General

1. These Standard Terms and Conditions shall apply to all quotations issued by and contracts concluded with Malek Brautech GmbH (hereinafter referred to as “the Vendor”) for the supply of goods and services, including the provision of information and consultancy services. Only Sections 1, 2, 3, 4, 6, 7, 8 and 10 of these Standard Terms and Conditions shall apply to repair contracts. These Standard Terms and Conditions shall apply to any and all future business relations between the Vendor and the Purchaser, even in the event that the Vendor does not explicitly inform the Purchaser that these Conditions will apply as of the conclusion of any Contract. No quotations issued or contracts concluded by the Vendor shall be subject to any other conditions, even if the Vendor does not expressly object to the application of such other conditions.
2. Any deviations from these Standard Terms and Conditions, written quotations issued by the Vendor and other provisions agreed between the Vendor and the Purchaser shall not be effective unless approved in writing by the headquarters of the Vendor. Employees of the Vendor, with the exception of shareholders of the Vendor or officers of the Vendor authorized to act on behalf of the Vendor shall not be entitled to conclude any Contract and shall only be entitled to receive written offers from Purchasers. Without limitation, employees of the Vendor shall not be entitled to give binding assurances concerning the object of the Contract or delivery times and shall not be entitled to collect amounts owed to the Vendor.

Delivery – Scope of Supplies

1. Unless otherwise agreed, all quotations made by the Vendor shall be subject to prior sale. Offers made by the Purchaser shall be binding and the Vendor shall be entitled to accept any such offer within two weeks of the receipt thereof.
2. The scope of supplies and services of the Vendor under the Contract shall be governed solely by the written confirmation of contract issued by the Vendor. Drawings, illustrations, dimensions, weights or performance data in brochures, circulars, price lists, other publications or quotations of the Vendor shall not be deemed to represent any warranties as to the properties or other features of the goods or services concerned but shall only serve as descriptions of products. Such descriptions shall only be deemed to be approximate.
3. In the case of goods produced to special order, the Vendor shall be entitled to deviate by up to ± 5 % from the quantities ordered where such deviations are unavoidable for technical reasons and the Purchaser can reasonably be expected to accept such deviations.
4. The Vendor reserves the right to make changes to the design, materials, specification and type of goods to be supplied even after submitting a confirmation of contract to the Purchaser, always provided that such changes represent technological progress and the Purchaser can reasonably be expected to accept such changes.

Delivery Times

1. The Vendor shall be entitled to make partial deliveries and to perform part of any services under the Contract.
2. Periods agreed for the delivery of goods and the performance of services shall only start when all details of the performance of the Contract have been agreed between the Vendor and the Purchaser and the Purchaser has provided all the information, documents, samples and parts to be provided by the Purchaser in accordance with the requirements of the Contract and has made the advance payment required under the Contract. Delivery and performance periods laid down in the Contract shall be interrupted for any periods during which the Purchaser is in arrears with any payment or action required under the Contract.
3. In the event that the Vendor fails to perform the Contract within the agreed period, the Purchaser shall not be entitled to rescind the Contract or claim damages of the Vendor except where the Vendor is responsible for such delay and the Vendor has failed to perform the Contract within a reasonable grace period of at least 30 days granted by the Purchaser for such purpose.
4. In the event of unforeseen and unavoidable circumstances (war, warlike occurrences, shortages of energy or raw materials, strikes, legal lockouts and any other business disturbances or acts of authorities for which the Vendor is not responsible), the Vendor shall be released from its obligations to supply goods or perform services under the Contract for the duration of such circumstances. This shall also apply in the event that any such circumstances occur during a delay in delivery or performance. The Vendor shall also be released from its obligation to supply goods or perform services under the Contract in the event that suppliers of the Vendor fail to properly deliver goods or perform services which are required for the Contract. In the event that any such circumstance persists for longer than six weeks, the Purchaser and the Vendor shall be entitled to rescind the Contract.

