General Terms and Conditions of Sale, Performance and Delivery of Vebos AG for Agreements With Other Companies

General Terms and Conditions of Sale, Performance and Delivery of VeboS AG for Agreements With Other Companies

Section 1 General Provisions, Area of Application

  • The present General Terms and Conditions of Sale and Delivery shall apply to any and all agreements of the company VeboS AG, hereinafter referred to as VeboS, the subject-matter of which is essentially the delivery of plants, plant components, goods and any services associated therewith to the customers of VeboS, hereinafter referred to as the Ordering Parties. Additional obligations assumed by VeboS shall not affect the application of the present General Terms and Conditions of Sale and Delivery.
  • Conflicting or deviating terms and conditions of the Ordering Party shall not be applicable, unless VeboS would have explicitly agreed to their application in writing. The Terms and Conditions of Sale and Delivery of VeboS shall apply also in the event that VeboS is aware of any terms and conditions of the Ordering Party which are in conflict with or deviate from their own terms and conditions of sale and delivery of VeboS, and still carries out the delivery to the Ordering Party without reservation.
  • Subject to the inclusion of modified terms and conditions of VeboS, the present General Terms and Conditions of Sale and Delivery shall also apply to future agreements between VeboS and the Ordering Party, without this requiring any renewed inclusion.
  • The present General Terms and Conditions of Sale and Delivery shall only apply vis-à-vis entrepreneurs in terms of Sections 14, 310 German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law and special funds under public law.

Section 2 Offer, Offer Documents

  • Our offers shall be subject to change and non-binding. Any illustrations, drawings, weight specifications and dimensions as well as calculations prepared by us shall be authoritative only to an approximate extent, unless they have been explicitly specified as being binding in our offer or in our order confirmation itself.
  • We reserve the rights of ownership and the copyrights to any illustrations, drawings, calculations and any other documents in any number and form whatsoever. The same shall also apply to any such written documents that are specified as “confidential”. Before any such documents are passed on to third parties, the Ordering Party shall require our explicit written approval.
  • In the event that our offers are based, either in whole or in part, on information provided by the Ordering Party, the Ordering Party shall be exclusively responsible for its correctness. VeboS shall not be under any obligation to verify information provided by the Ordering Party.

Section 3 Conclusion of Agreements

  • No agreement shall enter into effect before VeboS has confirmed the order in writing. In the event that VeboS does not confirm the order in writing, the agreement shall enter into effect upon execution of the delivery at the latest. In this case, the delivery note shall be deemed to constitute an order confirmation.
  • Arrangements made by telephone or orally prior to or upon conclusion of the agreement shall require the written form in order to become effective. Orders placed orally, ancillary agreements or modifications to the agreement already concluded shall not become valid until they have been confirmed by VeboS in writing.
  • The nature and scope of the delivery to be performed by VeboS shall be exclusively based on the written order confirmation of VeboS. Only the delivery elements specified there shall be part of the performance scope of VeboS. The same shall also apply to screws, nuts, terminals or any other components which may be required for the installation of the delivery item, in particular in the event that they have to be manufactured from a specific alloy.
  • The Ordering Party shall be exclusively responsible for ensuring that any and all approvals required in this context, in particular those in accordance with the German Building Code (Baugesetzbuch), the German Federal Immission Control Act (Bundesimmissionsschutzrecht) and the German state law for the construction and operation of the plant to be delivered by VeboS in accordance with the agreement, are available.

