General Terms and Conditions

  • General Purchasing Terms of PVA TePla Group*

    §1 Scope

    1. 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.
       
    2. 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.
       
    3. 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

    1. 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.
       
    2. 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.
       
    3. Offers from the Supplier are binding and free of charge for the Buyer.
       
    4. 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.
       
    5. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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.
       
    5. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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.
       
    5. 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

    1. The risk is transferred to the Buyer as soon as it has received all of the goods.
       
    2. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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.
       
    5. 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.
       
    6. 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.
       
    7. 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.
       
    8. 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.
       
    9. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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.
       
    5. 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.
       
    6. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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).
       
    5. 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.
       
    6. 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

    1. 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.
       
    2. 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.
       
    3. Deliveries of non-origin products must be marked as such on the invoice.

    §11 Others

    1. 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.
       
    2. 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.
       
    3. 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.
       
    4. 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.
  • 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 terms and conditions apply in addition to the terms of delivery of 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 Soldering and Materials Technology GmbH , PVA Control GmbH, PVA SPA Software Development GmbH, PVA Vakuum Anlagenbau Jena GmbH unless otherwise agreed in the order confirmation and if the customer is an entrepreneur (section 14 of the Bürgerliches Gesetzbuch (BGB – German Civil Code), a legal entity under public law or a fund under public law.

    §1. Contract conclusion, general:

    (1) If an uncontested written order confirmation has been submitted, it is authoritative with regard to the content of the contract and the scope of the repair work. Supplementary agreements and contract amendments must be confirmed in writing by the contractor.

    (2) If the subject of the repair work has not been supplied by the contractor, the customer shall declare any existing intellectual property rights in respect of the subject; provided that the contractor is not at fault, the customer shall indemnify the contractor against any claims by third parties relating to intellectual property rights.

    (3) The contractor shall be entitled to engage subcontractors.

    §2. Infeasible repairs

    (1) The customer will be invoiced for the work involved in submitting a quotation and the additional work to be documented (time spent identifying defects is counted as working time) if the repairs cannot be carried out for reasons beyond the contractor's control; in particular, because

    • the defect at issue was not found during the inspection,
    • spare parts cannot be obtained,
    • the customer culpably neglected to attend the agreed appointment,
    • the contract has been terminated by the customer during the performance of work without the client having provided grounds for doing so, or the contract has been terminated by the client and the customer has provided grounds for doing so.

    (2) The subject of the repair work shall be restored to its original condition only if expressly requested by the customer and if the cost of doing so is reimbursed, unless the work undertaken was not necessary to restore its function.

    §3. Cost information, quotation

    (1) If possible, the estimated repair price shall be indicated to the customer when the contract is signed; if not, the customer may set price limits.
    If the repair work cannot be carried out at these prices or if the contractor considers additional work necessary during repairs, it shall be necessary to obtain the customer's consent if the prices quoted are exceeded by more than 15%.

    (2) If the customer wishes to be provided with a quotation containing binding prices before repair work is carried out, it shall expressly request such a quotation. A quotation of this type shall be considered binding only if it is declared as such and submitted in writing.

    §4. Price and payment

    (1) The contractor shall be entitled to request an appropriate advance payment when the contract is signed.

    (2) The prices for parts, materials and special services used as well as the prices for labor, travel and transportation costs shall be itemized on the invoice for repair work. If repairs are conducted on the basis of a binding quotation, a reference to the quotation, with only deviations in the scope of services listed in detail, shall be sufficient.

    (3) Value-added tax shall be added accordingly and charged to the customer at the applicable statutory rate.

    (4) The customer shall submit any complaints in writing no more than six weeks following receipt of the invoice.

    (5) Payment shall be made without any discount upon acceptance and handover or dispatch of the invoice.

    (6) Withholding payment or offsetting on account of any counterclaims by the customer disputed by the contractor shall not be permissible.

    (7) The assignment of claims against us or other rights is excluded. This does not affect section 354a of the German Civil Code.

    §5. General and technical assistance from the customer with repairs taking place outside the contractor's premises

    (1) The customer shall assist repair personnel during performance of repairs at its own expense.

