- General Purchasing Terms of PVA TePla Group*
- All orders for products and services of any kind placed by PVA TePla AG and its subsidiaries PVA Industrial Vacuum Systems GmbH, PVA Metrology & Plasma Solutions GmbH, PVA Crystal Growing Systems GmbH, PVA TePla Analytical Systems GmbH, PVA Löt- und Werkstofftechnik GmbH, PVA Control GmbH, PVA SPA Software Entwicklungs GmbH, PVA Vakuum Anlagenbau Jena GmbH (hereinafter referred to as “Buyer”) and the Supplier are governed exclusively by the following Terms and Conditions of Purchase.
In the following, work contractors, service providers and other contracting parties are also referred to as a Supplier.
Any changes to these terms and conditions must be confirmed by the Buyer in writing to be valid. These apply only if the Supplier is a businessperson (section 14 of the Bürgerliches Gesetzbuch (German Civil Code – BGB)), a legal entity under public law or a public law special fund.
- The Buyer’s Terms and Conditions of Purchase apply exclusively; the Buyer does not recognize any conditions that contradict or differ from its purchasing conditions unless it expressly recognizes them in writing. The purchasing conditions of the Buyer apply even in such cases where it accepts without reservation the Supplier’s services despite knowledge of contradictory or different purchasing conditions.
- Separate agreements made with the Supplier on a case-by-case basis (including subsidiary agreements, addenda and amendments) always take precedence over these GTC-P. Subject to any proof to the contrary, a written contract or written confirmation by the Buyer prevail over the contents of agreements of this kind.
§2 Offer - Offer Documentation - Order
- The order is considered binding no earlier than when it is issued or confirmed in writing. The Supplier must inform the Buyer of obvious errors (e.g. typing and arithmetical errors) and omissions in the order, including the order documents, for the purposes of correction or completion before acceptance; otherwise the contract is deemed not to have been formed. The Supplier is required to accept the order within two weeks (order confirmation). Once this period has expired, the Buyer is no longer bound to its order. Orders are effective only if placed in writing or confirmed in writing by the Buyer.
If the order confirmation differs from the order, the Buyer is bound to the order only if it has approved the difference in writing. Accepting deliveries or services and payments do not constitute approval. Late acceptance is considered to be a new order and requires the acceptance of the Buyer.
- The Buyer retains ownership and copyright rights to images, drawings, calculations, and other documents provided to the Supplier. They may not be made available to third parties without the Buyer’s express written permission and are to be used exclusively for production on the basis of the order. Once the order has been processed, they—including any copies—shall be returned to the Buyer immediately and without asking. They must not be disclosed to third parties.
- Offers from the Supplier are binding and free of charge for the Buyer.
- The Buyer is entitled to change the delivery time and place and the type of packaging at any time by giving notice in writing within a reasonable period of time before the agreed delivery date. The same applies to changes to product specifications, provided these can be provided as part of the Supplier’s normal production process without incurring considerable extra time or cost. The Buyer will reimburse the Supplier for all verified and reasonable additional costs incurred due to the change. If these changes result in delays to delivery that cannot be avoided in the Supplier’s normal production and business activity even if all reasonable efforts are made, the original delivery date is extended accordingly. In good time before the delivery date and within an appropriate period of time after receiving the notice from the Buyer in accordance with sentence 1, the Supplier will notify the Buyer in writing of additional costs or delays in delivery that the Supplier expects on the basis of careful assessment.
- The Buyer is entitled to terminate the agreement at any time in writing, specifying the reason for doing so, if it will be unable to use the products ordered for its business due to circumstances that arise after the agreement has been concluded. In this case, the Buyer will reimburse the Supplier for any partial services it has provided.
§3 Prices - Payment Conditions
- The price specified in the order is binding. Payments are made as decided by the Buyer through bank transfer to the Supplier’s bank account as specified on the relevant invoice. Unless agreed otherwise in writing, the price includes free delivery (DAP Incoterms 2010). The Supplier bears the costs of transport, shipment and packaging. The return of packaging requires a special agreement. For pricing ex works or ex warehouse, products are to be sent at the lowest price in each case, unless the Buyer has specified a particular mode of transport. The Supplier bears the costs of additional costs incurred due to not observing dispatch instructions.
- The Buyer can process invoices only if, in accordance with the relevant requirements, they cite the order number specified in the order. The Supplier is responsible for any consequences due to failure to comply with these obligations.
- Unless agreed otherwise in writing, the Buyer pays the purchase price within 14 days, calculated from the date of full delivery and receipt of a correct invoice with a 3% discount or the net purchase price within 30 days calculated from the date of full delivery and receipt of a correct invoice.
- The Buyer is entitled to rights of offset and retention to the extent stipulated by law. The Buyer is entitled in particular to retain due payments for as long as it is still entitled to claims against the Supplier arising from incomplete or defective services. Discounts are still permitted even if the Buyer offsets or withholds payments in an appropriate amount due to defects; the payment period in accordance with 3.4 begins after the defects have been remedied in full.
- The Supplier may dispose of its claims against the Buyer through assignment, pledging or in some other way only with the Buyer’s prior written permission. This does not affect section 354a German Civil Code.
§4 Delivery Date
- The delivery date specified in the order is binding and must be strictly observed (fixed date as per section 376 HGB). The relevant date for meeting the delivery date is the date on which the Buyer receives all goods. The Supplier must notify the Buyer in writing without delay if circumstances arise or become apparent which make it clear that the agreed delivery date will not be met.
