1. General provisions
1.1 These terms and conditions of sale apply exclusively with respect to companies, legal persons under public law or public special funds in the meaning of Article 310.1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). We shall only recognise terms and conditions of the customer that are opposed to or differ from our terms and conditions of sale if we explicitly agree to their applicability in writing.
1.2 These terms and conditions of sale also apply also for all future transactions with the customer insofar as they involve legal transactions of a related type.
1.3 Individual arrangements made with the buyer in an individual case (including additional agreements, additions and amendments) shall in any event take precedence over these terms and conditions of sale. For the content of such arrangements, a written contract / our written confirmation shall be decisive, subject to proof to the contrary.
2. Offer/order confirmation
2.1 Insofar as a binding period is not explicitly stated, Infraserv’s offers are subject to confirmation and the contract only arises once it has confirmed the order.
2.2 Orders without a prior offer shall only be binding for Infraserv if it confirms the order within 14 days. The same applies if the principal modifies an offer of Infraserv.
3.1 Information in catalogues and prospectuses and information in documents being part of the offer is meant to act as a guide and as such is not binding unless it is explicitly designated as binding.
3.2 In an individual case Infraserv shall have the right to make constructive amendments and, in the event of a shortage of raw materials, to use other materials if no overriding concerns of the principal known to Infraserv are opposed to this.
3.3 Infraserv reserves the ownership title and copyrights to all documents provided by it, including in electronic form. They may not be used for any other purpose than that determined by Infraserv, reproduced or made available to third parties.
3.4 All documents made available by Infraserv must be promptly returned at its request.
4. Prices, packaging, insurance
4.1 The prices should be understood as ex works / production plant and exclusive of packaging, installation and commissioning.
4.2 Infraserv shall additionally charge transaction taxes (VAT, etc.) in accordance with the regulations applicable at the time of the performance of the contract.
4.3 Unless the principal explicitly decides otherwise, Infraserv shall insure the ordered goods at the principal’s expense against the typical transport risks including breakage.
5. Installation and commissioning
5.1 Insofar as installation, installation supervision or commissioning must be carried out, the relevant terms and conditions of Infraserv, which will be provided on request, shall apply on a supplementary basis.
6. Transfer of risk
6.1 If the goods are shipped to the customer at its request, the risk of accidental loss or accidental deterioration of the goods shall transfer to it when the goods are dispatched and no later than the time when they leave the plant/warehouse. This applies irrespective of whether the goods are shipped from the place of performance and who bears the freight charges.
6.2 If no arrangement has been made, the risk shall transfer to the first carrier upon the handover of the subject of the delivery. This shall also apply in the case of partial deliveries or if Infraserv has agreed to handle other services.
6.3 If the shipment is delayed due to circumstances for which Infraserv is not responsible due to intentional misconduct or gross negligence, the risk shall transfer to the principal on the date of the notification that the goods are ready to be shipped.
7. Cross-border deliveries
7.1 The customer undertakes to comply with all applicable provisions of export and foreign trade law of the Federal Republic of Germany and the European Union, as well as all other applicable national and international export control regulations and foreign trade laws. All contract conclusions shall be subject to the condition that the delivery of the ordered products is permissible under all the above-mentioned laws and regulations according to its content and the natural persons and companies directly or indirectly participating in it.
7.2 In the case of cross-border deliveries, the customer shall be responsible for making all the declarations, performing all the acts and obtaining all the documents necessary for export from Germany and import into the relevant destination country and fulfilling the requirements with regard to possible export controls or meeting other restrictions on marketability.
7.3 All deliveries are subject to the proviso that their performance is not obstructed by any impediments on the basis of national or international regulations, particularly export control regulations, embargoes or other sanctions.
7.4 If the deliveries require a permit, Infraserv shall have the right to delay them until an export permit has been issued and proof of this has been furnished by the customer. In such a case, any liability of Infraserv due to late performance or non-performance shall be excluded.
7.5 If the customer breaches an obligation under this section and/or if a transaction of the customer is partially or entirely prohibited, Infraserv shall have the right to entirely or partially rescind the contract for good cause without observing a notice period. Further claims for compensation against the customer remain unaffected by this.
