Terms of Trade Precitec Optronik GmbH
General conditions for the supply of products and services of the electrical and electronics industry 2005
General Conditions of Supply and Delivery for Products and Services for the Electrical Industry
I. 供货和服务范围
1. 双方以书面说明确定供货和服务范围。如果买方没有填入或没有书面确认，供货方（以下称供方）将确定。
2. 根据法律规定或特别约定将提供防护装置。
3. 所有供货和服务都要符合德国电气工程协会有关供货和服务安全的规定。如果采用其他规定也能达到同样的标准，允许有偏差。
4. 供方保留对知识产权的权利，拥有对版权的所估价格的权利、图和文件的权利。索取方应该根据要求将于问题有关的土和文件立即还给供方。前述第一句和第二句也适用于买方文件。这些也适用于经供方许可为供方实施供货和服务的第三方。
5. 除非经书面约定，其它协定没有约束力。
II. 价格
所提供的价格不包括安装，即出厂价，但不包括包装。
III. Retention of title
Title to all goods is retained by Supplier until each and every claim of Supplier against Purchaser originating in the business relations has been duly satisfied. Prior to this event goods may not be pled-ged or given as security and may only be resold by resellers in the normal course of business, against payment from their Customers. Any costs incurred in connection with interventions following this Section shall be borne by Purchaser. If the value of the sureties accruing to the Supplier in performance of sentence 1 exceeds the value of all privileged claims by more than 20%, Supplier shall upon request release a respective part of the sureties.
IV. 付款条件
1. Payments shall be made free paying-office of Supplier.
2. Purchaser may set off only such claims as are undisputed or finally determined.
V. 供货或服务周期
1. 交货和服务期限由双方以书面文件约定。第I部分的第二句再次同样适用。及时交货的前提是卖方要及时收到买方应提交的全部文件、必要的许可证，及时批准计划并履行约定的付款条款及其它责任。如果没能及时达到这些条件，交货时间就要相应迟。
2. Above period shall be deemed to have been met:
a) 如果具备使用条件的货物在规定的时间内已经交给运货人或被取走，交货并不包括开始安装。如果在规定的时间内已经通知买方可以发货了，但由于买方的原因耽误了运货，将认定卖方及时交货了。
b) Where supply includes erection or installation, if such erection or installation has been completed within the agreed period.
3. 由于但不只限于战争、暴乱、罢工、停产及其他签约方无法控制的不可抗力事故而延迟交货或提供服务，执行期应相应延长。如果延期的原因不在第 3 节第一段所述原因的范围内，买方可以提出由于引起所造成损失的可靠根据，并可提出索赔，索赔额度为每周0.5%，上限为由于晚交货或买方提出的超出5%上限的损失，即使超过了买方承诺的额外期限，也无效。这并不适用于卖方违背法律规定故意拖延。如果卖方无故超过了承诺的额外期限，买方取消合同的权力不受影响。
4. 如果买方要求推迟装运，卖方将收取买方每个月发票总额的0.5%的仓储费，自通知装运准备就绪后一个月开始收取。除非发生了可证实的更高的费用，最高收费为5%。
VI. 风险转移
Risk shall pass to Purchaser, even if freight delivery paid has been agreed upon:
a) 供货不包括按装:已经将具备使用条件的货物交给运输人或已被取走。经过认真包装。按照卖方的评判已经具备了最佳运输条件。在买方要求和出资时，卖方要确保货物在运输式防撞、防损坏及防火。
b) 供货包括包装：在试车后买方对结果表示满意，并开始使用该设备，这是开始的第一天。这里假设安装后立即开始试车或使用。如果买方加收这种试车或开始使用，14天后卖方将承担所发生的延迟交货风险。
c) 如果应买方的要求或由于买方的责任推迟了装运时间或安装时间，买方将承担延迟带来的风险。 Supplier however undertakes to effect at Purchaserīs expense such insurances as requested by Purchaser.
VII. Erection and Installation
A. Insofar as nothing to the contrary has been agreed upon in writing the following provisions shall apply to erection and installation of any kind.
a) Purchaser shall provide at his expense and in due time:
1. 足够数量的辅助工，例如泥瓦工、木工、起重工及其他技能工并具备所需的工具；
2. all earth work, foundations, civil engineering, mortising, scaffolding, plastering, painting and other work not usual in Supplierīs trade including the necessary materials;
3. such objects and materials as are necessary for erection and putting into operation, e.g. props, wedges, bases, cement, cleaning and sealing materials, lubricants, fuel etc. furthermore scaffolds, lifting gear and other devices;
4. power water including the necessary connections up to point of use heating and general lighting;
5. suitable and dry rooms of sufficient size at the site which can be locked for storage of machinery-parts, equipment, materials, tools etc. as well as adequate working rooms and accommodation for Supplierīs personnel including reasonable sanitary installations. Furthermore Purchaser must follow the same provisions for safe-guarding the property of Supplier and erection personnel at the site as he would for his own;
6. protective clothing and protective devices which are necessary owing to particular conditions at site and which are not usual in Supplierīs trade.