- The Supplier is responsible for procuring the additional deliveries and services required for the agreed-upon deliveries and services even if the Supplier is not at fault.
- The Buyer is entitled to the relevant statutory claims if delivery is delayed. After an appropriate and necessary grace period has expired without effect, the Buyer is entitled to demand compensation in place of the service.
- If the delivery is delayed, the Buyer is entitled to demand per commenced week a contractual penalty in the amount of 1% of the net price, but not exceeding 5% of the net price of the goods that were delivered late; it reserves the right to assert any further claims. In the event that the Buyer claims compensation, the contractual penalty will be credited against this. The Buyer is obligated to declare the reservation of the contractual penalty at the latest upon payment of the invoice, which is issued following the delayed delivery.
- Partial and early deliveries are permitted only with the Buyer’s prior written permission and do not obligate the Buyer to partial or early payment.
§5 Transfer of Risk - Documents
- The risk is transferred to the Buyer as soon as it has received all of the goods.
- The Supplier is obligated to cite the Buyer’s exact order number on all shipping documents and delivery notes; failure to do so will inevitably lead to processing deliveries, for which the Buyer will not be held responsible.
§6 Claims for Defects - Notice of Defects
- Unless agreed otherwise in the following, the statutory regulations apply for the Buyer’s rights in the event of defects in quality and title (including incorrect delivery, underdelivery, incorrect installation and faulty installation or operating instructions) and in the event of other breaches of duty by the Supplier.
- In accordance with statutory provisions, the Supplier is liable for ensuring that the goods are in the condition agreed previously when risk is transferred to the Buyer. This previous agreement is determined by the relevant product descriptions – in particular descriptions or references in the order – that are the subject matter of the respective contract or were included in the contract in the same way as these Terms and Conditions of Purchase. It makes no difference whether the product description comes from the Buyer, the Supplier or the manufacturer.
- The Buyer will inspect the goods within a reasonable period to ensure that they meet the required quality standards and have been delivered in full. Notices of defect shall be considered lodged in due time if they are sent to the supplier within two weeks of goods delivery. In the case of concealed defects, the two-week complaint period begins only when the defect comes to light. Contrary to section 442 (1) sentence 2 BGB, the Buyer is entitled to claims for defects without limitation if the Buyer was unaware of the defect when concluding the agreement due to gross negligence.
- If the goods are defective when they are delivered to the Buyer, the Buyer is entitled initially to choose whether to have the defect rectified or demand a replacement delivery. Any rectification work performed subsequent to the initial unsuccessful attempt is considered failed.
- The Supplier must bear all costs associated with rectifying the defects or arranging a replacement delivery. Rectifying the defects also includes disassembling and reassembling the defective goods if they were installed as part of another item or mounted to another item in accordance with their nature and intended purpose. This does not affect the Buyer’s statutory legal claim to reimbursement of expenses incurred. The Supplier also bears the necessary costs of testing and rectifying defects if it transpires that there was in fact no defect. This does not affect the Buyer’s liability for damages in the event of an unjustified request to rectify a defect; the Buyer is thus liable only if it recognized or, through gross negligence, failed to recognize that there was no defect.
- If an appropriate grace period expires without yielding results, the Buyer is entitled to either have the purchase price reduced or terminate the contract. Alongside this, the right to compensation and the assertion of claims for the reimbursement of expenses are expressly reserved. In this case, the Buyer is also entitled to repair the defect itself at the Supplier’s expense and to request reimbursement of the costs this entails or an equivalent advance payment. There is no requirement to set a deadline if the Supplier’s attempt to rectify defects fails or is unreasonable for the Buyer (e.g. because of particular urgency, risk to operations or risk of disproportionate damage); the Buyer will inform the Supplier of such circumstances immediately, where possible in advance.
- Any deviations from the agreed-upon condition of the goods are considered significant if individual functions of the goods can be used only to a limited extent.
- The statutory provisions regarding the limitation period for claims due to defects apply, with a minimum limitation period of 30 months. The limitation period begins on the date of final acceptance of the entire system by the Buyer’s customer. Any denial within the meaning of Section 203 (1) BGB must made in writing. This also applies to waiving this written form requirement. The limitation period of warranty claims is suspended once the Supplier receives the Buyer’s written notice of defects until the Supplier rejects the Buyer’s claims or declares the defect to have been rectified or otherwise refuses to continue negotiations on the Buyer’s claims. This period starts anew for repaired or replaced goods.
- Final acceptance, checks, payments, or the acceptance of drawings submitted by the Buyer do not release the Supplier from its warranty.
§7 Reservation of Title - Supply - Tools - Confidentiality
- A reservation of title of the supplier becomes part of the contract only if the reservation of title expires upon payment of the price agreed for the reserved goods and the Buyer has authority to resell and process them in the orderly course of business. Any reservation of title by the Supplier beyond these terms will not be accepted.
- The Buyer reserves the right to ownership of the parts provided to the Supplier. Any processing or alteration measures are to be performed by the Supplier on behalf of the Buyer. If the Buyer’s reserved goods are processed with other objects that do not belong to the Buyer, the Buyer acquires joint ownership of the new items based on the proportion of the value of its items to that of the other objects processed at the time of processing.
- If the item ordered by the Buyer is inseparably mixed with other items that do not belong to it, the Buyer acquires joint ownership of the new items in the proportion of the value of the goods subject to retention of title to the value of the other mixed items at the time of mixing. If the mixing is such that the Supplier's item must be considered the main item, it is stipulated that the Supplier will transfer joint ownership pro rata to the Buyer; the Supplier will maintain sole ownership or joint ownership for the Buyer.
