ALLGEMEINE GESCHÄFTSBEDINGUNGEN
GENERAL TERMS AND CONDITIONS
of ANT Applied New Technologies AG
I. Validity
1. All quotations, goods and services of ANT Applied
New Technologies AG (hereinafter referred to as “Supplier”) are
based exclusively on these General Terms and Conditions. These
are an integral part of all contracts which the Supplier concludes
with its contractual partners (hereinafter also referred to as
“Buyer”) for the goods or services offered by the Supplier. They
shall also apply to all future goods, services or quotations
provided to the Buyer, even if this has not been expressly
reiterated.
2. The terms and conditions of the Buyer or third parties
shall not apply, even if the Supplier does not expressly object to
the validity of these terms and conditions in individual cases.
Even if the Supplier refers to a letter which contains or refers to
the terms and conditions of business of the Buyer or a third party,
this does not imply any recognition of the validity of those terms
and conditions.
II. Quotation, conclusion of contract
1. All quotations of the Supplier are subject to change
and are non-binding unless this is explicitly expressed otherwise,
or a specific acceptance period applies. The Supplier can accept
orders or contracts within fourteen days of receipt. A contract
shall only come into force if the order is confirmed in writing by
the Supplier.
2. The written contract, including the product
specifications and these General Terms and Conditions, shall
constitute the sole basis for the legal relationship between the
Supplier and the Buyer. These fully reflect all agreements
between the parties to the contract regarding the subject matter
of the contract. Verbal assurances made by the Supplier prior to
conclusion of this contract are legally non-binding, unless it is
expressly stated that they continue to be binding.
3. The Supplier reserves all rights, intellectual property
rights and legal rights to all documents, materials and other items
(such as quotations, catalogues, price lists, estimates, plans,
drawings, illustrations, calculations, product descriptions and
technical data, manuals, samples, models and other documents,
information and items available in physical and/or electronic
form) it provides to the Buyer.
4. The Buyer himself or a third party may not use,
reproduce or modify the aforementioned items and their contents
for commercial purposes, or disclose or make these accessible
to third parties, without the prior consent of the Supplier. The
Buyer may use them exclusively for the purposes stipulated in the
contract and must return them in full to the Supplier upon request
and destroy or permanently delete all physical or electronic
copies, insofar as they are no longer required in the ordinary
course of business or no longer need to retained in order to fulfil
statutory safekeeping obligations.
Upon request by the Supplier, the Buyer shall certify or provide
evidence that the aforementioned documents, materials and
items have been completely destroyed/deleted, and if not shall
provide the reasons and evidence why it continues to retain
documents, materials and items.
5. The Buyer is prohibited from removing, changing,
obscuring or replacing the trademarks, logos, names or contact
information of the Supplier in the delivery items and related
documents handed over by the Supplier, including the documents
and materials referred to in Section II. 3. The same applies to type
plates, type designations, CE markings and related information.
6. The information and descriptions in related
documents that accompany the quotation, such as catalogues,
leaflets, pictures, drawings and technical data, is only
approximate.
7. Deviations of the delivered objects of purchase from
quotations, samples, trial and pre-deliveries shall be accepted in
accordance with the provisions of the relevant DIN standard and
other norms and standards.
III. Prices, terms of payment
1. The prices are applicable for the scope of services
and delivery listed in the order confirmations. Additional or
special services are charged separately. Prices are in Euros ex
works, including loading at the factory plus packaging, statutory
VAT, customs duties for export deliveries as well as fees and
other official charges.
2. Unless agreed otherwise in the contract, payments on
the account of the Supplier shall be made without deduction,
namely one third upon confirmation of the order, another third as
soon as the Buyer has been informed that the main components
are ready for dispatch, and the balance within one month after
transfer of risk.
3. The Buyer shall only be entitled to withhold payments
or offset them against counterclaims if the counterclaims are
undisputed or have been legally established.
IV. Delivery, delivery time
1. Deliveries shall be made EXW (Supplier’s works) at
Hinter den Kirschkaten 32, 23560 Lübeck, Germany, according to
Incoterms 2020.
2. If, at variance with the terms of the contract, the Buyer
wishes the Supplier to undertake the transportation, the Buyer
shall bear all corresponding costs and expenses. In addition, the
Buyer will be charged an administration fee amounting to 15% of
all transportation costs and expenses incurred.
3. If the intended method of transportation or delivery to
the requested location is not possible within the envisaged period
due to circumstances beyond the Supplier’s control, the Supplier
may choose another form of delivery. The additional costs shall
be borne by the Buyer. The Buyer will be given the opportunity to
comment beforehand.
4. The delivery periods are based on the contractual
agreements between the parties. For the Supplier to comply with
the above, all commercial and technical questions must have
been clarified by the parties to the contract and the Buyer must
have fulfilled all his obligations, such as obtaining all the
necessary permits and making the agreed advance payments, in
good time. If this is not the case, the delivery period shall be
extended accordingly.