Section 4 Prices, Terms of Payment

  • Unless otherwise provided for in our order confirmation, our prices shall be “ex works”, excluding packaging, insurance and any other dispatch costs, which shall be invoiced separately. The deduction of cash discounts shall require an explicit, separate, written agreement. Our prices shall be net prices, exclusive of any taxes and customs duties, where applicable. The sales tax shall be separately itemised in the invoice at the applicable statutory rate on the day of invoicing.
  • Unless otherwise specified in the order confirmation, the purchase price is to be paid without deduction and within a period of thirty (30) days of the date of the invoice. After expiry of the payment term, we shall be entitled to invoice interest in the amount of 8% above the respective basic interest rate on any outstanding payments and to withhold our services until the purchase price has been paid in full. We reserve the right to assert any further damages.
  • The Ordering Party shall only be entitled to rights of set-off if his/her counter-claims have been established by force of law, are undisputed or have been acknowledged by us. Moreover, the Ordering Party shall be entitled to exercise right of retention only to the extent that his/her counter-claim is based on the same contractual relationship.
  • In addition, we shall have the right to withdraw from the agreement without prejudice to the existing right to claim compensation for damages to the extent that the Ordering Party does not effect the payment within a reasonable time limit after a corresponding reminder has been issued, refuses payment seriously and definitely or if any specific circumstances exist, in particular any lasting deterioration in the Ordering Party’s financial situation.
  • Discount-related commitments and agreements on terms of payment shall be specified in the order confirmation and shall be subject to the condition that the purchase price is paid by the Ordering Party in full and in due time.
  • Payments in full discharge of liabilities may only be paid to the bank account specified by VeboS at the time of invoicing. Employees of VeboS or external employees shall not have any authority to collect.
  • The day on which the amount is available to VeboS or is credited to the bank account of VeboS without reservation shall be regarded as the date of receipt of payment. The risk associated with the method of payment shall be borne by the Ordering Party. In case of default of payment on the part of the Ordering Party, VeboS shall be entitled to charge interest in the amount of eight (8) percentage points above the basic interest rate for the duration of such default. The right to assert further claims for compensation for damages shall not be limited in this respect.
  • Cheques shall be credited only subject to the condition that the amount is correctly received in full. VeboS reserves the right to collect any third-party or own acceptances. Costs and discount charges shall be at the expense of the Ordering Party. VeboS will not assume any warranty for presentation and protest. Pre-dated cheques will not be accepted.
  • Furthermore, in case of default of payment on the part of the Ordering Party, VeboS may, at its option, declare due any still outstanding remaining purchase price instalments or any other receivables still existing from the Ordering Party and may make further deliveries from such agreement or from other agreements dependent on the prior lodging of a security deposit or payment pari passu with the delivery.

Section 5 Delivery Term

  • Delivery dates or deadlines shall be specified in writing in the order confirmation of VeboS. The delivery deadline shall be deemed to have been complied with if the delivery item has left the factory gates of VeboS or VeboS has notified the Ordering Party of the readiness for dispatch up to the expiry of such deadline.
  • Delivery dates and deadlines shall imply that the Ordering Party properly fulfils any and all obligations incumbent on the Ordering Party, such as the provision of technical data, documents, available sample parts, the granting of approvals and releases and, dependent on the agreement, advance payments or the handover of a payment guarantee. This shall not apply in the event and to the extent that VeboS is responsible for the delay.
  • Compliance with delivery deadlines or dates shall be subject to the condition that the deliveries to VeboS itself are performed correctly, completely and in due time. If any delays become apparent, VeboS shall notify the Ordering Party thereof without undue delay.
  • In the event of temporary impediments to performance caused by force majeure, the period of performance shall be reasonably extended. The same shall also apply if any other unforeseeable impediments to performance exist which are not attributable to VeboS, especially in cases of fire, flood, industrial action, shortage of energy and raw materials or official measures. VeboS shall communicate to the Ordering Party the start and the end of such circumstances without undue delay.
  • Liability for any impediments to performance attributable to VeboS due to slight negligence shall be limited to the foreseeable, contract-typical damage.
  • In the event that the Ordering Party requests modifications to be made to the order or to the terms and conditions of the conclusion of the agreement, the delivery will be carried out by VeboS only with a new delivery deadline, provided that VeboS accepts such modifications.
  • The energy performance and fuel quantity of the plant delivered by us will depend on the consistency of the fuel supplied, especially on its humidity. These fluctuations can be significant, which is why significant deviations in the energy performance shall never be regarded as a fault either.
  • Transport insurance for deliveries shall be taken out only at the express request of the Ordering Party; any costs incurred in this respect shall be borne by the Ordering Party. Unless anything to the contrary has been agreed upon with the Ordering Party, the Ordering Party shall be obliged to assert the claims assigned by VeboS from any damages in transit and shall have a statement of facts established with the competent body.
  • In the case that an application for the initiation of insolvency proceedings with regard to the assets of the Ordering Party is filed, a statutory declaration in lieu of an oath is submitted by the Ordering Party in accordance with Section 807 German Code of Civil Procedure (Zivilprozessordnung, ZPO), the Ordering Party experiences payment difficulties or if VeboS becomes aware of essential deterioration of the financial situation of the Ordering Party at the time the agreement is concluded, VeboS shall be entitled to suspend deliveries without undue delay and to refuse the fulfilment of running agreements, unless the Ordering Party renders counter-performance or lodges any reasonable security at the request of VeboS.