- The Buyer retains ownership of any tools manufactured on behalf of the Buyer. The Supplier is required to use the tools exclusively to manufacture products ordered by the Buyer.
- The Supplier must insure the tools belonging to the Buyer and goods provided for the value as new against damage by fire, water and theft. The Supplier is obligated to perform in due time and at its own expense any necessary maintenance and inspection work. The Supplier must notify the Buyer immediately of any malfunctions; if the Supplier culpably fails to do so, compensation claims remain unaffected.
- The Buyer retains ownership and copyright of all images, quotations, drawings, samples, models, designs, profiles, standard specifications sheets, calculations, tools, etc. manufactured for or provided to the Supplier. The Supplier is obligated to maintain the strict confidentiality of all samples, drawings, calculations, and other documents received. They may be disclosed to third parties only with the Buyer’s express written permission. The obligation to maintain confidentiality shall continue to apply following termination of this contract. It expires if and to the extent that the Buyer becomes aware of production expertise contained in the images, drawings, calculations, and other documents provided.
§8 Property Rights – Usage Rights
- The Supplier is responsible for ensuring that no third-party rights are violated in connection with its delivery, in particular property rights in countries of the European Union or other countries, and exempts the Buyer upon first written request from any third-party claims. The exemption of the Supplier relates to all expenses and damage that the Buyer incurs from or in connection with any claims asserted by third parties.
- The exclusive usage and property rights to images, drawings, product descriptions, and data sheets are transferred to the Buyer insofar as they were created or produced on its behalf. The Buyer is entitled solely and exclusively to use or exploit these results.
- The Buyer is entitled to publish the work results prepared or obtained on its behalf. Publication by the Supplier requires the prior written approval of the Buyer.
- The limitation period is 10 years calculated from the day on which the contract was concluded, unless a longer limitation period is stipulated by law.
§9 Product Liability - Indemnity - Indemnity Insurance Protection - Suppliers Right of Recourse
- Insofar as the Supplier is responsible for product damage, it is required to indemnify the Buyer upon first written request against third-party compensation claims to the extent that the cause lies within the Supplier’s field of control and organization and the Supplier is liable in the external relationship.
- In this context, the Supplier is furthermore obligated to reimburse any expenses incurred from or in connection with any recall campaign that the Buyer might initiate. The Buyer will, to the extent feasible and reasonable, inform the Supplier as to the substance and scope of any recalls to be carried out and afford it an opportunity to comment.
- The Supplier is obligated to take out product indemnity insurance to an insured sum (lump sum) of EUR 2.5 million per instance of bodily injury/physical damage; any further compensation claims to which the Buyer entitled remain unaffected.
- The Buyer is entitled to unrestricted right of recourse within a supply chain as stipulated by law (Supplier’s right of recourse in accordance with sections 445a, 445b, 478 BGB), as well as claims for defects. In particular, the Buyer is entitled to demand that the Supplier rectify the defect in the exact way (repair or substitute delivery) that the Buyer owes to its customer in the case in question. This does not limit the Buyer’s legal right to choose (section 439 (1) BGB).
- Before the Buyer recognizes or fulfills the claim for defects asserted by its customer (including reimbursing expenses in accordance with sections 445a (1), 439 (2) and 3 BGB), it must inform the Supplier and, providing a brief account of the facts, request a written statement. If no substantiated statement is made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by the Buyer is deemed owed to its customer. In this case, it is incumbent upon the Supplier to provide evidence to the contrary.
- The Buyer’s claims arising from the Supplier’s right of recourse also apply if the defective goods have been reprocessed by the Buyer itself or by another contractor, e.g. by installing them in another product.
§10 Long-term Supplier Declarations and Certificates of Origin
- The Supplier undertakes to provide, without being requested to do so, a long-term supplier declaration in the original version for goods with preferential originating status in accordance with the relevant legal provisions (currently: Commission Implementing Regulation (EU) 2015/2447), both on initial acceptance of the order and subsequently, once per calendar year. The Buyer must be informed of any changes to the originating status, without being requested to do so, using the respective order confirmation in text form (e.g. by fax or e-mail) or in writing.
- If the Buyer or the Buyer’s customers are charged by a customs authority due to incorrect own declarations of origin or if the Buyer or the Buyer’s customers suffer other financial disadvantage as a consequence of the Supplier providing incorrect information on the origin, the Supplier must compensate for damage incurred in each case. This does not affect further compensation claims.
- Deliveries of non-origin products must be marked as such on the invoice.
- The Buyer notes that it processes the data received from the Supplier (contractor) in accordance with the German Federal Data Protection Act. Personal data is also stored by affiliates and companies executing the deliveries (Article 6 (1) sentence 1 (f) GDPR in conjunction with Recital 48). The supplier shall observe the legal data protection requirements. In particular, the Supplier’s employees are obligated to maintain data protection confidentiality.
- The place of performance for goods and services is the place of receipt stated by the Buyer. If the Buyer does not explicitly state a place of receipt, the place of performance is the Buyer’s place of business.
- If the Supplier is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law, or special fund under public law, the Buyer’s place of business has exclusive jurisdiction unless a different place of jurisdiction is prescribed. Nonetheless, the Buyer is also entitled to file legal proceedings against the Supplier before the competent court of the Supplier’s place of business.
- For these purchasing conditions and all legal relationships between the Buyer and the Supplier, the laws of the Federal Republic of Germany under exclusion of the conflict of laws and the United Nations Conventions on Contracts for the International Sale of Goods (CISG) apply exclusively.
