Terms and conditions
General Conditions of Sale and Delivery
The following terms and conditions apply only to businesses
1.1 Our deliveries and services are based exclusively on these General Conditions of Sale and Delivery. These terms and conditions are an integral part of all contracts concluded and apply also to all future business relations, also if not expressly agreed.
1.2 Upon granting of the contract, however no later than upon acceptance of the delivery or service, these General Conditions of Sale and Delivery are acknowledged by the customer.
1.3 Contrary terms and conditions or diverging counter confirmations of the customer are non-binding for us, also if we have not expressly objected to them. In order to be legally effective, they require our express written acknowledgment.
1.4 There are no amendments and supplements, and no verbal subsidiary agreements to this contract. For reasons of proof, amendments and supplements to this contract must be in writing.
2. Offer and conclusion of contract
2.1 The cost estimates and offers are subject to change without notice and are not binding. All documents relating to the contract, such as illustrations, drawings and weight information, are to be deemed as only approximate, insofar as they are not expressly designated as binding. We retain the ownership and copyright on all catalogues, drawings, cost estimates and other documents. They may not be made available to third parties.
2.2 The customer is liable for the correctness of specified dimensions and for the correctness of design drawings and similar documents provided by himself, in addition to other information that could affect the suitability of the ordered elements for the intended use. The customer is also liable for ensuring that no patent or other property rights of third parties are violated by the use of the drawings and documents. In this respect the customer shall release us from any liability claims of third parties at the initial request. We are not obligated to examine whether property rights of third parties are violated by execution of the documents provided to us. We shall be obligated to make plans marked by the customer as confidential available to third parties only with the customer’s approval.
2.3 The contract is not brought about until written confirmation of the order and corresponding to the content thereof or as a result of acceptance of the delivery by the customer. If there is no written confirmation, our delivery order or our invoice shall also serve as the order confirmation.
2.4 We reserve the right, also after sending the order confirmation, to make alterations to the drawings and descriptions included with our offers and order confirmations, as a result of manufacturing considerations or improvements, experience and progress in technology, insofar as this is reasonable for the customer in consideration of our interests in the modification. The same applies to weight and size differences that are usual in the trade.
2.5 Production-related excessive or reduced quantities in series production of up to 5% in relation to the ordered quantity are allowed, insofar as this deviation in quantity is reasonable for the customer in consideration of our interests.
3.1 The delivery periods stated in the order confirmations are non-binding and approximate. They are only binding if expressly designated by us as binding.
3.2 The delivery period begins with the date of the written order confirmation; if further inquiries are necessary, it begins after all points have been clarified. If advance payments have been agreed to, the delivery period begins with receipt of the first payment.
3.3 The delivery period is complied with if by the time of its expiration the delivery object has left our works or we have notified the customer that it is ready for dispatch.
3.4 In justified special cases, in particular for operational reasons, we are entitled, after prior notification, to execute partial deliveries and partial services and to invoice them separately.
3.5 Delays in deliveries and services due to force majeure or other circumstances beyond our control and which demonstrably have a significant influence on the manufacture or delivery of the delivery object – including in particular strikes, lock-outs, official directives, shortage of material, non-availability or nonde-liverability of goods, etc. – also for our suppliers, are not our responsibility even in the event of bindingly stipulated delivery periods and deadlines or within a delay in performance. We shall inform the customer promptly of the beginning and ending of such hindrances. In the event of hindrances of a temporary duration, we are entitled to postpone the deliveries or services by the duration of the hindrance plus a reasonable lead time. In the event of impossibility of performance, we have the right to cancel the contract in whole or in part concerning the part not yet fulfilled. In this case, the customer shall also be informed promptly of the non-availability of the service and any counter-performance already provided shall be refunded without delay. The customer can request us to state whether we will cancel the contract or deliver within an appropriate period.
3.6 Our deliveries are subject to proper and timely delivery by our suppliers in all cases. This proviso applies insofar as we in turn have concluded a corresponding covering transaction in due time and/or are not ourselves responsible for the delayed delivery by our suppliers.
3.7 Insofar as we are responsible for the failure to comply with bindingly assured periods or deadlines or we are in default with the delivery/service, the customer is entitled, after expiration of a suitable period, to cancel the contract; further liability for damages is provided for in Section 9 of these Terms and Conditions.
3.8 If the customer is in default of acceptance, we are entitled after setting a suitable deadline to no avail, to request compensation in lieu of the delivery for the amount of 20% of the stipulated contract amount, notwithstanding the possibility of proving higher damages. The customer on his part retains the right to prove that no damage was incurred or the damage was significantly lower.
4. Dispatch and transfer of risk
4.1 Place of performance for the delivery is – for deliveries from our warehouse – Dassel, and otherwise the head office of our respective supplying plant.
