy the defect on site or in our business premises. We can also provide services by remote maintenance. The Purchaser must ensure the necessary technical requirements at his own expense and grant us electronic access to the software after giving us appropriate prior notice.
(9) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs, if applicable, in accordance with the statutory provisions if a defect actually exists. Otherwise, we can demand reimbursement from the Purchaser for the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the absence of the defect was not apparent to the Purchaser. Claims of the Purchaser shall be excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the Purchaser’s branch office, unless this was foreseeable for us according to the nature of the object of the delivery.
(10) In urgent cases, e.g. if operational safety is endangered or in order to prevent disproportionate damage, the Purchaser shall be entitled to remedy the defect himself and to demand compensation from us for the expenses objectively required for this purpose. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(11) If the subsequent performance has failed or a reasonable period of time to be set by the Purchaser for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
(12) Unless otherwise agreed, we shall only be obliged to make the delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as property rights) in the country of the place of delivery. If a third party asserts justified claims against the Purchaser due to the infringement of industrial property rights by deliveries made by us and used in accordance with the contract, we shall be liable to the Purchaser as follows:
- We shall, at our discretion and at our expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for us under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction.
- Our obligation to pay damages shall be governed by § 8.
- The aforementioned obligations shall only apply if the Purchaser immediately notifies us in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to our discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, he 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.
- Claims of the Purchaser shall be excluded to the extent that he is responsible for the infringement of property rights.
- Claims of the Purchaser shall also be 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 Supplier.
- Any further claims of the buyer against us and our vicarious agents due to a defect of title or claims other than those regulated in this paragraph are excluded.
(13) Recourse claims of the Purchaser against us, in particular in accordance with §§ 445a, 478 BGB (German Civil Code), also in the case of defects, shall only exist in accordance with § 8 and only insofar as the Purchaser has not entered into any agreements with his customer exceeding the statutory claims for defects
(14) Claims of the Purchaser for compensation for damages or reimbursement of futile expenses shall only exist in accordance with § 8, even in the case of defects, and shall otherwise be excluded.
§ 8 Other liability
(1) Unless otherwise provided for in these GTD including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of liability for culpability in the case of intent and gross negligence. In the case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; minor breach of duty), for
- for damages resulting from injury to life, body or health,
- for damages resulting from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the Product liability Law.
(4) Due to a breach of duty which does not consist of a defect, the Purchaser may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination on the part of the Purchaser (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building or an object that has been used for a building in accordance with its usual use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other statutory special regulations on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The aforementioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Purchaser which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Purchaser pursuant to § 8 para. 2 sentence 1 and sentence 2 (a) as well as pursuant to the Product Liability Law shall become statute-barred exclusively according to the statutory limitation periods.
§ 10 UN sales law
(1) Insofar as the UN Convention on Contracts for the International Sale of Goods (CISG) is applicable, the provisions of the following paragraphs shall apply in addition to the other clauses of these GTD.
(2) Notwithstanding the provisions in this § 10 and the other GTD, we are in principle responsible for any breaches of contract that have occurred in our sphere and are additionally and irrespective of the question of cancellation of the contract, liable for any damages incurred as a result, unless we can prove that the breach of contract is not due to our fault or a fault of the persons employed by us.
(3) In the case of Art. 39 par. 1 CISG, the notification of the lack of conformity must be made immediately in the sense of § 177 par. 1 and 3 HGB (German Commercial Code). The application of Art. 44 CISG is excluded.
(4) Liability under Art. 45 b) CISG is limited to cases of breach of material contractual obligations within the meaning of Art. 25 CISG.
(5) In the case of material defects of minor importance, the Purchaser shall be limited to the legal remedy of reduction.
(6) The reimbursable costs of replacement delivery or repair do not include the costs of dismantling and installation and the associated expenses (e.g. travel costs), irrespective of whether they are claimed as the Purchaser’s own costs or as reimbursed by the Purchaser to its customers. The costs of dismantling and removal and the associated expenses cannot be claimed as damages either.