b) Before commencement of erection work, Purchaser must make available of his own accord necessary information concerning all concealed electric cabling, gas- or water-pipes and the like as well as necessary information on statics.
c) Before commencement of erection or installation, the parts required for initiating the work must be at hand and all masonry, carpentry and other preparatory work must be so far advanced that erection or installation may begin immediately upon arrival of erection or installation personnel and proceed without interruption. In particular, the approach roads and the site for erection or installation itself must be level and clear, foundations must be dry and set, foundation walls erected and backfilled and in the case of indoor work, the rendering of walls and ceilings must be complete and especially, doors and windows must have been fitted.
d) If installation, erection or commencement of operation is delay-ed owing to circumstances particularly at the site the Supplier may not be held responsible for. Purchaser shall bear the reasonable costs for stand-by time and any additional travelling expenditures of erection or installation personnel.
e) Working hours shall be certified at weekly intervals to erection or installation personnel by Purchaser to the best of his knowledge. Moreover, Purchaser shall immediately confirm in writing to erection or installation personnel completion of erection or installa-tion work.
f) Supplier shall not be liable for any work executed by his erection or installation personnel or other agents that is not related to supplies and erection or installation or insofar as it has been initiated by Purchaser.
B. If Supplier has undertaken to provide erection or installation on an actual cost basis, the following conditions shall apply in addition to those as under A:
1.Purchaser shall make payments to supplier according to rates of charge for working hours agreed upon at time of order together with premiums for overtime-, night-, Sunday- or holiday work, work under unusually difficult conditions, planning and supervision.
2. Moreover, the following costs shall be paid separately:
a) Travelling expenditures, costs for transport of tools and personal luggage.
b) Daily allowance for working hours as well as for off-days and holidays.
VIII. Acceptance
1. Goods delivered shall be accepted by Purchaser even if they show minor defects.
2. Partial deliveries are admissible.
IX. Liability for faults
The supplier shall be liable for faults including failure to achieve assured characteristics as under:
1. The Supplier shall at his discretion repair or replace such part or perform anew such services free of charge as have become of no use or markedly impaired in usefulness within 12 months after transfer of risk - regardless of actual operating time - owing to circumstances prior to transfer of risk, particularly such as faulty design, materials or workmanship. Supplier must be informed in writing of such faults immediately after they have been noticed.
2. Purchaser has to comply with his contractual obligations, in particular with the agreed conditions of payment. If complaint in respect to a fault is made. Purchaser may withhold payments to an extend, which is fair and reasonable in respect to the faults occured. However, if the Contract is entered into inpursuance of Purchaserīs line of business payments may only be withheld under the condition that the complaint in respect to a fault is justified beyond any reasonable doubt.
3. Purchaser shall grant the Supplier such adequate time and opportunity as supplier deems reasonable to remedy the faults. In case of refusal supplierīs liability shall be waived.
4. If Supplier lets expire an adequate extension of time as set by Purchaser without remedying the fault, Purchaser shall have the right to cancel the contract (cancellation) or claim a reduction of price (reduction).
5. Right of Purchaser to lodge claims owing to faults shall in any case be barred after a period of 12 months has expired beginning from the date of above complaint. If no agreement is reached wit-hin this period of time, Supplier and Purchaser may agree to an extension of said period.
6. Liability for faults does not cover natural wear and tear nor damage arising after transfer of risk owing to faulty or negligent handling, excessive strain, unsuitable materials for operation, deficient civil engineering work, unsuitable soil conditions, and such chemical, electrochemical or electrical influences as were not assumed at the time of the contract.
7. All liability for consequences of any inexpert alterations or repairs carried out by Purchaser or a third party shall be waived.
8. Period of liability for faults in repairs shall be 3 months, for replacements or renewals 6 months. However, above period shall run at least until expiry of warranty period as originally provided for in respect of the contractual goods. If parts of supplies cannot be put into efficient operation owing to an interruption of work caused by repairs, replacements or corrected services, period of liability for faults for such parts shall be extended by same period of interruption.
9. The provisions concerning periods of liability for faults under paras 1,5 and 8 shall not apply where longer periods are enforced by law.