4.2 All deliveries are carried out at the risk of the customer, also in the event of partial deliveries or if we have undertaken to perform other services, e.g. shipping charges or transport.
4.3 In the absence of special instructions, the packaging and the transportation route and transportation means will be chosen by us at our discretion. Acceptance of the goods from us without objection through the railway, post office, carrier or other transport company shall be deemed confirmation that the packaging is free of defects at the time of dispatch and excludes any liability through us due to improper packaging or shipment for damages or losses occurring en route, insofar as we are not peremptorily liable as a result of intentional behaviour or gross negligence.
4.4 The risk of accidental loss or accidental deterioration of the goods is transferred to the customer upon transfer of the goods to the railway or other carrier, however no later than upon leaving our warehouse or, in the event of direct delivery, upon leaving our supplying plant, in all cases – e.g. also for FOB and CIF transactions. If the customer picks up the delivery himself, the transfer of risk takes effect at the time the goods are made available and dispatch of the notification of readiness for delivery.
4.5 The shipment will be insured against transport damage and other risks only at the express request and at the expense of the customer.
4.6 Goods accepted before dispatch shall be deemed as delivered according to the stipulated conditions.
4.7 If the dispatch or acceptance is delayed at the request or by fault of the customer, then the risk of accidental loss or accidental deterioration is transferred to the customer at the time we notify him verbally or in writing of the readiness for delivery or readiness for acceptance. In this case, we are entitled to charge the customer for the additional expenses incurred beginning one month after notification of the readiness for delivery.
4.8 If the customer is in default of acceptance we can exercise our right pursuant to Section 3.7 or dispose freely of the delivery object and instead deliver an equivalent delivery object within a reasonable period according to the terms of the contract.
5.1 Our prices are net prices from the supplying plant and do not include the applicable statutory value-added tax. Costs of packaging, transport and freight will be charged separately.
5.2 Subsequently agreed modifications to the contract entitle us to charge the customer for the additional costs thereby incurred. Cost savings after deduction of the additional costs caused by the change will be refunded to the customer.
5.3 The prices stipulated upon conclusion of the contract are based on the valid cost factors at that time, in particular material prices, wages, energy, taxes, etc. If the stipulated delivery date is more than 4 weeks after the conclusion of the contract, we are entitled to adjust the price accordingly, if the above-mentioned cost factors change.
6. Conditions of payment
6.1 In the absence of an express agreement, the net amount is due without discount 30 days after receipt of the invoice, so that the stipulated amount is available to us on the due date at the latest. Special agreements require our written counter-confirmation.
6.2 Checks are accepted only as conditional payment. If, by way of exception, we declare our approval of payment by bill of exchange, we will accept discountable and properly taxed bills of exchange only after concluding a corresponding written agreement. The customer shall bear the costs of discounting and collection. These costs shall be due immediately. We shall assume no liability for the timely submission, notification and return of a bill of exchange.
6.3 In the event of a default that occurs due to non-payment within the period stated in Section 6.1, we are entitled to request interest based on the interest calculated by our bank for business loans, however at least interest for the amount of 8 percentage points above the applicable basic interest rate. Our right to assert further claims for damage due to default remains in full force.
6.4 All of our receivables shall become due immediately, if the conditions of payment are not fulfilled without a warranted reason or if after conclusion of the contract we become aware of a significant worsening of the financial circumstances of the customer. We are entitled to execute any then outstanding deliveries and services only in return for advance payment or collateral security or to reduce or completely cancel promised trade credits in this case. If advance payment or collateral security is not provided after expiration of a reasonable grace period, we are entitled to cancel the contract in whole or in part. In that case we retain the right to assert claims for damages for the unnecessary expense incurred, for the lost profit and for further damages.
6.5 The customer is entitled to a set-off only if the counter-claims are recognized by declaratory judgment or are undisputed. A right of retention can be exercised by the customer only if the counter-claim is based on the same contractual relationship.
7. Reservation of title
7.1 We reserve the ownership of all goods delivered by us, until the customer has paid all receivables from the business relationship including future receivables incurred, also from contracts concluded at the same time or a later time and from any current account balance, and until full release from contingent liabilities that we have assumed in the interest of the customer.
7.2 The customer shall treat and protect the reserved goods with care and conduct the necessary and usual inspection, maintenance and preservation tasks at his expense. The customer may neither pledge nor transfer ownership of the reserved goods for the duration of the reservation of title. Access by third parties to the reserved goods, e.g. by way of seizure or confiscation, and damage or destruction shall be reported to us in writing without delay.
