General Terms and Conditions of Business and Delivery (GT&Cs)
of ARINKO Bautzen GmbH
(as of 22 November 2010)
1. Scope of Application / Amendment of these GT&Cs
1.1 The following Terms and Conditions of Business (hereinafter "GT&Cs") shall apply to all contracts for services and work that are concluded within the framework of the present or future business relations between ARINKO Bautzen GmbH (hereinafter called "ARINKO") and the ordering party or customer (hereinafter called "Ordering Party" or "Customer"), insofar as the Ordering Party or Customer is acting in pursuit of its trade or independent professional activity when concluding the contract, as well as to transactions with legal entities under public law or special funds under public law.
1.2 Our terms and conditions of sale and delivery shall apply exclusively. They shall also apply to future transactions with the contractual partner. Stipulations from the contractual partner that deviate from our terms and conditions of sale and delivery shall be invalid, even if we do not expressly object to them, or if we unconditionally provide the contractual partner with services or accept the contractual partner's services. We shall have the right to rescind the contract, if the contractual partner objects to the application of our terms and conditions of sale and delivery. Regardless of the content of our provisions, the contractual partner's general terms and conditions of business shall also be invalid, if they deviate from statutory provisions.
1.3 Contracts involving the provision of temporary personnel shall be governed by separate General Terms and Conditions of Business of ARINKO Bautzen GmbH.
1.4 The contractual partner shall be given written notification of amendments to our General Terms and Conditions of Business. They shall be deemed approved, unless the contractual partner objects in writing. Such objection must be received within one month after our contractual partner received notification of the amendment.
1.5 The contractual partner shall inform us, if it cannot be ruled out that the products supplied by us will be delivered to consumers as defined by Section 13 BGB [German Civil Code]. In such cases, we shall be entitled to rescind the contract, if the special provisions under Sections 474 et seq. BGB regarding the purchase of consumer goods apply.
1.6 None of our employees, commercial agents or other sales agents shall be entitled to make declarations, or give assurances, that deviate from these terms and conditions of sale and delivery, or be entitled to take receipt of payments or make any other declarations, in particular a guarantee, or declarations relating to the qualities of the goods or their suitability for use, or relating to the warranty. They shall not be entitled to take receipt of notifications of defects.
2. Contract / Requirements
2.1 The design and development contract shall enter into legal effect upon the placement of an order by the Ordering Party and ARINKO's acknowledgement of receipt thereof. The same shall apply to a contract for the delivery of goods and other services.
2.2 ARINKO shall have creative freedom in the performance of its work, insofar as the Ordering Party has not set ARINKO any specific requirements.
2.3 During the contract initiation phase, ARINKO shall, without limitation, retain the rights of title and the rights of exploitation under copyright law in respect of cost estimates, drawings and other documents or aids. Without having obtained ARINKO's written consent beforehand, the Ordering Party shall not be permitted to pass these on to third parties during the contract initiation phase.
2.4 In principle, changes to the order during the execution of the order shall be subject to written agreement between the parties to the contract. If an agreement between the parties on the type and scope of such changes, or on a change to the remuneration, fails to materialise, both Parties shall be entitled to terminate the contract. If the Ordering Party terminates the contract without ARINKO being at fault for this, the Ordering Party shall owe the full fee for the services rendered up to the time of termination, as well as additionally a further remuneration of at least 15 % of the agreed fee for the eservices discontinued as a result of such termination. ARINKO shall be free to assert under Section 649, sentence 2 BGB remuneration claims beyond the foregoing.
2.5 ARINKO shall be entitled to order in the name of, and on account of, the Ordering Party the external services necessary for fulfilling the order. The obligations ensuing from the conclusion of contracts concerning external services shall be taken on by the Ordering Party, whereby the Ordering Party shall, in the internal relationship, indemnify ARINKO against all claims. ARINKO shall be entitled to contract out to its service providers and subcontractors the services necessary for fulfilling the order, insofar as this does not contravene statutory provisions.
3. Prices / Extra Costs
3.1 Our prices shall apply net, ex works. Value-added tax shall be calculated separately at the respective rate valid on the day of invoicing. The prices shall apply only to the respective order, and shall not be binding for follow-up orders.