8. Delivery dates
8.1 The beginning of the delivery period is the date on which all commercial and technical requirements have been clarified with the principal for the fulfilment of the order, documents to be obtained by the principal have been received by Infraserv, any necessary permits and approvals have been granted and agreed advance payments have been credited to a bank account of Infraserv. The delivery period shall be deemed to have been complied with if by the time it has elapsed, subject to the condition that the principal has fulfilled its contractual obligations, the subject of the delivery is handed over to the first carrier or the principal is notified that the goods are ready to be shipped. Partial deliveries are permitted to a reasonable extent. Delivered items must be accepted by the principal even if they have minor defects; in such a situation the delivery times shall be deemed to have been complied with.
8.2 If the customer is late in accepting the delivery or culpably breaches other cooperation obligations, Infraserv shall have the right to demand compensation for the losses it has incurred as a result, including any additional expenses. We reserve the right to assert more far-reaching claims. If the above conditions are fulfilled, the risk of accidental loss or accidental deterioration of the purchased item shall transfer to the customer at the moment from which it is late in accepting the delivery or in making due payments.
8.3 If the delivery is delayed due to an event of force majeure, the delivery period shall be appropriately extended, though not by more than six months. Events of force majeure include, for example, strikes, lock-outs, sabotage, non-culpable operational disruptions, late issuance or non-issuance of official approvals and any other unforeseen events.
8.4 Infraserv shall in any event only be liable for late deliveries due to wilful misconduct or gross negligence. Further statutory claims and rights of the customer due to late delivery remain unaffected.
9. Payment terms
9.1 Unless the parties have agreed otherwise, the agreed price shall be due for payment within 14 calendar days from delivery and performance (and acceptance where applicable) and the receipt of a correct invoice. Partial deliveries shall confer a right to issue an invoice for the relevant part of the delivery.
9.2 Payments must be made exclusively to one of Infraserv’s paying agencies. They must be made on the due date free of postage and charges and without any deductions. Fees, expenses or other costs that Infraserv may incur due to separately agreed acceptance of bills of exchange or cheques shall be borne by the principal. For the determination of the due date, the date of the invoice / date of the notification that the goods are ready to be shipped shall be decisive. For payments of any kind the date of fulfilment shall be deemed the date when Infraserv can dispose of the amount in question.
9.3 Retaining payments due to counterclaims or setting off with counterclaims shall only be permissible if the counterclaims are undisputed or have been established with legally binding effect.
10. Retention of ownership
10.1 The subject of the delivery shall remain Infraserv’s property until all receivables of any kind, including accessory claims, arising from the business relationship that exist upon the issuance of the invoice have been paid in full. If the principal delays in making its payments, Infraserv shall have the right, without issuing a reminder, to take back the subject of the delivery for security. The assertion of retention of ownership and the pledging of the subject of the delivery by Infraserv shall not be deemed to constitute rescission of the contract unless the German Consumer Credit Act (Verbraucherkreditgesetz) applies. Insofar as the effectiveness of the retention of ownership in the principal’s country is subject to special formal regulations or other requirements, the principal must ensure that they are fulfilled.
10.2 The principal shall have the right to dispose of delivered goods in the normal course of business. Any receivables that arise for the principal during the period of retention of ownership from such a disposal or an unauthorised disposal are assigned to Infraserv already now. The principal shall be authorised to collect the receivables, subject to revocation at any time.
10.3 The principal shall carry out any working or processing of the subject of the delivery for Infraserv, without any obligations arising for Infraserv as a result. If the subject of the delivery is processed or connected to or combined or blended with items that do not belong to Infraserv (Article 947 et seq. BGB), Infraserv shall be entitled to a co-ownership share of the new item in the ratio of the value of the subject of the delivery to the other processed goods just prior to the processing, connection, combination or blending. For the event that the principal acquires sole ownership by operation of law, it hereby grants Infraserv an appropriate co-ownership share. It shall safekeep the item for Infraserv to that extent.
10.4 In the event of attachments or other interventions by third parties, the principal must immediately notify Infraserv to that effect.