Prices – Terms of Payment

1. Except where a fixed price has been explicitly agreed between the Vendor and the Purchaser, all prices quoted by the Vendor shall be deemed to be based on the Vendor’s cost levels as of the date of the confirmation of contract. In the event that goods are delivered or services are performed more than four months after the date of the confirmation of contract issued by the Vendor, or, if no confirmation of contract was issued, the date of the order by the Purchaser, and the costs of the Vendor have increased as a result of rises in material prices and/or wages, the Vendor reserves the right to charge the prices which are appropriate as of the date when the goods are delivered or the services are performed, always provided that the Purchaser can be reasonably expected to accept such increased prices having due regard to the interests of the Vendor.
2. Unless otherwise expressly agreed between the Vendor and the Purchaser, the prices stated in the Vendor’s price list valid as of the conclusion of the Contract shall apply to all orders issued by Purchasers on the basis of the brochures and price lists of the Vendor. The Vendor will submit its valid price list to the Purchaser on request.
3. All prices quoted by the Vendor shall be for ex works delivery, not including packing or value added tax. Value added tax at the rate applicable as of the delivery of the goods or the performance of the services shall be added to all prices quoted by the Vendor.
4. Unless otherwise agreed in writing and subject to the provisions of Paragraph 8 of this Section 4, all payments to the Vendor shall be made within 7 days of the date of the invoice without any deduction to the account designated by the Vendor.
5. The Vendor will only accept bills of exchange or cheques on account of performance and amounts owed by the Purchaser to the Vendor shall only be deemed to have been received by the Vendor when they have been irrevocably credited to the account of the Vendor. Any and all fees, charges and discounts arising in connection with bills of exchanges or cheques shall be paid by the Purchaser.
6. The Purchaser shall not be entitled to exercise any right of setoff or retainer against amounts owed to the Vendor except in the case of claims in respect of which an enforceable judgment has been given or which are undisputed or have been accepted by the Vendor. The Purchaser shall not set off from any amount owed to the Vendor any claim not arising in connection with the same legal relationship.
7. The Purchaser shall not be entitled to assign any of its rights under the Contract to any third party, with the exception of rights to payments by the Vendor, without the explicit written permission of the Vendor.
8. In the event that the Vendor, following the conclusion of the Contract, becomes aware of circumstances calling into doubt the creditworthiness of the Purchaser, such as the opening of insolvency proceedings, delay in payments, unfavourable information received or payment delays in connection with previous Contracts, the Vendor shall be entitled to refuse to perform the Contract until the Purchaser has provided adequate security and any delivery and performance periods laid down in the Contract shall be extended accordingly. In any such case, the Vendor shall also be entitled to supply goods on a “cash-on-delivery” basis. In the event that the goods covered by the Contract have already been delivered, the Vendor shall also be entitled to require immediate payment in deviation from the provisions of Paragraph 4 of this Section 4. In the event that the Purchaser does not provide adequate security requested by the Vendor within a reasonable period of time, the Vendor shall be entitled to rescind the Contract and the Purchaser shall not be entitled to any damages.

Transfer of Risk – Packing

1. The risk of the loss or deterioration of goods supplied by the Vendor shall be transferred to the Purchaser upon the ex works delivery thereof. This shall also apply in the case of partial deliveries or the assumption by the Vendor of responsibility for other services such as shipment or the payment of carriage. In such cases, the Vendor shall ship goods by the method and route which the Vendor deems to be most economical.
2. The Purchaser shall also be obligated to accept goods with insignificant defects.
3. Should the Purchaser fail to take delivery of goods supplied by the Vendor, the Vendor shall be entitled to compensation for the loss or damage suffered by the Vendor for such reason. In such cases, the risk of the loss or deterioration of the goods supplied shall be transferred to the Purchaser when the Vendor notifies the Purchaser that the goods concerned are ready for shipment.