5. Adherence to the delivery deadline requires correct
and punctual delivery to the Supplier by his sub-suppliers. The
Supplier shall inform the Buyer immediately of any foreseeable
delays.
6. The delivery period shall be deemed to have been
observed if the delivery items have left the Supplier’s works, or if
notification of readiness for dispatch has been given, by the end
of this period. If acceptance is required, the date of acceptance
or alternatively the notification of readiness for acceptance, shall
apply, unless there are justified reasons for refusing acceptance.
7. If the delivery is not possible or is delayed due to force
majeure or other events that were not foreseeable at the time of
contract conclusion and which are not the fault of the Supplier,
the Supplier shall not be liable. If such events make it
considerably more difficult or impossible for the Supplier to
deliver or perform the services, and the hindrance is not only of a
temporary nature, the Supplier is entitled to withdraw from the
contract. In the event of hindrances of a temporary nature, the
delivery or performance deadlines shall be extended or
postponed by the period of the hindrance plus a reasonable start-
up period. If the Buyer cannot reasonably be expected to accept
the delivery or service as a result of the delay, he may withdraw
from the contract by notifying the Supplier immediately in writing.
8. The Supplier shall only be entitled to make partial
deliveries if (i) the Buyer can use the partial delivery according to
the contractually defined purpose; (ii) delivery of the remaining
ordered goods is ensured and (iii) the Buyer does not incur any
significant effort or additional costs as a consequence (unless
the Supplier declares that it is willing to bear these costs). The
Buyer shall pay the applicable contract price for the partial
delivery. The same shall apply in the event that the Supplier is
unable to perform the agreed services. In all other respects
Section VII shall apply.
9. If there is an impossibility or inability for the Supplier
to perform during the delay in acceptance, or if the Buyer is solely
or substantially responsible for these circumstances, the Buyer
shall pay the contractual amount in full.
V. Transfer of risk, acceptance
1. The risk shall pass to the Buyer upon delivery in
accordance with Section III.1; this shall also apply to partial
deliveries or if the Supplier has undertaken to perform further
services (e.g. shipping or assembly). If acceptance is scheduled,
the acceptance procedure must take place on the agreed date or
alternatively once the Supplier has provided notification of
readiness for acceptance. The Buyer is not permitted to refuse
acceptance on the basis of insignificant defects. The delivery
items shall be deemed to be accepted when (i) the items have
been delivered and, if the Supplier is also responsible for
installation, the installation is complete; (ii) the Supplier has
notified the Buyer accordingly with reference to the
fictitious/notional acceptance in accordance with this Section
IV.1; (iii) twelve (12) business days have passed since delivery or
installation or the Buyer has started to use the delivery items (e.g.
has put the delivered equipment into operation) and in this case
six (6) business days have passed since delivery or installation
and (iv) the Buyer has failed to accept the delivery items within
this period for any reason other than notification of a defect to
the Supplier which makes the use of the delivery items
impossible or substantially impairs such use.
2. If the delivery or acceptance is delayed for reasons for
which the Supplier is not responsible, the risk shall pass to the
Buyer upon notification of the Supplier’s readiness to deliver or
accept. The costs associated with the delay, in particular for the
storage of the delivery items after the transfer of risk, shall be
borne by the Buyer. In the event of storage by the Supplier, the
storage costs shall amount to (0.25) % of the invoice amount of
the delivery items to be stored for each week that elapses. The
right is reserved to assert and prove further or lower storage
costs.
VI. Retention of title
1. The Supplier shall retain the title to the delivery items
(hereinafter referred to as “reserved goods”) until all contractual
payments have been received in full.
2. The Supplier is entitled to insure the reserved goods
against theft, burglary, fire, water and other damages at the
expense of the Buyer, unless the Buyer can prove that appropriate
insurance cover is in place.
3. The Buyer is not entitled to sell, pledge or deposit the
reserved goods as security. In the event of a pledge or
attachment of the reserved goods or other dispositions by third
parties, the Buyer shall inform the Supplier immediately.
VII. Warranty
1. The warranty period is one year from delivery or, if
acceptance is required, from acceptance. This period does not
apply to claims for damages by the Buyer arising from injury to
life, body or health or as a result of intentional or grossly negligent
breaches of duty by the Supplier or its vicarious agents, which are
subject to the statute of limitations in accordance with the
statutory regulations. Statutory time limits shall also apply for
defects in a building and for delivery items which have been used
for a building in accordance with their normal use.
