General Terms and Conditions of Sale
BYTEC Medizintechnik GmbH
§ 1 General Area of Application
1. Our conditions of sale and delivery shall apply exclusively; conflicting or deviating conditions of the customers, we do not accept unless we have expressly accepted them in writing. Our conditions of sale and delivery shall also apply in the case where we execute the delivery for the customer in the awareness of conflicting or deviating conditions of the customer without reservation.
2. These conditions shall apply in case of permanent business connections also for future transactions in which it is not expressly referred to the conditions, provided that the conditions had been included in one of the earlier contracts.
3. All stipulations which are made between us and the customer for the purpose of the execution of the contract are in writing subject to these conditions. Subsidiary agreements and amendments need to be in writing. This also applies for the disclaimer of the requirement for written form. Individual agreements are not affected by the aforesaid conditions.
4. These conditions shall exclusively apply towards contractors who execute the contract in their capacity as tradesmen or as self-employed people as well as towards public legal entities and public separate estates.
§ 2 Offer – Bidding documents
1. In case the order can be qualified as an offer according to section 145 BGB (Bürgerliches Gesetzbuch = German Civil Code), we shall have the right to accept this offer within a period of two weeks.
2. Our offers shall not be binding with respect to price, quantity, delivery time and availability. The order shall become binding on the seller upon our written order acknowledgement. Authoritative for the content of the contract is our written order acknowledgement. Amendments and oral agreements shall be also acknowledged in written form.
3. In regard to illustrations, drawings, calculations, models, prototypes and all other miscellaneous documents we reserve all property and copy rights. This also applies for all written documents which are specified as confidential. Without our prior approval these documents shall not be made accessible to third parties and shall not be used for other purposes, particularly for inhouse-production. On demand these documents shall be returned to us immediately.
4. Details of the object of delivery or performance shall not be regarded as a guarantee of the quality of the product unless it is explicitly indicated.
5. The customer bears the total risk any corrections to the documents, e.g. drawings, teachings, models or comparable documents which are provided/attached by the customer. Oral details in regard to measurements, tolerances or comparable aspects shall be acknowledged in written form.
6. Models and prototypes shall only be delivered against payment.
§ 3 Terms of payment
1. Provided there is no other agreement resulting from the order acknowledgement, our prices shall apply „ex factory“; excluding packaging; these costs shall be invoiced separately.
2. The statutory Value Added Tax is not included in our prices; it shall be separately disclosed in the invoice at the statutory rate which applies on the day of the invoice. Moreover all prices do not include the accruing customs duties, other taxes or charges as well as charges for transport and insurance.
3. Cash discount shall be agreed separately in written form.
4. Provided there is no other agreement resulting from the order acknowledgement, the net purchase price (due net) becomes due immediately from the date of invoice. In case of default of payment the statutory regulations shall apply.
5. The customer shall have the right to set-off only if his counterclaims are legally binding, undisputed or we have recognized the claim. Moreover the customer shall have the right of retention only as far as his counterclaim is based on the same contractual relationship.
6. We reserve the right to amend our prices when after conclusion of the contract cost reductions or cost increases, particularly resulting from alterations in prices in regard to material or tariff agreements, commence. On demand by the customer we shall provide evidence about that.
§ 4 Delivery
1. The commencement of the delivery time we have specified requires the clarification of all technical issues. Also the delivery time we have specified, shall be no fixed period for delivery unless it is expressly agreed in written form. The delivery time refers to the completion in the factory, provided there is no other agreement resulting from the order acknowledgement. The compliance with the delivery obligations requires the due and correct performance of the customer’s obligations. The exception of non-performance shall be reserved.
2. In case we are obliged to perform in advance and it becomes transparent that our claim is at risk because of absence of performance of the customer, e.g., by unfavorable financial situation of the customer or by default payment in regard to other claims resulting from the business relationship, we shall have the right to retain our delivery. The right to refuse performance shall not apply in case the consideration or a deposit is performed. We shall have the right to set an adequate time limit within
which the customer shall by way of delivery versus payment perform his obligation or a deposit. In case of unfruitful expiration of the given time limit we shall have the right to withdraw from the contract. Section 323 BGB does apply accordingly.
