Single source for all products and services for cement manufacturing
Ecorporates Legal Documentation
Standard Terms and Conditions of Sale (2013)
I. Scope of Application
The following Standard Terms and Conditions (“Standard Terms and Conditions”)
shall exclusively govern all contracts for the supply of our products and services.
Purchase orders, supplementary agreements, amendments and other agreements
require written form to be valid. Same applies to a waiver of written form.
Our Standard Terms and Conditions shall apply exclusively. When placing the order
they are considered to be agreed upon between the Buyer and us; they shall also
govern future transactions even if they are not explicitly referred to, provided that they
reached the Buyer on the occasion of our approval of a purchase order . In case a
purchase order is placed that deviates from our Standard Terms and Conditions, our
Standard Terms and Conditions shall apply even if we do not object. Deviations from
our Standard Terms and Conditions are therefore only binding upon us if they were
expressly approved by us in writing.
Buyer’s standard terms and conditions are only binding for us, as far as they do not
conflict with our provisions below.
The performance of any contract for products subject to governmental export
regulations shall be conditional upon our obtaining the necessary permits.
II. Formation and Scope of Agreement
Our offers are subject to confirmation. The agreement shall not be deemed concluded
until we have acknowledged receipt of the order in writing.
Our order acknowledgment shall be binding as to the scope of the products and
services to be provided.
All quantities, dimensions, colours and declarations of weight, indicated in our offers
and brochures are subject to tolerances that are customary in trade.
Miscalculations and arithmetic errors at our expense entitle us to correction, if:
- the bases of calculation, that were relevant for pricing, were subject of the
agreement and therefore known to the other party, or
- the other party acknowledged the miscalculation or arithmetic error. Claims for
damages by the other party because of such correction are excluded, if the other
party detected the miscalculation or arithmetic error or had to detect such
miscalculation or arithmetic error.
Unless otherwise agreed, prices are ex works, duty unpaid and inclusive of cardboard
packing. The prices do not include installation, initiation of service, training for service
staff and any other costs.
We can provide installation, initiation of service, tests, repairs and any other services
to be charged on a time and material basis at our then-current rates – provided upon
request -, unless a lump sum has been expressly agreed.
The prices are exclusive of VAT.
Any taxes, fees and charges incurred outside of the Federal Republic of Germany
shall be borne by Buyer.
If the delivery of ordered good shall take place at least four months after conclusion of
the contract, we shall be entitled to adapt the agreed prizes accordingly to the cost
increase occurred in the meantime, especially for material, externally procured goods
and wages. If we exercise such option of cost increase and demand for an increase
of more than 5%, the Buyer has the right to withdraw from the contract.
Payments shall be made – within 14 days after date of invoice - to one of our
accounts without any deduction. All costs incurred to fulfill the payment obligation
shall be borne by Buyer. Payment by transfer or direct debit is accepted.
Buyer may not withhold or set off payments against receivables that are disputed.
If undisputed invoices become overdue, we will initiate our standard reminding
procedure. For this, we reserve the right to charge a handling fee of EUR 50, and
incurred interest amounting to 8% above European Central Bank’s base interest rate.
We are entitled to partial deliveries and invoices.
The parties agree to the application of the “Incoterms 2000”. Deliveries shall be EXW
(ex works) and unless otherwise agreed from the manufacturing facility.
If acceptance is to take place and Buyer arranges transport of the products from the
manufacturing facility to the site before such acceptance, Buyer shall bear the risk of
loss or damage in transit.
Buyer may not refuse to take delivery of products in case of insignificant nonconformity,
without prejudice to its rights pursuant to Clause X.
If the Buyer does not accept the delivery of the products in time, although they were
offered, the risk passes to the Buyer at the time of information of readiness of
dispatch. If the Buyer is in default of acceptance or in delay in informing us about the
shipping instructions, we are, after expiration of a four-week grace period that is
calculated beginning at the time of readiness of dispatch, entitled to damages for nonperformance
or to withdraw from the contract.
We retain title to all products delivered by us until full payment of any outstanding
claim against the Buyer resulting from the business relationship that has been made.