7.3 If the customer fails to fulfil a due service as agreed, in particular if the customer is in default of payment of receivables, we are entitled, after setting an appropriate payment deadline to no avail, to cancel the contract and to request the return of the reserved goods. We are then additionally entitled to request compensation from the customer for the damage incurred.
7.4 a) The customer is authorized and entitled within the scope of an ordinary business transaction, which does not include the socalled check/note procedure, to resell the reserved goods. If the customer is in default with payments from the business relationship with us, we can prohibit reselling of the reserved goods. If the customer grants his customer an extension for the purchase price, then he is authorized to resell if he likewise reserves the ownership of the sold goods in relation to his customer. b) The customer hereby assigns to us the demanded purchase price or other entitlements to remuneration including all ancillary rights from the resale or other sales transaction from his customer. They shall serve as security to the same extent as the reserved goods. The customer is entitled and authorized to resell or otherwise utilize the reserved goods only if it is assured that the resulting receivables are transferred to us, in particular that no assignment prohibition in the relationship of the customer to his customer exists. c) If the reserved goods are sold by the customer together with other goods not provided by us, then the assignment of the receivables from the sale applies only to the amount of the invoice value of the respective reserved goods sold. In the sale of goods of which we have part ownership according to Section 7.5, the assignment of the receivables applies to the amount of the value of that share of joint ownership. If the assigned receivable is included in a current account, then the customer hereby assigns to us a part of the balance corresponding to the amount of this receivable – including the corresponding part of the ending balance – from the current account. If interim balances are drawn and it is agreed that they will be carried forward, then the receivable from the interim balance to which we are entitled according to the above stipulation shall be treated as assigned to us for the next balance. d) The customer is authorized until revoked to collect the receivables assigned to us. We cannot exercise this right of revocation as long as the customer properly satisfies his obligations of payment from the business relationship with us and as long as we do not become aware of circumstances that significantly diminish the customer’s creditworthiness. If the prerequisites for exercising the right of revocation are given, then we can request that the customer assigns to us any claims for return against his customer or informs us of the assigned receivables and their debtors, provides all information necessary for collecting those receivables, surrenders to us the corresponding documents and notifies the debtors of the assignment. In addition, we are ourselves authorized to notify the debtors of the assignment.
7.5. The customer is entitled to process the reserved goods in the ordinary course of business, as long as he is not in default of payment. The processing or transformation of the reserved goods shall be performed for us as the manufacturer pursuant to Section 950 of the German Civil Code, without binding us. The processed or transformed goods are deemed reserved goods in accordance with Section 7.1. In the event of processing by the customer of reserved goods with other objects not belonging to us, we acquire joint ownership of the new object in proportion of the value of the reserved goods to the total of the values of the other objects used; the time of processing is decisive. If the reserved goods are mixed, compounded or blended with other objects and our ownership of the reserved goods thus expires, then the customer hereby assigns to us the property rights to the mixed or compounded object or the unified object to which he is entitled in proportion of the value of the reserved goods to the total of the values of the other mixed, compounded or blended objects; the time at which the incident occurs is decisive. The customer shall also preserve for us, at no charge, the objects owned jointly by us in accordance with the above provisions. The stipulations of the entire Section 7 apply accordingly to the joint ownership shares according to Section 7.5.
7.6 At our request, the customer shall provide us at any time with information on the whereabouts of the reserved goods and on the receivables resulting from the resale or other disposal.
7.7 Our rights from the reservation of title according to Section 7 shall apply until full release from contingent liabilities (e.g. suretyships or acceptances), which we have assumed in the interest of or at the request of the customer.
7.8 If the value of the securities existing for us exceeds the total receivables by more than 20%, we shall be obligated insofar at the request of the customer to release securities of our choice.
7.9 Should the reservation of title according to the above provisions be invalid according to the laws of the country in which the reserved goods are located, then the nearest equivalent security according to the laws of that country shall apply. If any action is required on the part of the customer in this connection, the customer shall be obligated at our request to undertake these actions. 7a. Tool costs 7a.1 The tools, devices and special measuring equipment manufactured for the production of parts, regardless of whether they were paid for in whole or in part by the customer, remain our property without restriction. 7a.2 We shall bear the costs for the usual maintenance and the usual repairs of the tools. 7a.3 If the delivery is not executed for reasons within the responsibility of the customer, we are entitled to charge him for the full tool costs incurred up until that time. This also applies in the event that the delivery is executed to such a small extent that amortization of the tool share acquired by us is not possible.
8.1 The customer shall examine the received goods for defects immediately upon arrival. Discernible defects, incorrect or incomplete deliveries, variations in quantity or dimensions and transport and packaging damages must be noted by the customer immediately upon arrival of the goods on the bill of lading or delivery order and we must be notified in writing of the defect without delay, however no later than seven days after delivery of the goods. If the customer does not report defects within this period, then the goods shall be deemed free of defects and approved in accordance with the contract.