3. In case of default of acceptance of the customer or in case of other culpable infringements of his obligations to cooperate we shall have the right to claim damages including all additional expenditures as far as they result here from. Particularly, the customer has to bear the accruing warehousing costs. They shall be assessed higher or lower in case we substantiate a higher or the customer a lower damage. Additional claims for damages shall be reserved.
4. Provided the conditions of paragraph 3 are fulfilled, the risk of accidental loss or accidental deterioration of the object of purchase shall be automatically transferred to the customer at the time of his default of acceptance or payment.
5. Partial deliveries which are appropriate and reasonable shall be permissible without special agreement.
6. Force majeure of any kind shall relieve us from our obligation to supply delivery, as long as and to the extent that the hindrance prevails as well as for an appropriate acceleration time, or to withdraw partially or completely from contract in respect of the non-performed part of the contract. Force majeure is alike strikes, lockouts or unforeseeable or unavoidable instances, e.g. production disturbances which makes the delivery impossible despite all reasonable efforts; we shall provide evidence. This shall also apply if the aforementioned hindrances occur during default or at the sub-supplier. The customer may request during a period of two weeks an assertion whether we withdraw from contract or deliver within an appropriate grace period. In case we do not assert anything, the customer may withdraw from contract in respect of the non-performed part of the contract. We shall inform the customer immediately if any case of force majeure, as it is referred here, occurs.
§ 5 Passing of the risk – Packing charges
1. Provided there is no other agreement resulting from the order acknowledgement, delivery shall be „ex factory“. The risk of accidental loss or accidental deterioration of the object of purchase shall be automatically transferred to the customer even in cases of carriage free delivery with delivery to the carrier.
2. Paragraph 1 and section 4 paragraph 4 do also apply in cases of partial deliveries or in cases where we supply other services like transport. Incoterms shall only apply as expense-clause insofar.
3. Provided it is not instructed differently by the customer, the goods shall be packaged customary in trade in our discretion.
4. All (transport-)packaging shall not be taken back according to the requirements of the “Verpackungsverordnung“ (German Regulation on Packaging) (not included are pallets). The customer is obliged to dispose the packaging at his own expense.
5. Provided that the customer requires it, we will cover the delivery with transportation insurance; the accruing costs shall be born by the customer insofar.
6. Provided that there is no special agreement, the choice of the route and the mode of transport are made at our best discretion without any liability for cheaper shipment or shorter route.
§ 6 Material defects
1. Warranty claims of the customer do require that the customer has complied with his obligations to inspect and to complain delivery accordingly to section 377 HGB (Handelsgesetzbuch = German Commercial Code).
2. In case of a founded notice of defect we shall at our own option be obliged to remove the defect or to deliver a product which is free of defect. Provided that we do not comply with this obligation within a reasonable time or the rectification of defects fails despite a repeated attempt, the customer shall be entitled to reduce the purchase price or to withdraw from contract. Further claims, particularly claims for reimbursement for expenses or damages because of the detriment or the consequential harm caused by the defect, shall only exist according to the regulation in § 7.
3. The period of limitation for warranty claims shall be 12 months starting from the point of passing of the risk, provided that there is no other agreement.
4. In the event of delivery recourse in accordance with sections 478, 479 BGB, the legal period of limitation will remain unaffected.
The right to recourse pursuant to sections 478, 479 BGB only applies provided the consumers demand/claim was legitimate and only in the statutory scope, but not for ex gratia payment arrangements agreed with us. We understand that the recourse beneficiary carries out his duties, in particular his obligation of reproof.
5. The liability for guarantee for quality and durability as well as the liability for deceit, intent, gross negligence and damage resulting from death, injury or damage to health shall not be affected by the above mentioned limitations (especially section 4). However this shall not affect the applicability of compelling statutory regulations and warranty periods.
6. For products made of materials provided by the customer, we are only liable for our part of the product. If the customer provides defective material and the defect can only be detected during the following processing the customer shall bear the accrued costs. As far as we carry out the processing from components provided or selected from the customer for him and we are obliged to deliver a ready product to the customer, the customer will be liable for the infringements of an industrial property right which result from the insertion of these components. If the use of these components within the object of delivery leads to the injury of trade mark rights in the country of the place of delivery, the customer will release us from indisputable or legally ascertained claims of the concerning protective entitled persons. This is also valid if the customer obliges us to acquire the components well-chosen by the customers directly from the manufacturer in the way of the shortened delivery for the purpose of the installation in the object of delivery.