    (2) The customer shall put in place the special measures necessary to protect personnel and property at the repair site. The customer shall also brief the repair team leader nominated by the contractor on any special safety regulations that may be relevant to the repair personnel. It shall notify the contractor should the repair personnel violate any such safety regulations. In the event of serious violations, it may deny the perpetrator access to the repair site in consultation with the repair team leader.

    (3) The customer shall be required, at its own expense, to render technical assistance when notified in good time by the contractor, especially in relation to the following:

    a) Providing the required number of suitable support staff for the time necessary to render assistance. The support staff shall follow the instructions of the repair team leader. The contractor shall assume no liability for the support staff. Should the support staff cause defects or damage as a result of instructions from the repair team leader, the stipulations outlined in sections 10 and 11 shall apply accordingly.

    b) Carrying out all construction, foundation and scaffolding work, including procuring the necessary materials.

    c) Providing the necessary appliances and heavy tools as well as the required commodities and materials.

    d) Providing heating, lighting, electricity and water, including the necessary connections.

    e) Providing the necessary dry and lockable rooms for storing the tools of repair personnel.

    f) Protecting the repair site and materials against detrimental external effects of any kind; cleaning the repair site.

    g) Providing suitable, theft-proof break rooms and work spaces (with heating and lighting as well as washing and bathroom facilities) and first aid supplies for the repair personnel.

    h) Providing the materials and carrying out all other actions necessary to make adjustments to the subject of repair work and to carry out testing as required by the contract.

    (4) The technical assistance rendered by the customer shall ensure that the repair work can begin immediately following arrival of the repair personnel and can be performed without suffering any delays up to the point of the final acceptance inspection by the customer. Should any special plans or instructions from the contractor be required, it shall provide them to the customer promptly.

    (5) If the customer is late in fulfilling its obligations, the contractor shall be entitled, but not obligated, to carry out the actions that the customer had been required to perform instead and at the customer's expense, having first announced that it will do so. In such an event, having given prior notice, the contractor shall be entitled to terminate the repair work. The statutory rights and entitlements of the contractor shall otherwise remain unaffected.

    §6. Transportation and insurance for repairs on the contractor's premises

    (1) Unless otherwise agreed in writing, any transportation of the subject of repair work in either direction conducted upon the customer's request – including any packing and loading – shall be carried out at its expense. Otherwise, the customer shall deliver the subject of repair work to the contractor at its own expense and collect it again once the repairs have been performed on the contractor's premises.

    (2) The customer shall bear the risks associated with transportation.

    (3) Upon request from the customer, transportation away from and, if applicable, to its premises shall be insured against insurable transportation risks, such as theft, breakage and fire, at its own expense.

    (4) There shall be no insurance cover in place during repairs on the contractor's premises. The customer shall ensure that the existing insurance cover for the subject of repair work, such as that insurance for damage caused by fire, water, storms and machine breakage, is maintained. Insurance cover for these risks may be obtained only upon express request from and at the expense of the customer.

    (5) If the customer is late in collecting the subject of repair work, the contractor may charge warehousing fees for storage on its premises. The subject of repair work may also be stored elsewhere at the contractor's discretion. The costs and risk associated with this storage shall be at the customer's expense.

    §7. Repair period

    (1) The information concerning the repair periods is based on estimates and is therefore non-binding.

    (2) The customer may request an agreement to conduct repairs within a binding defined period, which must be designated as such in writing, only if the extent of the work is clearly defined.

    (3) The binding repair period shall be considered adhered to if the subject of repair work is ready for acceptance by the customer and, in the event that a test is required by the contract, ready for that test before the repair period expires.

    (4) If additional or supplementary orders are placed subsequently or if additional repair work is needed, the agreed repair period shall be extended accordingly.

    (5) If repair work is delayed as a result of labor disputes, particularly strikes or lockouts, or of circumstances beyond the control of the contractor, the repair period shall be extended accordingly insofar as such hindrances demonstrably have a significant impact on completion of the repair work. This shall also apply if such circumstances arise after the contractor has already fallen behind schedule.

    (6) Should the customer verifiably suffer damages as a result of a delay on the part of the contractor, it shall be entitled, to the exclusion of any further claims, to demand compensation for delay; this shall amount to 0.5% for every full week of delay, although shall not exceed in total 5% of the repair price for the part of the object to be repaired by the contractor that cannot be used on time due to the delay.

