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General Conditions

General Conditions

of GESYTEC GmbH
for the Supply of Products and Services in commercial transactions between businesses

I. GENERAL CONDITIONS

  1. Legal relations between Gesytec GmbH (hereinafter referred to as “Gesytec”) and Purchaser in connection with supplies and/or services of Gesytec (hereinafter referred to as „Supplies“) shall be solely governed by the present General Conditions. The Purchaser’s general terms and conditions shall apply only if expressly accepted by Gesytec in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
  2. Gesytec herewith reserves any industrial property rights and/or copyrights pertaining to its costs estimates, drawings and other documents (hereinafter referred to as "Documents"). The Documents shall not be made accessible to third parties without Gesytec’s prior consent and shall, upon request, be returned without undue delay to Gesytec if the contract is not awarded to Gesytec. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents; these may, however, be made accessible to those third parties to whom Gesytec has rightfully subcontracted Supplies.
  3. The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement the Purchaser may make one back-up copy of standard software.
  4. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.
  5. The term “claim for damages” used in the present General Conditions also includes claims for indemnification for useless expenditure.

    II. PRICES, TERMS OF PAYMENT AND SET-OFF

    1. Prices are ex works and exclude packaging; value added tax shall be added at the then applicable rate.
    2. If Gesytec is also responsible for assembly or erection and unless otherwise agreed, the Pur-chaser shall pay the agreed remuneration and any incidental costs required, e. g. for traveling and transport as well as allowances.
    3. Payments shall be made free Gesytec's paying office.
    4. The Purchaser may set off only those claims which are undisputed or non-appealable.

    III. RETENTION OF TITLE

    1. The items pertaining to Gesytec ("Retained Goods") shall remain the property of Gesytec until each and every claim Gesytec has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the se-curity interests of Gesytec exceeds the value of all secured claims by more than 10 %, Gesytec shall release a corresponding part of the security inter-est if so requested by the Purchaser, Gesytec shall be entitled to choose which security interest it wishes to release.
    2. For the duration of the retention of title, the Pur-chaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their busi-ness and only on condition that the reseller re-ceives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
    3. The Purchaser shall inform Gesytec forthwith of any seizure of other act of intervention by third parties.
    4. Where the Purchaser fails to fulfil its duties, fails to make payment due,or otherwise violates its obli-gations Gesytec shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a rea-sonable remedy period time set by Gesytec; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods.
      The fact that Gesytec takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless Ge-sytec so expressly declares.

    IV. TIME FOR SUPPLIES; DELAY

    1. Times set for Supplies can only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially con-cerning plans, are received in time and if agreed terms of payment and other obligations of the Pur-chaser are fulfilled. If those conditions are not ful-filled in time, times set shall be extended reasona-bly; this shall not apply where Gesytec is respon-sible for the delay.
    2. If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike or lockout, such time shall be extended accordingly. The same shall apply if Gesytec does not receive its own supplies in due time or in due form.
    3. If Gesytec is responsible for the delay (hereinafter referred to as "Delay") and the Purchaser has de-monstrably suffered a loss therefrom, the Pur-chaser may claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due of the Delay could not be put to the intended use.
    4. Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to Ge-sytec to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute shall be limited to cases where Gesytec is responsible for the Delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
    5. At Gesytec's request the Purchaser shall declare within a reasonable period of time whether it, due to the delayed Suplies, rescinds the contract or in-sists on the delivery of Supplies.
    6. If dispatch or delivery, due to Purchaser’s request, is delayed by more than one month after notifica-tion of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

    V. PASSING OF RISK

    1. 1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows.
      a) if the Supplies do not include assembly or erection, at the time when the Supplies are shipped or picked up by the carrier. Upon the Purchaser’s request, the Supplier shall insure the Supplies against the usual risks of trans-port at the Purchaser’s expenses;
      b) if the Supplies include assembly or erection, at the day of taking over in the Purchaser’s own works or, if so agreed, after a fault-free trial run.
    2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser’s own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Pur-chaser has otherwise failed to accept the Sup-plies.

