TEKA GmbH: agb
Ogólne warunki handlowe

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Ogólne warunki handlowe firmy TEKA GmbH

I. In General
1. All deliveries and services are subject to the following terms and conditions or possible separate stipulations.. Purchaser's differing terms and conditions of purchasing shall not become part of this contract even after acceptance of the order.
In the absence of separate agreements a contract shall be validated with the order confirmation of the Supplier.
2. The supplier retains all rights of ownership and copyright of samples, quotations, drawings and similar information of corporeal or incorporeal nature, including those supplied in digital form. This material may not be made available to third parties.
The Supplier guarantees not to make any information and documents identified by the Purchaser as confidential accessible to others, except with the Purchaser's consent.

II. Prices and Payment
1. In the absence of separate agreements prices shall be calculated ex works including shipping at works but excluding packaging and unloading. Prices shall be subject to VAT at the respective applicable legal rate.
2. In the absence of separate agreements payment shall be made on account of the Supplier without any deduction, in fact:
1/3 deposit after receipt of the order confirmation,
1/3 when the Purchaser has been informed that the main components are ready for shipment, the balance within a month after the passing of risk.
3. The purchaser shall not have the right to withhold payments or to charge up payments against counter-claims, unless his counter-claims are undisputed or legally valid.

III. Delivery Time, Delay in Delivery
1. The delivery time depends on the agreed arrangements of the parties to a contract. Compliance therewith on the part of the Supplier presupposes that all commercial and technical matters have been clarified by the contracting parties and that the Buyer has performed all its obligations, e.g. the provision of the necessary official licenses or approvals or remittance of a down-payment.. Otherwise, the delivery time shall be extended appropriately. This does not apply if the Supplier is responsible for the delay.
2. Adherence to the period of delivery shall be subject to correct and punctual supply to ourselves. The Supplier shall provide notification of any delays that become apparent as soon as possible..
3. The time of delivery is met when the delivery item has left the Supplier's premises by the end of the stipulated time or is notified as ready for dispatch. If acceptance is required, the acceptance date applies, except in the event that acceptance is justifiably refused, and in the alternative the notification of acceptance readiness.
4. If dispatch or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the Purchaser shall be charged the costs caused by the delay, beginning one month after the report that the delivery item is ready to be dispatched or undergo acceptance.
5. If the failure to comply with the delivery deadline can be attributed to force majeure, labour disputes or other events or occurrences that are outside the sphere of influence of the Supplier, the delivery deadline shall be extended by a reasonable period.. The Supplier will notify the Purchaser as soon as possible of the beginning and end of any such events.
6. The Purchaser can withdraw from the contract without fixing of a period of time if the entire performance becomes impossible for the Supplier before the passing of risk. In addition, the Purchaser may withdraw from the contract if the delivery of any part of an order is not possible and he has a justified interest in rejecting a partial delivery. If this is not the case, the Purchaser has to pay the contractual price which is due for the partial delivery. This also applies in the event of the Supplier's inability. For the rest Section VII.2 applies. If the impossibility or inability occurs in default of acceptance or if the purchaser is solely or predominantly responsible for these circumstances, he shall remain liable for consideration.
7. If the Supplier defaults and if the Purchaser suffers a resulting damage, he shall be authorised to demand a compensation for delay. This compensation will be 0.5% per full week of delay, but in total not more than 5% of the value of the part of the delivery which cannot be used in time or as stipulated in the contract due to the delay.. If the Purchaser (taking into account the legal exceptions) sets the Supplier a reasonable deadline after the due date to perform the work, and if this deadline is not met, the Purchaser shall be entitled to withdraw from the contract in the scope of the legal possibilities. Further claims as a result of delayed delivery shall be determined exclusively as stipulated in item VII. 2 of this terms and conditions.

IV. Passing of Risk, Acceptance
1. The risk passes to the Purchaser as soon as the delivery item has left our plant, even if partial deliveries are made or if the Supplier has assumed responsibility for other services, such as shipping costs or delivery and installation. If there has to be an acceptance procedure it determines the passing of risk. The acceptance procedure must be performed exactly at the acceptance date respectively after the Supplier's notification of readiness of delivery. A non-significant defect does not entitle the Purchaser to refuse acceptance.
2. If dispatch or acceptance are delayed for reasons which the supplier is not responsible for, the risk passes to the Purchaser from the date of notification of readiness for dispatch or acceptance. The Supplier is obligated to contract all insurances requested by the Purchaser at the latter's expense.
3. Partial deliveries are acceptable if reasonable to the Purchaser.