Section 6 Transfer of Risk

  • The risk shall pass to the Ordering Party as soon as the delivery item has left the factory gates of VeboS. The same shall also apply if any partial deliveries are carried out or if VeboS has also assumed further services, e.g. dispatch or delivery and installation.
  • Once the goods are ready for dispatch and in the event that the dispatch is delayed for any reasons not attributable to VeboS, the risk shall pass to the Ordering Party upon receipt of the notification of the readiness for dispatch.
  • To the extent that acceptance has to take place, the statutory regulations concerning the transfer of risk shall apply.

Section 7 Warranty

  • Deliveries and services of VeboS towards merchants in terms of the German Commercial Code (Handelsgesetzbuch, HGB) shall be subject to the statutory obligations to inspect and to give notice of defects.
  • Supplementary performances shall be subject to the statutory regulations with the following complementary provisions:

VeboS shall be entitled, at its option, to grant warranty by replacement delivery or subsequent improvement. The Ordering Party shall have the right to either rectify the defect himself/herself or to have it rectified by third parties and to require VeboS to pay compensation for any necessary expenses only in urgent cases where there is a risk to operational safety and/or to avert any disproportionate further damages, which shall be communicated by the Ordering Party to VeboS in writing without undue delay. At the request of VeboS, defective items or components shall be properly packaged and sent back covered by a shipping insurance at the expense of VeboS.

  • Apart from that, the statutory regulations on withdrawal and reduction shall apply. Supplementary performances shall not be regarded as having failed until the second attempt at subsequent improvement by VeboS has been unsuccessful.
  • The Ordering Party shall be entitled to assert claims for compensation for damages based on guaranteed characteristics only if the assumption of guarantee holds the Ordering Party harmless from the damage that occurred. Other claims for compensation for damages based on warranty shall be excluded if slight negligence is attributable to VeboS, or legal representatives or auxiliary agents of VeboS, unless such damage is a foreseeable, typical damage from the violation of material contractual obligations. This shall not exclude claims for compensation for damages from warranty if any case of intent or gross negligence is attributable to VeboS, or legal representatives or auxiliary agents of VeboS. Claims for compensation for damages based on the fraudulent concealment of defects by VeboS, claims for compensation for damages in accordance with the German Product Liability Act (Produkthaftungsgesetz) as well as claims for compensation for damages due to violation of life, body or health for which VeboS, or legal representatives or auxiliary agents of VeboS are responsible shall not be affected by this exclusion of liability.
  • The liability regulation in accordance with para. (4) shall also apply to violations of ancillary contractual obligations by VeboS, due to consulting services provided by VeboS, both orally and in writing, as well as by means of tests. In particular, the Ordering Party shall not be released from the obligation to verify him or herself of the suitability of the delivery for its intended use.
  • VeboS will not assume warranty for the ability to obtain approvals for the construction and operation of the plant. The timely provision of approvals required shall exclusively be the obligation of the Ordering Party [section 3 para. (4) of the present terms and conditions].
  • Any defect attributable to VeboS shall not be deemed to exist in case of natural wear or in the event of damage due to improper handling which has not been caused on the premises of VeboS, especially by storage, or if the defect becomes apparent in case of usage of the goods in violation of the agreement which has not been accepted by VeboS in writing in the individual case. Any defect attributable to VeboS shall not be deemed to exist in the event that such defect has been caused due to incorrect information provided by the Ordering Party, especially incorrect drawings, incorrect dimensions or other incorrect technical details.

Any defect attributable to VeboS shall not be deemed to exist in the event that the Ordering Party defines the material to be treated and/or processed by VeboS or if the material defined by the Ordering Party is defective and/or not suitable for the intended treatment and/or processing. VeboS shall not be obliged to either verify the defined material with regard to its suitability for the specific use by the Ordering Party or to have such verification be carried out.

Furthermore, any defect attributable to VeboS shall not be deemed to exist in the event that VeboS treats and/or processes material made available by the Ordering Party in accordance with the specifications of the Ordering Party and if the material made available by the Ordering Party is defective and/or not suitable for the intended treatment and/or processing or if the Ordering Party orders material other than the one contractually agreed upon. Except for obvious material defects, VeboS shall not be obliged to inspect the material made available; in particular, VeboS shall not be obliged to carry out or arrange for materials testing.