    VI. ASSEMBLY AND ERECTION

    Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:

    1. The Purchaser shall provide at its own expense and in due time.
      a) all earth and construction work and other an-cillary work outside the scope of Gesytec, in-cluding the necessary skilled and unskilled labor, construction materials and tools,
      b) the equipment and materials necessary for assembly and commissioning such as scaf-folds, lifting equipment and other devices as well as fuels and lubricants,
      c) energy and water at the point of use including connections, heating and lighting,
      d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances. Furthermore, the Pur-chaser shall take all measures it would take for the protection of its own possessions to protect the possessions of Gesytec and of the erection personnel at the site,
      e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
    2. Before the erection work starts, the Purchaser shall unsolicitedly make available of its own ac-cord any information required concerning the loca-tion of concealed electric power, gas and water lines or of similar installations as well as the nec-essary structural data.
    3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Ac-cess roads and the site of assembly or erection must be level and clear.
    4. If assembly, erection or commissioning is delayed due to circumstances for which Gesytec is not re-sponsible, the Purchaser shall bear the reason-able costs incurred for idle times and any addi-tional travelling of the Supplier or the erection per-sonnel.
    5. The Purchaser shall attest to the hours worked by the erection personnel towards Gesytec at weekly intervals and the Purchaser shall immediately con-firm in writing if assembly, erection or commission-ing has been completed.
    6. If, after completion, Gesytec demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the Supplies are put to use, after com-pletion of an agreed test phase, if any.

    VII. RECEIVING OF SUPPLIES

    1. The Purchaser shall not refuse to receive Supplies due to minor defects.

    VIII. DEFECTS AS TO QUALITY

    Gesytec shall be liable for defects as to quality (here-inafter referred to as "Defects",) as follows:

    1. Defective parts or defective services shall be, at Gesytec’s discretion, repaired, replaced or pro-vided again free of charge, provided that the rea-son for the defect had already existed at the time when the risk passed.
    2. Claims for repair or replacement are subject to a statute of limitations of 12 month calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where longer periods are prescribed by law ac-cording to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec.. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code (“BGB”), in the case of intent, fraudulent concealment of the de-fect or non-compliance with guaranteed character-istics (Beschaffenheitsgarantie). The legal provi-sions regarding suspension of the statute of limita-tions (“Ablaufhemmung”, “Hemmung”) and re-commencement of limitation periods shall be unaf-fected. 
    3. Notifications of defect by the Purchaser shall be given in written form without undue delay.
    4. In the case of notification of a Defect, the Pur-chaser may withhold payments to an amount that is in a reasonable proportion to the defect. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the De-fect involved is justified and incontestable. The Purchaser has no right to withhold payment to the extent that its claim of a defect is time-barred. Un-justified notifications of defect shall entitle Gesytec to demand reimbursement of its expenses by the Purchaser.
    5. Gesytec shall be given the opportunity to repair or to replace the defective good ("Nacherfüllung") within a reasonable period of time.
    6. If repair or replacement is unsuccessful, the Pur-chaser is entitled to rescind the contract or reduce the remuneration, any claims for damages the Purchaser may have according to No.10 shall be unaffected.
    7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil or claim based on particular external influences not assumed under the contract, or from non-reproducible software er-rors. Claims based on defects attributable to im-proper modifications or repair work carried out by the Purchaser or third parties and the conse-quences thereof shall be likewise excluded.
    8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to an-other location than the Purchaser's branch office, unless doing so complies with the intended use of the Supplies.
    9. The Purchaser's right of recourse against Gesytec pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against Gesytec pur-suant to Sec. 478 para. 2 BGB.
    10. The Purchaser shall have no claim for damages based on defects. This shall not apply to the ex-tent that a defect has been fraudulently concealed, the guaranteed characteristics are not compiled with, in the case of loss of life, bodily injury or damage to health, restrictions to liberty and/or in-tentionally or grossly negligent breach of contract on the part of Gesytec. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims pro-vided for this Article VIII, based on a defect, are excluded.