- All orders for products and services of any kind placed by PVA TePla AG and its subsidiaries PVA Industrial Vacuum Systems GmbH, PVA Metrology & Plasma Solutions GmbH, PVA Crystal Growing Systems GmbH, PVA TePla Analytical Systems GmbH, PVA Löt- und Werkstofftechnik GmbH, PVA Control GmbH, PVA SPA Software Entwicklungs GmbH, PVA Vakuum Anlagenbau Jena GmbH (hereinafter referred to as “Buyer”) and the Supplier are governed exclusively by the following Terms and Conditions of Purchase.
- Terms of Service of PVA TePla Group*
Unless otherwise agreed, service orders are subject to the following conditions for the repair and maintenance of machines and systems.
The following clauses are valid in addition to the terms of sales and delivery of the PVA TePla AG except as agreed otherwise in the confirmation of order.
1. Conclusion of contract, general information:
1.1 If a non-disputed written confirmation of order is present, then this is decisive for the content of the contract and the scope of the repairs. Collateral agreements and changes of the contract require written confirmation of the contractor.
1.2 If the object of repair is not delivered by the contractor, then the customer must inform the contractor of the existence of commercial industrial property rights with regard to the object, insofar that the contractor is not in default, the customer shall release the contractor from any possible third party claims from commercial industrial property rights.
2. Repairs that cannot be accomplished
2.1 The services rendered for the submission of an estimate of cost as well as additional expenditures incurring for which proof is to be provided of (debugging time = labour time) will be charged to the customer, if the repairs cannot be carried out by the contractor for reasons which are beyond the contractor’s control, in particular because
- the reported error does not occur during the inspection,
- spare parts cannot be acquired,
- the customer culpably fails to com ply with the deadline agreed to,
- contract is cancelled during implementation.
2.2 The object of repair must be returned to its original state only at the express request of the customer and for reimbursement of the costs, unless the work performed was not necessary.
2.3 In case of repairs that cannot be accomplished, the contractor shall not be liable for damages on the repair object, the breach of contractual accessory obligations or for damages that have not occurred on the repair object itself, irrespective of the legal grounds the customer quotes as reference. This limitation of liability does not apply in cases of intent or gross negligence of the owner or supervising employee of the contractor.
3. Cost information, cost recommendation
3.1 If possible, the customer will be informed of the estimated repair price at the time of contractual conclusion, otherwise the customer can set a cost limit.
- If the repair cannot be carried out at this cost or the contractor considers
- additional work necessary during the repairs, then the contractor must obtain
- the customer’s consent if the costs indicated are exceeded by more than 15%.
3.2 If a cost recommendation with binding prices is desired prior to implementation of the repairs, then this is to be expressly requested by the customer. Such a cost recommendation is only binding if it has been made in writing and it is stated that it is binding.
4. Price and payment
4.1 The contractor is entitled to request appropriate advance payment at the time of conclusion of the contract.
4.2 For the calculation of the repairs, the prices for parts and material used, special services as well as prices for labour, travel and transport costs are each to be listed separately. If the repair is carried out as a result of a binding cost recommendation, then it is sufficient to make reference to the cost recommendation, whereby only deviations in the scope of performance are to be listed separately.
4.3 The value added tax will be calculated to the respectively valid amount and charged to the customer.
4.4 Any adjustment of the invoice on the part of the customer must be made in writing four weeks after receiving the invoice at the latest.
4.5 The payment is to be made at the time of acceptance and delivery or transmission of the invoice without deduction of a discount.
4.6 Withholding of payments or offsetting as a result of any counterclaims of the customer disputed by the contractor is not permitted.
4.7 The assignment of existing claims or other rights vis a vis the contractor is not permitted.
5. Cooperation and technical support of the customer for repairs outside of the plant of the contractor
5.1 The customer must assist the repair personnel at his own expense during repair work.
5.2 The customer must take special measures needed to protect against personal injury and property damage at the place of repair. He must also inform the repair supervisor about existing special safety guidelines insofar that these are relevant for the repair personnel. He will inform the contractor of violations made by the repair personnel of such safety guidelines. In case of severe violations, the customer can refuse the offender access to the repair site after consulting with the repair supervisor.
5.3 The customer is obliged to provide technical support at his own expense especially with regard to the following:
a) Provision of suitable back staff needed in the amount required for the repairs and for the required amount of time, the back staff must follow the orders of the repair supervisor. The contractor assumes no liability for the back staff. If a defect or damages are made by the back staff as a result of instructions of the repair supervisor, then the regulations of Sections 10 and 11 apply, correspondingly.
b) Execution of all construction, bedding and scaffolding work including the procurement of the necessary building materials.
c) Provision of the necessary devices and heavy equipment as well as the necessary articles of daily use and materials.
d) Provision of heating, lighting, power, water incl. the necessary connections.
e) Provision of dry and lockable rooms needed for the repair personnel to store their tools
f) Protection of the repair site and materials against harmful influences of any kind. Cleaning of the repair site.
g) Provision of suitable lounges and workrooms (with heating, lighting, bathroom and washing facilities) and first aid for the repair personnel.
h) Provision of materials and execution of all other actions that are necessary for the adjustment of the repair object and for the implementation of tests as planned in the contractual agreement.
5.4 The technical support of the customer must guarantee that the repair work can be begun immediately after the repair personnel has arrived and carried out without delay up to acceptance by the customer. To the extent that special plans or instructions of the contractor are required, then the customer will make these available in good time.