    (7) If the customer grants the delayed contractor an appropriate grace period with an express declaration that it will refuse to accept the repair work if this period is allowed to elapse and if the grace period is not adhered to, the customer shall be entitled to terminate the contract. No further entitlements shall apply, notwithstanding section 11.3.

    §8. Acceptance

    (1) The customer shall be obligated to accept the repair work as soon as it has been notified of its completion and any testing of the subject of repair work required by the contract has taken place. If the repair work proves not to meet the requirements of the contract, the contractor shall be obligated to rectify the defect. This shall not apply if the defect is immaterial to the interests of the customer or is due to circumstances for which the customer is responsible. If there is an immaterial defect, the customer shall not be entitled to refuse final acceptance if the contractor expressly acknowledges its obligation to rectify the defect.

    (2) If final acceptance should be delayed through no fault of the contractor, final acceptance shall be considered to have taken place once two weeks have elapsed following notification of the completion of repair work.

    (3) Final acceptance shall remove the contractor's liability for any defects found, provided that the customer has not reserved the right to assert claims regarding a specific defect.

    §9. Retention of title, extended lien

    (1) The contractor shall retain title to all accessories, spare parts and replacement appliances used until all payments from the repair contract have been received. It shall be possible to reach more extensive collateral agreements.

    (2) Owing to its receivables arising from the repair contract, the contractor shall be entitled to an extended lien on the subject of repair work, which belongs to the customer but has come into the contractor's possession as a result of the contract. The lien may also be exercised as a result of receivables from work performed previously, spare part deliveries and other services, insofar as they are related to the subject of repair work. The lien shall apply to other entitlements derived from the business relationship only if they are undisputed or legally.

    §10. Warranty

    (1) Following final acceptance of the repair work, the contractor shall be liable for defects in the repair work, also including the lack of expressly promised characteristics, that arise within six months of final acceptance, to the exclusion of all further claims on the part of the customer notwithstanding nos. 6 and 11, in such a way that it is required to rectify the defects. Upon identifying a defect, the customer shall notify the customer in writing without delay. Its right to claim for the defect shall lapse within one year of the date of final acceptance.

    (2) The deadline for rectifying the defect shall be extended by the duration of the downtime of the subject of repair work resulting from the rectification work.

    (3) The contractor shall not be liable if the defect is immaterial to the interests of the customer or is due to circumstances for which the customer is responsible. In particular, this shall apply with regard to parts provided by the customer.

    (4) Any changes or repair work performed improperly by the customer or third parties without the prior approval of the contractor shall void the contractor's liability for the consequences. Only in urgent cases of risk to operational safety and to prevent excessive damage, in which case the contractor shall be informed immediately, or if the contractor is late in rectifying the defect shall the customer be entitled to rectify the defect itself or have it rectified by third parties and demand compensation from the contractor for the costs incurred.

    (5) Of the direct costs arising from the rectification work, if the complaint proves justified, the contractor shall bear the costs of the replacement item, including shipping, and reasonable costs for removal and installation, as well as any costs for providing its fitters and support staff, if this is required and can justifiably be demanded in the particular case in question. Otherwise, the customer shall bear these costs.

    (6) If the contractor allows an appropriate grace period granted to it for rectifying any defects to elapse without result through its own fault, the customer shall be entitled to demand a reduction in price. The customer's right to demand a reduction in price shall also apply in other cases of failure to rectify defects. Only if repair work is demonstrably of no interest to the customer despite the reduction may the customer terminate the contract, having first announced its intention to do so.

    §11. Other liability on the part of the contractor, disclaimer

    (1) If parts of the subject of repair work are damaged through the fault of the contractor, the contractor may opt either to repair or replace these at its own expense. Liability to pay damages shall be limited to the amount of the repair price agreed in the contract, provided that there is no malicious intent or gross negligence on the part of the contractor's owner or chief executive.

    (2) If the customer is unable to use the subject of repair work in accordance with the contract through the fault of the contractor as a result of suggestions and advice provided before or after the contract was signed, as well as other secondary obligations arising from the contract, being implemented incorrectly or not being implemented at all, especially instructions for operating and maintaining the subject of repair work, the stipulations of sections 10 and 11, 1. and 3., shall apply accordingly to the exclusion of any further claims on the part of the customer.