2. The delivery items must be carefully examined
immediately after delivery to the Buyer or third party designated
by the Buyer. They shall be deemed to have been approved by the
Buyer as free of obvious defects or other defects that would be
identified by carrying out an immediate thorough inspection if the
Supplier does not receive a written notice of defects within
(seven) working days of delivery. With respect to other defects,
the delivery items shall be deemed to have been approved by the
Buyer if the Buyer does not notify the Supplier of the defect within
(seven) business days after the time at which the defect became
apparent; however, if the defect was already apparent at an earlier
time in normal use, this earlier time shall be decisive for the
commencement of the notice period. At the request of the
Supplier, a delivery item which is the subject of a complaint shall
be returned to the Supplier carriage paid. If the complaint is
justified, the Supplier shall reimburse the costs of the most
favourable dispatch route; this shall not apply if the costs increase
because the delivery item is located somewhere other than the
place of intended use. Replaced parts or components shall
become the property of the Supplier.
3. If the delivery items contain material defects, the
Supplier is obliged and has the right in the first instance to choose
between repairing the defect or replacing the item within a
reasonable time period.
4. If the delivery item infringes a third party’s industrial
property rights, the Supplier shall, at its discretion and at its
expense, either modify or replace the delivery item in such a way
that third party rights are no longer infringed, but so that the
delivery item continues to fulfil the contractually agreed
functions, or procure the right of use for the Buyer by concluding
a licence agreement with the third party. If the Supplier does not
succeed in doing so within a reasonable period of time, the Buyer
is entitled to withdraw from the contract or to reduce the
purchase price appropriately.
5. The Supplier’s obligations under Section VII. 4 shall
only apply if (i) the Buyer has notified the Supplier without undue
delay of any alleged infringement of industrial property rights; (ii)
the Buyer has supported the Supplier to a reasonable extent in
defending any claims asserted or has enabled the Supplier to
defend itself against the claims asserted under Section VII. 4; (iii)
the defect of title is not attributable to an instruction of the Buyer;
and (iv) the infringement has not been caused by Buyer’s
unauthorized modification of the product or use of the product in
a manner which is not in accordance with the contract. The right
to take defensive measures, including out-of-court settlements,
shall remain exclusively with the Supplier.
VIII. Liability
1. The Supplier’s liability for damages, irrespective of the
legal grounds, in particular for impossibility, delay, defective or
incorrect delivery, breach of contract, breach of duties during
contract negotiations and tort, shall be limited in accordance with
this Section VIII, insofar as fault is involved in each case.
2. The Supplier shall not be liable in the event of simple
negligence on the part of its primary agents, legal
representatives, employees or other vicarious agents, provided
that it is not a matter of a breach of essential contractual
obligations. Essential contractual obligations are obligations
which are a precondition for proper performance of the contract
and on the implementation of which the Buyer relies and may rely
(“essential contractual obligations”)
3. If the Supplier is liable for damages pursuant to
Section VIII.2, this liability shall be limited to damages which the
Supplier foresaw as a possible consequence of a breach of
contract at the time the contract was concluded, or which the
Supplier should have foreseen when exercising due diligence.
Compensation for indirect damage and consequential damage
resulting from defects of the delivery item can only be provided if
such damage is typically to be expected when the delivery item is
used as intended.
4. The above exclusions and limitations of liability shall
apply to the same extent in favour of the primary agents, legal
representatives, employees and other vicarious agents of the
Supplier.
5. If the Supplier provides technical information or acts
in an advisory capacity and this information or advice is not part
of the contractual scope of services to be provided by the
Supplier, this shall be free of charge and not subject to any
liability.
6. The limitations of this Section VIII shall not apply to
the liability of the Supplier for wilful acts, guaranteed
characteristics of quality, injury to life, body or health or under the
Product Liability Act.
IX. Protection of secrets, use of software
1. The Buyer is prohibited from obtaining confidential
information by means of reverse engineering. “Reverse
engineering” means all actions, including observing, testing,
examining, and the dismantling and, if applicable, reassembly of
the delivery items with the aim of obtaining confidential
information.
2. If the scope of delivery includes software, the Buyer is
granted a non-exclusive right to use it, including the
documentation. This applies to use on the contractual product for
which the software was developed. Execution of the software on
several systems is prohibited.
3. The Buyer may only copy, modify, translate or
reconvert the object code of the software into the source code to
the extent permitted by law (§§ 69a ff Copyright Act). The Buyer
is prohibited from removing the manufacturer’s specifications –
especially the copyright references – or from changing them
without express prior consent of the Supplier.
4. All other rights to the software and documentation,
including copies thereof, shall remain with the Supplier or his
subcontractor. The granting of sub-licenses is not permitted.
X. Applicable law, place of jurisdiction
1. The law of the Federal Republic of Germany applies
exclusively. The UNCITRAL Convention on the International Sale
of Goods (CISG) shall not apply.
2. The exclusive place of jurisdiction for all disputes
arising from or in connection with quotations, deliveries and
services of the Supplier is the registered office of the Supplier.
The Supplier is however entitled to file a suit at the Buyer’s
headquarters.
ANT Applied New Technologies AG, Lübeck, May 2020