10.5 The principal must adequately insure the subject of the delivery during the retention of ownership at its own expense against theft and breakage and fire and water damage, and it must provide proof of such insurance to Infraserv at its request. If the requested proof is not submitted within a reasonable time limit, Infraserv will be able to insure the subject of the delivery at the principal’s expense.
11.1 In the event of defects in the subject of the delivery that occur as a result of a circumstance that occurs before the transfer of risk (e.g. design or material defects, the absence of guaranteed properties), Infraserv shall have the right, according to its choice, to carry out repairs or provide a replacement delivery.
11.2 In the event the rectification or replacement delivery fail, the principal shall have the right to demand cancellation of the contract or a reduction of the purchase price.
11.3 Complaints regarding defects must be submitted within three weeks from delivery. Notwithstanding the above, defects that were not identifiable even upon an examination of the subject of the delivery must be promptly reported after they are identified. The complaint must state what defects have been identified and whether they were noticed immediately or only after further processing of the parts. Infraserv shall have the right to verify the defects through its own employees.
11.4 After making an arrangement with Infraserv, the principal must provide it with the necessary time and permission to carry out all repairs or replacement deliveries which it deems necessary according to its reasonable discretion, otherwise Infraserv shall be released from liability for the defects. Only in urgent cases, where there is a threat to operational safety or to prevent disproportionate damage, in which case Infraserv must be immediately notified, or if Infraserv delays in eliminating a defect, the principal shall have the right to eliminate the defect itself or have it eliminated by third parties and demand compensation for the necessary costs from Infraserv.
11.5 From the direct costs that arise from the repairs or replacement delivery Infraserv shall bear – insofar as the complaint turns out to be legitimate and was submitted correctly and in good time – the costs of the replacement part including the costs of shipping, as well as the reasonable costs of dismantling and installation of the defective part if, according to the circumstances of the individual case, this can be reasonably demanded. Otherwise the principal shall bear the costs.
11.6 The time limitation period for claims due to defects in the subject of the delivery amounts to six months from the beginning of commissioning, but no more than 12 months from delivery / placement in storage. It shall be extended by the duration of the interruption of the productive use of the subject of the delivery caused by rectification work.
11.7 Warranty claims with regard to the replacement part and the repairs shall expire after three months, but not before the end of the time limitation period for the subject of the delivery.
12. Liability for infringements of intellectual property rights
12.1 Unless Infraserv specifically indicates otherwise, the subject of the delivery is free from third-party property rights according to its knowledge of the state of the art of technology in the Federal Republic of Germany. If the subject of the delivery or a part thereof nevertheless breach a property right already issued and published in the Federal Republic of Germany upon the conclusion of the contract or, if the subject of the delivery explicitly encompasses a particular process right, infringes such a process right and as a result litigation is initiated against the principal, at its expense and according to its choice Infraserv shall, within a reasonable time limit, either acquire the right of further use for the principal or change the subject of the delivery / the relevant part or the process such that no infringement of third-party rights occurs any longer, or rescind the contract. Infraserv does not accept any further liability, particularly for processes, applications, products, etc.
12.2 If third-party property rights are infringed by drawings submitted by the principal or information provided by it, the principal shall be deemed responsible for the infringement of rights and indemnify Infraserv in the event that legal action is taken.
13. Other liability of Infraserv; the principal’s right of rescission
13.1 Any further claims or claims other than those explicitly specified in these terms and conditions, irrespective of the legal basis, particularly based on lost profits and consequential damage due to defects, are excluded, unless mandatory liability arises due to wilful misconduct, gross negligence or breaches of key contractual obligations or under the German Product Liability Act (Produkthaftungsgesetz) for personal injury and damage to privately used property or in the absence of explicitly guaranteed properties, if the guarantee is specifically aimed at securing the principal against damage that does not occur to the subject of the delivery itself.
13.2 The principal’s statutory rescission right in the event of delay or impossibility remains unaffected.
14. Place of performance, place of jurisdiction and applicable law
14.1 The place of performance and place of jurisdiction is Munich, Germany. Infraserv shall also have the right to take legal action against the principal at the location of its registered office.
14.2 This contract and all the legal relationships between the parties are subject on a supplementary basis to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.