Any obvious material defects shall be notified by VeboS to the Ordering Party immediately after the date of handover of the material made available. Material defects which only come to light during the treatment and/or processing shall be notified by VeboS to the Ordering Party within a period of three business days following the detection of the material defect. The notification of defects shall include a rough description of the external appearance of the material defect.

The Ordering Party shall be liable to an unlimited extent for damage incurred by VeboS due to the treatment and/or processing of material made available by the Ordering Party which is not in compliance with the agreement. In the event that VeboS suffers damage in connection with the treatment and/or processing of material made available by the Ordering Party which is not in compliance with the agreement, it shall be presumed that the reason and amount of such damage are exclusively attributable to the fact that the material made available by the Ordering Party is not in compliance with the agreement, unless the Ordering Party can demonstrate that the damage has not been caused at all, not exclusively and/or not in the asserted amount due to the provision of material which is not in compliance with the agreement.

Furthermore, any defect attributable to VeboS shall not be deemed to exist in the event that VeboS purchases from the Ordering Party the material to be treated and/or processed and the purchased material is defective and/or not suitable for the intended treatment and/or processing or if the Ordering Party orders material other than the one contractually agreed upon. Except for obvious material defects, VeboS shall not be obliged to inspect the material; in particular, VeboS shall not be obliged to carry out or arrange materials testing.

Any obvious material defects shall be notified by VeboS to the Ordering Party immediately after the handover of the material. Material defects which only come to light during the treatment and/or processing shall be notified by VeboS to the Ordering Party within a period of three business days following the detection of the material defect. The notification of defects shall include a rough description of the external appearance of the material defect.

  • Characteristics guaranteed with regard to the delivery item shall be explicitly designated in writing and in detail as such. Deviations from samples or previous delivery shall be avoided, where technically feasible. VeboS reserves the right to any modifications within a scope reasonable for the Ordering Party, especially in the interests of technical progress and to the extent that the delivery item does not undergo any significant modifications. Only significant deviations shall give rise to warranty claims in accordance with para. (1) to para. (6).
  • Claims on the part of the Ordering Party based on the delivery of defective goods shall become time-barred within a period of one year from the date of delivery. This provision on the warranty period shall not apply to any claims for compensation for damages in the event and to the extent that VeboS did not exclude or limit any liability. The provisions in the present paragraph on the warranty period shall apply mutatis mutandis to the period of limitation for any and all claims asserted by the Ordering Party in connection with the warranty.
  • In the event that the use of the delivery item results in violation of industrial property rights or copyrights within the domestic territory, we shall, as a general rule and at our expense, give the Ordering Party the right to continue to use the delivery item or we shall modify the delivery item in a manner reasonable for the Ordering Party that the violation of such property rights will no longer exist. In the event that this is impossible under economically reasonable conditions or within a reasonable time limit, the Ordering Party shall be entitled to withdraw from the agreement. Subject to the aforementioned conditions, we, too, shall have the right to withdraw from the agreement. Moreover, we shall release the Ordering Party from any undisputed or legally established claims of the holders of the property rights in question.
  • Subject to the regulation in accordance with para. (4), our obligations specified in para. (9) shall be deemed final in the event of violation of property rights or copyrights. They shall exist only if:
  • the Ordering Party notifies us without undue delay of asserted violations of property rights or copyrights;
  • the Ordering Party supports us to a reasonable extent in the defence against the claims asserted and/or provides us with the opportunity to implement the modification measures in accordance with para. (7);
  • any and all defensive measures, including extra-judicial regulations, remain reserved to us;
  • the defect in title is not based on instruction of the Ordering Party; and
  • the violation of the right(s) was not caused by the fact that the Ordering Party modified the delivery item on his or her own authority or used it in any manner that is not in compliance with the agreement.
  • The regulations in paragraphs (1) to (10) shall apply mutatis mutandis to any replacement deliveries.

Section 8 Liability and Statute of Limitations for Claims Other Than Warranty Claims

  • VeboS shall be liable for damages of any nature whatsoever and based on any legal ground whatsoever which is not asserted by the Ordering Party within the framework of warranty only in case of intent and gross negligence as well as in the event of culpable violation of life, body and/or health.
  • In the event of culpable violation of material contractual obligations, VeboS shall also be liable for slight negligence, with such liability being limited, however, to the contract-typical, foreseeable damage.

Any further claims shall be excluded.