7. With delivery and payment of the software the customer gets a non-transferable and non-exclusive easement. The warranty of the software is limited to the exchange of defective data mediums. We do not guarantee the freedom from defects of the software but only for the component electronic developed and produced by us. In particular the liability is excluded if the software does not match the customers standard and intended purposes or does not work together with programs chosen by the customer unless the aforesaid has been expressly guaranteed. Furthermore we are not liable for loss and inaccuracy of data.
§ 7 Liability
1. In every case in which we are obliged to pay damages or to pay reimbursement of expenses due to contractual or statutory basis for a claim, we shall only be liable as far as our executive staff or assistants can be charged for intention, gross negligence or for an injury of life, body or health. Unaffected shall be the liability due to the “Produkthaftungsgesetz” (German Product Liability Act) which constitutes liability without default or a explained guarantee. Unaffected shall be also the liability for culpable infringement of essential contractual obligations; however the liability is insofar limited to the predictable, contractually coherent damage except for the cases of sentence 1 and 2. An alteration of burden of proof to the detriment of the customer shall not be connected to the aforementioned stipulations.
2. As far as our liability is excluded according to paragraph 1 this shall also apply for our employees in case of direct claims by the customer.
3. As far as there are no other agreements we shall be obliged to deliver only in the country of place of delivery exempt from industrial and intellectual property rights (hereinafter referred to: copy rights).
4. In the case of an infringement of copy rights in the country of the place of delivery by the use of the object of delivery we shall our own costs supply the customer with the right for the further using or to modify the object of delivery in such an appropriate way for the customer that infringements no longer exist. Provided that this is not possible in an economically appropriate way or in an appropriate period of time the customer shall be entitled to exercise the statutory right of reduction or to withdraw from contract.
5. Moreover we shall indemnify the customer from undisputed or legally binding claims of the relevant holder of the copy right.
6. Our aforementioned obligations are subject to section 7 paragraph 1 terminatory for the case of an infringement of copy right and shall apply also in cases of miscellaneous defects of title accordingly. However they shall only apply if
- the customer informs us immediately about the claimed infringement of the copy rights.
- the customer supports us appropriately in the defense of the claims respectively supports us with the accomplishment of the modifications according to section 7 paragraph 4,
- all defenses including amicable solutions shall be reserved as our right,
- the defect of title is not based upon an order of the customer and
- the infringement of copy right is not caused by the arbitrary modification of the object of delivery by the customer or the object of delivery has been used in a way which is contractually not conform.
§ 8 Retention of title
1. We reserve title to the goods until the complete fulfillment of all payment obligations arising from the delivery contract. Title to the goods shall also remain with us until the customer has fulfilled all liabilities arising from all business connections between the customer and us. In current accounts the retention of title in respect of the objects of delivery (goods subject to retention of title) shall serve as a security for our account balance.
2. If the customer defaults on his contractual obligations, particularly in case of default of payment, we shall have the right, after granting an appropriate respite – as far as this is not disposable in particular cases – to demand the return of the goods. Acceptance of the returned goods shall constitute cancellation of the contract. We shall be entitled to liquidate the goods after the return, in which we are entitled to sell the goods directly or to sell them at an auction. The proceeds of sale shall be set off with the payment obligations of the customer less appropriate expenses for the liquidation. Further claims in respect of damages, particularly loss of profit, shall be reserved.
3. In case of levy of execution or other interventions of third parties the customer shall inform us immediately in written form so that we are able to file a claim according to section 771 of the ZPO (Zivilprosessordnung = German Civil Procedure Code). As far as the third party is not able to compensate us for the accrued costs of the amicable and the court proceedings due to the claim according to section 771 of the ZPO, the customer shall be liable for our shortfall.