8.2 Defects that cannot be detected within this period even upon careful examination must be reported to us in writing as soon as they are discovered. The same applies to defects that occur during the warranty period. If a defect is not reported to us within the stipulated period, then all warranties shall be void.
8.3 We shall grant no warranty in particular in the event of unsuitable or unauthorized use of the goods, incorrect assembly or commissioning by the customer or third parties, normal wear, incorrect or negligent handling, incorrect maintenance, unsuitable operating material, faulty construction work, unsuitable foundations or in the event of chemical, electro-chemical or electrical influences, insofar as we are not responsible for them.
8.4 In the event of a defect, we can choose to eliminate the defect or deliver an object free of defects. All substituted products and parts become our property, insofar as they were not already our property.
8.5 If the elimination of a defect by means of rectification or replacement is unsuccessful within a reasonable period, then the customer can request reduction of the purchase price with respect to the defective product or, if a construction service is not the subject of the warranty for defects, cancel the contract. Compensation for damages shall be determined exclusively based on Section 9.
8.6 In order to fulfil our warranty obligation, we assign our claims against our suppliers – also insofar as they exceed the statutory warranty provisions – to the customer. Our subsidiary warranty is not affected by such an assignment of claims.
8.7 The limitation period shall be determined exclusively based on Section 10.2.
9.1 Claims for damages by the customer – with the exception of claims for damages from injury to life, limb or health and from violation of essential contractual rights and obligations (cardinal obligations) – are excluded insofar as they are not due to intentional behaviour or gross negligence by ourselves or by our legal representatives or vicarious agents. Insofar as we are liable by way of exception in the event of slight negligence, this liability shall be limited to the foreseeable damage typical for the contract.
9.2 The above provisions apply to all claims for damages, regardless of the legal basis.
9.3 Any liability as manufacturer pursuant to the Product Liability Lay remains unaffected by the above provision in Section 9.1.
10. Statute of limitations
10.1 Claims for damages by the customer due to the culpable injury of life, limb or health or due to intentional behaviour or gross negligence on our part or on the part of our legal representatives or vicarious agents, and due to defects that were fraudulently concealed, are subject to the statutory limitation periods. The same applies if we have granted a warranty for the condition of the goods or if we are liable pursuant to Section 9.3. The statutory limitation periods also apply for defects in a building or for objects that were used for a building in accordance with their normal manner of use and caused the building to be defective.
10.2 All other claims by the customer are subject to a limitation period of one year starting with the date of delivery.
11. Final clauses
11.1 Place of jurisdiction for deliveries and payments (including actions on checks or bills of exchange) and all disputes arising between the parties is Göttingen. However, we reserve the right to take legal action at the location of the customer’s head office. The relations between the parties are governed solely by the applicable laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
11.2 The customer can assign his rights and obligations from this contract to third parties only with our written approval. The assignment of a pecuniary claim remains unaffected by this clause. This approval is not required, however, if the assignment is made within the framework of an effectively extended reservation of title, which the customer agrees upon with a third party within the scope of the provisions of Section 7 above.
11.3 If individual provisions of the above terms and conditions or parts thereof become invalid, this will not affect the validity of the remaining provisions. An invalid provision of these terms and conditions shall be replaced by a valid provision that will achieve the business purpose to the fullest extent possible.
Pape Strahlenschutz GmbH, Molkental 7, 37586 Dassel-Amelsen, Germany
General Purchasing and Supply Conditions
(Last revised: October 2005)
I. Subject matter and scope of contract
I.1. The General Purchasing and Supply Conditions (hereinafter “Terms and Conditions”) of the Pape Strahlenschutz GmbH apply exclusively. Any terms and conditions of the supplier that are contrary to our Terms and Conditions shall not apply, unless approved in writing by Pape Strahlenschutz GmbH These Terms and Conditions shall also apply, if Pape Strahlenschutz GmbH accepts the delivery ob-ject without reservation in full knowledge of contrary ordeviating terms and conditions of the supplier.
I.2. These Terms and Conditions shall apply for all services to Pape Strahlenschutz GmbH, regard-less of the legal nature of the contract on which the delivery is based (hereinafter “delivery object”). Therefore, they apply to sales contracts and to contracts for works and services, contracts for work and materials and for combined contracts.
I.3. These Terms and Conditions are preceded by individual agreements of the contracting parties.
I.4. All agreements between Pape Strahlenschutz GmbH and the supplier for the purpose of execution of the contract shall be set down in writing.
I.5. These Terms and Conditions apply only to enterprises in accordance with Section 310, Paragraph 4 of the German Civil Code.