The same applies if payment has been made towards a specified claim. In case of a
running account the retained title serves as collateral for the balance in our favour.
The Buyer is basically entitled to resell the products in due course of business. In
order to serve as Collateral for all our open claims against the Buyer, he already
assigns his claim against his buyer, resulting from the resale, to us. We accept such
assignment. As long as we are still owner of the Collateral, we are entitled to rescind
the Buyer´s resale right at any time. The Buyer is, revocably at any time, entitled to
collect the assigned claims.
Our entitlement to collect the claims ourselves remains unaffected, however, we
commit not to collect such claims, as long as the Buyer properly observes its payment
The Buyer is obliged to notify us on all assigned claims and the debitors’ names, to
give us any and all information needed with regard to the collection of such claims, to
hand out the corresponding documentation and inform the debitors about the
assignment. In case of the processing, the union or the confusion of the Collateral
with other goods, we are entitled to the co-ownership of the new goods at the
proportion of the Collateral’s invoice value to the other good´s invoice value. All
processing, uniting and confusing in due course of business is deemed to be made
on our account. If the Collateral is sold together with other goods after processing,
uniting and confusing, the assignment of the claim resulting from the resale only
applies at the ratio of the Collateral’s invoice value to the other goods´ invoice
In case of a sale of Products, in which we have an co-owner´s interest, the claim
shall be assigned to us in proportion to our co-owners interest. We hereby offer
the Buyer to grant him the expectant right with regard to the arisen co-owners
interest. The Buyer accepts such offer. Our co-owners interest passes to the
Buyer if all claims, we are entitled to, are balanced.
As long as there is a Retention of Title, the pledging, the transferring of title by
way of security, the leasing or other kinds of surrendering of the Products
impairing our collateral or changes made to it are only permitted upon our prior
written consent. The Buyer’s right to resell the Products in due course of business
and on the aforementioned conditions remains unaffected.
In case of third party’s actions, especially in case of attachments of the sold
Products or in case a workshop exercises its contractor’s lien, the Buyer has to
inform us instantly in writing and give notice to the third party with regard to our
retention of title.
In case of Buyer’s breach of the contract, especially in case of default of
payment, he has, after giving notice to him, to return the Products to us. Our
acceptance of such returned products shall not be deemed to be a withdrawal
from the contract unless otherwise indicated by us in writing. After giving notice to
the Buyer and setting an appropriate time limit, we are entitled to resell such
Products on the free market at the best price possible whereas such rate shall be
set-off against the outstanding purchase prize. In case our securities resulting
from rentention of title, transfer by way of security and assignment exceed the
total of our claims by more than 25%, we shall release deliveries of our own
choice that are fully paid.
We are entitled to exercise our rights resulting from the Retention of Title –
especially the taking back of goods subject to retention of title – without prior
withdrawal from the respective sales contract.
VII. Times of Delivery
Delivery dates given by us are not binding. Agreed delivery dates are observed to
the best of our capability. The products shall be delivered in compliance with the
delivery dates, provided all commercial and technical questions between us and
Buyer have been clarified, and provided Buyer has fulfilled all the obligations
incumbent upon it, such as obtaining all necessary governmental consents or
permits, or paying an advance amount. If this is not the case, the delivery
deadline shall be extended.
In case of a damage caused by delay the Buyer can only demand such damage
in addition to delivery of the Product if we are responsible for an intentional or
grossly negligent behaviour unless a cardinal duty is violated. We are not liable
for a delay in delivery, if delivery to us has not been made or not been made in
time. If it appears certain that we ourselves shall not be supplied with ordered
products, we are entitled to withdraw from the contract.
The delivery deadline shall be deemed complied with if, before its expiration, the
products to be delivered have left our manufacturing facility, or Buyer has been
noticed that the products are ready for shipping. If acceptance with inspection
has been agreed, the acceptance date shall be conclusive, alternatively our
notification that the products are ready for acceptance.
In the event of a delay in delivery caused by force majeure, labor disputes or
other circumstances, whether in our facilities or in those of our suppliers, we are
not responsible for, e.g. modification of the products to be delivered rendered
necessary by non-compliance with governmental permits, the delivery term shall
be reasonably extended.
