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General Terms of Delivery of the SICK MAIHAK Group
 
 


1. Legally Binding Effects

1.1. Our General Terms of Delivery are part of all our offers and contracts on deliveries and services accomplished by any company of the SICK MAIHAK Group in the business area of Process Automation – the SICK MAIHAK Group consisting of the companies SICK MAIHAK GmbH, SICK Engineering GmbH and MAIHAK AG (hereinafter referred to as “Supplier”). Deviating supplements and General Terms of Delivery of the Purchaser are deemed binding only if expressly confirmed in writing by the Supplier.

2. Offer – Conclusion of Contract – Contents of Contract

2.1. As far as not expressly marked binding, offers are non-binding. Binding offers must be accepted by the Purchaser within a reasonable time. Verbal or written orders are considered accepted by placing a written order confirmation or delivery of ordered goods within an adequate period of time.

2.2. Documents pertaining and attached to the offer, such as illustrations, drawings, technical specifications and other documents are subject to the property right and copyright of the Supplier; the Purchaser is not entitled to provide third parties access to the aforesaid documents.

3. Extent of Delivery and Services

The extent of delivery and services is subject to the offer of the Supplier and/or the Supplier’s order confirmation. Partial deliveries are permitted, if reasonable to the Purchaser.

4. Prices and Payment

4.1. Price lists and other general pricing specifications are non-binding and are updated by the Supplier regularly.

4.2. Unless stipulated otherwise, prices are in EUR and for delivery ex works (Incoterms 2000) plus valid VAT.

4.3. Should delivery and/or service be carried out more than 9 months after the date prescribed by order confirmation, the Supplier shall be entitled to adjust prices, provided the list prices and/or material, remuneration or other costs have changed in the meantime. The offered prices are only valid for the respective individual order. Fixed price agreements must expressly be agreed upon in writing.

4.4. For packaging, freight and as far as insurances are expressly desired by the Purchaser, the prices effective at the time of that actual accrual shall apply and be charged separately.

4.5. Unless stipulated otherwise, installation, assembly and/or start-up shall be billed provably according to the price-list of the Purchaser effective at the time of the accomplishment, if the Purchaser is obliged by contract to accomplish installation, assembly and/or start-up. Extra expenses such as travelling and transportation expenses, home-to-office time, releasing, per diem allowance and lodging, extra pay for difficult and filthy working conditions, overtime premium and allowances for Sundays and public holidays are not included in prices and shall be charged separately at the prices valid at the time charged.

4.6. Invoices shall be paid within 30 days from the invoice date without deduction on account of the Supplier.

4.7. The Purchaser is only entitled to retain payments or charge payments against counterclaims insofar, as his counterclaims are beyond controversy or have been determined legally binding.

5. Terms for Deliveries and Services, Delay

5.1. The adherence to dates and terms for deliveries and services shall be subject to the timely receipt of all performances and specifications to be provided by the Purchaser, required permissions and releases as well as the timely clarification and permission of plans and the adherence to the agreed terms of payment and other liabilities. If these prerequisites are not fulfilled on time, the terms and dates are adequately extended.

5.2. In case of force majeure, i.e. circumstances occur which make the delivery or service impossible or inadequately difficult to be carried out, such as war, riots, strike, lockout and suchlike, terms shall be adequately extended. If the deliveries and/or services cannot be provided entirely or partially in due time without the Supplier’s fault, the Supplier shall be entitled to choose between full or partial withdrawal, or to terminate the contract.

5.3. If the Supplier wishes so the Purchaser shall be obliged to declare within reasonable time whether the Purchaser intends to withdraw from the contract due to the Supplier’s delay or to insist on delivery.

6. Installation or Assembly

6.1. To the extent that installation, assembly or start-up has been agreed upon the Purchaser shall pay and provide in due time:
a) any supplementary works foreign to the branch of trade such as earthing, building, etc. including the required skilled workers and auxiliary staff with the necessary building material and tools;
b) the needed articles and materials required for assembly, installation and putting into operation, such as woods for setup, wedges, lubricants, fuels, etc.
c) operating power and water at the place of operation, including the necessary connections, heating and light;
d) at the place of assembly, enough suitable, dry and lockable space of appropriate size for stocking machine parts, equipment, materials, tools, etc. as well as appropriate work and break rooms with appropriate sanitary equipment; besides, the Purchaser has to take the same measurements in order to protect the Supplier’s possessions and the assembly staff at the construction site the Purchaser would take to protect its own belongings and its own staff;
e) protective clothing and protective devices necessary due to special circumstances at the assembly place.