I.6. These Terms and Conditions shall also apply for all future transactions between the Pape Strahlenschutz GmbH and the supplier.
I.7. The supplier is bound to offers for 2 weeks starting from the time of receipt of the offer, pursuant to Section 145 of the German Civil Code. Pape Strahlenschutz GmbH is likewise bound to an order for a period of two weeks starting from the time of receipt of the order by the supplier.
II.1. The order numbers and parts numbers of Pape Strahlenschutz GmbH shall be repeated in all communications, bills of lading, invoices, etc. related to the order. Neither the dispatch note nor the invoice may be included with the shipment.
II.2. The supplier shall not be entitled to remuneration from Pape Strahlenschutz GmbH for offers, acquisition planning, drafts or other preliminary work performed by the supplier.
II.3. The supplier is obligated to maintain strict confidentiality concerning calculations, illustrations, plans, invitations for bids, requirement profiles, specifications, drawings, other documents and other data media, models and other aids. They may not be revealed to third parties and/or used for the supplier’s own purposes other than those stated in this contract, without the express approval Pape Strahlenschutz GmbH. The obligation of secrecy also applies after winding up of this contract; it expires if and insofar as the knowledge, experience and information contained in the above documents becomes public knowledge. Pape Strahlenschutz GmbH retains the sole proprietorship and right of disposal of the above documents and all intangible property rights in connection with them.
II.4. Pape Strahlenschutz GmbHprovides documents and other data media, in addition to models and other aids, to the supplier only temporarily and they shall be returned immediately to the Pape Strahlenschutz GmbH after execution or termination of the contract, without making copies of any kind, or destroyed at the request of Pape Strahlenschutz GmbH
II.5. The supplier is obligated to provide to Pape Strahlenschutz GmbH at no charge the instructions and documents, in particular replacement parts lists and sources, required for the utilization, assembly, maintenance, cleaning and repair of the delivery object.
II.6. All models, devices and other aids created by the supplier for the execution of the contract are the property of Pape Strahlenschutz GmbH. Pape Strahlenschutz GmbH retains the exclusive ownership and right of disposal for the documents listed above and all intangible property rights in connection with them. These documents shall be returned to Pape Strahlenschutz GmbH after execution or termination of the contract, without making copies of any kind.
II.7. The documents and rights owned by Pape Strahlenschutz GmbH may not be used or otherwise exploited by the supplier or by third parties, nor may they be made available to third parties. They may not be reproduced in whole or in part by photocopying, microfilming, electronic storage or any other method.
II.8. Pape Strahlenschutz GmbH can, insofar as can reasonably be expected of the supplier, request subsequent modifications in design and implementation. In this case, a mutual agreement shall be made concerning the effects on additional or lower costs of the supplier, in addition to delivery deadlines.
III. Delivery term
III.1. The supplier is obligated to comply with the promised delivery term. Stipulated delivery deadlines/delivery periods refer to the time of delivery of the delivery object at the destination specified by Pape Strahlenschutz GmbH
III.2. In the event of a delay in delivery, Pape Strahlenschutz GmbH is entitled to request lump-sum damages of 0.5% of the stipulated remuneration for each partial week of delay, however not more than 5%. Further statutory claims (cancellation of contract and compensa-tion in lieu of delivery) are reserved. The supplier has the right to prove to Pape Strahlenschutz GmbH that no damage or considerably less damage was incurred. Pape Strahlenschutz GmbH has the right to prove that the damage incurred was higher.
III.3. Moreover, Pape Strahlenschutz GmbH can request from the supplier indemnity against all liability for damages and/or penalties or other claims pursued by its customer in connection with a delay in delivery, insofar as the supplier is responsible for the delay.
III.4. The suppler shall notify Pape Strahlenschutz GmbH without being asked of foreseeable delays in delivery immediately, however no later than the time at which the promised delivery date has been exceeded.
IV. Packaging and transport
IV.1. The supplier is obligated to package and load the delivery object so as to ensure that the delivery remains undamaged during loading, unloading and transport. The supplier shall be responsible for damage(s) to the delivery object(s) due to insufficient packaging.
IV.2. The supplier shall bear the costs of packaging and dispatch. Insofar Pape Strahlenschutz GmbH has to bear the costs for transport and/or packaging, the supplier is obligated to choose the most economical transport and/or packaging type.
IV.3. The supplier shall take back transport containers, tools, aids and packaging of all types, in particular transport packaging. The supplier shall bear the costs incurred for packaging, loading, transport to its premises and unloading. The Pape Strahlenschutz GmbH shall conclude an appropriate shipping contract in its own name and at the cost of the supplier. Insofar as the supplier does not re-use the returned packaging/transport packaging, he shall bear the costs incurred by Pape Strahlenschutz GmbH for their material disposal. Foreign suppliers shall additionally pay any customs duties, customs fees, taxes and levies in connection with the return of the transport containers, tools, welding bottles, other aids and transport packaging.