  • Claims in accordance with the German Product Liability Act shall not be affected by this exclusion of liability.
  • Any and all claims of the Ordering Party of any nature whatsoever and based on any legal ground whatsoever which are not asserted by the Ordering Party within the framework and in connection with warranty shall become time-barred within a period of one year. The statute of limitations shall start with the occurrence of the claim.

Section 9 Conditions during the Set-Up of the Plant

Unless other agreements are made, the set-up of the plant on the premises of the Ordering Party shall be subject to the following provisions:

I.

  • In the event that the Ordering Party intends to carry out himself/herself the on-site set-up of the plant to be delivered by us, and unless other agreements are made, the following shall apply:

In this case, the Ordering Party shall perform an acceptance of the machine in the factory of VeboS. For the purpose of such acceptance, the plant shall be mounted in the factory of VeboS, shall be put into operation on a trial basis and a hot run shall be carried out [acceptance test run] to demonstrate the serviceability of the machine for the purpose provided for in the agreement as a basis for acceptance by the Ordering Party. VeboS and the Ordering Party shall agree on a business day as a date for the acceptance test run within a period of four weeks (deadline OK?) following the notification of readiness for dispatch by VeboS. In the event that the Ordering Party fails to agree on such a date or does not appear at the date agreed upon, the acceptance shall be deemed to have been performed on the date missed or four weeks after the notification of readiness for dispatch of the plant at the latest.

  • Unless anything to the contrary is agreed upon, VeboS shall dismantle the plant in a professional manner after the acceptance test run and shall make it available to the Ordering Party for collection.
  • Unless agreed upon otherwise, costs for packaging, pallets, transport securing devices and the like shall be borne by the Ordering Party. With regard to the transfer of risk, the regulations in accordance with section 6 of the present terms and conditions shall apply.
  • VeboS will exclude liability in connection with the mounting of the plant by the Ordering Party or by staff contracted by the Ordering Party, in particular for any damage in transit, any errors during the assembly and/or any delays in the commissioning on site on the premises of the Ordering Party.
  • In the event that the Ordering Party entrusts VeboS with the mounting following the acceptance test run, contrary to the Ordering Party’s initial intent, such mounting shall be subject to a separate agreement.

II.

  • To the extent that VeboS carries out the set-up of the plant, the following terms and conditions shall be authoritative, subject to any deviating agreements:
  • VeboS shall be entitled to have the set-up of the plant carried out by its own staff or by qualified third-party entrepreneurs as subcontractors.
  • As a general rule, the work to be performed for the set-up of the plant shall be accounted for on the basis of the hours worked, with contractually-agreed hourly wages or, in the absence of a corresponding agreement, locally common hourly wages being used as a basis. Travelling times to the construction site and set-up times shall likewise be accounted for in the amount of the contractual remuneration for assembly operator hours; in the absence of a corresponding agreement, in the amount of the locally common remuneration. Overtime hours, night work as well as work on Sundays and public holidays shall be accounted for in the amount of the supplements in accordance with the respective collective wage agreement. The accommodation allowance per assembly operator and day shall be subject to the corresponding arrangement.
  • To the extent that accommodation is required for the assembly operators, such accommodation shall, as a general rule, be the responsibility of the Ordering Party, with accommodation expenses being borne by the Ordering Party. VeboS will pass on to the Ordering Party any accommodation expenses, where applicable, to the extent that VeboS was responsible for the accommodation of the assembly operators.
  • The Ordering Party shall ensure that the construction site is freely accessible, clean and has been set up under observance of any and all relevant safety and security regulations.
  • The work to be performed by VeboS for the set-up of the plant shall not include any work on the foundation, roof and structure as well as on the masonry of the building, in which the plant shall be set up. Any necessary preliminary work, especially work on the foundation, wall penetrations for pipes and supply lines and their installation, electrical work, joinery work and the like shall be the sole responsibility of the Ordering Party. Where required, the Ordering Party shall ensure, at the Ordering Party’s own expense, that scaffolding, lifting trolleys and crane trucks are available on the construction site in due time.
  • In the event that a lump-sum assembly price has been agreed upon with the Ordering Party, the Ordering Party shall be responsible for ensuring that the work can be performed without any time lag, without impediments, especially due to lack of tools, lifting devices, inadequate safety precautions or insufficient accessibility to the construction site. To the extent that the Ordering Party violates obligations incumbent upon the Ordering Party in this respect, VeboS shall, in addition to the lump-sum price for the set-up of the plant, also invoice additional work and waiting times.
  • Spare parts shall be delivered by VeboS for the duration of five years following the delivery of the plant at the respective applicable purchase price for such spare parts (daily rate).

