| I. General
1. The mutual written declarations shall determine the scope of the supplies and services (hereinafter: supplies). However, General Terms and Conditions of Business on the part of the customer shall only apply insofar as we have expressly approved the same in writing.
2. We shall unrestrictedly reserve our exploitation rights under proprietary right and copyright law to cost estimates, drawings and other documents (hereinafter: documents).
Such documents may only be rendered accessible to third parties with our prior consent and, upon request, shall, in the event that we should not be awarded the commission, be returned to us without delay. Sentences 1 and 2 shall apply mutatis mutandis to the customer's submissions, though such submissions may be rendered accessible to third parties to whom we have admissibly assigned responsibility for supplies.
3. Partial Supplies shall be admissible insofar as the Purchaser may be reasonably expected to accept the same.
4. The Purchaser shall have the non-exclusive right to use standard software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Purchaser may make one back-up copy without express agreement.
5. A German and an English Version of these terms of delivery and payment is issued. In case of unclarity or discrepancies between both versions, the German Version shall prevail over the English.
II. Prices and Terms and Conditions of Payment
1. Prices shall be understood to be ex-works excluding packaging and plus the statutory sales tax obtaining at any given time.
2. If the supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e.g. travel costs, costs for the transport of tools and equipment, and personal luggage as well as allowances.
3. Packaging shall be invoiced at the lowest possible prices and shall not be taken back.
Dispatch is made at the Purchaser's risk and expense. Where no forwarding instructions are issued by the Purchaser, the Supplier will choose means of transport and transport route. The Supplier will charge costs of packaging at cost price, except where other arrangements have been made. Packaging is not taken back by the Supplier.
4. If no other agreements have been made, Purchasers based in Germany shall, irrespective of the receipt of the goods involved, effect payment without any discount to the Supplier within thirty days of the invoice date. If no other agreements have been made, Purchasers not based in Germany, shall be supplied only against prepayment. In the event that the payment deadline should be exceeded interest shall, without a reminder being required, be calculated pursuant to ß 288 German Civil Code. Payments shall be made to the Supplier's paying agent.
5. The Supplier shall be entitled to request advance payments in respect of the invoice amounts at any time prior to the dispatch of goods. If the Purchaser defaults on the fulfilment of payment obligations or it becomes noticeable that the Purchaser puts at risk the pecuniary claim because of lack of capacity, the Supplier shall be entitled to request security for delivered goods at any time or, after a payment deadline has been set, withdraw from the purchase contract.
6. The customer may only offset receivables which are undisputed or recognised by a final court decision.
III. Scope of Delivery and Performance
1. Documentation, illustrations, drawings, measures, weight details and samples attached to the Supplier's offer are only approximate values, unless something different results from the offer.
2. The Supplier expressly reserves the right to make changes in the design, interpretation, choice of materials and/or production even after sending of the order confirmation, unless such changes affect the price, the significant functional data or the delivery date, and provided that such changes are reasonably acceptable to the Purchaser.
3. In case of special/custom-made manufacturing a deviation in the scope of delivery of plus or minus 10% is admissible.
IV. Reservation of title
Delivery is subject to reservation of title involving the following extensions:
1. All supplied goods shall remain the Suppliers` property until all our claims vis-á-vis the Purchaser, including any such claims which may arise from the business link in the future, are settled completely and until the account, including bill and cheque liabilities, has not been settled. This shall also apply in the event that the purchase price is to be paid for certain deliveries of goods specified by the customer. In the case of a current account, the reservation of title shall constitute security for the Suppliers` balance claim.
2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling is obligation to effect payment.
3. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
4. Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.
V. Deadline for deliveries; default
1. The deadline for deliveries shall commence at the earliest on the day on which a written agreement pertaining to the relevant order exists between the contracting parties. The observance of such deadline shall be subject to the prompt receipt of all documents, requisite licences and releases to be furnished by the customer, the prompt clarification and approval of the plans and the observance of the agreed Terms and Conditions of Payment and other obligations. Should these prerequisites not be fulfilled on time, the delivery deadline shall be extended by an adequate period of time; this shall not apply in the event that we should be responsible for a delay.
2. Should the non-observance of deadlines be attributable to force majeure, such as mobilization, war, civil commotion or similar occurrences, e.g. strike or lockout, delivery deadlines shall be extended by adequate periods of time.
3. In the event of default in delivery, the Purchaser may, insofar as he plausibly establishes that he has suffered losses resulting from the delay in question, request default compensation for every completed week of such delay of 0,5% up to the amount of a total of 5% of the value of the component of the deliveries or services that could not be put into appropriate operation in consequence of the belated completion of individual accompanying objects.
4. Both compensation claims on the part of the Purchaser for delivery default and compensation claims in lieu of performance which exceed the limits stipulated in No.3 shall, in all instances of delayed delivery, including following the expiry of any delivery deadline which we may have set, be excluded. This shall not apply insofar as, in case of wilful intent or gross negligence or injury to life, body or health, compulsory liability obtains.