IV.4. The supplier is obligated to promptly submit a written declaration (certificate of origin) on the origin of the delivery object. The supplier shall be liable to Pape Strahlenschutz GmbH for all damages incurred by the latter as a result of the negligent failure to submit this declaration or in the event of an incorrect or delayed declaration. Likewise, the supplier shall declare the origin of his goods by means of a customs confirmation.
IV.5. The supplier shall at his expense provide Pape Strahlenschutz GmbH with the delivery order and/or the usual transport document (e.g. a valid bill of lading, a sea waybill or a multi-modal transport document) required by Pape Strahlenschutz GmbH for acceptance of the delivery object in accordance with Section VI.2. In the event that the supplier and Pape Strahlenschutz GmbH have agreed to electronic data communication, the document mentioned in the preceding paragraph can be replaced by a corresponding notification by means of electronic data exchange (Edi message).
V. Price and payment
V.1. The stipulated prices are binding, unless expressly agreed otherwise by the parties, for which the supplier shall bear the burden of proof. The statutory value-added tax is not included in the price.
V.2. The term of payment begins with receipt of all contractually owed delivery objects at the destination specified by Pape Strahlenschutz GmbH or with their acceptance, if this is stipulated in the contract or provided for by law. However, if the supplier’s invoice is received by Pape Strahlenschutz GmbH after receipt of all contractually owed delivery objects at the destination specified by the Pape Strahlenschutz GmbH or after their acceptance, then the term of payment shall begin with the date of receipt of the invoice.
V.3. Pape Strahlenschutz GmbH shall effect payment within 30 days of the beginning of the term of payment and if payment is effected within 14 days after the beginning of the term of payment, Pape Strahlenschutz GmbH is entitled to a 3% discount. Payment in accordance with the above is deemed effected with the dispatch or electronic input of a credit transfer order or with the dispatch of a check for deposit only.
V.4. The payment of an invoice from the supplier without raising objections by Pape Strahlenschutz GmbH shall not be deemed an acknowledgment of the debt for the amount paid.
VI. Place of performance and transfer of Risk
VI.1. The place of performance is the destination specified Pape Strahlenschutz GmbH
VI.2. If the law does not provide for an acceptance inspection and this is not stipulated in the contract, the risk of accidental loss and accidental deterioration is transferred from the supplier to Pape Strahlenschutz GmbH Pape Strahlenschutz GmbH upon delivery at the destination, otherwise upon the acceptance inspection provided for by law or stipulated in the contract.
VII. Duty to examine and to make a complaint in respect of a defect
VII.1. If the delivery objects exhibit defects and no acceptance inspection takes place, Pape Strahlenschutz GmbH diverging from Section 377 of the Commercial Code, can make a complaint in respect of obvious defects within a period of 14 days starting from completion of unpacking of the delivery objects at the location where the delivery objects are to be used for the intended purpose and hidden defects within a period of 14 days after their discovery.
VII.2. For volume deliveries, Pape Strahlenschutz GmbH is obligated only to make random samples. If this shows that more than 10% do not fulfil the contractual or statutory requirements, then Pape Strahlenschutz GmbH is released from the obligation of further inspection and can refuse acceptance of the entire delivery based on the result of the random samples and place the entire delivery at the disposal of the supplier for collection.
VII.3. If Pape Strahlenschutz GmbH is obligated by a contract to the successive retrieval of deliveries and if a partial delivery exhibits material and/or legal defects preventing its use for the intended purpose, then this entitles without prejudice to other rights, to initially refrain from further retrieval of deliveries and making of payments.
VII.4. If the supplier is certified in accordance with the ISO 9000 Series of Standards (in particular ISO 9001, ISO 9002, ISO 9003), theis exempted from the duty to examine and to make a complaint pursuant to Section 377 of the Commercial Code.
VII.5. If a quality assurance agreement exists between the supplier and Pape Strahlenschutz GmbH with respect to the duty Pape Strahlenschutz GmbH to examine and make a complaint, then the provisions of that agreement take precedence over the stipulations of Section VII.1-4 of the present contract.
VIII. Claims based on defects / liability of the supplier
VIII.1. The supplier is obligated to Pape Strahlenschutz GmbH to keep the delivery object free of material and legal defects beginning with the transfer of risk through the end of the limitation period.
VIII.2. If the delivery object exhibits a defect despite the above obligation, the rights of Pape Strahlenschutz GmbH shall be governed by the statutory entitlements and the provisions of these Terms and Conditions.