    (3) Other than those specified in these terms, the customer may not assert any claims for compensation, especially for damages, against the contractor, including claims for extracontractual activities or other rights arising from any detrimental effects associated with the repair work, irrespective of any legal basis. This disclaimer shall not apply in the event of malicious intent or gross negligence on the part of the contractor's owner or chief executive, death or personal injury or cases in which liability is attributed for personal injury or damage to personal property as a result of errors in repair work in accordance with product liability legislation. It shall also not apply if characteristics that were expressly promised are absent in the event that the promises to that effect had the specific purpose of protecting the customer against damages not arising from the subject of repair work itself. In the event of violation of a material contractual obligation that is essential to the nature of the contract, the fulfillment of which is a prerequisite for enabling the proper performance of the contract or the violation of which jeopardizes the purpose of the contract (cardinal obligation), the contractor shall be liable only for the damage that the provision that was breached intended to prevent in the amount set out when the contract was signed; if there are ordinary vicarious agents, this damage shall be limited to EUR 200,000 per claim, the total not exceeding EUR 500,000 or, if the limitation of liability is not reasonably proportionate to the risk typical of the contract, it shall be limited to the reasonably expected damage typical of the contract.

    §12. On the part of the customer

    If, during repair work outside the contractor's premises, the appliances or tools provided by the contractor at the repair site are damaged or lost through no fault of its own, the customer shall be obligated to provide compensation for the damages incurred as a result. This shall not apply to damage attributable to normal wear and tear.

    §13. Privacy/confidentiality

    The contractor notes that it will process the data received from the customer in accordance with the German Federal Data Protection Act and the General Data Protection Regulation. Personal data will also be stored by affiliates and companies executing the deliveries (Article 6 (1) sentence 1 (f) of the GDPR in conjunction with Recital 48).

    §14. Venue, applicable law

    (1) The law of the Federal Republic of Germany shall apply to these terms of service and all legal relationships between the customer and the contractor, to the exclusion of the United Nations Conventions on Contracts for the International Sale of Goods (CISG).

    (2) If the customer is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the court at the place of business of the contractor shall be the sole venue for all disputes arising from the contract. The contractor may also bring proceedings before the court responsible for its branch tasked with the repair work or the court responsible for the customer.

  • General Terms of Delivery of PVA TePla AG, Wettenberg

    §1 Scope

    1. All products and services of any kind delivered 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 “Supplier”) and the contracting party are governed exclusively by the following Terms and Conditions of Delivery.
       
    2. The Supplier’s deliveries, services and offers are governed exclusively by the following conditions if the purchaser is an entrepreneur (section 14 of the Bürgerliches Gesetzbuch (BGB – German Civil Code), a legal entity under public law or a fund under public law. These also apply to future business relationships even if they are not subject to a separate, specific agreement. General terms and conditions of the purchaser that differ, contradict or supplement them will be a part of the contract only if the Supplier has explicitly consented to them being applicable. This requirement for consent applies in every case, including, for example, if the Supplier supplies the purchaser without objection knowing about any general terms and conditions of the purchaser.
       
    3. Separate agreements made with the purchaser on a case-by-case basis (including subsidiary agreements, addenda and amendments) always take precedence over the Supplier’s general terms of delivery. Subject to any proof to the contrary, a written contract or our written confirmation prevail over the contents of agreements of this kind.
       
    4. References to the validity of statutory provisions are for clarification purposes only. The statutory provisions thus also apply without any clarification if they are not directly amended or expressly excluded in these General Terms of Delivery.

    §2 Offer and Conclusion of Contract

    1. The Supplier’s offers are non-binding and without obligation unless the binding nature is stated explicitly in the offer. This also applies if the Supplier provided the purchaser with product descriptions or other documents in advance. The contract is concluded only once the Supplier confirms the order in writing or the goods are delivered.
       
    2. Drawings, images, dimensions, weights, and other performance data are binding only if this has been expressly agreed upon in writing.
       
    3. The Supplier retain the right of property and copyright to offer documents, images, drawings, calculations and other documents; they may not be made available to third parties without the prior written consent of the Supplier.
       