4. The customer shall be entitled to sell the goods in a normal course of business; he assigns in advance any claims towards his customers or third parties which may arise from a resale of the goods in the amount of the commercial invoice (including VAT) of our claim. This does not depend on the instance if the product has been sold without treatment or after treatment. We hereby accept the assignment already. The customer shall have the right to collect the claim after the assignment. Our right to collect by ourselves shall not be affected. We shall be obliged to not to collect the claim as far as the customer duly meets his liabilities out of the collected revenues, is not in default of payment and particularly has not filed for bankruptcy or there is a cessation of payment. In these cases we shall be entitled to demand that the customer informs us about the assigned claims and the debtors, provides us with all necessary information for the collection, delivers us all relevant documents, that the customer informs the debtors (third parties) about the assignment and that he abstains from any acts of disposal of the claims.
5. The treatment or the alteration of the product by the customer shall be always on our behalf. If the product is assimilated with objects which are not our property we shall acquire joint ownership in the new item in the ratio of the value of the product (commercial invoice, including VAT) to the other assimilated objects at the time of the assimilation. In regard to the new item the regulations according to the product subject to retention of title shall apply.
6. If the product is inseparably compounded with items which are not our property we shall acquire joint ownership in the new item in the ratio of the value of the product (commercial invoice, including VAT) to the other assimilated objects at the time of the amalgamation. If the amalgamation affects that the item of the customer may be regarded as the main item it shall be agreed that the customer shall pass the joint-ownership to us in pro-rata. The customer shall store this originated ownership on our behalf.
7. The customer shall also assign the claims which accrue from the connection of the product to a real estate towards a third party in order to secure our claim against the customer.
8. The goods which are our property shall be underwritten appropriately to the replacement value by the customer at his own costs for the cases of fire, water, theft and burglary. The customer already assigns the rights out of the insurance to us. We hereby accept this assignment.
§ 9 Place of jurisdiction – Place of performance
1. If the customer is a merchant, a corporate body under public law or a special fund under public law, the place of jurisdiction shall be our place of business; however we have the right to sue the customer at the customer’s general place of jurisdiction.
2. These terms and conditions shall be governed exclusively by German law and shall preclude the UN agreement on the sale of goods.
3. The place of performance shall be our place of business unless the confirmation of the order does not say anything else.
§ 10 Final provisions
1. Subsidiary agreements, covenants, modifications or amendments of these conditions or the contract have to be in writing and have to be explicitly marked as those.
2. Rights out of this contract can only be assigned with our prior written confirmation.
3. Should any of these conditions be or become invalid or not be performed between us and the customer, this shall not affect the validity of the remaining clauses. The same shall apply in case of a regulatory gap. The parties shall replace any invalid arrangement or fill the regulatory gap by an effective one which conforms as far as possible to the economic purpose of the invalid clause.
4. The necessary data information of the customer shall be recorded and handled confidentially under the consideration of the “Bundesdatenschutzgesetz (German Data Protection Act)”. The customer shall be advised that we impose record, process and use the data information in connection with the contractual relationship only as far as this is necessary for the correct order processing and information.
These General Conditions of Sale and Delivery are a translation of the German original Conditions of Sale and Delivery. In case of a conflict or a discrepancy between the translated version and the German original version, the German terms shall prevail and shall be legally effective.
General Terms and Conditions of Purchase
BYTEC Medizintechnik GmbH
§ 1 Scope
1. These terms and conditions apply exclusively to orders made by BYTEC Medizintechnik GmbH, Hermann-Hollerith-Str. 11, 52249 Eschweiler, Germany, hereinafter referred to as “BYTEC”.
Conflicting or deviating conditions of the Contractor will not be accepted.
2. These conditions only apply to Contractors who participate as merchants in business transactions and to them for all other transactions.
Differing terms and conditions of the Contractor shall also not be part of the contract if BYTEC does not expressly reject them in individual cases or if the services are accepted or if the Contractor’s confirmation is not rejected, having been carried out with regard to its terms and conditions.