The Purchaser may withdraw from the contract within the framework of the prevailing statutory provisions only insofar as we are responsible for a delay in delivery. This stipulation shall not entail a change in the burden of proof to the detriment of the customer.
5. The customer shall, at our request, undertake to declare within a reasonable period of time whether they are withdrawing from the contract due to a delay in delivery or insisting upon delivery.
6. In the event that dispatch or delivery should, at the request of the customer, be delayed by more than one month following to notification of dispatch readiness, the customer may, for every started month, be invoiced storage costs to the amount of 0.5% of the price of the delivery objects, though no more than a total of 5% of such price. The contracting parties shall be free to prove that lower or higher storage costs have accrued.
VI. Transfer of risk
1. Risk shall pass to the Purchaser as follows, even delivery has been stipulated free of transportation charges:
a) with deliveries without assembly or erection when goods have been dispatched or picked up. At the Purchasers' request and cost, delivery may be insured by the
Supplier against common risks of transportation.
b) with deliveries including assembly and erection on the day of transfer to the Purchaser's premises or, if agreed upon, after a faultless trial run.
In the absence of a differing written agreement, dispatch shall always be effected according to the Supplier's best discretion. The Supplier does not assume any responsibility for transportation at market prices. We shall only arrange for transport insurance, the costs of which are to be borne by the purchaser, upon express written agreement.
2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the transfer to the Purchaser's premises or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser is otherwise in default of acceptance.
VII. Provision of Services
Unless otherwise agreed upon in writing, provision of services by SVEA BCS shall be subject to the following provisions:
1. The Purchaser shall provide at its own expense and in due time:
a) all ancillary work, including the necessary specialists and assistants, construction materials and tools,
b) the equipment and materials necessary for provision of services, such as scaffolds, lifting equipment and other devices.
c) energy at the point of use including connections, heating and lighting,
d) suitable dry and lockable rooms of sufficient size adjacent to the building site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the service personnel, including sanitary facilities as are appropriate in the specific circumstances. Furthermore, the Purchaser shall take all measures he would take for the protection of his own possessions in order to protect the possessions of the service personnel at the site,
e) protective clothing and protective devices needed due to particular conditions prevailing on the building site.
2. Before provision of service starts, the Purchaser shall, unrequested, make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
3. Prior to provision of service, all material and equipment necessary for the work to start must be available and any preparatory work must have advanced to such a degree that accomplishment of the workings can be started as agreed and carried out without interruption. Access roads must be levelled and cleared.
4. If provision of service is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the service personnel.
5. The Purchaser shall certify the working hours of the service personnel to the Supplier at weekly intervals and the Purchaser shall immediately confirm in writing if provision of services has been completed.
6. If, after completion, the Supplier demands acceptance of the provided services, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the Supplies are put into operation, after completion of an agreed test phase, if any.
VIII. Receiving of Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
IX. Material defects
1. Prerequisite for the assertion of material defect claims shall be the submission by the Purchaser to the Supplier or his authorized representative of proof of purchase (delivery note, invoice, etc.). Assertion of claims due to defects must not be transferred to third parties without the Suppliers' consent.
2. All those components or services which feature a material defect within the limitation period – irrespective of operating life – shall, as we see fit, be repaired, re-supplied or refurnished if the cause of the material defect already existed at the time of transfer of risk.
3. Material defects claims shall lapse after twelve months. This shall not apply insofar as the law pursuant to §§ 438, paragraph 1, no. 2 (constructions and objects for constructions), 479, paragraph 1 (claim under a right of recourse) and 634a, paragraph 1, no. 2 (construction defects) German Civil Code makes provision for longer periods of time, in instances of injury to life, body or health, in the event of a wilful or grossly negligent breach of duty on our part and in the event of the malicious non-disclosure of a defect.
The statutory provisions pertaining to the suspension of the running of a period, suspension and recommencement of periods shall remain unaffected.
4. The customer shall submit complaints pertaining to material defects to us in writing without delay.
5. In the event of notifications of defects, payments on the part of the Purchaser may be withheld in an amount which reasonably corresponds to the material defects which have occurred. The customer may only withhold payments should a notice of defects be asserted the justification of which is beyond doubt. Should a notice of defects have been submitted without justification, we shall be entitled to request that the customer reimburses the costs which we incurred.
6. In the first instance, we shall be granted the opportunity to effect subsequent fulfilment within a reasonable period of time.
7. Should such subsequent fulfilment be unsuccessful, the customer – any compensation claims pursuant to sub-section XII notwithstanding – may withdraw from the contract or reduce the amount of payment.
8. Claims arising from defects shall not obtain in respect of a minor deviation from an agreed quality, a minor impairment to usefulness, natural wear and tear or incidences of prejudice which arise subsequent to the risk transfer in consequence of faulty or negligent handling, excessive strain, unsuitable operating facilities, faulty construction operations, unsuitable subsoil and, in particular, any external influences which are not presupposed by the contract, as well as in respect of non-reproducible software defects.
In the event that modifications or maintenance operations should be improperly performed by the customer or any third parties, it shall likewise be the case that no claims arising from defects shall obtain for such modifications and maintenance operations or any resulting consequences.