(7) Notwithstanding the above paragraphs, the Purchaser shall in the first instance only be entitled to demand replacement delivery or repair in accordance with Art. 46 CISG. If we are not prepared to make a replacement delivery or repair, in particular if it is unreasonable for us within the meaning of Art. 46 para. 3 CISG, or if we are not in a position to repair, or if the replacement delivery or repair is delayed beyond a reasonable period set by the Purchaser for reasons for which we are responsible, or if the replacement delivery or repair fails for other reasons, the Purchaser shall be entitled, at its option, to withdraw from the contract or to demand a reduction in the remuneration (abatement). Unless otherwise stated below, further claims of the Purchaser – for whatever legal reasons – are excluded.
(8) Further claims for damages by the Purchaser – irrespective of the legal grounds – are excluded.
(9) The limitations and exclusions of liability according to this § 10 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply to such damages which are based on intent, gross negligence, fraudulent misrepresentation, the non-observance of warranties assumed or culpable breach of main contractual obligations (essential contractual obligations) (in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage); furthermore, they do not apply in cases of injury to life, body or health; they also do not apply to claims of the customer under the Product Liability Law.
§ 11 Data protection
(1) Insofar as the equipment sold by us is also used to collect and process data, in particular personal data, the Purchaser shall be obliged to support us at his own expense in every reasonable way in clarifying the obligations under data protection law that affect us, him or his direct or indirect customers.
(2) The Purchaser is obliged to comply with all data protection regulations. Insofar as third parties assert claims against us for violation of data protection regulations, the Purchaser shall indemnify us against such claims if and to the extent that he himself has caused the reason for the claim.
§ 12 Miscellaneous
Any reference to commercial terms (such as EXW, FCA etc.) shall be deemed to be a reference to the corresponding terms of the Incoterms in the version applicable at the time of conclusion of the contract.
§ 13 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTD, including this choice of law clause, and the contractual relationship between us and the Purchaser.
(2) If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Wetter (Ruhr), Germany. The same shall apply if the Purchaser is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Purchaser. Priority statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected. This agreement on the place of jurisdiction is subject to the law of the Federal Republic of Germany.
General Conditions of Purchasing and Ordering
SOREL GmbH Mikroelektronik
§ 1 Scope
1. The following conditions of purchasing apply for the entire business dealings with our suppliers or other contractors (in the following commonly referred to as “Supplier”), even if they are not mentioned in later instances or contracts. The inclusion of general conditions of sales or other general terms and conditions of the Supplier is explicitly objected herewith. This also holds if the Supplier refers to own terms and conditions, even if they include (counter-) protective and/or exclusivity clauses and we do not explicitly object to them, regardless the chronological order in which the competing conditions were referred to by the contracting parties, unless they were confirmed in writing. Neither can the validity of other conditions be inferred from the receipt of the goods or service.
2. Our conditions of purchasing also apply for all future transactions with the Supplier without explicit reference, unless we agree to a different validity in writing.
§ 2 Conclusion of Contract
1. An order is only valid if issued in writing and signed by us. Any orally issued orders by us are only binding when confirmed by transmitting a written order subsequently.
2. The Supplier is obliged to accept the offer included in our order within a period of two weeks. By accepting the order, the Supplier confirms to be informed about the type of product and the scope of the performance by studying the available documents. In case of apparent mistakes, typing or computing errors in the documents issued by us, we are not bound to them. The Supplier is obliged to notify us of such mistakes, such that our order can be revised. This also applies for missing documents. Acceptance of the order must be confirmed in writing within two weeks as of the date of order. Otherwise, we are entitled to revocation.
3. Deviations in quantity or quality from the text and content of our order as well as later contract changes only come into force if confirmed by us in writing.
4. The order number and supplier number quoted in our order must be referred to on the invoice and any other written correspondence.
§ 3 Date of Delivery
1. The agreed dates of delivery are binding. The delivery period shall commence on the date of order. The delivery must have been received at the destination point specified by us within the period of delivery. Prospective delays of delivery must be communicated to us immediately in writing, indicating the reasons.