In case of delay on our parts, Buyer may claim compensation for damages
caused by the delay for every full week of delay 0,5%, however limited to 5% of
the part of the products which could not, as a result of the delay, be used in time
or as agreed.
Further delay-related claims are set forth exclusively in Clause XI.
IX. Acceptance after Inspection
If Buyer puts our products into operation, acceptance after inspection must take
place according to the agreed schedule. The products shall be deemed accepted
if this schedule has been overrun by more than 2 weeks through no fault of our’s.
If no formal acceptance has been issued and if no schedule has been agreed,
our products shall be deemed accepted no later than 4 weeks after arrival of the
last significant partial delivery.
In case of insignificant non-conformity, Buyer may not refuse acceptance of the
We warrant that the Products delivered by us are free of substantial defects.
Marginal discrepancies deviating from the specifications or immaterial
impairments of usage shall not constitute defects as to quality . Public utterances,
advertisements, promotions, technical data and information contained in product
descriptions shall not constitute declarations of quality in addition to those agreed
Immediately after delivery, Buyer has to examine the goods as to whether they
comply with the agreed quality and amount; in case of defects he has to inform
us immediately. In case of apparent defects notice of defect shall only be
admissible within one week. Notice has to be in writing. For the purpose of
calculation of such period, the time of actual delivery and the day of receipt of
such notice are decisive. If Buyer omits to submit such notice, the products are
deemed to be approved unless the defect was not recognizable during
inspection. In case of such defect it has to be reported immediately after
discovery. Otherwise the products shall be deemed to be approved in respect of
such defects, too. Buyer’s obligation of inspection and to give notice of defects
also applies if a good or quantity other than stipulated has been delivered, unless
the delivered goods apparently vary that much from the order that we could not
regard such products approvable.
In case of defects, reported on time, we shall comply with our warranty
obligations according to the statutory rules, unless stated differently below:
a) The Buyer can only withdraw from the contract or demand a reduction of the
purchase prize, if a defect could not be eliminated after two attempts at
rectification or additional supply or after at least three attempts at rectification of
defects or additional supply in technically difficult cases or in cases where a
rectification of defects or a further rectification respectively or an additional
supply or further additional delivery respectively are unreasonable for the Buyer.
However the Buyer can only withdraw from the contract or demand a reduction of
the purchase prize, if he gave us the chance to transport the product on our expenses
to our place of business for a last attempt at rectification of defects.
b) At first we have the choice between rectification of defects and additional delivery.
c) In case the Buyer withdraws from the contract due to a defect after failed
supplementary performance (rectification of defects or additional supply) he is not
entitled to further damages.
d) The replaced parts in case of a rectification of defects become our property.
e) We are under no circumstances obligated to deliver a new product or
remanufacture a product.
f) The warranty period is 12 months from delivery or performance. If acceptance after
inspection is to take place, the warranty period is 12 months from the acceptance
date.If shipping, installation or initiation of service is delayed in such case through no
fault of our’s, the warranty period shall expire at the latest 15 months after the passing
We do not assume any liability for defects due to normal wear and tear, or due to
alterations or maintenance work improperly performed by Buyer or third parties as
well as for inappropriate use or misuse, faulty installation or initiation of service, false
or careless handling, use of inappropriate operational or substitute materials,
defective construction works, inappropriate building ground, environmental conditions
unknown to us and chemical, electro-chemical or electrical influences, to the extent
that they are not caused by our fault.
Defective parts shall be properly packed and returned to the original place of
shipment, followed by a description of the defect.
Claims for damages resulting from any legal ground, especially resulting from any
breach of contract, liability in tort, manufacturer’s liability, wrong or neglected
consultancy, culpa in contrahendo or positive violation of contractual duties are
excluded if there ist only negligence or slight negligence on our side or our agents´,
employees´ and vicarious agents´ side, unless stated differently hereafter.
