VDMA conditions for the delivery of machines for domestic businesses, recommended by the association of German machine and system manufacturers (VDMA).
1. A person who, in concluding a contract, is acting in his or her commercial or independent professional role (trader);
2. A legal entity under public law or legal public special asset.
- All deliveries and services are subject to these conditions and to any separate contractual agreements. Deviating purchasing conditions of the purchaser shall not become part of the contract with order acceptance. A contract comes into being – unless otherwise agreed – with the written confirmation of the order by the supplier.
- The supplier reserves all proprietary rights and intellectual property rights to samples, costing quotations, drawings and similar information of a physical and non-physical nature - also in electronic form; these may not be made accessible to third parties. The supplier undertakes to ensure that information and documentation designated as confidential by the customer are only made accessible to third parties with the customer's consent.
- The prices apply ex works unless otherwise agreed, including loading on site although excluding packaging and unloading. Prices shall be subject to sales tax at the legal and applicable rate.
- Unless otherwise agreed, payment shall be made to the supplier's account without deductions as follows: 1/3 deposit upon receipt of order confirmation, 1/3 as soon as the customer has been informed that the main parts are ready for dispatch, and the outstanding sum within one month of the transfer of risk.
- The customer only has the right to withhold payments or to offset these against counterclaims where their counterclaims are undisputed or legally effective.
- The delivery time is as per the agreements between the contracting parties. In order to adhere to the delivery time, the supplier requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all of the obligations incumbent on them, e.g. such as submitting the requisite official approvals or attestations, or clearing any advance payments. If this is not the case, the delivery time will be extended appropriately. This does not apply where the supplier is responsible for the delay.
- Adherence to the delivery time is dependent on correct and punctual delivery on the part of our suppliers. The supplier shall inform the customer of any potential delays as soon as possible after detecting these.
- The delivery time is deemed to have been met with if the delivery goods have been dispatched from the supplier's factory on or by this date, or these have been pronounced ready for dispatch. If acceptance is required, the acceptance date is decisive – except if acceptance rejection is reasonable – or alternatively the notification of readiness for acceptance.
- If delivery or collection of the delivery goods is delayed for reasons attributable to the customer then the costs incurred as a result of the delay shall be charged to him commencing one month after notification of readiness for delivery or collection.
- If failure to adhere to the delivery time is attributable to force majeure, industrial action or any other circumstances that lie outside the sphere of influence of the supplier then the delivery time shall be appropriately extended. The supplier shall inform the customer of the onset and end of such circumstances as soon as possible.
- The customer can withdraw from the contract without serving a notice period if the supplier is unable to deliver the full performance prior to the transfer of risk. Furthermore, the customer can withdraw from the contract if a part of the performance required in order to fulfil an order proves impossible and they have grounds to reject part delivery. If this is not the case then the customer must pay the contractual price for the part delivery. The same applies in the event of inability on the part of the supplier. Additionally, section VII. 2 applies. If circumstances resulting in impossibility or inability arise during the acceptance delay or if the customer is solely or largely responsible for these circumstances then they remain obligated to consideration.
- If the supplier is delayed and if the customer incurs damages as a result of this then they are entitled to demand pro rata compensation for the delay. This shall be calculated on the basis of the value of respective portion of the complete delivery, which cannot be used in a timely or contractually appropriate manner as a result of the delay and shall amount to 0.5% for every full week of delay and no more than 5% in total. If, with consideration to the legal exceptions, following an appropriate period the customer provides the supplier with a deadline for the provision of performance and if this deadline is not met then the customer is entitled to withdraw within the framework of the legal regulations. Further claims arising from delivery delays shall be raised exclusively in accordance with the terms of section VII. 2 of these conditions.
- The risk is transferred to the customer when the delivery goods are dispatched from the factory, also with part deliveries or if the supplier has provided other performance such as the payment of shipping costs or delivery and placement. If there is to be an acceptance test, this will be authoritative for the transfer of risk. It must take place without delay on the agreed acceptance date, alternatively following notification by the supplier of readiness for acceptance. The customer is not permitted to refuse acceptance on the basis of insignificant defects.
- If dispatch or acceptance is delayed or does not take place as a result of circumstances which are not attributable to the supplier then the risk shall be transferred to the customer on the date of notification of readiness for dispatch or acceptance. The supplier agrees to take out the insurance policies requested by the customer at the cost of the same.
- Part deliveries are permissible where these are reasonable for the customer.
- The supplier shall retain proprietary rights to the delivery goods until receipt and clearance of all payments arising from the delivery contract.
- The supplier is entitled to insure the delivery goods against theft, breakage, fire, water and other damage at the cost of the customer, where the customer has not verified the existence of such insurance cover.
- The customer is not entitled to sell or pledge the delivery goods or assign these as security. In the event of the pledging or appropriation of the goods or any other form of access by third parties, the supplier must be informed of this immediately.
- In the event of conduct contrary to the contract on the part of the customer, and in particular payment arrears, the supplier is entitled to take back the delivery goods after issuing a warning to this effect, and the customer is obliged to hand these over accordingly.
- Due to the retention of title, the supplier can only demand the return of the delivery goods if they have withdrawn from the contract.
- An application to commence insolvency proceedings entitles the supplier to withdraw from the contract and demand the instant return of the delivery goods.