5.5 If the customer does not fulfil his obligations, then the contractor is entitled on notification, but in no way obliged, to carry out the actions for which the customer was responsible in the customer’s place and at the customer’s expense. In such cases the contractor is - following notification - entitled to abandon the repair work. For the rest, the legal rights and claims of the contractor remain unaffected.
6. Transport and insurance during repair work in the plant of the contractor
6.1 Unless otherwise agreed in writing, the customer will be invoiced for delivery and pickup of the repair object carried out at his request, including any packing and loading, otherwise the repair object shall be delivered by the customer at his own expense to the contractor and after implementation of the repairs picked up again by the customer at the contractor.
6.2 The customer bears the transport risk.
6.3 At the wish of the customer, the transport costs for delivery and if necessary for pickup will be insured against the insurable transport risks, e.g. theft, breakage, fire.
6.4 No insurance protection exists during the repair time in the plant of the contractor. The customer is responsible for ensuring that the existing insurance protection continues to cover the repair object, e.g. with regard to fire, tap water, storm and machine breakage insurance during the repair time. Only at the express request of the customer and at his own expense can insurance protection be taken out for these risks.
6.5 If the customer is in default of acceptance, then the contractor can charge storage fees for storing the object in his plant. The contractor can also store the repair object elsewhere at his discretion. Costs and risks of storage shall be borne by the customer.
7. Repair period
7.1 The information on the repair periods are based on estimates and are therefore non-binding.
7.2 The agreement of contractually binding repair work, which must be expressly described as being binding in writing, can only be requested by the customer if the scope of the work has been exactly determined.
7.3 The binding repair period is considered kept if the repair object is available by the end of the period for customer acceptance or in the event of a planned test contractually agreed to for their execution.
7.4 In case of additional and supplementary orders made at a later time or in case of additional necessary repair work, then the repair period agreed on will be extended correspondingly.
7.5 If the repair work is delayed as a result of measures resulting from work disputes, in particular strike and lock-out as well as the occurrence of Acts of God which the contractor has no control of, then to the extent that it can be proven that such obstacles have a significant influence on the finishing of the repairs, an appropriate extension of the repair period shall be granted, this also applies if such conditions occur after the contractor is in default.
7.6 If damages occur for the customer that are proven to be the result of the contractor’s inability to keep the deadline, then the customer is entitled under exclusion of additional claims to demand default damages which amount to 0.5% for each full week of delay, however, a maximum of 5% of the entire repair price for the respective part of the object to be repaired by the contractor that cannot be used on time as a result of the delay.
7.7 If the customer grants the contractor who is in default an appropriate period of grace with express declaration that after lapse of this period he will then refuse to accept the repair work, and if the subsequent period of grace is not kept, then the customer is entitled to withdraw from the contract. Additional claims do not exist – irrespective of 11.3.
8.1 The customer is obliged to accept the repair work as soon as he has been informed of their completion and as soon as any contractually planned test of the repair object has taken place. If the repair work does not comply to the contractual agreement, then the contractor is obliged to remedy any defects. This does not apply if the defects are nonessential for the interest of the customer or if they are based on a condition that can be attributed to the customer. If there is an insignificant defect present, then the customer may not refuse acceptance of the repair work if the contractor expressly acknowledges his obligation to remedy the defect.
8.2 If the acceptance is delayed without the contractor being at fault, then the acceptance is considered to have taken place two weeks after the repair work has been indicated as being complete.
8.3 With the acceptance of the repair work, the liability of the contractor is no longer applicable for obvious defects, if the customer has not asserted his right to reserve the right to claim for a certain defect.
9. Retention of title, extended lien
9.1 The contractor retains the title to all accessories, spare parts, exchangeable aggregates used until receipt of all payments from the repair contract. Additional security agreements can be made.
9.2 Due to his claims from the repair contract, the contractor is entitled to a lien on the repair object of the customer, which is now in his possession as a result of the contract. The lien can be asserted also for claims from work, spare part deliveries and other services previously carried out insofar as they are associated with the repair object. The right of lien only applies to other claims from the business relationship, if these are undisputed and legally binding.
10.1 After acceptance of the repair work, the contractor shall be liable for defects of the repair work also including the lack of expressly ensured properties that occur within six months after acceptance under exclusion of all other claims of the customer irrespective of No. 6 and 11 to the extent that he must remedy the defect. The customer is to report determined defects immediately in writing to the contractor. His right to have the defect remedied is only valid for six months from the time of reporting the defect.
10.2 The deadline for the defect liability will be extended by the duration of the downtime of the repair object caused by the subsequent improvement work.
10.3 The contractor shall not be liable, if the defects are non-essential for the interest of the customer or if they are based on a condition that can be attributed to the customer. This especially applies with regard to parts supplied by the customer.
10.4 Faulty modifications or repair work performed, for example, on the part of the customer or a third party without prior consent of the contractor will cancel the liability of the contractor for the consequences resulting therefrom. Only in urgent cases of endangerment of the operational security and to avoid larger damages that are out of scale, whereby the contractor is to be immediately informed or if the contractor is in default in remedying the defect, the customer has the right to remedy the defect himself or have the defect remedied by a third party and to demand from the contractor compensation for the necessary costs.
10.5 The costs incurring directly as a result of the improvement shall be borne by the contractor insofar as the complaint is proven to be justifiable, the costs of the replacement piece including shipping and handling as well as the appropriate costs of dismounting and installation. Further, if this is justly in individual cases, then the costs shall be borne for the necessary hiring of service technicians and back staff. For the rest, the customer shall bear the costs.