Section 10 Retention of Title

  • The delivery item shall remain the ownership of VeboS as the Contractor until any and all claims the Contractor is entitled to assert vis-à-vis the Ordering Party from the business relationships have been fulfilled. In the event of a breach of duty on the part of the Ordering Party, especially in case the Ordering Party falls behind with payment, the Contractor shall be entitled to require the Ordering Party to surrender the delivery item and/or to withdraw from the agreement, without this requiring a time limit to be set in this respect by the Contractor. The Ordering Party shall be obliged to surrender the delivery item. The Contractor’s request for surrender shall not imply any declaration of withdrawal, unless such withdrawal has been explicitly declared as such.
  • The Ordering Party may process the delivery item and may mix or combine it with other items. Processing, mixing or combining of the delivery item shall hereinafter generally be referred to as “processing”. Likewise, the term “process” shall generally be used with respect to the delivery item. Processing of the delivery item by the Ordering Party shall be exclusively carried out for the Contractor. The processed delivery item shall be designated as “new product”. The new product shall be kept safe by the Ordering Party for the Contractor. Within the framework of the safekeeping relationship, the Ordering Party shall at least take the reasonable care of a prudent businessman.
  • In the event that the Ordering Party processes the delivery item with other items which are not in the ownership of the Contractor, the following shall apply: the Contractor shall be entitled to claim the co-ownership to the new product created by such processing to the extent of the proportion resulting from the value ratio between the processed delivery item and the value of the other processed items, which are not in the ownership of the Contractor, at the time of such processing. The Ordering Party and the Contractor shall be deemed to be in agreement that the Ordering Party shall grant the Contractor the joint ownership of the new product in the ratio of the value of the processed delivery item to the value of the other processed goods. The relevant determination of the value relationship shall be based on the time of processing.
  • The Ordering Party shall already now assign to the Contractor, by way of security, any and all claims from any resale of the delivery item which can be asserted by the Ordering Party vis-à-vis the respective purchaser from any resale of the delivery item. Such assignment shall also comprise any and all ancillary rights acquired by the Ordering Party vis-à-vis the respective customer within the framework of any sale of the delivery item. Specific further declarations shall not be required. The assignment by way of security shall also comprise account balance claims. However, such assignment shall be limited to the amount of the sum invoiced by the Contractor to the Ordering Party for the delivery item. The portion of the claim assigned by the Ordering Party to the Contractor shall be fulfilled as a matter of priority.
  • In the event that the Ordering Party combines the delivery item or the new product with plots of land or movable objects, the Ordering Party shall assign to the Contractor, by way of security, any remuneration claim to which the Ordering Party is entitled for such combination, including any and all ancillary rights, with such assignment being performed without this requiring further specific declarations. The assignment shall be carried out in the amount of the value ratio between the delivery item and/or the new product and the remaining combined goods. The point in time when the combination takes place shall be authoritative.
  • As a general rule, the Ordering Party shall be entitled to collect the claims assigned in accordance with the present para. (6) [extended retention of title]. The Ordering Party shall be obliged to forward to the Contractor without undue delay any payments, which have been effected on claims assigned, up to the amount of the secured claim of the Contractor. The Contractor shall be entitled to revoke this collection authority of the Ordering Party if there is an important reason to do so. An important reason shall be deemed to exist, in particular, in the event that the Ordering Party falls behind with payment, if the Ordering Party ceases his or her payments, if an application for the initiation of any insolvency proceedings is filed or if there are any justified indications for over-indebtedness or imminent insolvency on the part of the Ordering Party. The Contractor shall be entitled, under observance of a reasonable time limit following prior warning, to disclose the assignment by way of security and to make use of the assigned claim on his or her own part; likewise, the Contractor may also require the Ordering Party to disclose the assignment by way of security towards the Ordering Party’s own customers.
  • The Ordering Party shall provide the Contractor without undue delay and in full any information required by the Contractor to assert his or her own rights vis-à-vis the customers of the Ordering Party and shall hand over any necessary documents, in particular agreements, delivery notes as well as sureties and credit insurance documents. The Contractor shall only make use of this right in the event of legitimate interest to do so. As a general rule, legitimate interest on the part of the Contractor shall be deemed to exist if the Contractor holds the rights in accordance with paragraph (6) above.
  • The Ordering Party may resell the delivery item and/or the new product in the proper course of business. This right shall be subject to the condition that the equivalent value of the delivery item is paid to the Ordering Party. The Ordering Party shall be obliged to agree with his/her customer that the latter shall not acquire any ownership before the payment has been effected. As long as the Contractor’s retention of title exists, the Ordering Party shall be prohibited from pledging or assigning the delivery item or the new product by way of security. In the event of third-party interventions, in particular in case of pledges, seizures or any other disposal which affects the delivery item or the new product, the Ordering Party shall notify the Contractor thereof without undue delay.
  • The Ordering Party shall be entitled to require the Contractor to release any corresponding part of the security interests as soon as their realisable value exceeds the amount of any and all secured claims of the Contractor by more than 10%. In the choice of how such release shall be effected, the Contractor shall be free to choose between different security interests.