    4. Documents designated as “confidential” must not be disclosed. This applies in particular, but not limited to, Supplier offers. The buyer requires the express written permission of the Supplier before making any such documents available to third parties. All documents listed under 2.3 and 2.4 must be returned immediately if no order is placed.

    §3 Prices, Payment Conditions, Offsetting, Retention

    1. Prices are “ex works” from the Supplier, excluding packaging, unless otherwise agreed upon.
       
    2. Unless otherwise specified, the Supplier is bound to the prices contained in its offers designated as binding for four weeks commencing on the offer date.
       
    3. The Supplier’s prices do not include statutory VAT; this is stated separately in the invoice at the applicable rate on the invoicing date.
       
    4. Unless otherwise agreed upon, the Supplier’s invoices are payable within 14 days of the invoicing date without deductions and free of postage and charges for the Supplier. However, the Supplier is also entitled at any time to make a delivery in full or in part only against advance payment, including as part of a current business relationship. The Supplier makes a corresponding reservation no later than at the time of the order confirmation. Decisive is the date on which the Supplier receives payment. Despite any contrary provisions of the purchaser, the Supplier is entitled to initially offset payments against the purchaser’s older debts; it will inform the purchaser about the type of offsetting that has occurred. If costs and interests have already accrued, the Supplier is entitled to credit the payment first against the costs, then against the interest, and finally against the primary debt.
       
    5. Partial deliveries entitle the Supplier to invoice the corresponding portion.
       
    6. Installment payments and the deduction of discounts require a special written agreement.
       
    7. The purchaser is in arrears if the payment period above (3.4) lapses. If the purchaser defaults, the Supplier is entitled, starting on the date in question, to charge annual interest at 9 percentage points above the current base rate (Section 247 BGB). This does not affect the Supplier’s right to assert any further compensation against the purchaser. The Supplier’s entitlement to commercial interest on maturity (section 353 Handelsgesetzbuch (German Civil Code - HGB) against merchants also remains unaffected.
       
    8. If the Supplier becomes aware of circumstances that cause it to question the purchaser’s creditworthiness, in particular if a check and/or bill of exchange is not cleared or payment discontinues or insolvency proceedings have been filed, the Supplier is entitled to declare that the remaining debt be due for payment even if the Supplier has already accepted checks. In this case, the Supplier is also entitled to demand advance payments or surety.
       
    9. The purchaser is entitled to offset payments only if its counterclaims are asserted legally, indisputably, or have been acknowledged by the Supplier. The purchaser is furthermore entitled to assert its right to retain payments only to the extent that its counterclaim is based on the same contractual relationship and is asserted legally, indisputably, or has been acknowledged by the Supplier. The assignment of claims against the Supplier or other rights is excluded, this does not affect section 354a German Civil Code.

    §4 Delivery Time, Partial Deliveries, Default of Acceptance

    1. Delivery dates or periods require the written confirmation of the Supplier if they are intended to be binding. In all other cases, delivery dates or periods are not binding. The delivery period specified by the Supplier commences only once all technical, commercial, and official conditions have been fulfilled.
       
    2. Compliance with the delivery period is subject to timely and correct deliveries from own suppliers. If delays are expected, the Supplier must inform the purchaser as soon as possible.
       
    3. The Supplier is entitled to make partial deliveries and partial performance of services if:

      • the partial delivery can be used by the customer as part of the contractually agreed intended use
      • the delivery of the remaining goods that were ordered is ensured
      • this does not entail any significant additional effort or costs for the purchaser (unless the Supplier agrees to assume these costs).

      The return of packaging requires a separate agreement.
       
    4. Fulfillment of the Supplier’s delivery and performance obligations is subject to the timely and correct fulfillment of the purchaser’s obligations.
       
    5. The delivery time is considered as having been met if, by the time of its expiry, the delivery item has been handed over to the first carrier or the buyer has been informed that the item is ready to ship.
       
    6. If the delivery is postponed due to force majeure, labor disputes, or other events beyond the Supplier’s control, the delivery period is extended appropriately but for no longer than six months.
       