Warranty

1. The warranty obligations of the Vendor shall be governed by the applicable statutory provisions subject to the following conditions:
2. The Vendor shall only be bound by warranty obligations with respect to goods supplied by the Vendor if such goods are used properly in accordance with the specifications of the Vendor. In the event that defects in any goods supplied by the Vendor are caused by chemical, physical or thermal effects to which such goods would not normally be exposed or of which the Purchaser did not inform the Vendor upon the conclusion of the Contract, the Vendor shall not be bound by any warranty obligations whatsoever with respect to said goods. The same shall apply in the event of defects in goods caused by repairs or modifications carried out by third parties.
3. The Purchaser shall have no warranty rights in the event of defects having only an insignificant impact on the value or fitness for purpose of goods or insignificant quantity deviations in goods.
4. Irrespective of the statutory inspection and complaint obligations in dealings between companies and businesses, any warranty rights of the Purchaser with respect to evident defects in goods shall be forfeited unless claimed by the Purchaser in writing within 14 days of the delivery of the goods concerned.
5. Upon the detection of any defects in goods supplied by the Vendor, the Purchaser shall return said goods to the Vendor.
6. In the event of defects in goods supplied by the Vendor, the Vendor shall repair or, at the Vendor’s discretion, replace said goods. The Purchaser shall grant the Vendor a period of at least 30 days for such subsequent performance.
7. Should the Vendor fail to complete subsequent performance within the period of at least 30 days granted by the Purchaser, the Purchaser shall be entitled to claim damages or reimbursement of expenses, to require a reduction in the price payable for the goods concerned or to rescind the Contract or, in the case of Contracts for repair work, to repair the defect at the expense of the Vendor.
8. In the event that the Purchaser, in addition to the right to claim subsequent performance, holds any of the rights listed in Paragraph 6 of this Section 6, the Purchaser shall be obligated, upon request by the Vendor, to notify the Vendor within 14 days which rights it intends to exercise and how it proposes to exercise such rights. Should the Purchaser fail to so notify the Vendor within said period of 14 days or should the Purchaser insist on subsequent performance, the Purchaser shall not be entitled to exercise such additional rights until a further period of 30 days has elapsed, provided that the Vendor has not completed subsequent performance within said period. In the event that it becomes clear within any deadline set that the Vendor will be unable to meet such deadline, the provisions stated above shall apply mutatis mutandis.
9. Warranty rights under the Contract shall be held solely by the Purchaser and shall not be assigned to any third party.
10. Any costs incurred as a result of unjustified complaints by the Purchaser shall be borne solely by the Purchaser.

Limitation of Liability

1. The Vendor shall be liable to the full extent provided by law for any loss or damage suffered by the Purchaser by reason of the wilful act or omission or gross negligence of any executive body or senior executive of the Vendor. In addition, the Vendor shall be liable even in the case of slight negligence for any loss or damage suffered by the Purchaser as a result of the breach by the Vendor of material provisions of the Contract, where the Purchaser was entitled to rely on compliance with such provisions by the Vendor. In the case of the slightly negligent breach of material provisions of the Contract and the wilful act or omission or gross negligence of servants, agents or employees of the Vendor who are not senior executives of the Vendor, the liability of the Vendor shall be limited to such typical loss or damage as could reasonably have been foreseen taking into account all the relevant and evident circumstances. Any liability of the Vendor for consequential loss or damage such as loss of profit, failure to make savings and other indirect loss or damage and for recorded data shall be excluded. The Vendor shall be under no liability whatsoever in the event of the breach by slight negligence of ordinary provisions of the Contract.
2. The limitations of liability provided for in this Section 7 shall apply to any and all claims for damages made on whatsoever grounds with the exception of death, personal injury and damage to health. Nothing contained herein shall affect the liability of the Vendor under the Product Liability Act or the Vendor’s liability in connection with the assumption of warranties as to the properties or durability of goods.
3. The limitations of liability stated in this Section 7 shall also apply to the liability of the Vendor’s employees and any other third parties commissioned by the Vendor to work on Contracts.