3.2 Costs for packaging, transportation and transportation insurance shall be invoiced additionally.
3.3 For six months from the time of the conclusion of the contract, we shall be bound by the prices agreed upon for an order. If longer periods for delivery or performance have been agreed upon, we may, in the event that costs of materials or wage costs rise, charge a proportionate surcharge for the actual increase in costs on the basis of our original price calculation.
3.4 The agreed total remuneration constitutes a remuneration for the quoted design and development result according to the terms of reference. The total remuneration shall be paid in full even if the design and development objective is achieved just as fully in fewer work stages, in a different sequence or by using a different working method. In this respect, therefore, the breakdown into work stages, as well as the time estimate given in this contract constitutes only a non-binding plan that serves to explain and clarify how the order will be carried out. In principle, this provision shall always apply, unless a remuneration based on proof of expenditure has been expressly agreed upon in the individual contract concerned.
3.5 Proposals from the Ordering Party, or any other collaboration on its part, shall have no influence on the sum of the remuneration. Unless otherwise agreed upon, this shall not give rise to any joint copyright of any kind whatsoever.
3.6 If, during the execution of the order, it becomes apparent that more time than quoted will be needed for dealing with the order, ARINKO shall be entitled to notify the Customer thereof and, without any special agreement being required, invoice the provable extra costs up to an amount of 10 % of the agreed order volume. If the agreed order volume is expected to be exceeded by more than 10 %, ARINKO shall inform the Ordering Party and be entitled to submit a new quotation to the Ordering Party, except where the order has been expanded due to additional requests by the Ordering Party. If the Ordering Party does not accept the new quotation, it shall be entitled to rescind the contract. In this case, ARINKO shall also be entitled to the remuneration for the work performed until then in connection with the additional service.
3.7 If the scope of ARINKO's services includes assembly services, trials or similar services, the Customer shall, in this connection, provide at its own expense the required auxiliary personnel, necessary items such as tools and the like, as well as energy. Additionally, the Customer shall ensure that it is possible to securely store at the place of assembly ARINKO's material and tools. Before the assembly work begins, the Customer shall, of its own accord, make available in due time all necessary information on the location of completed power, gas and water lines or similar installations, as well as all essential structural engineering information.
If assembly or commissioning is delayed due to circumstances attributable to the Customer, the Customer shall bear the cost of lost time, or of additional time required, as well as the cost of necessary additional travel by ARINKO personnel or by subcontractors appointed.
4. Delivery and Performance / Approval
4.1 Dates for delivery and performance shall be binding only if we have confirmed them as such in writing. Otherwise, they shall be regarded as approximate and subject to change without notice. Delivery and performance periods shall be deemed met, if we give notification of readiness for shipment by the agreed date for delivery or performance. The period for delivery or performance shall not begin until the data to be submitted by the Ordering Party, such as drawings, approvals etc., has been completely submitted, all outstanding technical issues have been cleared up, and all agreed down payments have been made.
4.2 The Customer shall be responsible for production approval. For the serial manufacture of parts, the Customer shall, by way of the manufacture of samples, test the services delivered by ARINKO. The results shall be discussed together with ARINKO. The subservices presented to the Ordering Party shall be deemed approved for further continuation of the design and development task, unless the Ordering Party lodges justified objections in writing, with reasons, by no later than two weeks after the subservices were presented.
4.3 If delivery or performance is delayed as a result of the occurrence of events that were unavoidable for us and were unforeseeable at the time of the conclusion of the contract, and that we were unable to avert despite exercising the diligence reasonably to be expected of us in the circumstances of the case concerned, the period for delivery or performance shall be appropriately extended, by two months at most. If, for the same reason, delivery or performance becomes impossible through no fault of our own, we shall be released from our obligation to deliver or perform.
4.4 We shall, also in the case of a performance period defined by calendar days or to be defined by calendar days, enter into default only if we have been set in writing a grace period of two weeks. We shall be liable for default-related loss only up to a maximum of 5 % of the order value.
4.5 If the Customer defaults on payments of any kind, or if its net worth situation deteriorates to a not merely insignificant extent, we shall be entitled to refuse to perform all further deliveries and/or services and demand advance payment. Such deterioration of the net worth situation shall be assumed to exist, if, among other things, bills of exchange or cheques are protested, or the limit set by a credit insurer is exceeded or would be exceeded as a result of the intended delivery.