2. In case of agreed dates of delivery, the Supplier is not entitled to deliver ahead of schedule, if legitimate operational concerns (e.g. lack of storage capacity) oppose to them. In this case, a refusal from our side to receive the delivery does not initialize a default of acceptance. A delivery ahead of schedule does not imply an earlier payment date.
3. If call-off deliveries from a blanket order are agreed, the call-offs become binding if the Supplier does not contradict immediately.
4. If the Supplier is behind schedule, we are entitled to lawful claims. After an ineffective lapse of appropriate time, we are also entitled to a contractual penalty of 0,8% of the net order value for every week started, but at most 5% of the net order value, and/or ask immediate delivery and/or refrain from the contract. Any effected contractual payment shall be deducted from possible damage claims. Sec. 343 BGB remains reserved. The acceptance of delayed deliveries or services does not imply a waiver from possible damage claims.
§ 4 Disengagement
Force majeure or operational disturbances, strikes, lock-outs which considerably impair operations in our company, release us from our purchase commitment.
§ 5 Shipment, Packaging
1. Every shipment of goods must be accompanied by a delivery note. Our order data must be repeated on all shipment documents. Any costs incurred as a result of non-compliance to these obligations shall be covered by the Supplier.
2. Shipping costs are fully incurred by the Supplier to the destination specified by us. In case of a written agreement stating that we exceptionally assume the shipping costs, the Supplier is obliged to pick the transportation mode and carrier as specified by us or otherwise the transportation mode and carrier most advantageous to us.
3. The risk will only pass to us upon receipt of the delivery at our point of destination.
4. Packaging is included in the price. In case of a written agreement stating otherwise, packaging must be charged at cost price.
§ 6 Prices, Terms of Payment
1. Unless otherwise agreed in writing, the prices for delivery and services are net prices plus statutory turnover tax and including packaging, shipping and insurance. Agreed prices are fixed prices, unless the Supplier decreases his prices. Other specifications require our previous written approval.
2. The supplier will not set us prices and terms less favorable than those for other buyers, if and in so far as in specific cases these other buyers are offering the same or equivalent conditions.
3. Payments shall be effected only upon full receipt of the faultless goods and/or entirely faultless performance and after receipt of a duly issued invoice. If partial shipments were agreed in writing, this regulation applies accordingly.
4. Unless otherwise agreed in writing, payment takes place within thirty days with three percent cash discount or within ninety days net. Delays which arise from incorrect or incomplete invoices do not affect cash discount periods. As far as we are entitled to a cash discount, the calculation of the cash discount period is based on the last chronological event in case of a separate receipt of the delivery and the invoice.
5. Payments made to the Supplier generally do not imply approval of the delivery in terms of the contract specifications.
6. Any accounts receivable from us to the Supplier may only be conveyed to third parties with our written consent. We shall be entitled to the full range of offsetting and retention rights stipulated by law.
7. As far as insurance is incurred by us, insurance costs of the Supplier must not be part of the purchasing price.
§ 7 Warranty and Liability
1. We are entitled to assert any claim given by law. In case of mutual commercial transactions, Sec 377 HGB applies with the following particularities:
- The goods are only considered delivered as soon as we had the possibility to inspect them in the ordinary course of business. In case of doubt this shall be the point in time when the goods arrive on our premises during our customary opening hours. Handing the goods over to the carrier is not sufficient. Complaints will have been carried out in due time to the extent that it arrives at the Supplier within a period of two weeks after receipt of goods or the first opportunity for inspection. In case of hidden defects the date of discovery shall count.
- The goods will not be regarded as accepted if the Supplier was not aware of the quality deviations as a result of own or imputable negligence, but if he could have assumed our rejection under proper operations.
- Defects which could not be identified as such within a mere visual and identity inspection are classified as hidden defects.
2. If defective goods are delivered, the Supplier will be given the opportunity to correct the deficiencies or to replace the goods according to our choice. If the Supplier cannot carry out corrections or replacement delivery or if he does not do so after request and appointment of a time limit, we are entitled to return the goods at the Supplier’s risk and cost and to obtain replacement goods elsewhere without prejudice to any other rights or remedies.