§ 2 Orders/Delivery Times/Acceptance
1. All orders from BYTEC must be made in writing. They are effective without personal signature with an appropriate endorsement on the order form. The Contractor is obliged to accept the order in the same form within a period of two (2) weeks. After this period BYTEC is entitled to revoke the order. The delivery times or execution dates specified in the order are binding. If the delivery or execution is delayed, for reasons for which the Contractor is responsible, the Contractor defaults without warning. The Contractor is obliged to inform BYTEC without delay if circumstances arise or become apparent indicating that the agreed delivery time or the agreed execution date cannot be complied with. BYTEC may instruct the Contractor to deliver or render the service with the effect of fulfilment to a third party – hereinafter referred to as “beneficiary”. If BYTEC requires a change of the item to be delivered, the Contractor shall immediately report and verify any higher or lower prices and future effects to BYTEC in writing. Production disruptions due to inevitable events (force majeure, e.g. labour dispute) entitle BYTEC to cancel orders; moreover, the delivery and payment date shall be extended according to the duration of the delay for all obstacles without fault.
2, Each service under contract requires an acceptance, the result of which must be recorded in writing. If the Contractor has rendered the service, it must notify BYTEC and the beneficiary named in the order in writing. The submission of the final invoice, a written statement of completion and the use or commissioning of such contractual services within the trial operation shall not constitute acceptance. § 640 para. 1 sentence 3 of the BGB [German Civil Code] remains in effect. This regulation does not apply to contracts where an acceptance is materially and technically impossible.
§ 3 Provision of Service
1. The deliverables shall be made in compliance with the relevant service specifications. This is defined in the order letter (order) by the specifications set out therein. For machines that are subject to the Machinery Directive, or electrical equipment that falls under the Low Voltage Directive 2014/35/EU of the European Parliament and of the Council of 26 February 2014, the Contractor shall carry out a conformity assessment procedure and provide the goods with CE marking as well as with a manual. The Declaration of Conformity and operating instructions are to be handed to BYTEC or the beneficiary. Machines not ready for use shall be provided with a manufacturer’s declaration. Key factors to assess if contractual services of the Contractor have been fulfilled are compliance with the following specifications:
a) the specification conformity of materials,
b) the adherence to delivery dates,
c) the quality of delivered items,
d) the reliability of prices and
e) the observance and compliance with all relevant rules and regulations, which results from the production, storage and transportation of the materials mentioned, in particular, compliance with relevant technical standards such as DIN or CE norms.
Before changing production processes, materials or vendor parts for the delivered goods, relocating production locations, changing processes or equipment used to examine the delivery items or any other action which may affect the quality and/or safety of the delivered goods, the Contractor must notify BYTEC in due time before delivery. Changes in the established specifications shall not be made without the consent of BYTEC. Any changes to the delivery items and product-related changes in the process chain shall be documented in a product history.
To be documented here are, among others, changes to drawings, deviation permits, changes to processes, changes to test methods and test frequencies, changes of suppliers, vendor parts and supplies. The documentation on the product life cycle must be disclosed to BYTEC upon request. Upon agreement for a series and/or long-term delivery, the Contractor is obliged to inform BYTEC immediately about a termination of its upstream suppliers (discontinuation) for building and/or accessories that are the subject of a delivery.
BYTEC will then check with the contractor whether it is possible to find a replacement or whether a last-buy is available. The contractor is obliged to support BYTEC up to this point accordingly and to name its suppliers.
2. If the Contractor delivers standard software products, the validity of the license and usage conditions of the Contractor shall be agreed upon exclusively for the regulations governing the type and extent of usage rights in individual cases. More far-reaching regulations, in particular those governing warranty claims or liability, do not apply here. Delivery will be made solely on recording media that can be read by machines and which the Contractor has to deliver free of viruses. BYTEC or the entitled beneficiaries will not incur extra charges for the necessary data media. The Contractor will provide BYTEC with user documentation in German or English language in written or electronic form free of charge for software programs covered by the contract.
The Contractor transfers the non-exclusive, spatially and temporally unlimited rights of use along with the delivery of licenses to BYTEC. Under this Agreement, BYTEC is entitled to the supply non-exclusive rights of use to its customers.
3. If dissociable copyrightable products are created during contract development of pre-existing standard software and its documentation contracted by BYTEC to the contractor, or if other copyright-relevant services or those falling under the Act on the Legal Protection of Designs (e.g. designs, technical drawings, texts, images, graphics and rendered the like) are provided, BYTEC is exclusively entitled to any use and exploitation rights, especially the right to edit, modify, develop, reproduce, translate, communicate, either wired or wireless, to the public and to rent as well as to other changes to those copyrightable services.