Section 11 Confidentiality

  • The Ordering Party shall be obliged to keep confidential any and all samples, illustrations, design drawings, calculations and any other documents as well as any and all information in tangible, intangible and electronic form which the Ordering Party receives from VeboS within the framework of the contractual negotiations and the implementation of the agreement. They may be made accessible to any third parties only with the prior explicit written approval of VeboS. The confidentiality agreement shall also apply after the implementation of this agreement; it shall cease to apply in the event and to the extent that any information contained in the documents or otherwise acquired within the framework of the contractual negotiations and the implementation of the agreement has become known to the general public.
  • VeboS reserves any rights of ownership and copyrights as well as the exclusive exploitation right to any samples, illustrations, design drawings, calculations and any other documents in tangible and electronic form which are handed over within the framework of the contractual negotiations and the implementation of the agreement. They must not be reproduced, made accessible to any third parties and utilised or used outside of the business relationship with VeboS without the prior explicit written approval of VeboS. Upon request or in any case of non-conclusion of the agreement, they shall be returned to VeboS without undue delay together with any copies produced, where applicable. The Ordering Party shall not be entitled to rights of retention, unless the rights of retention are based on claims which are undisputed, have been explicitly recognised by VeboS or have been legally established. At the time when the documents are returned, the Ordering Party shall also submit a written statement that he/she is no longer in the possession of the documents handed over to him/her within the framework of the contractual negotiations and the implementation of the agreement, either as an original, as a copy or in electronic form.
  • For each individual case of violation of the obligations incumbent upon the Ordering Party in accordance with paragraphs (2) and (3) or each violation of the rights of ownership, copyrights and utilisation rights of VeboS, the lump-sum compensation for damages in the amount of EUR 5,000 shall be deemed forfeited, unless the Ordering Party is not responsible for the breach of duty; VeboS reserves the right to assert any further damages taking into account the forfeited lump-sum compensation for damages. The Ordering Party reserves the right to demonstrate that no damage has been caused or that only minor damage has been suffered.
  • Irrespective of any confidentiality obligation imposed by the Ordering Party on VeboS, VeboS shall be authorised to make accessible to third parties any samples, illustrations, design drawings, calculations and other documents in tangible and electronic form which have been handed over within the framework of the contractual negotiations and the implementation of the agreement in the event and to the extent that this is required for the execution of the Ordering Party’s order. To the extent that a confidentiality obligation has been imposed by the Ordering Party on VeboS, VeboS shall impose on the third party the same obligation in terms of content and shall notify the Ordering Party of this in writing.

Section 12 Place of Performance, Place of Jurisdiction, Applicable Law

  • To the extent that the Ordering Party is a merchant, our place of business shall be the place of jurisdiction; however, we shall be entitled to also sue the Ordering Party before the court competent at the Ordering Party’s place of business.
  • The laws of the Federal Republic of Germany shall apply, to the exclusion of the German private international law; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
  • Unless otherwise provided in the order confirmation, our place of business shall be the place of fulfilment.
  • The present terms and conditions of sales were drawn up in the German and in the English language. Subject to any explicit, deviating regulation, the German version of the present terms and conditions of sale shall be binding; the English version shall always be regarded as a non-binding transcript.

Section 13 Data Protection

The Ordering Party shall explicitly agree vis-à-vis VeboS that the Ordering Party’s data may be stored by VeboS for the purposes of processing of the operation, i.e. for the preparation of the offer, the conclusion of the agreement, the implementation of the agreement as well as within the framework of any statutory record-keeping obligations.

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