4.6 Items delivered and services rendered shall be taken receipt of even if they contain insignificant defects. Appropriate subdeliveries or subservices, as well as deviations from the purchase orders, insofar as such deviations are customary in the trade or are reasonable, shall be permissible.
4.7 Deliveries or services shall take place ex works. The risk of accidental destruction and accidental deterioration shall pass to the purchaser at the time of delivery to the forwarder, no later than when the consignment leaves the factory, or the data is sent off. If shipment is delayed for reasons not attributable to us, the risk shall pass when notification of readiness for shipment is given.
4.8 In the case of call orders, we may, upon the expiration of a six-month period from the time of acknowledgement of the order concerned, set a grace period for the acceptance of the goods or service and then invoice for the goods or service not accepted and charge for reasonable storage fees up to the time of acceptance. The same shall apply without the setting of a grace period, if the goods or service ordered on call have not been accepted or requested by, at the latest, 31 December of the year when the purchase order was placed.
5. Payments
5.1 Our invoices shall be payable within 14 days of the invoice date without any deduction. All payments shall be made in euros.
5.2 If this payment period is exceeded, the Customer shall, without a reminder being required, pay default interest at the rate of 8 percentage points above the respective base interest rate from the due date. The right to assert a further claim for loss shall remain reserved. If the Customer defaults on the payment of an invoice, all claims shall fall due immediately, unless the Customer proves that it was not at fault for this default.
5.3 Bills of exchange and cheques shall be taken receipt of as payment only according to prior, special written agreement. Costs and charges shall be borne by the Customer.
5.4 The Customer may set off against our claims only with claims that ensue from its own rights, are undisputed or have been determined on a final and non-appealable basis. The Customer shall be entitled to a right of retention only in respect of claims that arise from the same contractual relationship and are undisputed or have been determined on a final and non-appealable basis. In the latter case, it may retain payment of the remuneration in the case of defects in parts of the delivery or service only to the extent corresponding to the value of the defective delivery.
6. Retention of Title
6.1 We shall retain title to all goods delivered by us until all our claims, including future claims, against the Customer under this business relationship have been settled. If our claims are included in a running account, the retention of title shall apply to the respective balance. Repossession of the goods shall not constitute rescission of the contract. However, we shall be entitled to repossess the goods, if the Customer defaults on payment. The goods shall be credited at the value equal to the actual proceeds less the cost of realisation and repossession. The Customer shall secure our property against fire, water and theft. Claims against the insurance company shall be assigned to us.
6.2 The Customer shall be permitted to re-process or, subject to agreement on prolonged or extended retention of title, re-sell the goods in the ordinary course of business. It shall not be entitled to make any other dispositions. The Ordering Party's authorisation to process and resell shall cease to exist, if it fails to meet its payment obligations in relation to us, otherwise grossly breaches the contracts concluded with us or falls into financial difficulties. Cessation of payment, over-indebtedness, filing of an application for insolvency proceedings and any other serious change in the Customer's net worth situation that could jeopardise our security shall be deemed to be financial difficulties.
6.3 Any processing of goods under retention of title shall take place on our behalf (Section 950 BGB). In the case of joint processing for multiple suppliers, we shall be entitled to co-ownership in accordance with Section 947 et seq. BGB. In case the Customer combines or mixes our items with an item belonging to the Customer, and the Customer's item is consequently to be regarded as the main item, the Customer hereby assigns to us in advance a co-ownership share in the main item in the ratio of the value of the item to the value of the main item. Our co-ownership share shall remain in the possession of the Customer, who shall hold the item in safekeeping for us.
6.4 The Customer hereby assigns to us, commensurate with our ownership share, the claims and ancillary rights ensuing from reselling. It shall be entitled to agree upon a prohibition of assignment. Partial payments by a debtor of the Customer to the Customer shall be deemed first of all credited against other claims of the Customer, and shall be deemed credited against our claim only after these other claims have been fully paid. The Customer shall be entitled to collect the assigned claims in the ordinary course of business. This authorisation shall cease to exist in the cases referred to in Section 2. The Customer shall then be obliged to co-operate with the collection of the claim concerned.
6.5 At the Customer's request, we shall release security of our choosing to which we are entitled under the above provisions, insofar as its realisable value exceeds by more than 20 % the total claim to be secured.