6.2. Before beginning with the works, the Purchaser must provide without request the necessary specifications concerning the location of hidden power, gas, or water pipes, or similar constructions, as well as the required static specifications.

6.3. Before beginning with the installation or assembly, the delivery items necessary for performance of the works must be on the premises, and any preparatory works must be in such a state that the installation or assembly staff will be able to start their work immediately after arrival and finish it without interruption. Especially the access to the installation or assembly site and the site itself must be paved, cleared and freely approachable.

6.4. Should the installation, assembly, or putting into operation be delayed due to circumstances which are not in the Supplier’s sphere of risk, the Purchaser shall be obliged to bear the entire costs arising from waiting periods or for the necessary travels of installation or assembly staff.

6.5. Upon the Supplier’s request the Purchaser shall confirm in writing the working hours of the assembly staff as well as the completion of the installation, assembly or putting into operation.

7. Acceptance

In case the Parties have agreed on acceptance, or if acceptance is prescribed by law, the Purchaser shall carry out acceptance within a period of 2 weeks upon completion or upon the delivery and/or service rendered. If the Purchaser fails to do so, despite its obligation to accept, within the aforesaid period, or if the delivery and/or service is put into use the demanded acceptance is deemed executed. Acceptance may not be denied due to insubstantial defects.

8. Transfer of Risk

8.1. The risk shall pass to the Purchaser with the selection/provision of the delivery item. To the extent the Supplier has assumed installation, assembly or putting into operation the risk for services shall pass to the Purchaser upon acceptance, whereas the risk for deliveries shall pass to the Purchaser with the delivery of the delivery item at the installation or assembly site.

8.2. Should the dispatch, installation, assembly or putting into operation of the delivery item be delayed or omitted due to reasons the Purchaser is responsible for, the risk shall pass to the Purchaser from the day on which it would have passed to the Purchaser without any delay having occurred.

8.3. The Supplier shall, at the demand and expenses of the Purchaser, insure the shipment against theft, breakage, damages to goods caused by transportation, fire or water or any other insurable risks.

9. Warranty

For defects as to quality and title the Supplier shall to the exclusion of further claims – but subject to sec. 11 - warrant as follows:

9.1. Defects as to quality:

9.1.1. In case of any defects as to quality the Purchaser shall give written notice to the Supplier without undue delay.

9.1.2. Any parts or services which turn out to be defective as to quality shall upon the Supplier’s choice be remedied or redelivered free of charge.

9.1.3. The Purchaser shall grant to the Supplier reasonable time and the occasion to accomplish the necessary remedies and substitute delivery. In urgent cases only, such as endangered operating safety, prevention of disproportionate damages, etc. the Purchaser shall be entitled to remedy defects itself or have them remedied through third parties and to demand the required compensation by the Supplier. In such case the Supplier shall be given notice without delay.

9.1.4. If the supplementary performance is not accomplished in due time, or fails, then the Purchaser shall be entitled to withdraw from the contract. If the defect is insubstantial, the Purchaser shall be only entitled to reduce the contract price. Apart from this, the right of reduction shall be excluded.

9.1.5. Of the costs caused by the remedy or substitute delivery, the Supplier shall bear – provided the complaint is legitimate – the costs of the substitute part including shipment. Furthermore, the Supplier shall bear the costs of disassembly and assembly and of providing the Supplier’s required assemblers and helpers including commuting costs, unless disproportionate charging accrues to the Supplier.

9.1.6. Defects as to quality do not apply to the following cases: Inappropriate or improper use, incorrect assembly and/or putting into operation through the Purchaser or third parties, wear and tear, incorrect or negligent treatment, improper maintenance, use of inappropriate equipment, electrochemical or electrical influences, special effects which are not assumed by contract – unless caused by theSupplier.

9.1.7. If the Purchaser or any third party remedies the defect improperly, then the Supplier shall not be held liable for the consequences caused. The same applies to any changes accomplished on the delivery item without any prior approval by the Supplier.

9.1.8. As for the rest sec. 11 shall apply to claims for damages. Any further claims against the Supplier due to defects as to quality shall be excluded.

9.2. Defects as to title:

9.2.1. If the use of the delivery item causes an infringement of national intellectual property rights or copyrights, then the Supplier shall at its own costs provide the Purchaser with the principle right to use, or shall modify the delivery item in a way acceptable to the Purchaser, but at the same time as to avoid any further infringement of intellectual property rights.