We are liable due to statutory law concerning the culpable infringement of obligations
that are substantial for the proper execution of the contract (“cardinal duties”)
As far as we are liable for slight negligence due to paragraph 2 our liability is
restricted in value to the typical, predictable damage, at maximum to the amount of
indemnification due by our product liability insurance.
In case of gross negligence of vicarious agents our liability is also restricted in value
to the typical, predictable damage, at maximum to the amount of indemnification due
by our product liability insurance.
In case of data loss and recovery we are only liable, if such data loss would not have
been avoidable through a back-up of Buyer’s data and in so far as electronic data
can be reconstructed from machine-readable and ready kept data with justifiable
The damage payable pursuant to to the previous provisions is limited to the amount
payable as compensation for such software that is subject of such a claim or has
directly caused such damage. The damage cap is calculated on basis of such amount
payable at the time of accrual of the claim, excluding VAT.
We are not liable for absence of economic success, lost profit, missing economisation
or indirect damages. Furthermore we are not liable for improper installation by third
party or negative interdependencies of conducted services with existent or later
added Buyer’s software or hardware. Furthermore we are not liable for unsuitable or
improper use as well as improper or negligent Buyer’s or third party’s maintenance.
The aforementioned disclaimers of liability and limitations of liability do not apply as
far as due to statutory law a liability is compulsory, especially (i) in case of liability
regardless of negligence or fault, like pursuant to the Product Liability Act, (ii) in case
of liability for initial impossibility of performance, (iii) in case of damage of health or
personal injury including death.
As far as our liability is excluded or restricted, this applies also to the liability of our
agents, employees and servants.
The Buyer shall notify us immediately about all damages and losses for which we
have to pay and let us survey the damage. The raising of the aforementioned claims
shall be time-barred after six months upon receipt of the Products by the Buyer. Sec.
852 of the German Civil Code (BGB) remains unaffected. If negotiations are pending
between the Buyer and us concerning the payment of damages, then the prescription
of claims shall be suspended until one Party refuses the continuation of the
The use of third party software provided with the products shall be governed by the
third party standard terms and conditions. If these terms are not attached to the
products, we shall provide them to Buyer upon request.
In addition to the third party standard terms and conditions, our Standard Terms and
Conditions of Sale shall be applicable; Clause XII.3 - XII.11 shall apply analogously.
Should the third party standard terms and conditions be invalid, our Standard Terms
and Conditions shall control.
Our own software is subject to copyright protection. We are entitled to all rights in our
software unless differently stated below.
Buyer shall be granted an ordinary, non-exclusive, perpetual right to use our software
products for the number of concurrent users contractually agreed upon. If no number
of users has been set forth contractually, only one user may use the software
concurrently. Buyer may not change our software nor sublicense the software.
Without our prior written consent, the Buyer shall not be entitled to grant a third party
capacity of computer performance concerning the licensed software ("outsourcing
The parties agree that an on-line user manual also fulfills the requirements of an
We shall not be obligated to provide the source code on which the software product is
Changes to the software by the Buyer are inadmissible. In particular the Buyer has no
permission for: Translation, treatment, arrangement and other re-writings of the
software as well as no permission for duplication of the obtained results. Furthermore
interference with the source code of the software is forbidden without our written
consent. This does not apply to changes, which are necessary for the correction of
errors, if we are in delay with the recovery of such error, or if we reject error correction
or if we are not able to correct such errors due to the initiation of insolvency
Decompiling or reverse engineering of the software left to the Buyer is forbidden,
unless it is essential to gain the necessary information for the programming of the
interoperability of an independently created computer program with the delivered
software or with other programs, as long as it is conducted under the preconditions of
Sec. 69 e para. 1 German Copyright Act (UrhG) and such necessary information
cannot be procured otherwise. Before decompiling or reverse engineering the
Buyer has to request the necessary information from us in writing.
The information gained under number 8 has to be used exclusively for the
programming of the interoperability of the independently created program. They
may not be passed to a third party, unless it is necessary for the interoperability
of the independently created program. Furthermore, the use of the information for
the development, production or marketing of a program with a materially similar
style or for any other actions infringing our copyright is also illegal.
Labels on the software products or the data medium, in particular copyright
notices, marks, serial numbers or other types of identification of the software
must not be removed, changed or garbled.