Hazardous Substances

1. When returning goods for repair or any other purpose, the Purchaser shall comply strictly with the regulations concerning hazardous substances in the version in force at the time.
2. In the case of equipment containing or having been in contact with hazardous substances, the Purchaser shall, without limitation, pack and mark such equipment appropriately, state the connection with hazardous substances in the repair order and, where the Purchaser can reasonably be expected to do so, submit a safety data sheet in accordance with Regulation 91/155/EEC together with such equipment.
3. In the case of equipment containing or having been in contact with hazardous substances, the Purchaser shall, without limitation, pack and mark such equipment appropriately, state the connection with hazardous substances in the repair order and, where the Purchaser can reasonably be expected to do so, submit a safety data sheet in accordance with Regulation 91/155/EEC together with such equipment. The Vendor shall be entitled, at any time and without any restriction, to refuse to repair equipment which contains or has come into contact with hazardous substances except for equipment manufactured by the Vendor in respect of which the Vendor is bound by statutory warranty obligations. The Purchaser shall not be entitled to claim any damages of the Vendor in respect of any such refusal.
4. The Vendor expressly reserves the right to claim damages of the Purchaser in the event of the infringement by the Purchaser of the provisions concerning hazardous substances.

Retention of Title

1. Goods supplied by the Vendor shall remain the property of the Vendor until full payment has been received by the Vendor of all amounts owed by the Purchaser to the Vendor in connection with the business relationship between the Vendor and the Purchaser.
2. The Purchaser shall be entitled to sell goods supplied by the Vendor in the normal course of its business. Upon the conclusion of a Contract, the Purchaser shall assign to the Vendor its claims against its customers in the amount of the price payable to the Vendor for the goods concerned. The Purchaser shall be entitled to collect such amounts assigned to the Vendor always provided that the Purchaser is not in arrears with payments to the Vendor. in the event that the Vendor collects such amounts itself because the Purchaser is in arrears with payments, the Purchaser shall be obligated, upon request by the Vendor, to inform the Vendor of the names of its customers concerned, to provide the Vendor with all the documents required and to notify its customers that the amounts payable have been assigned to the Vendor.
3. The Purchaser shall not be entitled to pledge or assign any goods to which the Vendor holds title by way of security. The Purchaser shall be obligated to notify the Vendor promptly of any execution or distraint proceedings affecting goods to which the Vendor holds title and to afford the Vendor an opportunity of instituting third-party objection proceedings under Section 771 of the German Code of Civil Procedure (ZPO). Any costs incurred by the Vendor in this connection shall be borne by the Purchaser.
4. In the event that the Vendor’s title to goods is lost by operation of compulsory statutory provisions, the Purchaser shall, upon the conclusion of the Contract, assign to the Vendor any rights which it may hold against the new owner of such goods in the amount invoiced with respect to the goods concerned.
5. If goods to which the Vendor retains title are mixed or combined with other goods to which the Vendor does not retain title, the Purchaser shall grant to the Vendor a share in the title to the product of such mixture or combination corresponding to the price charged by the Vendor for the goods concerned.

Miscellaneous

1. Patent rights, copyrights and other industrial property rights embodied in goods supplied and services performed by the Vendor shall not be transferred to the Purchaser. The Purchaser shall not publish or otherwise divulge any plans, cost estimates, price files, drawings, samples or other technical documents of the Vendor without the prior written permission of the Vendor. The same shall apply to the copying of any such documents and the disclosure of any such documents to third parties.
2. Unless otherwise expressly agreed in writing, any purchaser-specific tools and equipment procured by the Vendor for the performance of the Contract shall remain the property of the Vendor, even in cases where the Vendor has charged the Purchaser for such tools and equipment.
3. In the event that the Vendor processes data concerning its business transactions within its affiliated companies, the Purchaser shall be deemed to have agreed to the processing of such data at a central point, The Vendor expressly reserves the right to conclude credit insurance for its transactions with Purchasers and to provide the credit insurer with such information on transactions with Purchasers as may be necessary for this purpose. The Purchaser shall be deemed to have agreed to the provision of such information to said insurer.
4. In the event that the Purchaser is a company, business or public body, any proceedings shall be brought before the court having territorial and substantive jurisdiction over the place where the head office of the Vendor (or the branch office of the Vendor responsible for performing the Contract) is located. The Vendor shall also be entitled to bring proceedings against the Purchaser at the place where the Purchaser has its headquarters.
5. The Contract shall be governed by and construed and interpreted in accordance with German law, provided however that the Convention on the International Sale of Goods (CISG) shall not apply.