9. Any claims on the part of the customer for expenditure which it is necessary to incur for subsequent fulfilment purposes, particularly transport, travelling, labour and material costs, shall be excluded insofar as such expenditure increases due to the fact that a delivery object has been subsequently transported to a location other than the customer's business premises unless such transportation is in line with the normal utilization of such object.
10. Claims under rights of recourse vis-á-vis ourselves on the part of the customer pursuant to ß 478 German Civil Code (contractor's recourse) shall only obtain insofar as the customer has not agreed any arrangements with their customer exceeding the scope of the statutory claims arising from defects. No. 9 shall additionally apply mutatis mutandis to the scope of the customer's claim under a right of recourse vis-á-vis ourselves pursuant to ß 478, paragraph 1 German Civil Code.
11. It should be noted that subsection XII (other compensation claims) shall apply to compensation claims. Any more far-reaching claims for a material defect against us and our vicarious agents on the part of the customer and any claims for a material defect against us and our vicarious agents on the part of the customer other than those stipulated in subsection IX shall be excluded.
X. Industrial Property Rights and Copyright; Defects in Title
1. Unless otherwise agreed upon, the Supplier shall provide the Supplies free from third parties` industrial property rights and copyrights (hereinafter referred to as “IPR”) only with respect to the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR with respect to the Supplies made by the Supplier if they are used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. IX No. 3 as follows:
a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned, whether to modify the Supplies such that they no longer infringe the IPR or to replace them. If it would be unreasonable to demand this from the Supplier, the Purchaser may cancel the contract or reduce the remuneration pursuant to the applicable statutory provisions.
b) The Supplier's liability to pay damages shall be governed by Art. XII.
c) The above obligations of the Supplier shall only apply if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in writing, (ii) does not acknowledge the existence of an infringement and (iii) reserves any protective measures and settlement negotiations for assertion by the Supplier. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, he shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, to a type of use not foreseeable by the Supplier or to the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier or to the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Art. IX Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
6. Where other defects in title occur, Art. IX shall apply mutatis mutandis.
7. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. X, based on a defect in title, shall be excluded.
XI. Impossibility of Performance, Adjustment of Contract
1. To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility.
The Purchaser`s claim for damages shall, however, be limited to an amount of 10% of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. This right of the Purchaser to cancel the contract shall remain unaffected.
2. Where unforeseeable events within the meaning of Art. V No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Suppliers`s business, the contract shall be adapted taking into account the principles or reasonableness and good faith. Where doing so is economically unreasonable, the Supplier shall have the right to cancel the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.
XII. Other compensation claims
1. Claims for compensation and claims for the compensation of expenses (hereinafter: compensation claims), irrespective of on which legal grounds, particularly for a breach of the duties arising from the contractual obligation and for tortious acts, shall be excluded.
2. This shall not apply insofar as compulsory liability obtains, e.g. pursuant to the Product Liability Act, in cases of wilful intent, gross negligence, injury to life, body or health and a breach of major contractual obligations. However, a claim to compensation for a breach of major contractual obligations shall be restricted to the contractually typical, foreseeable prejudice insofar as wilful intent or gross negligence do not obtain or liability obtains due to injury to life, body or health. The above stipulations shall not entail a change in the burden of proof to the detriment of the customer.
3. To the extent that the Purchaser has a valid Claim for Damages according to this Art. XII, it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. IX No. 3. In the case of claims for damages under the German Product iability Act, the statutory provisions governing limitation periods shall apply.
XIII. Place of Performance, Place of Jurisdiction and Applicable Law
1. If no other agreements have been made, the place of performance shall be Gummersbach.
2. If the Purchaser is a businessman, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Gummersbach. However, the Supplier also is entitled to commence legal proceedings at the place of residence of the customer.
3. German substantive law shall, to the exclusion of the UN Convention on Contracts pertaining to the International Sale of Goods (CISG), govern all legal relations that arise under and in connection with this contract.
XIV. Other Terms and Conditions
1. The following additional rules shall apply:
a) The "Software Clause for the provision of standard software forming an integral part of supplies"
b) The "Extended retention of title clause" (Ergänzungsklausel Erweiterter Eigentumsvorbehalt) published by ZVEI.
c) The "Specials terms and conditions of SVEA Building Control Systems GmbH & Co. for delivery and sales of customised hard- und software"
These rules can be read on www.svea-bcs.com and will be posted on Request.
2. After termination of utilisation the Purchaser must dispose of the supplied goods at his own expense and in accordance with statutory provisions.
3. Those conditions of payment and delivery printed in former catalogues, as well as in former price lists are expressively being replaced by these new conditions of payment and delivery.
XV. Severability Clause
The legal invalidity of one or more individual provisions of this contract shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to continue the contract.
Status: January 2008
 SVEA B.C.S. Terms of Sale, Delivery and Payment as PDF
Software Clause for the Provision of Standard Software forming an integral Part of Supplies (PDF)
Special terms and conditions of SVEA Building Control Systems GmbH & Co. for delivery and sales of customised hard- and software (PDF)
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