The supplier provides a guarantee against material and legal defects pertaining to the delivery with the exclusion of further claims - subject to section VII:
- All parts ascertained as being defective as a result of circumstances existing prior to the transfer of risk shall be rectified or replaced at the discretion of the supplier, free of charge. The supplier must be informed in writing and without delay upon detection of such defects. Parts which are replaced become the property of the supplier.
- Following agreement with the supplier, the customer must grant the supplier sufficient time and opportunity to rectify defects or replace parts; otherwise the supplier shall be released from any liability arising in this regard. Only in urgent cases of risk to operating safety and/or to guard against disproportionately high damages, in which case the supplier must be informed of this situation immediately, does the customer have the right to rectify the defect themselves or instruct a third party to do so and demand reimbursement of the applicable costs from the supplier.
- Costs incurred directly through the rectification of defects or replacement delivery shall be borne by the supplier - where the objection transpires to be warranted - comprising costs of the replacement parts including shipping. They shall also bear the costs of disassembly and assembly as well as the costs of any provision of the installation personnel and auxiliary personnel required including travel costs, unless this results in a disproportionate burden on the supplier.
- The customer has an entitlement to withdraw from the contract if, following ascertainment of material defect, the supplier - with consideration to the legal exceptions - fails to rectify said defect or provide a replacement within an appropriate period of grace. If merely an insubstantial defect exists then the customer is only entitled to a discount on the contract price. The right to a reduction of the contractual price is otherwise excluded. Further claims shall be raised in accordance with the terms of section VII. 2 of these conditions.
- No warranty shall be provided under the following circumstances in particular: Unsuitable or improper use, defective installation or commissioning by the customer or a third party, normal wear and tear, incorrect or negligent handling, unprofessional maintenance, unsuitable operating materials, defective installation works, unsuitable substrates or foundations, chemical, electrochemical and electrical influences - where these are not the responsibility of the supplier.
- If the customer or a third party implements unprofessional rectification measures then the supplier shall not be liable for the consequences. The same applies to any modifications carried out on the delivery items without prior agreement with the supplier.
Defects of title
- If use of the delivery item leads to a domestic infringement of industrial property rights or copyrights then the supplier shall fundamentally procure the right - at their own costs - for the customer to continue using the item or modify the delivery item in a way that is acceptable to the customer, such that the infringement of rights is no longer effective. If this is not possible under financially appropriate conditions or within an appropriate period of time then the customer is entitled to withdraw from the contract. Under the aforementioned conditions the supplier is also entitled to withdraw from the contract. Furthermore, the supplier shall release the customer from indisputable or legally effective demands of the copyright holder.
- The supplier obligations specified in section VI. 7 are exclusive to instances of copyright or industrial rights infringements and are subject to section VII. 2. They exist only if
- the buyer informs the supplier immediately of any claims pertaining to infringements of copyrights or industrial property rights,
- the buyer provides the supplier with an appropriate level of support in defending against the claims or enables the supplier to carry out the modification measures per Section VI. 7,
- the supplier retains all defence options including out-of-court settlements,
- the legal defect is not related to an instruction issued by the buyer and
- the infringement was not caused by the fact that the customer has modified the delivery object arbitrarily or has not used it as specified in the contract.
- If it is not possible for the customer to use the delivery item in accordance with the terms of the contract for reasons for which the supplier is responsible including negligent or erroneous recommendations or consultancy before or after contractual agreement or due to infringements of other ancillary contractual obligations - in particular instructions regarding operation and maintenance of the delivery item - then the regulations of sections VI and VII. 2 apply to the exclusion of further claims on the part of the customer.
- In the case of damages which are not incurred by the delivered object itself, the supplier shall only be liable – regardless of the legal grounds – in the case of
- gross negligence of the owner / board members or senior managers,
- culpable injury to health, life and limb,
- which are maliciously concealed or which have been guaranteed absent
- deficiencies of the delivered item, insofar as liability for personal injury or damage to property exists with private use of the items in accordance with the Product Liability Act.
In the event of a culpable infringement of contractual obligations, the supplier shall also be liable for cases of gross negligence by non-management employees, and with minor negligence the latter case shall be limited to contract-typical and reasonably predictable damages.
Further claims are excluded.
All customer claims - regardless of legal grounds – are time-limited to twelve months. In the case of compensation claims per section VII 2.a–e the legal time limitations apply. This also applies to defects to a structure or a delivery item that, following appropriate application within a structure in accordance with intended use, did cause the defects to the structure.
Insofar as software is included in the scope of deliverables, the customer is granted the non-exclusive right to use the software supplied including the pertinent documentation. It shall be transferred for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The customer is only permitted to copy, modify or translate the software, or convert it from object code into source code to the extent permitted by law (paragraph 69 a ff. UrhG). The customer is obligated not to remove or alter the manufacturer's information - in particular the copyright remarks - without prior agreement from the supplier. All further rights to the software and the documentation including copies thereof remain the property of the supplier or software supplier. The granting of sub-licenses is not permitted.
- The law of the Federal Republic of Germany governing legal relationships between domestically resident parties applies exclusively to all legal relationships between the supplier and the customer.
- The court governing the domicile of the supplier shall hold jurisdiction. However, the supplier is entitled to raise an action at the customer's domicile.
© 2002 VDMA Verlag GmbH, Lyoner Straße 18, 60528 Frankfurt/M. All rights to this document, in particular the rights to reproduction, distribution and translation, are reserved. No part of this work is permitted to be reproduced in any form (print, photocopy, microfilm or any other process) or saved, processed, copied or distributed using electronic systems without the express written approval of the publisher. Order no. vf 118106 3/02