    7. If the purchaser is in default of acceptance or infringes other obligations to cooperate, the Supplier is entitled to demand compensation for any damage incurred by the Supplier, including for any additional expenses. In such a case, the risk of accidental loss or deterioration of the goods is also transferred to the purchaser at the moment in which the purchaser becomes in default of acceptance.
       
    8. Notice of default via a warning cannot be issued until at least four weeks after the Supplier’s performance obligation was due. If the buyer incurs damage as a result of a delay for which the Supplier is responsible, the buyer is entitled to demand compensation for delay. This is to the amount of 0.5% of the net price (delivery value) for every full week of delay, although not exceeding in total 5% of the value of the part of the delivery that cannot be delivered on time due to the delay or cannot be used in accordance with the contract. There is no right to further compensation due to delayed delivery.

    §5 Assembly, Commissioning, Service

    If assembly, commissioning, or servicing is to be performed, the relevant conditions—which the Supplier can provide upon request—also apply.

    §6 Transfer of Risk

    The risk is transferred to the purchaser as soon as the shipment has been handed over to the person commissioned to transport the shipment or has left the Supplier’s warehouse for subsequent transportation (delivery date). If the shipment is delayed or becomes impossible for reasons beyond the Supplier’s control, the risk is transferred to the buyer when the buyer is informed that the item is ready to ship. At the very latest, it is transferred when the item is handed over to the purchaser.

    §7 Claims for Defects

    1. Unless agreed otherwise in the following, statutory regulations apply for the purchaser’s rights in the event of defects in quality and title (including incorrect delivery, underdelivery, incorrect installation or faulty installation instructions). This does not in any cases affect special statutory provisions for the final delivery of unprocessed goods to a consumer, even if the consumer has reprocessed these (Supplier’s right of recourse in accordance with sections 478 et seqq. BGB). Claims arising from the Supplier’s right of recourse are excluded if the defective goods have been reprocessed by the purchaser or by another contractor, e.g. by installing them in another product.
    2. The Supplier’s liability for defects is based, in particular, on the agreement reached regarding the condition of the goods. If no agreement was reached regarding the condition, statutory regulations are applied to assess whether a defect is present (section 434 (1) sentence 2 and 3 BGB). However, the Supplier is not liable for public statements made by the manufacturer or other third parties (e.g. advertising claims).
    3. The purchaser is entitled to claims for defects on the condition that it has observed its statutory requirements to inspect and give notification of defects (sections 377, 381 HGB). If a defect is discovered upon delivery, inspection or at any other time in the future, the Supplier must be notified of this immediately in writing. If the purchaser fails to properly inspect and/or report defects, the Supplier is not liable for the defects that were not reported or not reported on time or properly.

      As a condition of rectifying the defect as owed, the Supplier is entitled to require that the purchaser pays the purchase price. However, the purchaser is entitled to withhold payment of the purchase price in an amount that is reasonable in relation to the defect.
       
    4. If the item delivered is defective, the Supplier can initially choose whether to rectify the defect (repair) or deliver an item free of defects (replacement delivery). This does not affect the Supplier’s right to refuse rectification in accordance with statutory provisions.
       
    5. Claims lodged by the purchaser for expenses – in particular, transport, road, working, and material costs – associated with the rectification of defects are excluded insofar as the expenses increase because the purchased service was performed at a place other than the originally specified place of performance, unless such relocation is consistent with the product’s intended use.
       
    6. The purchaser must give the Supplier the necessary time and opportunity to perform the rectification owed, in particular to hand over the faulty goods for inspection. In the case of replacement delivery, the purchaser must return the faulty items to the Supplier in accordance with statutory provisions. Rectifying the defect does not include disassembling the defective items or reassembling them if the Supplier was not originally obliged to do so.
       
    7. If the second attempt at rectification after a reasonable period fails and/or a replacement delivery is not (reasonably) possible, the purchaser is entitled, under statutory requirements, to either demand a reduction in payment or revoke the contract. Compensation may be asserted only under the conditions specified in item 9.
       
    8. In the case of natural wear and tear, any and all claims for defects are excluded. There is no right of withdrawal for insignificant defects.
       