7. Warranty
7.1 ARINKO's services shall be created in accordance with the general state of the art, in terms of technology, in Germany. ARINKO warrants that, at the time of the passage of risk or at the time of acceptance, its deliveries shall be usable in keeping with this state of the art or as required under the contract. The respective contractual description of the products, and of their purpose of use, in the contract concluded by us with the Customer shall be the benchmark as to whether the products delivered conform to the contract. The Customer shall be solely responsible for the accuracy of the specifications and data provided to us by the Customer. We shall not be obliged to check the Customers' specifications. We shall not be liable for defects resulting from incorrect drawings or CAD data or other data from the Customer. If the performance of ARINKO's services is based on a flow diagram, a draft model, dimensioning or the like, the dimensions stated on the data carriers, drawings, designs, CDs etc. shall form the binding basis for the contract. ARINKO shall not be liable beyond this. Insignificant changes to the goods in respect of their design, shape or arrangement, or to the values to be specified in the description, as well any insignificant changes to our services shall be accepted by the Customer, insofar as these changes are reasonable and constitute quantity-, quality or design-related tolerances that are customary in the trade or minor deviations from DIN or customer/specific drawing practice standards. Such insignificant deviations shall not give rise to any warranty claims.
7.2 Prototypes and models are, for technical reasons, not stable in time. This applies regardless of the procedure used for manufacture. These may, even in ideal storage conditions, lose their dimensional stability, shape and firmness. As the behaviour of the prototypes and models and of the chemical and physical influences beyond the normal range is unknown, we shall not provide any warranty in this respect.
7.3 Permissible dimensional deviations in respect of the sub-assemblies or devices delivered or constructed by us shall depend upon the mean values of the relevant DIN standards. In the case of prototypes, models etc. delivered by us, such dimensional tolerances shall be accepted even if the Customer has not expressly pointed out that the dimensions concerned are a prerequisite for the order. Dimensional records shall be drawn up by us only if the Customer specifies reference dimensions and makes these identifiable accordingly.
7.4 Defects visible at the time of delivery shall be reported in writing no later than within 14 business days of the day of delivery. Hidden defects shall be reported by the contractual partner in writing no later than within 14 business days of their discovery. The contractual partner shall make available to us a detailed, written list and description of the defects reported by it. If defects are not reported, or are reported late, the contractual partner shall lose its claims concerning defects possibly existing in the item purchased. Any handling of a notification of defects on our part, in particular any examination of the goods after they have been returned by the contractual partner, shall in no event constitute a waiver of compliance with the contractual partner's obligations to report defects.
7.5 In the event of a defect, we may first of all, at our option, eliminate the defect or deliver a defect-free item. In the case of supplementary performance, we shall bear all expenditure necessary for rendering supplementary performance, in particular transportation costs, transport infrastructure charges, labour costs and costs of materials, insofar as these have not risen as a result of the goods having been taken to a place other than the place of delivery.
7.6 We may refuse to render supplementary performance, if supplementary performance would be possible only at a disproportionately high expense. In particular, this shall be the case, if the expenditure in connection with eliminating the defect is expected to exceed the amount equal to 100 % of the market value of the item purchased, or, in the case of replacement, if the cost of our provision of a replacement would exceed the amount equal to 150 % of the market value of the item purchased. The Customer's other statutory rights (price reduction, rescission, damages, reimbursement of expenditure incurred in vain) shall remain unaffected.
7.7 Unless otherwise mandatorily stipulated by law, the Customer shall, before it can assert other warranty rights, first of all set us in writing a reasonable period for supplementary performance. Generally, we shall be granted a period of at least 4 weeks within which to render supplementary performance or draw up anew the designs, drawings or calculations; this shall not apply, if a different period is contractually agreed upon in individual cases, or a shorter period is absolutely essential, e.g. in urgent cases where a disproportionately high level of damage or loss is impending, or operational safety is at risk. If supplementary performance is not rendered within this period, the Customer shall be entitled to assert the statutory rights, in particular the right to rescind the contract, declare a reduction in the purchase price or, subject to the prerequisites in Section 8, claim damages. It shall be unnecessary to set a time limit, if we have definitively and seriously refused to render supplementary performance, or it is impossible to render supplementary performance.