10. Supplier or supplierīs agents shall in no event be liable to Purchaser for any further claims, particularly claims for damages no affecting the goods themselves. This shall not apply where liability is enforced by law as in cases of personal injury or of damage to private property pursuant to the Product Liability Act or as in cases of intent, gross negligence, or failure in assured characteristics.
11. Subsection 1 to 10 shall apply accordingly to claims of Purchaser concerning repair, replacement or damages originating from proposals or advice given within the scope of the Contract or originating from a breach of secondary contractual obligations.
X. Impossibility of performance; adjustment of Contract
1. If Supplier or Purchaser are unable to perform their supplies or services, general legal principles shall apply, subject to the following conditions. If Supplier may be held responsible for inability, Purchaser is entitled to claim damages. However, liability of supplier shall be limited to 10% of the value of that part of services or supplies which, owing to the inability, cannot be put into useful operation. Damages of Purchaser exceeding said margin of 10% are excluded. This does not apply where liability is enforced by law in cases of intent or gross negligence. The right of Purchaser to cancel the Contract shall remain unaffected.
2. Insofar as unforeseen events as described under Section V, Subsection 3 para 1 materially affect the economic consequences or substance of the supplies or services or have a major effect on Supplierīs business, the contract shall be adjusted reasonable with good faith. If this is not justifiable from an economic point of view Supplier may cancel the contract. If he wishes to exercise this right of cancellation, he shall inform Purchaser of such intention immediately after recognizing the significance of the event; this shall apply even where in the first instance an extension of delivery period has been agreed upon with the Purchaser.
XI. Further claims for damages
Claims for damages on the part of the Purchaser arising from breach of secondary contractual obligations, obligations during the stage of contractual negotiations and tort are excluded. This does not apply where liability is enforced by law as in cases of personal injury or as in cases of intent or gross negligence. This limitation shall apply accordingly in respect of the Purchaser.
XII. Place of jurisdiction
1. If Purchaser is a company or business man, exclusive place of jurisdiction in case of all litigations arising directly or indirectly out of this contract shall be at the discretion of supplier the domicile of Supplierīs head or branch office.
2. Contractual relations shall be governed by German law.
XIII. Validity of Contract
If any provision of this Contract is void the remaining part of the Contract shall remain unaffected. This shall not apply if adherence to the Contract should mean an unreasonable hardship to any one Party.
Supplement with restrictive clauses to the General Conditions of Supply and Delivery for Products and Services of the Electronics Industry
valid for Precitec KG, Gaggenau
Addendum to Chapter I Scope of Deliveries and Services
The deliveries take place from the factory in Gaggenau (EXW In-coterms 1990). Partial deliveries are permissible. Addendum to Chapter II Prices and Conditions of Payment The price is payable without any deduction "free paying office" of the seller within the term of payment listed in the invoice to the bank account listed in the invoice. If the buyer defaults in payment for more than 2 months, the seller may revoke the contract in writing and is entitled to claim damages. The deliveries can only take place, if 5 working days before the date of delivery there is an irrevocable payment guarantee confirmed by the bank to the amount of the purchase price. The guarantee must be presented on demand of an international merchant bank. The prices quoted are from the seller (EXW Incoterms 1990). If the payment is not performed in a timely manner the seller is entitled to interest up to 3 % per annum above the discount rate of the Deutsche Bundesbank. Furthermore he may suspend the fulfilment of the contract.
Addendum to Chapter III Retention of title
All claims resulting from a resale are assigned to the seller until payment of the full purchase price is complete. The purchaser shall support the seller in all legally admitted measures and actions which are necessary to protect the seller's property in the country in question. If products for which we have exclusive ownership are processed with other products not belonging to us, we maintain the right of co-ownership of the new object in relation of the purchase value plus appropriate taxes of our product to the other processed materials at the time of processing.
Addendum to Chapter V Period for supply of deliverances or services
Delivery schedules are stated without obligations under the provi-so that all Precitec suppliers will supply in time. Subsection 3, para 1, is replaced by chapter XVI Subsection 1 of the supplement.
Addendum to Chapter VIII Acceptance
3. The purchaser bears the costs for storage, insurance and mea-sures of protection arising from a late acceptance. In case the purchaser does not accept the goods on time of delivery, the seller may lay down in writing a reasonable time limit for the acceptance. The seller's right to claim the purchase price remains unaffected.
4. After expiration of term the seller may revoke the contract, in whole or in part, in written form. Further he is entitled to claim damages to the amount of the deliverance's value which has not been accepted.
Addendum to Chapter IX Liability for faults
Addendum to 10 No further liability
The seller can not be held liable for lack of conformity with the contract and damages beyond the terms set in chapters V and IX. This applies to all damages including production loss, loss of profit and other indirect damages (damages which have not emerged at the supply item itself). The seller is obliged to pay damages for the breach of an essential contract condition up to the amount of 15 % of the purchase price.