4. As far as pure development services are to be provided as part of the commissioning, the Contractor shall transfer the exclusive, transferable, sub-licensable, time, space and content unlimited usage rights on all results, which are the subject of the contract services (e.g. mechanical/technical devices and objects, models, custom software, software created as part of customizing, documentation, concepts, etc.), or other copyright-related or services covered under the Act on the Legal Protection of Designs (e.g. designs, technical drawings, texts, images, graphics, and the like). The Contractor shall ensure that all employees’ inventions arising from providing the contractual services can be transferred to BYTEC free of charge.
5. For the provision of services, the concrete content of the service obligation is defined in each case in the individual order and the designated appendices. The Contractor shall provide the services independently and autonomously and is fully responsible for the deployment and performance of its employees in connection with the provision of services. The Contractor has the exclusive right to give instructions to employees employed by him to perform the services, even if the staff works on the grounds and in the rooms of customers of BYTEC or at BYTEC.
6. If the contractor would like to commission a third party with the provision of services, he must obtain prior written consent from BYTEC. This is also valid if subcontractors change or others are involved.
§ 4 Open Source
1. The use of open source software as part of the contractual services by the contractor is permitted only with explicit prior written consent of BYTEC. The extent of usage rights granted to the open source software is defined in the consent agreement.
2. If the Contractor uses open source software without the prior written consent of BYTEC, the Contractor has to make every reasonable effort, at BYTEC’s request, to replace the open source software by equivalent proprietary software.
3. The Contractor shall release BYTEC – without any upper limit – from all claims of third parties and related costs due to the use of open source software by the Contractor without the prior consent of BYTEC, unless the Contractor is not responsible for its use.
§ 5 Quality Control/Product Safety/Product Recall
1. For his goods and services, the Contractor shall comply with the specifications according to the order, the recognized rules of technology, safety regulations, any directives or standards and the agreed technical data.
2. The Contractor warrants that he complies with the requirements of the EU chemicals regulation REACH (Regulation (EC) No.1907/2006 of 30 Dec. 2006), taking into account Annexes 1 to 11 in the current version, hereinafter referred to as REACH. The contractor also guarantees not to supply products that contain materials for products according to their field of application (i) pursuant to Appendix 1 to 10 of the REACH regulation in its current version, (ii) to the Council Decision 2006/507/EC (the Stockholm Convention on Persistent Organic Pollutants) in the current version, (iii) to the EC regulation 1005/2009 on ozone-depleting substances in the current version, (iv) to the Global Automotive Declarable Substance List (GADSL) in its current version (under www.gadsl.org) as well as (v) RoHS2 (2011/65/EU). Should the goods supplied contain substances that are on the so-called “Candidate List of Substances of Very High Concern for Authorisation” of the European Chemicals Agency, the Contractor shall disclose this immediately. This is even valid for current deliveries if substances not previously listed are added to this list. The current list can be found at http://echa.europa.eu/web/guest/candidate-list-table.
3. In the event that a customer or third parties make a claim upon BYTEC due to a defect or error which can be traced back to an item that the Contractor supplied, BYTEC shall inform the Contractor without delay. The Contractor is obliged to release BYTEC of all claims related thereto if any damage has been caused by a defect from the item delivered by the Contractor. Otherwise, the statutory provisions apply.
§ 6 Shipping
Shipping shall be carried out CIP by the Contractor in accordance with Incoterms 2010. Shipping addresses should be observed closely. Costs incurred through non-compliance with shipping regulations shall be borne by the Contractor, provided that this does not prove that he is not responsible. Dispatch notifications shall be sent along with specially marked order information to BYTEC, to the delivery address as well as to any other recipient addresses specified in the order and should be enclosed in the shipment.
§ 7 Ownership Structures/Provisions/Processing
1. When it is handed over, the goods are property of BYTEC; a simple reservation of title in favour of the Contractor remains unaffected.
2. The Contractor must separate material provided by BYTEC from other materials, marked as property of BYTEC and stored with the attention of a diligent businessman. The contractor is obligated to prevent access by third parties and to immediately inform BYTEC of changes in the quantity and condition of the materials provided.