7.8 There shall be no right to rescind the contract, if the item purchased or the work performed contains only insignificant defects. In particular, insignificant defects shall be deemed to exist in the case of merely insubstantial deviations from the contractually agreed qualities, and in the case of merely insubstantial impairments of the product usability required under the contract. Moreover, warranty claims shall be excluded, if the faults concerned have arisen as a result of normal wear and tear of the item purchased, incorrect or negligent handling, defective or improper servicing, improper or unsuitable use, faulty assembly, excessive use or use of unsuitable operating material after the passage of risk, or as a result of impairments that have arisen as a result of special external influences after the passage of risk, except where required under the contract. Warranty claims shall also be excluded, if the Ordering Party has carried out itself, or through third parties, maintenance work without this having been absolutely essential.
7.9 The contractual partner shall only be entitled to claim damages in lieu of performance, if delivery of the defective item would constitute a substantial breach of duty.
7.10 The warranty period is 12 months from delivery of the item purchased or acceptance of the work performed. In the case of defects in buildings or defects in items that have been used for a building commensurate with their customary use and have caused the building to become defective, the statutory limitation period of five years shall apply (Section 438 (1), no. 2 BGB). In respect of work carried out for rendering supplementary performance, or in respect of spare parts delivered, a warranty shall exist only until the warranty period for the original delivery has expired.
7.11 If the time limit for supplementary performance has expired to no avail, we may, setting a one-month time limit, call upon the Customer to declare its further warranty rights in relation to us. If the Customer fails to submit such declaration within this period, warranty claims shall be excluded; this shall apply only if we have expressly pointed out this legal consequence in the request setting the set time.
7.12 If the contractual partner's customers bring a claim against the contractual partner on account of product faults, the contractual partner may take recourse against us on account of such product faults only insofar as it has not made with its customers any agreements beyond the domestic statutory provisions, in particular as regards warranty liability. The scope of our warranty liability in relation to the contractual partner in these cases shall be governed by the above rules accordingly. Insofar as the product delivered by us has been delivered to a consumer via a delivery chain contrary to subsection 1.5., the corresponding mandatory statutory provisions shall apply. We shall not be liable under Sections 478 or 479 BGB, if our Customer has delivered abroad and has excluded the application of UN sales law in this respect.
7.13 The works created by ARINKO shall constitute personal, intellectual creations. ARINKO shall not be liable for their novelty or protectability.
7.14 ARINKO may demand that its expenditure be reimbursed at appropriate rates insofar as we have acted on the basis of a fault report, or on the basis of the assertion of a defect-related claim, and it becomes apparent in the course of the examination that the service rendered by us does not contain any fault that is subject to the warranty.
8. Damages / Limitation of Liability
8.1 Regardless of the legal basis, we shall be liable for damages only if we, our statutory representatives or our authorised agents (including subcontractors) have acted with wrongful intent or gross negligence, if we have given guarantees, in which case we shall be liable only for the fulfilment of these guarantees to the extent agreed upon and only insofar as these are in writing and are expressly designated as guarantees, and in cases of mortal injury, physical harm or health damage, or in any other cases of mandatory statutory liability.
8.2 In cases of slight negligence, we shall, regardless of the legal basis, be liable only in the event of a breach of duties material to the contract, except in cases under subsection 1. A duty material to the contract is a contractual duty that needs to be fulfilled in order for the contract to be properly implemented, and that the Customer would normally expect, and may normally expect, to be performed. Before the contract is concluded, the Customer shall point out to us in writing all particular risks, non-typical potential for damage or loss and extraordinary levels of damage or loss. There shall be no liability for any consequential loss beyond this, such as loss of production, lost profit, indirect loss, loss of information or data, or for loss arising from third-party claims.
8.3 ARINKO's liability shall be limited to the sum of the order volume, but to no more than 50,000.00 €. These limitations of liability shall apply even if multiple claims arise as a result of the same fault (continuity between multiple breaches). In these cases, all claims shall be regarded as one whole claim, for which liability as a whole shall apply. If the loss is covered by insurance taken out by the Customer, ARINKO shall be liable only for the disadvantages resulting to the Customer in connection with the settlement of the claim, such as a higher insurance premium or interest-related disadvantages.