    9. The following also applies in relation to software: The Supplier guarantees that the software handed over to the purchaser matches the Supplier’s program specifications insofar as the software is installed in accordance with the Supplier’s guidelines on the device systems it envisaged. Claims for defects shall arise only for software flaws that can be reproduced at any time. The Supplier undertakes to troubleshoot all significant flaws that hinder usage as per the contract, but reserves the right to perform troubleshooting according to the significance of the flaw either by installing an improved software version or providing instructions explaining how to rectify the flaw or bypass the effects of the flaw. The Supplier cannot guarantee that the software will operate without problems in all combinations chosen by the purchaser but not specified by the Supplier.
       
    10. If the Supplier’s operating and maintenance instructions are not followed, changes are made to the deliveries/services, parts are replaced or consumables are used that do not meet the original specifications, unsuitable chemical, electrochemical, or electrical influences are present, or the component is used in an unsuitable or improper manner or installed/commissioned incorrectly by the buyer or a third party, any and all claims for defects cease to apply.
       
    11. Claims for defects lapse or expire within a year of delivery.

    §8 Commercial Property Rights and Copyright

    1. If claims are made against the purchaser for the breach of commercial property rights or copyright on the basis of the use of the purchased item within one year of delivery of the purchased item, the Supplier undertakes to procure for the purchaser the right of continued use of the purchased item. This is granted only on condition that the purchaser informs the Supplier immediately and in writing of such third-party claims and that the Supplier reserves the right to initiate any necessary countermeasures and out-of-court proceedings. If continued use of the purchased item under economically viable circumstances is not possible under these conditions, it is deemed agreed that the Supplier may at its discretion modify or replace the purchase item in order to rectify the defect or take back the purchased item and refund the sales price paid to the Supplier less a deduction to account for the age of the purchased item.
       
    2. Claims against the Supplier are excluded in the event of legal violations arising because the purchased item was not used in the manner specified in the contract. The provisions under item 9 otherwise apply.
       
    3. The Supplier is not liable for legal violations caused by the purchased item provided that this was manufactured on the basis of design documents or other specifications of the purchaser; rather, the purchaser will indemnify the Supplier against any claims.

    §9 Liability Limitation

    1. In all cases of contractual and non-contractual liability, the Supplier pays compensation or reimburses wasted expenditure only to the extent described below:

      a) The Supplier is liable in full in the case of intent or gross negligence, for bodily injury and for claims under product liability law.

      b) If a material contractual obligation is breached that is essential to the nature of the agreement, the fulfillment of which is a prerequisite for enabling the proper performance of the agreement or the breach of which jeopardizes the purpose of the agreement (cardinal obligation), the Supplier is liable only for the damage which the provision that was breached intended to prevent in the amount set out when concluding the agreement; if there are ordinary vicarious agents, this damage is limited to EUR 100,000 per claim, total not exceeding EUR 500,000 or, if the limitation of liability is not reasonably proportionate to the risk typical of the agreement, it is limited to the reasonably expected damage typical of the agreement.

      Insofar as the Supplier accepts liability for data loss, liability in accordance with “b)” is limited to the data recovery outlay that would typically have been required if the buyer had made regular data backups corresponding to the risk.
       
    2. The defense of contributory negligence remains open.
       
    3. All claims against the Supplier for compensation or reimbursement of wasted expenditure in the case of contractual and non-contractual liability are subject to a limitation period of one year. The limitation period commences no later than five years after the claim arises. The provisions of sentences 1 to 3 in this paragraph do not apply for liability associated with intent, gross negligence, bodily injury, under product liability law or if the requirements specified under 9.1 b) are breached. The provisions in this paragraph do not affect different limitation period for claims based on defects in quality and title.

    §10 Reservation of Title

    1. Until settlement of all claims (including all balance demands from the current account) to which the Supplier is or will be entitled against the purchaser arising from whatever legal grounds, the Supplier is granted the following securities that will be released at its discretion in full or in part and upon demand, provided that their realizable value is permanently more than 10%.
       
    2. The purchased item remains the property of the Supplier (reserved goods). Processing or modification is always performed for the Supplier as manufacturer, but with no obligation for the Supplier. The Supplier is entitled to co-ownership of the new item as a proportion of the value of the reserved item (invoice value) to the new item. In this case, the purchaser is required to keep the item in safe keeping for the Supplier free of charge. If the purchaser resells the new product, item 10.3 applies accordingly.
       