VIII.3. Pape Strahlenschutz GmbH can take measures itself or through third parties to remedy defects if either the supplier fails to comply with the written request to remedy the defect within an appropriate period determined by Pape Strahlenschutz GmbH or without a prior request in urgent cases where the operational reliability is at risk and to prevent inordinate damage.
VIII.4. Minor defects can be remedied by Pape Strahlenschutz GmbH or third parties immediately at the expense of the supplier.
VIII.5. Measures to remedy defects can be executed or initiated at the cost of the supplier without setting a deadline if there is a delay in delivery and has an interest in immediate remedy of the defect in order to prevent delay on its own part.
VIII.6. The supplier shall be notified immediately in the cases described in No. 3, 4 and 5. Pape Strahlenschutz GmbH shall send a report on the type and extent of the defects and the work performed.
VIII.7. The supplier shall bear all costs of subsequent fulfilment, in particular costs of fault finding, retrofitting, assembly and disassembly, transport, toll, labour and material costs, in addition to customs.
VIII.8. The supplier shall ensure that no rights of third parties, in particular property rights and applications for property rights, which are published within the European Economic Community, the USA and Japan, are violated in connection with his delivery. If claims are asserted against the Pape Strahlenschutz GmbH in this connection, then the supplier shall be obligated to exempt the Pape Strahlenschutz GmbH from these claims at the initial request in writing. The supplier’s obligation of exemption is extended to all expenses inevitably incurred by Pape Strahlenschutz GmbH as a result of or in connection with the claims asserted by a third party. This does not apply if the violation(s) of (property) rights are founded on plans, drawings, models or other equivalent descriptions specified by Pape Strahlenschutz GmbH
VIII.9. Pape Strahlenschutz GmbH can request from the supplier exemption from all claims of its customers, if and insofar as the supplier’s delivery has given cause for liability. For exemption from claims for damages directed against the Pape Strahlenschutz GmbH outside of the scope of the Product Liability Act this applies only if and insofar as the supplier is responsible for the cause.
VIII.10. The supplier is obligated to carefully perform control and monitoring obligations, in particular to comply with the technical standards and the contractually agreed condition through careful quality checks and documentation of the same. The supplier is obligated to organize his territorial and organizational area objectively and personally so that risks in connection with the supplier’s delivery and its utilization by Pape Strahlenschutz GmbH and its customers are eliminated.
VIII.11. In the event that eligibility criteria for claims of Pape Strahlenschutz GmbH against the supplier are within the exclusive area of risk or responsibility of the supplier, the supplier shall bear the burden of proof for the nonexis-tence of such eligibility criteria.
IX. Manufacturer’s liability
IX.1. The supplier releases Pape Strahlenschutz GmbH, from third-party claims for damages if and insofar as the cause for the liability of the Pape Strahlenschutz GmbH is within the scope of the supplier’s risk and responsibility and the supplier is answerable for the cause of the liability. This also applies in the event that claims are asserted against Pape Strahlenschutz GmbH based on its manufacturer’s liability in accordance with foreign laws.
IX.2. Within this framework the supplier is also obligated to reimburse any expenses in accordance with Sections 683, 670 of the German Civil Code incurred as a result of or in connection with a recall action conducted by Pape Strahlenschutz GmbH. Pape Strahlenschutz GmbH shall inform the supplier – insofar as possible and reasonable – about the content and extent of the recall actions to be carried out and give him the opportunity for comment.
IX.3. The supplier shall be obligated to maintain product liability insurance with suitable coverage, however at least 1,000,000.00 EUR per instance of personal injury/property damage –on a flat-rate basis– for the duration of this contract; any other compensation to which Pape Strahlenschutz GmbH is entitled is not affected by this clause.
X. Protective regulations, instructions and explanations, insofar as the delivery object is a machine, plant or plant section
X.1. The supplier shall send separately to Pape Strahlenschutz GmbH, at no charge, complete technical documentation concerning the delivery objects consisting of at least the documents listed in No. 3 in Appendix V to the EC Machinery Directive.
X.2. The supplier shall include with the delivery objects at his cost an original operating manual and a maintenance manual for technical staff, which must be prepared in the language of the supplier’s country, in German and, if so requested from the supplier Pape Strahlenschutz GmbH, in the language of the country of destination/utilization.
X.3. The supplier shall send separately to the Pape Strahlenschutz GmbH a manufacturer’s declaration or a declaration of conformity concerning the delivery objects in accordance with Appendix II of the EC Machinery Directive.
X.4. If the supplier’s head office is in an EC/EEA country and if the supplier is obligated to send Pape Strahlenschutz GmbH a declaration of confor-mity concerning the delivery objects (see No. 3), then the supplier shall be obligated to affix the so-called CE mark to the delivery objects.