9.2.2. If this is not enforceable at economically adequate conditions or in reasonable time, then the Purchaser shall be entitled to withdraw from contract. Subject to the mentioned prerequisites the Supplier too shall be entitled to withdraw from the contract.

9.2.3. Furthermore, the Supplier shall indemnify the Purchaser from uncontested or legally binding claims caused by the infringement of intellectual property rights.

9.2.4.The afore-mentioned liabilities of the Supplier shall apply, only if:
  • the Purchaser gives written notice to the Supplier on the claims asserted by third parties without delay and
  • the Purchaser does not accept an infringement and all defense actions are reserved to the Supplier
  • the Purchaser is not responsible for the infringement of intellectual property rights
  • the infringement was not caused due to special requirements by the Purchaser, or an application unforeseen by the Supplier, or due to the Purchaser having modified the delivery item, or used the delivery item along with a product not delivered by the Supplier.

9.2.5. In case of other defects of title the provisions stipulated under sec. 9.1 shall apply accordingly.

9.2.6. As for the rest sec. 11 shall apply to claims for compensation. Any further claims against the Supplier due to defects of title shall be excluded.

9.3. Warranty Period

The warranty period for all deliveries, including devices and spare parts shall be twelve (12) months upon delivery and for work performances, services and repairs twelve (12) months upon acceptance. If acceptance has not been agreed upon, or did not occur due to circumstances the Supplier is not liable for, the warranty period shall start upon the completion of work performances, services and repairs.

10. Exclusion from Guarantees

10.1. Specifications in catalogues, product descriptions, data sheets, offers, charts or any other documents made on the measure, amount, color, application, technical data and other features, in particular on the availability, reading rate, dimension accuracy, etc. refer to the quality and performing features of a delivery item, yet do not – unless otherwise provided for expressly – constitute guarantees (guarantees of quality or durability) in terms of §§ 443, 639 BGB (German Civil Code).

10.2. In case of non-compliance with warranted properties the Purchaser shall be entitled to assert the rights stipulated under sections 9 and 11.

11. Damages

The Supplier shall be liable for damages – regardless of the legal cause – solely:
  • in the event of intention,
  • in the event of gross negligence of organs or executives,
  • in the event of culpable violation of a person/health/life,
  • in the event that the Supplier has fraudulently concealed a defect,
  • as far as the Supplier has given an extra guarantee for a specific consistency of the delivered item,
  • as far as the Supplier has given an extra guarantee that the delivered item will retain a specific consistency for a certain period of time as well as,
  • for damages which are subject to the Product Liability Act for personal injuries or damages to privately used property.
In the event of the culpable violation of essential contractual duties, the Supplier shall also be liable in case of gross negligence of non-executives, and slight negligence. The Supplier’s liability in cases of slight negligence shall, however, be limited to typical contractual losses which could have reasonably been foreseen. Essential contractual duties are duties safeguarding essential contractual legal positions of the Purchaser, which are granted to the Purchaser by contract with regard to its content and purpose; further, essential contractual duties are duties the fulfillment whereof is subject to the due execution of a contract and the observance of which the Purchaser relies on and may rely on regularly. Any further claims shall be excluded.

12. Third Party Liability

The liability provisions stipulated under sections 9 and 11 shall also apply in favor of subsidiaries, subcontractors, licensers or other auxiliary persons of the Supplier.

13. Software

13.1. If software is included in the delivery the Purchaser shall be granted a non-exclusive user right as to use the delivered software including its entire documentation. Such user right shall be restricted to the delivery item. The Purchaser shall not be entitled to install such software on more than one single system.

13.2. Despite in cases provided for by § 69e of the German Copyright Act (Urheberrechtsgesetz), the Purchaser shall not be entitled to modify the software, to re-develop, or substitute it, nor to extract parts of it. The Purchaser shall be entitled to make one single back-up copy of the software solely. The software is supplied and licensed only in machine readable form (object code).

13.3. The Supplier grants to the Purchaser the right – which shall be revocable in case of good cause – to transfer the software user right to third parties. The Purchaser – to whom the software has not been delivered for the purpose of reselling it – shall be entitled to transfer the software user right to a third party only along with the device acquired from the Supplier. In case of granting user rights to third parties the Purchaser shall undertake and ensure that such third party is not granted any further user rights in the software than have been granted to the Purchaser according to this Contract, and that such third party undertakes to adhere to at least all obligations stipulated under this Contract. The Purchaser may not retain any copies of the software. The Purchaser shall not be entitled to grant sublicenses. If the Purchaser delivers the software to a third party, the Purchaser shall be obliged to adhere to any possible export requirements and thus to indemnify the Supplier.