    IX. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE

    1. Unless otherwise agreed, Gesytec shall provide the Supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as "IPR") with respect to the country of the place of delivery only. If a third party asserts a jus-tified claim against the Purchaser based on an in-fringement of an IPR by the Supplies made by Gesytec and then used in conformity with the con-tract, Gesytec shall be liable to the Purchaser within the time period stipulated in Art. VIII No.2 as follows:
      a) Gesytec shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for Gesytec under rea-sonable conditions, the Purchaser may re-scind the contract or reduce the remuneration pursuant to the applicable statutory provi-sions.
      b) Gesytec’s liability to pay damages is gov-erned by Art XI.
      c) The above obligations of Gesytec shall apply only if the Purchaser
          (i) immediately notifies Gesytec of any such claim asserted by the third party in written form,
          (ii) does not concede the existence of an in-fringement and
          (iii) leaves any protective measures and set-tlement negotiations to the discretion of Ge-sytec. If the Purchaser stops using the Sup-plies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledge-ment of the alleged infringement may be in-ferred from the fact that the use has been dis-continued.
    2. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
    3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifica-tions made by the Purchaser, by a type of use not foreseeable by Gesytec or to the Supplies being modified by the Purchaser or being used together with products not provided by Gesytec.
    4. In addition, with respect to claims by the Pur-chaser pursuant to No.1 a) above, Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
    5. Where other defects in title occur, Art VIII shall apply mutatis mutandis.
    6. Any other claims of the Purchaser against Ge-sytec or its agents or any such claims exceeding the claims provided for in this Art. IX, based on a defect in title, are excluded.

    X. IMPOSSIBILITY OF PERFORMANCE; ADAPTATION OF CONTRACT

    1. To the extend that delivery is impossible, the Pur-chaser is entitled to claim damages, unless Ge-sytec is not responsible for the impossibility. The Purchaser's claim for damages is, however, lim-ited to an amount of 10% of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detri-ment of the Purchaser. The Purchaser’s right to rescind the contract shall be unaffected.
    2. Where unforeseeable events within the meaning of Art. IV No.2 substantially change the economic importance or the contents of the Supplies or con-siderably affect Gesytec’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extend this is not justifiable for economic reasons, Ge-sytec shall have the right to rescind the contract. If Gesytec intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof with-out undue delay after having realized the reper-cussions of the event; this shall also apply even where an extension of the delivery period had pre-viously been agreed with the Purchaser.

    XI. OTHER CLAIMS FOR DAMAGES; STATUTE OF LIMITATIONS

    1. The Purchaser has no claim for damage based on whatever legal reason, including infringement of duties arising in connection with the contract or tort
    2. The above shall not apply in the case of manda-tory liability, e. g. under the German Product Li-ability Act ("Produkthaftungsgesetz"), in the case of intent, gross negligence, loss of life, bodily in-jury or damage of health, or breach of a condition which goes to the root of the contract ("we-sentliche Vertragspflichten"). However, claims for damages arising from a breach of a condition which goes to the root of the contract shall be lim-ited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross neg-ligence or based on liability for loss of life, bodily injury or damage of health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
    3. To the extent that the Purchaser has a claim for damages, it shall be time-barred upon expiration of the statute of limitation pursuant to Art. VIII No. 2.  The same shall apply to the Purchaser’s claims in connection wih actions undertaken to avoid any damage (e.g. callback). In the case of claims for damages under the German Product Liability Act, the statutory statute of limitations shall apply.

    XII. VENUE AND APPLICABLE LAW

    1. If the Purchaser is a businessperson, sole venue for all disputes arising directly or indirectly out of the contract shall be Aachen, Germany. However, Gesytec may also bring an action at the Pur-chaser's place of business.
    2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Con-vention on Contracts for the International Sale of Goods (CISG).

    XIII. SEVERABILITY CLAUSE

    1. The legal invalidity of one or more provisions of this Agreement shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to be obligated to continue the contract.