10.6 If the contractor culpably allows an appropriate respite for the remedy of defects lapse without any results, then the customer has a right to reduction. The customer’s right of reduction also exists in other cases of failure to remedy the defect. Only if the repair work is proven to be of no interest to the customer despite reduction, then the customer shall be entitled to withdraw from the contract after giving notice.
11. Other liability of the contractor, exclusion of liability
11.1 If parts of the repair object are culpably damaged by the contractor, then the contractor is to repair this or deliver a new at his sole discretion and at his own cost. The replacement obligation is limited to the amount of the contractual repair price insofar as no intent or gross negligence of the owner or the supervising employee of the contractor exists.
11.2 If the repair object of the customer cannot be used in accordance with the contract due to culpable action of the contractor as a result of failure to provide adequate consultation or recommendations as well as other contractual accessory obligations or the provision of faulty consultation or recommendations - in particular with regard to the instructions for operation and maintenance of the repair object - then the regulations of Sections 10 and 11, 1. and 3. apply correspondingly under exclusion of additional claims.
11.3 The customer cannot assert any other additional claims against the contractor that exceed those agreed to in these provisions, especially claims for compensation, including those from extra contractual action or other rights due to any disadvantages associated with the repair work, irrespective of the legal grounds the customer quotes. This exclusion of liability does not apply in case of intent or gross negligence of the owner or supervising employee of the contractor or in cases of personal injury or property damage to privately used objects in cases of faulty repair work in accordance with the product liability act. This also does not apply to the absence of properties that have been expressly ensured if the assurance served to protect the customer from damages that did not occur on the repair object itself.
If the repair work is performed outside of the plant of the contractor and devices or tools of the contractor are damaged at the place of repair and this occurs at no fault of the contractor or if the devices or tools are lost at no fault of the contractor, then the customer is obligated to compensate these damages. This excludes damages occurring as a result of normal wear and tear.
13. Data Protection
We wish to point out that we will process the data we receive from customers according to the provisions of the German Data Protection Act. Personal data will also be stored by company groups and delivery centres (Sections 28 and 33 of the German Data Protection Act).
14. Place of Jurisdiction, Applicable Law
14.1. These Conditions of Service and all legal relationships between customers and the contractor are subject to the laws of the Federal Republic of Germany to the exclusion of the provisions of the UN Convention on the International Sale of Goods (CISG).
14.2. The court where the headquarters of the contractor are located shall have sole responsibility for all disputes arising from the contractual relationship if the customer is a general merchant, a legal entity under public law or a special fund under public law as defined by the German Commercial Code. The contractor can also call upon the court responsible for the branch of the contractor in charge of the repair work or the court responsible for the customer.
- General Terms of Sale of PVA Industrial Vacuum Systems GmbH, Wettenberg
1.1 None of our deliveries, services and offers are subject to any other rules than the General Terms of Sale set forth herein. This shall also apply to any future business even though it may not have been expressly stipulated otherwise. Any counter-confirmation made by a Buyer with reference to his own business or purchasing terms is hereby contradicted.
1.2 Any provision made between us and a Buyer in order to execute a contract shall be stipulated in a written contract.
2. Offer and Conclusion of Contract
2.1 Our quotations are non-binding, unless the binding force of a quotation has been explicitly stipulated in writing. Your orders shall have no binding contractual force and effect unless we have sent our written order acknowledgement.
2.2 Drawings, illustrations, weights, measures, and other performance data shall only be binding if expressly stipulated in writing.
2.3 We retain title of ownership and copyright of all tender documents, illustrations, drawings, calculations and other documents. These must not be disclosed to any third party.
2.4 Written documents which are clearly marked as "confidential" are subject to secrecy requirements. The Buyer shall procure our express written approval before he may disclose a document of such type to a third party.
3. Prices, Terms of Payment, Set-Off, Retention
3.1 Unless otherwise agreed, prices are quoted ex works.
3.2 Unless otherwise specified, we consider ourselves bound by the prices quoted in our firm and binding offers for four weeks commencing at the date of offering.
3.3 Prices are always quoted before VAT, which will be separately shown in the invoice at the rate that is legally binding on the date of invoicing.
3.4 Unless otherwise stipulated, our invoices shall be payable in full and exempt from postage and charges fourteen (14) days from the date of invoice. The date on which payment is received on our account will be decisive. Despite any Buyer statement to the contrary, we shall be entitled to initially set payments off against previous debts. The Buyer will then be duly informed about applied settlement procedures. Where such previous debts have incurred additional costs and interest, we shall be entitled to set due payments off against such costs in the first place, then against such interest, and finally against the primary obligation.
3.5 Partial deliveries entitle us to issuing an invoice for the respective part.
3.6 Any deduction of discount shall require a special written agreement.
3.7 If the Buyer defaults, we may, at our own option, charge annual interest of eight percentage points above the respective base interest rate as laid down in section 247 of the German Civil Code from the day on which a default situation begins. This shall not affect our right to claim further compensation of damage from the Buyer.
3.8 If circumstances become known to us, which cast doubt on the Buyer’s creditworthiness, notably, if a cheque and/or a bill of exchange is not cleared, or payment discontinues, we will be within our rights to call in the total amount due, even though we may have previously accepted cheques. Furthermore, advance payment or the provision of securities may be demanded in such cases.
3.9 The Buyer shall only be entitled to claim setoff if his counter-claims have been found to be lawful or indisputable or are acknowledged on our part. He may only use this right of retention to the extent that his counter-claim is based on the same contractual relationship and has been found to be lawful or indisputable or is acknowledged on our part. The assignment of existing claims against us or other rights vis a vis us is not permitted.