X.5. The supplier shall be obligated to ensure to Pape Strahlenschutz GmbH that the delivery objects comply with the applicable accident prevention/ industrial safety regulations and the recognized occupational health and safety regulations, both of the supplier’s country and of the Federal Republic of Germany. If the country of destination/utilization is known to the supplier at the time of conclusion of the contract, the delivery objects must also comply with the above-mentioned rules and regulations of the country of destination/utilization. In particular, the supplier shall ensure that the delivery objects comply with the relevant EU directives, the EC Machinery Directive, the German Devices Safety Act and the Machinery Ordinance, in the applicable version, and that the conformity assessment procedures prescribed by the directives have been carried out. The supplier shall be obligated to strict compliance with all regulations mentioned in this paragraph. If third-party claims are asserted against Pape Strahlenschutz GmbH due to failure to comply with such regulations, then the supplier shall be obligated to exempt Pape Strahlenschutz GmbH from these claims at the initial request in writing. The exemption entitlement of the Pape Strahlenschutz GmbH is independent of any fault of the supplier. The above-mentioned exemption entitlement of the Pape Strahlenschutz GmbH toward the supplier also includes the costs incurred by Pape Strahlenschutz GmbH in the litigation and pursuit of claims. It also includes all other expenses inevitably incurred by Pape Strahlenschutz GmbH as a result of or in connection with the claims asserted by a third party.
XI. Limitation periods
XI.1. The limitation periods apply according to the statutes of limitation with the following exceptions: Insofar as the limitation period for material defects would be two years according to law, it is extended to 30 months. This applies in particular to the two year limitation period for material defects claims in accordance with Section 438 I No. 3, 634 a I No. 1 of the German Civil Code.
XI.2. The limitation period for legal defects (Section VIII.8) is 10 years starting from the conclusion of the contract.
XI.3. For delivery objects and parts thereof replaced due to non-fulfilment and for delivery objects and parts thereof on which defects were remedied, the limitation period begins with the completion of the subsequent fulfilment. For delivery objects that cannot remain in operation during the examination of defects and subsequent fulfilment, the limitation period is extended by the time of the interruption due to defects.
XII. Assignment, set-off, retention
XII.1. The assignment of any claims of the supplier against Pape Strahlenschutz GmbH is ex-cluded, except for financing purposes.
XII.2. The supplier is not entitled to deny a measure that is due for the remedy of defects until complete payment of the purchase price or remuneration.
XII.3. Pape Strahlenschutz GmbH is entitled to set-off and retention rights to the extent provided for by law. Pape Strahlenschutz GmbH is furthermore entitled to set off claims with receivables to which a company is entitled if Pape Strahlenschutz GmbH owns at least 50% interest in that company.
XIII. Duty to inform and secrecy
XIII.1. If a delivery relationship exists, the supplier has a duty to inform concerning all circumstances that could be of significance to Pape Strahlenschutz GmbH; this includes in particular information on quality problems, if they possibly could not be resolved completely, foreseeable delivery problems and all changes in product qualities, which could affect the utilization by Pape Strahlenschutz GmbH, even if they do not result in the delivery object being defective.
XIII.2. If suppliers of replacement parts intend to discontinue production completely or partially, they are obligated to inform Pape Strahlenschutz GmbH of this at least 90 days beforehand.
XIII.3. Both parties shall be obligated to treat all non-public, business and technical details of which they become aware during the business relationship as a secret.
XIV. Jurisdiction, applicable law
XIV.1. For all disputes arising as a result of or in connection with the contractual relationship, if the supplier is a domestic businessperson, a legal entity under public law or a domestic separate estate under public law, the place of jurisdiction is Göttingen, Federal Republic of Germany. For legal action Pape Strahlenschutz GmbH by suppliers who have no general place of jurisdiction in the Federal Republic of Germany, the sole place of jurisdiction is likewise Göttingen, Federal Republic of Germany. For legal action Pape Strahlenschutz GmbH against suppliers who have no general place of jurisdiction in the Federal Republic of Germany, the additional place of jurisdiction,in addition to the statutory places of jurisdiction, is likewise Göttingen, Federal Republic of Germany. Any arbitration agreements concluded by the parties shall take precedence.
XIV.2. Concerning the inclusion of these Terms and Conditions of Pape Strahlenschutz GmbH and for all legal relations resulting from this contract and any ancillary transactions and/or subsequent transactions for the parties and their legal successors, the laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of UN sales law. This choice of law clause and the above jurisdiction agreement are also subject to the laws of the Federal Republic of Germany, to the exclusion of UN sales law.
Pape Strahlenschutz GmbH, Molkental 7, 37586 Dassel-Amelsen, Germany