    3. The purchaser is entitled to process and sell the reserved item in the orderly course of business, provided that the purchaser is not in arrears. Pledges and security assignments are not permitted. The purchaser is obligated to insure the reserved item against the usual risks. By way of security, the purchaser will immediately assign to the Supplier the full extent of all claims arising from the resale or some other legal grounds (insurance, unlawful act) in relation to the reserved item (including all balance demands from the current account). The Supplier hereby accepts this assignment. Subject to revocation, the Supplier authorizes the purchaser to collect the claims assigned to the Supplier for its invoice in its own name. This collection authority may be revoked only if the purchaser fails to properly fulfill its payment obligations.
       
    4. If the reserved items are accessed by third parties, in particular as part of seizures and (preliminary) insolvency proceedings, the purchaser will inform the third party of the Supplier’s ownership rights and inform the Supplier of the situation immediately so that it can assert its rights of ownership. If the third party is not in a position to reimburse the Supplier for the judicial or extra-judicial costs arising in this connection, the purchaser is held liable.
       
    5. If the validity of the reservation of title in the purchaser’s country is linked to special formal requirements or other preconditions, the purchaser must ensure that such requirements are fulfilled.

    §11 Rights to Software

    1. The purchaser is granted an unlimited, non-exclusive and non-transferable right of use for the software, its modifications, supplements, extensions and accompanying documentation exclusively for internal use of the software.
       
    2. The purchaser is not entitled to any software and documentation rights beyond those specified in item 11.1 above; the Supplier remains sole holder of the copyrights. The purchaser is not permitted without the prior written permission of the Supplier to make software, documentation, or any subsequent modifications, supplements, or extensions available to third parties, nor to change, copy, or otherwise duplicate software, documentation, or any subsequent modifications, supplements, or extensions, unless such duplication is necessary for preparing a backup copy, which shall be marked as such.
       
    3. The re-translation of the supplied program code to other code formats (decompiling) is permitted under the requirements stated in Section 69 e of the German Copyright Act for the purposes of ensuring compatibility between an independently developed software program and the contractually supplied software. The interface information required for ensuring compatibility can be requested from the Supplier for a small fee.
       
    4. Simultaneous storage or use of the software on more than one piece of hardware is not allowed. If the purchaser wishes to use the software on multiple hardware configurations simultaneously (e.g. for use by several employees), the purchaser must purchase an appropriate number of program packages.
       
    5. The purchaser is obligated to take the necessary precautions to prevent unauthorized third-party access to the software and documentation. The original data carriers supplied and the backup copy shall be stored at a place secured against unauthorized third-party access. The purchaser indemnifies the Supplier against damage that arises through failure to observe this requirement. The purchaser’s employees must be explicitly made aware of their obligation to comply with these contractual conditions and the copyright provisions.

    §12 Confidentiality

    1. Unless otherwise explicitly agreed in writing, the information prepared for the Supplier in connection with orders is not considered confidential.
       
    2. The Supplier notes that it processes the data received from the purchaser in accordance with the German Federal Data Protection Act and the General Data Protection Regulation. Personal data is also stored by affiliates and companies executing the deliveries (Article 6 (1) sentence 1 (f) GDPR in conjunction with Recital 48).

    §13 Applicable Law, Legal Venue

    1. For these terms and conditions and all legal relationships between the Supplier and the purchaser, the law 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 apply.
       
    2. If the purchaser is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law, or special fund under public law, our company’s place of business has exclusive jurisdiction for all disputes that arise directly or indirectly from this contractual, unless a different place of jurisdiction is prescribed.

* PVA Industrial Vacuum Systems GmbH, PVA Crystal Growing Systems GmbH, PVA Löt- und Werkstofftechnik GmbH, PVA Control GmbH, PVA Vakuum Anlagenbau Jena GmbH, PVA TePla Analytical Systems GmbH, PVA Metrology & Plasma Solutions GmbH, PVA SPA Software Entwicklungs GmbH

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PVA Industrial Vacuum Systems GmbH
Im Westpark 10–12
35435 Wettenberg, Germany

Phone: +49 (641) 68690-140/-141
Fax: +49 (641) 68690-822