13.4. Prior to the provisions stipulated under section 9 of this Contract the following provisions shall apply in view of defects as to quality: Defects as to the software’s quality are deviations from the specifications proved and reproduced by the Purchaser. The Supplier does not warrant:
  • that the delivered software is compatible with the data processing environment of the Purchaser;
  • in cases where the Purchaser extends the software beyond the interface intended for such purpose
  • in cases of insubstantial impairment of the agreed consistency and/or serviceability.

14. Retention of Title

14.1.The delivered goods shall remain the Supplier’s property as reserved goods until all claims against the Purchaser are redeemed even if payment for the concrete goods has already been accomplished.

14.2. The assertion of the retention of title may not be regarded as withdrawal from the Contract. The Purchaser shall inform the Supplier on any judicial execution measurements of third parties regarding reserved goods and provide all documents required for an intervention without delay – the same shall apply to any other sort of interference. Irrespective hereof the Purchaser shall be obliged to refer third parties to the existing rights in the goods in advance. The Purchaser shall bear the costs of an intervention, in case the third party is not in the position to do so.

14.3. In case reserved goods are sold to third parties the Purchaser immediately assigns all claims vis-à-vis customers for safety reasons to the Supplier until all of the Supplier’s claims, arising from the foregoing businesses have been met.

14.4. If reserved goods are processed, reshaped or blended with other goods the Supplier shall directly acquire ownership in the new product according to the proportion of the delivery’s value. The new product shall be deemed reserved good.

14.5. If the value of the granted security exceeds the claims of the Supplier by more than 20 %, the Supplier shall upon the Purchaser’s request be obliged at its own choice to retransfer or release securities accordingly.

15. Disposal

15.1. The Purchaser shall undertake to dispose delivered goods upon the termination of their usage on its own account and duly according to statutory requirements. The Purchaser shall indemnify the Supplier of the obligation to accept disposal pursuant to sec. 10, sub-sec. 2 of ElektroG (German law governing electrical appliances) and thus indemnify the Supplier of any third party claims related thereto.

15.2. Further, the Purchaser shall oblige third parties, to which he passes delivered goods, to dispose such goods upon the termination of their usage at their own account duly according to statutory requirements as well as to impose an according disposal obligation on any possible further third parties.

15.3. The Supplier’s right to be indemnified regarding disposal duties shall expire upon the period of two years following a written notice by the Purchaser on the final termination of the goods’ usage.

16. Export

16.1. In case of export the Purchaser shall be obliged to adhere to the export control requirements respectively applicable to each delivery item. In case of export requirements being infringed the Supplier shall be entitled to withdraw from contract.

16.2. In case delivery contains an export subject to the authorities’ approval the contract shall be deemed concluded not before the receipt of such approval. The Purchaser shall be obliged to provide and submit all documents required for an approval.

16.3. The Purchaser agrees to furnish proof of usage and/or end usage upon request – even if not required officially.

16.4. In case of export/delivery the supplied goods are exempted from German VAT not until the receipt of a valid export certificate.

17. Adjustment, Withdrawal

17.1. If and when unforeseeable events pursuant to sec. 5.2 modify the economic objective or content of the delivery substantially, or have a substantial impact on the business operation of the Supplier, the contract shall be adjusted accordingly subject to the provision stipulated under sec. 5.2 and in good faith. In the event that such adjustment is not economically reasonable, the Supplier shall be entitled to withdraw from the contract.

17.2. The Supplier shall be entitled to withhold its services or to withdraw from the contract in case the Supplier obtains knowledge of any circumstances whereby the Purchaser might become insolvent, or not able to duly fulfill its duty for payment due to other reasons.

18. Place of Jurisdiction, Applicable Law

18.1. The place of jurisdiction for any litigation directly or indirectly arising from this contract shall be the Supplier’s place of business. Nevertheless, the Supplier shall also be entitled to appeal at a court seated at the Purchaser’s place of business.

18.2. All legal relations resulting from this contract shall be governed by German substantive law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

19. Severability Clause

Should any of the provisions of this contract be or become invalid or void the validity of the remaining provisions shall remain unaffected thereof. In such case the invalid or void provision shall be interpreted or substituted by such provision which comes closest to the intended economic objective of the invalid or void provision. This shall not apply if adherence to the contract constitutes an unacceptable rigor to either contract party.

as at: 01.01.2006