3. With regard to commission orders, the Supplier must take the utmost care and strictly follow our instructions. In cases of doubt, it is mandatory to consult us. By accepting a commission order, the Supplier confirms his ability to fulfill our specifications.
4. Sample Suppliers are obliged to deliver in line with drawings and dimensions.
5. The right to claim damages, in particular for damage compensation instead of performance, remains explicitly reserved.
6. Our warranty and damage compensation rights lapse within three years after passing of risk. As far as the Supplier delivers new items or parts of an item in the context of the warranty for defects, the statute of limitation of the new or corrected item begins from new, starting from moment of handover of the new item or part. The reset of the statute of limitation does not occur if the defect was minor or if the Supplier explicitly stated before the replacement delivery that he is not obliged to the replacement delivery and the replacement was delivered only out of goodwill or as an amicable settlement of a dispute.
§ 8 Production Resources
1. Drawings, samples and models which we make available to the Supplier remain our property and must be handed back upon termination of the order unrequested. Processing or modifications by the Supplier are done for us.
2. Drawings must not be duplicated. It is prohibited for the Supplier to make our production resources available to third parties. The non-disclosure obligation remains valid even after termination of this contract. It expires, if and as far as the models, drawings, calculations and other documents that we made available to the Supplier become commonly known.
3. The Supplier is prohibited from contacting our customer without our consent.
4. For the rest item 9.3 is valid accordingly.
§ 9 Manufacturer’s Liability, Property Rights, Non-Disclosure
1. The Supplier is obliged to release us from any complaints according to German and foreign law, as far as he is liable for the underlying defect in line with the regulations for manufacturer’s liability. If, based on no-fault liability vis-à-vis third parties, claims are made against us, the Supplier shall intercede on our behalf to the same extent as if it were directly liable to the third party.
2. The Supplier is liable for ensuring that no patents or other property rights of third parties are violated through the delivery of the Supplier and its utilization by us. The Supplier shall be free to prove that he is not responsible for violation of the rights of third parties. As far as we are concerned with liability claims from third parties, he releases us and our Purchasers from all claims arising from the use of such property rights and from any expenses which we necessarily incur through or in connection with the claims asserted by a third party. We are not entitled to close any agreements, especially out-of-court settlements, without consent of the Supplier. The Supplier is not liable to us, as far as he produced the goods according to the drawings, models or equivalent descriptions or instructions that we made available to him in this context, unless he is aware of the violation of rights caused by its use.
3. All technical data and other commercial and technical information that is not in the public domain and that the Supplier gets to know through the business relationship with us must be kept strictly confidential. They may only be used for the execution of our orders and may only be made available to those employees of the Supplier whose deployment in the order execution is rendered necessary by the Seller’s operational circumstances. Possible sub-contractors must be obliged accordingly.
§ 10 Limitation of Liability
1. We are only liable in the following cases:
a) In cases of intent or gross negligence by our executive bodies and managing employees;
b) In cases of negligent breach of major contractual obligations by our executive bodies, managing employees and other auxiliary persons.
2. The disclaimer of warranty and liability limitation included in item 10.1 do not apply for cases with damage of life, body or health. In all cases of non-negligent damage causes, we are liable only with the amount of foreseeable and typical damage with the exceptions stated in the previous sentence.
§ 11 Product Liability
1. If claims are made against us because of violation of official safety precautions or because of domestic or foreign product liability regulations or laws because of the defectiveness of our product that was caused by a commodity of the Supplier, we shall be entitled to demand compensation from the Supplier to the extent that the damage was caused by the products supplied by him. This damage also includes the costs incurred by a precautionary recall campaign.
2. Furthermore, the Supplier shall insure itself appropriately and commensurately against all risks arising from product liability, including appropriate cover for the risk of recall, and shall present his insurance policy to us on request for inspection.
§ 12 Other
1. Any reference to commercial terms (such as EXW, FCA etc) shall be regarded as a reference to the corresponding Incoterms conditions in force at the relevant time.
2. Legal relations existing between the Supplier and us shall be governed by German substantive law, even if the Supplier’s head office is located abroad, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. If the purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be our place of business. However, we may also bring an action at the Supplier’s place of business.