8.4 The above provisions relating to liability shall also apply to the Customer's statutory claims to the reimbursement of expenditure incurred in vain, as well as to the personal liability of its employees, workers, personnel, representatives and authorised agents. In cases where we are at fault for any breach of duties of protection and due consideration under Section 241 (2) BGB not directly related to the delivery of the goods, our Customer shall be entitled to assert a damage claim and exercise a right of rescission only if we have been issued with a written warning beforehand, setting a reasonable time limit, on account of the breach of duty. Such warning shall not be required insofar as we or our representatives or authorised agents have intentionally acted with gross negligence, or in cases of mortal injury, physical harm or health damage.
8.5 Damage claims shall become statute-barred after 24 months.
9. Property Rights and Rights of Use, Handling of Data
9.1 If we are required to deliver or perform on the basis of drawings, CAD data, models, samples, calculation documents or the like, or using parts provided by the Customer, the Customer shall be accountable that no third-party property rights are breached as a result thereof. The Customer shall indemnify us against justified third-party claims and compensate us for any loss incurred. If we are prohibited from manufacturing or delivering or performing by a third party who pleads a property right belonging to it, we shall be entitled, without examination of the legal position, to discontinue the work and claim compensation for our expenditure.
9.2 On request, drawings, CAD data and other data and samples that have not led to an order shall be returned in exchange for reimbursement of the cost. Otherwise, we shall be entitled to destroy such drawings, CAD data and other data and samples three months after the offer has been submitted.
9.3 In principle, copyrights and other industrial property rights in respect of models, moulds and devices, drafts, CAD data, drawings and other data designed by us, or by third parties for us, shall remain with us and not pass to the Customer upon delivery. The Ordering Party shall not have the right to use the plans for a project other than the respective project. ARINKO's work (drafts, work drawings, models) shall, as personal intellectual creations, be protected by the Urheberrechtsgesetz [Copyright Act], the provisions of which shall be deemed agreed upon even if the level of creation necessary under Section 2 UrhG is not reached.
9.4 Without ARINKO's consent, no change shall be made to the design results or development results, to technical solutions or elements thereof, or to the name of the creator, neither in the original nor in the event of reproduction. The Ordering Party shall, insofar as this is permissible, not be entitled to apply in its own name for the registration of property rights (patents, utility models and registered designs) in respect of ARINKO's services without ARINKO's consent. The transfer of patentable inventor's rights shall require special agreements. In this case, the Ordering Party shall indemnify ARINKO against any claims that may arise under the Arbeitnehmererfindergesetz [Act on Inventions by Employees].
9.5 Upon full payment, ARINKO shall grant the Ordering Party in respect of all contractual services developed or rendered on behalf of the Ordering Party, such as plans, drawings, models, tools or devices and other work results, the ordinary right to use these to the extent described in the order or defined by the purpose of the order. In case the exclusive rights of use are transferred under the individual contract, ARINKO reserves the right to use the findings created itself as a result of, and by way of, the development.
9.6 The Customer declares its consent to our storage and utilisation of the data made available, insofar as this is necessary for business reasons and is permissible under the Bundesdatenschutzgesetz [German Federal Data Protection Act].
Additionally, the Customer declares its consent to our sending of data to the Customer over the Internet without using encryption methods, even if the confidentiality of the data is consequently not guaranteed. Anything contrary hereto shall apply only if the Customer expressly issues a different directive regarding the sending of data. Extra costs shall be borne by the Customer. Six months after the order has been carried out, we shall be entitled to delete data made available to us.
10. References
ARINKO shall be entitled to point out in publications of any kind (homepage, prospectuses, presentations or the like) its collaboration on the subject-matter of the respective contract or use this as a reference in the aforementioned media, and shall for this purpose be entitled to the free provision of photographs of the items made with the aid of its service.
11. Final Provisions
11.1 German law shall apply to all orders placed by us.
11.2 Bautzen is the place of jurisdiction. However, ARINKO shall also be entitled to bring an action against the Ordering Party at its place of general jurisdiction or at the place of jurisdiction where its registered office is situated.
11.3 Bautzen is the place of performance, payment and fulfilment for all obligations arising from the legal relations with the Customer; agreements on the bearing of costs shall not imply any amendment of the above rule concerning the place of performance.
11.4 If any individual clauses are wholly or partly invalid, this shall not affect the effectiveness of the other clauses or the other parts of such clauses. The statutory provision shall apply instead.