3. Processing or reworking by the Contractor shall be carried out for BYTEC. If goods for which BYTEC has reserved ownership are processed with other items not belonging to BYTEC, BYTEC shall acquire joint ownership of the new items in proportion to the purchase value plus VAT of the goods belonging to BYTEC along with the other processed items at the time of processing. The latter is valid in accordance with mixing and connection, unless another object not belonging to BYTEC is considered as the main item.
§ 8 Export Authorisation
After an order has been accepted, the Contractor shall inform BYTEC immediately in written form of a possible national export or re-export permit obligation – due to US or other export regulations.
§ 9 Prices
The prices specified in the order are fixed prices. Where no prices have been stated, BYTEC reserves the right to recognise prices that are calculated subsequently. The prices are understood to be carriage paid, incl. packing, customs duties and insurance up to the stated shipping address/place of use, unless otherwise agreed to in writing. Insofar as BYTEC or the recipient does not retain the packaging, this will be returned at the expense of the Contractor and any packaging costs will be deducted; this also applies to pallets of all types, including exchange.
§ 10 Invoicing and Payment
1. Insofar as no other contractual arrangement has been made, the invoice shall be sent to BYTEC as a single copy, indicating the value added tax at the rate applicable at the time of delivery/performance separately. Prepayments/partial payments shall be shown individually in the invoice.
2. Insofar as deviating payment terms have not been agreed to in the order, payment must be made within 45 days of receipt of the invoice and delivery or acceptance of the service less 2% discount. Payments shall always be made subject to an adjustment if complaints subsequently arise.
3. Insofar as a Contractor of construction works does not present a valid exemption certificate pursuant § 48b para. 1 sentence 1 when the account is settled, a tax deduction equal to 15% of the invoice amount (including value added tax) shall be made due to the law to curb illegal activity in the construction sector and paid to the responsible tax office. To cover the resulting additional expenses, BYTEC is entitled to deduct a reimbursement of expenses equal to €100.00 from the invoice of the contractor. Further claims on other legal grounds shall remain unaffected.
§ 11 Assignment of Claims/Compensation
Notwithstanding this assignment of a monetary claim pursuant § 354a HGB [German Commercial Code], the contractor is not entitled to assign its claims against BYTEC to third parties or have them collected by third parties without prior written consent of BYTEC. Compensation is only allowed for mutually undisputed or judicially established claims.
§ 12 Liability for Defects
1. BYTEC is entitled to legal claims for defects in full. The Contractor shall be liable for freedom from defects of the goods/service with a statute of limitations lasting 24 months; this begins with the delivery or acceptance of the respective service. These arrangements apply, however, only when longer warranty periods or statues of limitations are not valid by virtue of contractual or legal provisions.
2. Any faults or defects that occur during the period in the statute of limitations shall be rectified at the discretion of BYTEC at Contractor’s own expense or resolved by a new delivery according to the contract.
3. If the Contractor fails to rectify the defect within a reasonable period of time, after the first complaint on the part BYTEC, BYTEC is entitled to rectify the defect itself or have this done by third parties without giving further warning or granting further extension. BYTEC is also entitled to subtract the costs incurred by offsetting them from the invoice amounts of the Contractor.
4. In cases where this rectification fails, BYTEC has the right of withdrawal and reduction; Claims for damages, in particular, the right to compensation for damages in lieu of fulfilling the service, shall remain unaffected.
§ 13 Property Rights
1. The contractor is responsible for ensuring that no third party rights are violated within the European Union in connection with his delivery. This is also valid outside the European Union insofar as the contractor knows in which country his delivery goods are delivered.
2. If a third party, thus, makes a claim against BYTEC or the purchaser of BYTEC, the Contractor is obliged to indemnify BYTEC from these claims at first demand. BYTEC is not entitled, without the consent of the Contractor, to make any agreements with the third party, in particular, to agree on a settlement.
3. The indemnity obligation applies to all expenses that BYTEC or purchasers of BYTEC necessarily incur out of or in connection with the claim.
§ 14 Termination
1. The contract begins on the date that BYTEC makes the order and is unlimited. As a purchase agreement/contract for work, it ends with the expiry of the guarantee, as a service contract with complete performance of the service and payment of the contracted fee. In all other cases (e.g.: framework agreement), the agreement may be terminated on both sides with a period of three months to the end of the quarter. The right to extraordinary termination remains unaffected.