4. Delivery Time, Partial Deliveries, Default in Accepting
4.1 Dates and/or periods of delivery shall require our written confirmation to be firm and binding. Unconfirmed dates and/or periods of delivery are in no case binding. All technical, commercial and official conditions must have been settled and fulfilled for a quoted delivery period to begin.
4.2 Stipulated delivery deadlines will be met subject to the proviso that we obtain correct and timely self-supplies ourselves. We shall notify the Buyer of any imminent delays as soon as possible.
4.3 We may, at any time, perform partial deliveries and render partial services. The return of packaging requires the conclusion of a separate agreement.
4.4 Our compliance with contractual delivery and performance commitments shall require the timely and proper fulfilment of the Buyer’s obligations.
4.5 The delivery period is met when the delivery items are handed over to the first carrier or when the Buyer is notified of our readiness to ship before or on the expiring date.
4.6 In the case of delay due to Acts of God, industrial action, or other events beyond our control, a reasonable extension of the delivery period will be in place, however not exceeding six months extension.
4.7 If the Buyer defaults in accepting or fails to meet any of his obligations to cooperate, we shall be entitled to claim compensation of damages we have suffered therefrom, including additional expenses if any. In this case, the risk of accidental loss/destruction or accidental deterioration of sold products shall pass to the Buyer at the moment when the Buyer defaults in accepting.
4.8 Should damage for the Buyer arise caused by a delay which is in our responsibility, the Buyer has the right to claim compensation for delay. This amounts to 0.5% for each full week of delay, but in total not exceeding 5% of the value of the respective part of the entire delivery which due to the delay cannot be used in time or not according to contract.
5. Assembly, Initiation, Service
For assembly, initiation or service work the respective complementary terms apply, which we will provide on request.
6. Passing of Risk
The risk of goods deliveries shall pass to the Buyer as soon as a shipment has been handed over to the person responsible for its transportation, or has left our storage facility for dispatch (shipping date). If a shipment becomes impossible or delayed through no fault of our own, the risk shall pass to the Buyer upon notification of our readiness to ship.
7. Claims of the Buyer based on defects
7.1 Where we are shown to be responsible for a material defect in sold products, the Buyer shall be entitled to demand re-performance within a reasonable period of time.
7.2 A written notice of defect shall be given to us immediately on identification of a defect.
7.3 None of the Buyer's claims in connection with expenditures necessary for re-performance, notably, transporting, travel, labour and material costs, will be accepted where such expenditures increase, because an object of sale has been transferred to a location that is different from the place of fulfilment, unless such transfer is required for such object's intended use.
7.4 If defect removal fails within a reasonable time and/or no replacement can be provided or appears unreasonable, the Buyer may, at his discretion, demand a reduction in the sales price or cancel the contract. Damages may only be claimed if the conditions of paragraph 8. of these General Terms of Sale are fulfilled.
7.5 Insignificant defects and natural wear and tear shall void any claims of warranty.
7.6 Additional warranty terms for software: For software provided to the Buyer, we warrant compliance with our program specifications, if such software is installed in equipment as designated by us and in accordance with our guidelines. Warranty shall only be accepted for software faults that can be reproduced at any time. We warrant that any fault or defect which is non-insignificant for intended software use will be removed under these warranty terms, but reserve the right to eliminate software defects according to a priority scale of our choice. This shall be done by installing an enhanced software version and giving advice on workarounds or a method to eliminate the fault. We cannot warrant the software to run faultlessly in any userselected combinations which have not been specified by us.
7.7 Failure to observe our operating or maintenance instructions, or changes in goods delivered or services rendered, or any replacement with a part or use of a consumable that does not meet original product specifications, or existence of inappropriate chemical, electrochemical or electrical effects, inappropriate use, faulty assembly or initiation through the Buyer or a third party, shall void any warranty.
7.8 The statutory period for claims for defects is twelve months from the date of delivery.
7.9 The foregoing terms cover all commitments to provide claims of the Buyer based of defects in delivered products or services. No claims for defects of any other kind will be accepted. The legal provisions concerning the purchase of consumer goods shall remain unaffected.
8. Intellectual property and copyrights
8.1 If a claim is made to the Buyer for infringement of an intellectual property right or a copyright due to the use of goods delivered within one year from the date of shipment of such goods or rendering of such services, we shall assert the Buyer's right for continued use, always provided that the Buyer promptly gives written notice about any such claim by a third party and provided that we have full freedom to take necessary action for defence and outof- court settlement. If the continued use of delivered goods or services on reasonable economic terms proves impossible despite such defence and settlement efforts, we shall, at our own choice, modify or replace the particular goods for removal of their legal deficiencies or repurchase such goods by refunding the sales price that had been paid to us less a certain amount of depreciation corresponding to the age of goods delivered.
8.2 No claims shall be accepted if a legal rule has been violated due to the non-contractual usage of goods or services delivered. The rules in paragraph 9 will apply in all other aspects.
8.3 We shall assume no liability in the case of law offences by goods delivered if such goods or have been manufactured to the Buyer's engineering design documentation or other Buyer specifications. In fact, the Buyer will indemnify us from any possible claim.