V. Reservation of Title
1. All deliveries are subject to retention of title. The property in the delivered goods passes on to the Purchaser as soon as he has fulfilled all obligations towards the Supplier (all invoices plus additional claims such as shipping, default interest, etc.).
2. The Purchaser is entitled to work on, to use and to sell the delivered goods within standard business operations, in spite of the agreed reservation of title. A revocation of these rights may, however, be obtained if
a) the Purchaser defaults on payment for the delivered items' counter value for more than 14 days
b) an affidavit of means is opened against the Purchaser
c) the Purchaser himself or one of his creditors initiates insolvency proceedings
d) other relevant causes give reason to believe that the Purchaser will be illiquid before long.
The the granted permission to work on, use and sell the delivered goods is valid until revoked in writing. When receiving the revocation the Purchaser shall be obliged to separate all goods from the Supplier's deliveries, whether processed or worked on and store them put aside from other goods. In case of delayed payment the Supplier shall be entitled to call in named goods for his own safety and store them at his place.
3. The Supplier shall retain the reservation of title regarding the delivered merchandise even in case
a) the Purchaser shall have sold it
b) the Purchaser shall have converted then sold it,
c) the Purchaser shall have combined and/or connected it with something,
d) the Purchaser shall have combined and/or connected it with something then sold it.
In these cases it is clarified that any possible processing, adaptation, commingling and/or connection of the goods still under the Supplier's ownership is done for his benefit and in his name without obliging him to any kind of remuneration whatsoever. In case the Purchaser does connect or combine the Supplier's reserved goods to or with other goods (Art. 947, 948 BGB - German Civil Code), the Supplier is entitled to a share of the jointly owned property respectively the commingling / combination. The shares are determined by the relationship of the value that the goods have at the time of combination.. Should the Supplier's goods are to be seen as the essential part, he acquires sole ownership. In case of processing or transformation (Art. 950 BGB – German Civil Code) the Supplier is entitled to joint ownership of the new product at the ratio of his product's value to the new product's value.
4. If the Purchaser disposes of delivered goods the Supplier still holds (co-) proprietary rights of the following applies:
a) The Purchaser hereby assigns in advance the part of his claims arising from the resale of the reserved goods to the Supplier that is equal to the value of the delivered reserved goods, whether unprocessed, processed, converted, mixed, combined, modified or not. The value of the reserved goods is determined by the merchandise value invoiced by the Supplier (including VAT).
b) If there are additional assignments in advance in favour of other suppliers regarding the Purchaser's claim from a resale, each assignment in advance shall be treated equally.
c) The Purchaser is obligated to notify the Supplier at once if there exists an agreement in a resale contract stating that an assignation of the Purchaser's claims from the resale is prohibited. In this event the Purchaser may not assume that the Supplier agrees with the resale of his (ownership / co-ownership) goods. The Purchaser undertakes to refrain from a transaction on such terms.
d) Under the conditions of the delay of payment the Purchaser is obliged to provide the Supplier with all necessary information on the resale business to assert the latter's rights of the assignment in advance. The Purchaser is not entitled to pledge or assign goods as security that are subject to the agreed reservation of title / extended reservation of title in favour of the Supplier. The Purchaser undertakes to notify the Supplier at once of all enforcement measures concerning the latter's goods subject to reservation of title (ownership or co-ownership).
5. Should the value of the securities provided to the Supplier exceed his overall claim by more than 10%, he is obliged to retransfer the excessive securities on the Purchaser's demand.

VI. Claims
Defects of title and claims based on defects of the delivered items are subject to regulations as provided in Section VII Guarantee (excluding further claims), as follows:

VII – Guarantee, as follows:
Claims based on defects
1. All the parts that turn out to be defective due to circumstances arising before the passing of risk are to be repaired or replaced at the Supplier's discretion free of charge. The Supplier is to be notified in writing of all such defects as soon as they are identified. Replaced parts become the property of the supplier.
2. The Purchaser grants the Supplier the time and opportunity required to carry out all necessary remedies and substitute deliveries in agreement with the Supplier; otherwise the Supplier shall be exempt from liability for any and all consequences arising therefrom. In urgent cases only, such as endangered operating safety, prevention of disproportionate damages, etc. (in which case the Purchaser shall notify the Supplier immediately), or if the seller is in default with regard to the correction of the defect, is the Purchaser entitled to remedy defects himself or have them remedied by third parties and to claim compensation of the Supplier.
3. Of all direct costs resulting from the repair or replacement the supplier shall bear the costs of the substitute part including shipment, provided the complaint is legitimate. In addition, he shall bear the costs for dismantling and installation as well as the costs for any necessary provision of mechanics and assistants, including travelling expenses, insofar as this does not entail an unreasonable burden on the Supplier
4. Within the legal regulations the Purchaser has the right to withdraw from the contract if the Supplier, taking all lawful exceptions into consideration, allows a deadline set for the remedy of a defect or a replacement delivery due to a defect to expire inconclusively. Should the defect be insignificant, the customer is entitled only to abate the contract price. The right to abate the contract price shall be excluded in all other respects.
Further claims are determined in section VII..2 of these terms and conditions.
5. We do not assume liability in the following cases in particular:
Unsuitable or inappropriate use, incorrect fitting/ commissioning on the part of the Purchaser or a third party, normal wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable machinery materials, faulty construction work, an unsuitable building ground, chemical, electrochemical or electrical influences – unless the Supplier is answerable for them.
6. If the Purchaser or a third party remedies a defect incorrectly the Supplier is not liable for the ensuing consequences. He is not liable, too, if there have been made any modifications to the delivery item without his prior consent.

Defects of Title
7. If the use of the delivery item leads to an infringement of domestic intellectual property rights the Supplier will as a matter of principle procure the Purchaser's right to further use the delivery item, or modify it in a way that there no longer is an infringement of intellectual property rights, as far as these modifications can be reasonably imposed on the Purchaser. If this is not possible within a reasonable period of time or under reasonable economical conditions the Purchaser is entitled to rescind the contract. Said conditions entitle the Supplier, too, to rescind the contract. Furthermore the Supplier will indemnify the Purchaser from undisputed or legally enforceable claims asserted by the holders of the respective intellectual property rights.
8. Notwithstanding Section VII. 2, the Supplier’s obligations in case of an infringement of intellectual property rights are limited to those stated in Section VII. 7. The obligations only arise
- if the Purchaser notifies the Supplier as soon as any claims for breach of intellectual property rights are asserted,
- the Purchaser supports the Supplier to a reasonable extent in defending the claims and/or enables the modification of the delivery item in accordance with Section VII. 7,
- the Supplier has reserved the right to all defending measures, including any out-of-court settlements,
- the defect of title is not due to an instruction given by the Purchaser and
- the infringement is due to the Purchaser's changing of the delivery item on his own authority or using it in another way as has been specified in the contract.

VII. Liability
1. If the Purchaser cannot use the delivery item as set out in the contract due to the Supplier's default as a result of neglected or defective performance of proposals and consultancy prior to and following the conclusion of contract or as a result of violating other accessory obligations of the contract (particularly operating and maintenance instructions of the supplied object) the respective provisions of Sections VII and VIII.2 shall apply excluding any further claims of the Purchaser.
2.For other defects than those concerning the delivery item the Supplier is not liable for any legal reason whatsoever, except for
a) intent,
b) gross negligence on the part of the owner / board members or senior managers,
c) culpable injury to life, body or health,
d) defects which he fraudulently concealed or for whose absence he warranted,
e) defects of the delivery item to the extent that liability exists pursuant to the German Product Liability Act for damages to persons or personal property.
In cases of culpable breach of primary contractual duties the Supplier is also liable for gross negligence of other staff and for simple negligence; the latter is limited to direct losses foreseeable and typical for this type of contract. All other claims are excluded.

VIII. Limitation Period
All claims of the Purchaser for whatever legal reasons are subject to a limitation period of 12 months. The relevant statutory periods apply for compensation claims referred to in Sections VII.2 a-e. They shall also apply for defects in a building construction or for deliverables having caused such defects provided those deliverables are typically used within a building construction.

IX. Use of Software
If any software is included in the scope of delivery, the Purchaser is granted a non-exclusive right to use this piece of software including the related documentation.. It is provided to be used with the appropriate delivery item and may not be used on more than one system. The Purchaser is only allowed to copy, revise or compile the piece of software, or to convert it from object code to source code to the extent permitted by law (§§ 69 a ff. UrhG - German Copyright Act). The Purchaser undertakes not to remove or alter any manufacturer's details, particularly copyright statements, without the prior explicit Supplier's approval.
All other rights to the software and its documentation including copies thereof shall remain with the Supplier or the software supplier. The assignment of sub-licenses shall not be permissible.

X. Applicable Law, Court of Jurisdiction
1. All legal relationships between the Supplier and the Purchaser are exclusively subject to the law of the Federal Republic of Germany applicable to the mutual legal relationships between domestic parties.
2. The responsible court of the Supplier's domicile shall have jurisdiction. However, the Supplier shall be authorized to take action at the Purchaser's principal residence.