2. In the case of contractual services, the contract can be terminated by BYTEC at any time. In this case, the Contractor shall receive the portion of the compensation that corresponds to the proportion of services previously rendered in terms of overall performance, unless the Contractor can prove that its savings are lower than the services not provided. § 649 clause 3 BGB [German Civil Code] is excluded.
3. If, however, a termination is made for a serious reason for which the contractor is responsible, he shall receive only the portion of the remuneration that corresponds in terms of overall performance to the proportion of services previously rendered. Any further claim to remuneration by the contractor shall be excluded in this case. The Contractor shall be liable to BYTEC for compensation for losses incurred by BYTEC as a result of the termination, including any consequential losses.
4. BYTEC may be terminate the contract extraordinarily without setting any deadline if the Contractor suspends payments or if insolvency proceedings have been filed for or opened covering the Contractor’s assets.
§ 15 Preparatory Documents/Confidentiality
1. BYTEC reserves the property rights and copyrights to illustrations, drawings, calculations, samples, models and other documents; they must be kept secret from third parties and may not be made available to them without express written consent of BYTEC. The Contractor shall be liable for loss or misuse. They may only be used for the production due to the order of BYTEC and are based exclusively on this purchase contract.
2. In the framework of executing this contract, the Contractor undertakes to
a) keep strictly confidential all information and confidential documents BYTEC and their clients have provided, in particular information about software components and the related know-how and other skills; in particular information on contractual relationships, service descriptions, technical procedures, prices and margins as well as all in-house operations; in particular name, address and/or phone lists of employees, as operating and business secrets, whether disclosed or not, and any other business and operational facts about BYTEC or its customers, including the integrated software, independent of whether this knowledge is supplied in writing or orally and
b) not make copies of any documents handed over and not to use results files, unless these copies are given with express instruction to fulfil the contract, and
c) pay a contractual penalty to the amount of €30,000 in the event Section XV 2a) and b) of this purchase contract are breached, for each individual case of the disclosed act of infringement, regardless of any fault of the infringer. The contractual penalty is due 14 days after receipt of the notification, which must include all specific facts to found the claim. Claims for damages from the violation of Section XV 2a) and b) are not affected.
3. Upon completion of this contract, all procedures provided in connection with the execution of this contract are to be automatically returned or destroyed. BYTEC must be notified that they have been destroyed. The Contractor shall, on demand of BYTEC, provide information about their whereabouts.
4. Apart from the above provisions concerning the confidentiality of proprietary information, the Contractor is not responsible for the following published or used information:
a) if information has been made available to the Contractor even without an agreement of confidentiality,
b) if the information has been made public by marketing of the product or in other legal ways and there is no underlying no breach of the Contractor is based against contractual provisions,
c) if the information was partially or completely provided by a third party and this happened via legal channels, without violating contract terms, and
d) if the information has been made available to a third party by BYTEC in whole or in part.
§ 16 Safety Regulations
In carrying out and completing the contract, the Contractor shall observe the relevant provisions and recognized rules of technology, in particular on health and safety, as well as the construction, industrial, and road traffic regulations (in particular supervisory and traffic safety duties on construction sites and other workplaces); this also applies to the applicable environmental and disposal regulations.
Supplies and services must comply with the current laws, ordinances and regulations at the time of delivery or acceptance.
§ 17 Written form
Changes and additions to existing contracts must be in made writing in the manner described in Clause II. This also applies to the amendment of the written form itself.
§ 18 Place of Performance/Jurisdiction/Choice of Law
1. Place of performance for goods and services provided by the Contractor is the delivery address/point of use indicated by BYTEC or the agreed place of provision of services.
2. Unless otherwise expressly provided for by law, the place of jurisdiction for any disputes arising under or in connection with the contract shall be Aachen.
3. The laws of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be precluded.
4. In the case individual clauses are totally or partial invalid in these conditions of purchase, ineffective regulations shall be reinterpreted, supplemented or replaced so that economic purpose of the objective pursued by the invalid provision is achieved. The same applies in the event that regulatory gaps in this agreement should exist.