9. Limitation of Liability
9.1 We are liable in contract, tort, or otherwise for loss or wasted expenditure subject always as follows: a) In cases of intent, personal injury or liability under the German Product Liability Act our liability extends to the full loss; in cases of gross negligence, our liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care; in cases of absence of a guaranteed quality, our liability is limited to the amount of foreseeable loss that would have been prevented by the presence of the guaranteed quality.
b) In other cases: We are not liable except for breach of a major obligation and only up to the limits in the following subsection. A breach of a major obligation in the meaning of section 9.1 b) is assumed where the duty itself is a necessary prerequisite for the contractual performance, or where the breach of the relevant duty jeopardizes the purpose of the contract and where Customer could legitimately rely upon its fulfillment.
c) Where we are liable for loss of data, our liability will be restricted to the typical amount of efforts for data recovery that would have been required in the event of the Buyer's regular and risk-conforming saving of data. Liability in cases under section 9.1 b) and c) is limited to 200,000 euros per incident and limited in total to 500,000 euros for all claims arising out of the Individual Contract or, in case this limitation of liability is not in an adequate proportion to the typical contractual risk our liability shall be limited to damage that is typical of and reasonably foreseeable with contracts of this kind.
9.2 Contributory fault and contributory negligence may be claimed.
9.3 All claims against us whether in contract, in tort, or otherwise for loss or wasted anticipatory expenditure are barred after a period of one year. That period begins at the point in time specified in the German Civil Code (BGB), section 199 (1). The time bar comes into effect not later than five years after the claim arises. The provisions in sentences 1 to 3 in this section do not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. The provisions in this section do not affect the other time bar for claims arising out of defects as to quality and defects in title.
10. Retention of Title
10.1 Pending the settlement of any receivables (including current account balance claims) from the Buyer at present or in the future – on whatever legal grounds - the following securities shall be provided to us. We shall, at our own option, relinquish these wholly or partially if their value clearly exceeds the value of receivables by more than 20%.
10.2 Shipments shall remain our property (goods sold with retention of title). Reprocessing or reshaping of goods shall always be regardedas performed on our behalf, but with no obligation on our part. We shall be entitled to coownership of the new property inasmuch as the value of goods sold with retention of title (invoiced value) relates to the new property. It will be the Buyer's responsibility to hold such new property in safe custody on our behalf and at his own expense. If the Buyer chooses to resell the new property, subparagraph 9.3 shall be applicable.
10.3 The Buyer may reprocess or resell goods under retention of title in normal business operations, as long as he is not defaulting. He shall be prohibited from pledging or depositing such goods for collateral security. Furthermore, the Buyer shall be responsible to insure goods that have been shipped with reservation of title against all common risks. For reasons of safety, the Buyer immediately assigns to us any receivables resulting from a resale or other legal grounds (insurance, unlawful acts) in connection with goods under retention of title (including any current account balance claims) in their full amount. The Buyer is hereby revocably authorized to collect such receivables he has assigned to us on our account, but on his own behalf. This collection authority can only be revoked if the Buyer fails to meet his commitments to pay in due course.
10.4 If a third party gains access to, or a hold on, goods shipped with retention of title, notably in the case of hypothecation, the Buyer shall clearly indicate to such third party that these are our property, delivering prompt notice thereof, in order to enable us to enforce our own property rights. Where such third party is unable to refund our costs in connection with necessary court or out-of-court proceedings, the Buyer shall be held liable.
10.5 Should in the Buyer’s country the validity of a retention of title be bound to particular formalities or other requirements, the Buyer will see to their fulfilment.
11. Rights in Software
11.1 The Buyer is granted a non-exclusive, nonassignable, unlimited (in time) right to use the software, including any of its updates, amendments, extensions and related documentation, which are part of our product deliveries, for no other purpose than that of operating the product for his own needs.
11.2 Except for what is quoted in subparagraph 10.1 above, the Buyer shall have no further rights in software and documentation. Notably, we shall remain the sole owner of intellectual property rights. The Buyer shall not disclose any software, documentation, including subsequently provided updates, amendments or extensions, to a third party, unless our prior written approval has been obtained, nor shall he change, copy or otherwise duplicate these, unless such duplicating is done to create a backup copy which must then be clearly marked as a backup copy.
11.3 Under the terms of section 69 e of the German Copyright Act, delivered program codes may be re-translated into other code forms (decompilation) if necessary to achieve interoperability between independently created software and the contractual software. Interfacing particulars required to achieve interoperability are available from us at minimal cost.
11.4 The concurrent storing, maintaining or application of software on more than one hardware product shall not be permissible. If the Buyer intends to operate given software on several hardware configurations at the same time, for example, in a multi-operator scenario, he shall acquire the corresponding number of program packages.
11.5 The Buyer shall take adequate precautions to prevent unauthorized access to software and documentation by third parties. He shall be responsible for keeping all delivered original data carriers and related backup copies in a place that is safe from access by third parties. The Buyer shall hold us harmless in the event of damage due to a breach of this obligation. He shall also properly instruct his personnel about the need to comply with these contractual requirements and the provisions of intellectual property law.
12.1 Unless otherwise explicitly agreed in writing, no information provided to us in connection with product or service orders shall be consideredas confidential.
12.2 We wish to point out that we will process the data we receive from purchasers according to the provisions of the German Data Protection Act. Personal data will also be stored by company groups and delivery centres (Sections 28, 33 of the German Data Protection Act).
13. Applicable Law and Legal Venue
13.1 These terms of business and all legal relations with the Buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN-Convention on Contracts for the International Sale of Goods.
13.2 For Buyers who qualify as a merchant under the terms of the German Commercial Code, as a legal person under public law or a Federal Special Fund, our company’s registered place of business shall be the exclusive legal venue for any dispute arising from, or in connection with, this contractual relationship - whether directly or indirectly - unless legal requirements prescribe a different legal venue as compulsory.
Terms of sales210 KB