At any rate, the seller can be held liable for gross negligence of the business manager or other directorial personnel and in particular the seller bears liability for any defects in specified characteristics of the product from which the purchaser should be protected. The seller is further liable for physical injury and material damage in accordance with the German or foreign Product Liabilty Act.
12. Examination and Complaint
The buyer loses the right to invoke lack of conformity with the contract if he does not promptly indicate, in written form, any specific problems with the delivery. After an agreement the purchaser is obliged to take care of the security of all evidence.
13. Handling and storing
After the delivery of the goods the seller is not liable for damages caused by lack of carefull treatment or proper storing.
14. Statuatory Product Liability
The purchase is obligated to indicate to the seller all inherent dan-gers in the goods that surface during the use of the delivered goods. In case a claim is enforced against the seller in accordance with a foreign Product Liability act, he (the seller) must fullfil the rightful damage claims up to the amount of DM 5,000,000.-- per loss, up to a maximum of DM 10,000,000.--, whereas the purchaser has to bear any costs inexcess of the insurance and reimbursement. The purchaser has to take out insurance at his own expenses accor-dingly.
Addendum to Chapter XI Further claims for damages
Unless discussed explicitly in this contract, all further contractual or statuatory claims especially for dissolution of contract, reduction in price or value or damages of any kind (also damages which have not emerge at the supply item itself) are to be excluded. Chapter No. IX. 10 shall apply accordingly.
Addendum to Chapter XII Place of jurisdiction
Addendum to 1: All litigation arising from or in connection with this contract is sub-ject to the jurisdiction of Rastatt. The restriction to companies or trades people does not apply.
3. The seller is also entitled to take legal action before the local governmental courts of the purchaser's domicile. In this case the local jurisdiction according to Chapter XII.1 does not apply.
4. Unless otherwise specified the place of performance is the loca-tion of the seller's concern As an exception to the paras no. 1-4 the following applies for deliveries outside the EWR:
1. The legal relationship between the contractor and us is subject to the laws of the Federal Republic of Germany. The UN purchase law does not apply.
2. If para 1 is not applicable, all litigation arising from or in connection with this contract are subject to rules of conciliation and arbitration of the International Chamber of Commerce in Paris and therefore are to be decided by arbitrators appointed in accordance with the above mentioned rules. The parties may not have recourse to other legal action. Place of arbitration is the seller's domicile.
Chapter XIV Alteration of contract
Alteration and supplements to this contract require written form. Chapter I.1 is to be applied accordingly. Any consequences for the price or date of delivery arising from alterations after its formal conclusion are to be borne by the purchaser. Chapter XV Responsibilty for secondary obligations The seller assumes responsibilty for the contractual and preliminary contractual secondary obligations solely under the applicable provisions no. V, IX, and XVI.
Chapter XVI Force majeure
1. A party must not answer for a failure to perform one of his contractual obligations if the nonperformance is caused by an impediment which is beyond his control, particularly if based on one of the following reasons: Fire, natural disaster, destruction of his domicile by other causes, mobilization for war, war, riot, seizure, general raw material shortage, energy saving or labour disputes. A party is also relieved of contractual responsibilities if the lack of conformity with the contract by a subcontractor is based on one of the above mentioned reasons. This regulation applies to all contractual obligations including liability for damages.
2. Each party may revoke the contract in writting if the performance has not been possible under chapter XVI.1 for more than 6 months.
Chapter XVII Limitation of action
A purchaser's claim for lack of conformity with the contract becomes statutebarred within a period of 6 months after the transfer of risk (chapter VI). The seller's responsibility is limited to those occasions lack of conformity with the contract that occur within this period. The purchaser loses the right to invoke lack of conformity with the contract after the expiration of this period.
Chapter XVIII Observance of the laws
1. The seller is responsible for the observance of the governing German security regulations if no other writ-ten agreement has been concluded.
2. The purchaser bears responsibility for the observance and per-formance of the Foreign Trade and Payments regulations, other laws of his country and laws of the country to which the seller shall deliver. The purchaser has to indicate to the seller the particularities that originate from those regulations.
Chapter XIX Sundry matters
1. With the exception of assignments of purchase price claims to banks or insurance companies of the seller, the party's rights and duties are not assignable.
2. The business correspondence is to be conducted in German.
3. The purchaser may use or register the producer's trademark, commercial names or other registered marks only with the seller's written authorization and only in his interest.
4. If one term of these conditions is or is becoming null and void, all other terms or arrangements remain unaffected and legally binding.
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