If not stated differently above, the Buyer may copy, modify, translate, distribute
our software products or reverse engineer their source code only to the extent
permitted under mandatory law (§§ 69 c-e of the German Copyright Act). Without
previous written consent, Buyer may not remove the manufacturer’s notices
including, in particular, copyright notices.
XIII. Industrial Property Rights
In case the Products or software infringe industrial property rights or other rights
of a third party, which limit or exclude the use in terms of the content and purpose
of the contract, we indemnify the Buyer from third party’s claims, that assert an
infringement of industrial property rights. The contracting parties will inform
themselves mutually immediately in writing, in case of an assertion of
infringement of industrial property rights by a third party. The indemnification
according to sentence 1 applies only, if a) the Buyer complies with its obligation
to inform us pursuant to sentence 2 and b) any and all measures to avert such a
danger and settlement negotiations are reserved for us and c) the Buyer supports
us by appropriate assistance and information to defend or settle such claims.
Paragraph 3 remains unaffected.
If the stipulated use of Products or software is impaired by industrial property
rights or other rights of a third party, we shall, on Buyer’s request and to a
reasonable extent, either change the software so that it complies with such
infringed rights as well as with this contract or replace the software by a noninfringing
one or obtain the right that the software can be used without limitation
and without additional charges by the Buyer.
Without prejudice to the obligation of indemnification according to paragraph 1 we
are only obligated to pay damages to the Buyer because of the injury of
intellectual property infringement, if we had knowledge of the infringement of the
intellectual property rights or should have had known such infringement.
The rights resulting from this clause XIII. do not apply, as far as the infringement
is caused due to the fact that the Buyer used a software a) that was not granted
due to this contract, b) made changes to the software that were not authorized by
us or c) used the software contrary to our instructions or combined it with
programs or data-processing systems that were not approved by us.
XIV. Buyer’s Obligations
Buyer shall inform our personnel about all existing security regulations and
hazards and take all measures necessary to protect persons and objects at the
Buyer shall be obligated to provide all assistance necessary for the performance
of the contract, such as the preparation of the construction site, provision of tools
and cranes and elevators, and supply of water and electricity, etc.
In case the Buyer offends against the obligations set forth in this clause XIV he
shall be responsible for the damage resulting therefrom.
For the term of the business relationship the contracting parties shall commit
themselves to treat all commercial and technical details that are not public
coming to their knowledge, as business secrets.
Designs, models, templates, samples and similar subjects may not be left to
unauthorized third parties or made otherwise accessible. The duplication of such
subjects is only permissible in the context of the operational requirements and in
accordance with industrial property right regulations.
Subcontractors shall be obligated accordingly.
The contracting parties may only advertise this business relationship with prior
In the event any provision of these Terms and Conditions or of the agreement is
or become invalid in whole or in part, the validity of all remaining provisions shall
remain unaffected thereby. A void or non-specific provision shall be replaced by a
provision or being interpreted in that way that comes as close as possible to the
intended economic purpose.
Buyer shall obtain at its own costs all licenses, permits and/or import or export
documents necessary for the use of the products.
If a contracting party stops its payments or insolvency or composition
proceedings are requested, or if initiation of such proceedings is rejected for lack
of assets, the other party is entitled to withdraw from the part of the contract that
is not fulfilled.
Except for fraud claims, Buyer’s claims shall become time-barred after 3 years
unless these Terms and Conditions or applicable law provide for a shorter
Our claims against the Buyer shall become time-barred after 3 years unless
applicable law provides for a longer limitation period.
Europe shall be the place of performance of Buyer’s obligations to BKV.
Unless otherwise agreed, we shall not reimburse the costs for the return transport
of packing materials.
XVII. Governing Law, Place of Jurisdiction
Place of jurisdiction for all disputes arising in connection with the contractual
relationship shall be Hamburg.
The contractual relationship between the parties shall be exclusively governed by
the law of the Federal Republic of Germany to the exclusion of its conflict of law
provisions and of the United Nations Convention on Contracts for the
International Sale of Goods (CISG).