1. General
1.1 These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
1.2 These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as these are legal transactions of a related nature.
1.3 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
2 Offer/confirmation of order
2.1 Unless a binding period is expressly stated, Infraserv’s quotations are subject to change without notice and the contract shall not come into existence until Infraserv confirms the order.
2.2 Orders without a prior offer shall not be binding on Infraserv until Infraserv confirms the order within 14 days. The same applies if the client modifies an Infraserv offer.
3. Documents
3.1 Information in catalogs and brochures as well as information in documents belonging to the offer are indications and as such are not binding unless they are expressly designated as binding.
3.2 In individual cases, Infraserv is entitled to make design modifications and, in the event of a shortage of raw materials, to use other materials, provided that there are no overriding interests of the Purchaser known to Infraserv that conflict with such modifications.
3.3 Infraserv retains title and copyright to all documents provided by Infraserv, including those in electronic form, and they may not be used, reproduced or made available to third parties for any purpose other than that intended by Infraserv.
3.4 All documents provided by Infraserv must be returned immediately upon request.
4 Prices, Packaging, Insurance
4.1 Prices are quoted ex works or manufacturing plant, excluding packaging, installation and commissioning.
4.2 Infraserv shall additionally charge transaction taxes (value-added tax, etc.) in accordance with the provisions in effect at the time of performance of the contract.
4.3 Unless the Purchaser expressly stipulates otherwise, Infraserv shall insure the ordered goods at the Purchaser’s expense against the usual transport risks, including breakage.
5 Assembly and Commissioning
5.1 If assembly, installation supervision or commissioning is to be performed, the relevant terms and conditions of Infraserv, which will be made available on request, shall apply in addition.
6 Transfer of Risk
6.1 If the goods are shipped to the Purchaser at the Purchaser’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the works/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
6.2 In the absence of an agreement, the risk shall pass upon handover of the delivery item to the first carrier. This shall also apply in the case of partial deliveries or if Infraserv has assumed responsibility for other services.
6.3 If shipment is delayed due to circumstances for which Infraserv is not responsible either intentionally or through gross negligence, the risk shall pass to the customer upon notification that the goods are ready for shipment.
7 Cross-border deliveries
7.1 The Purchaser undertakes to comply with all applicable provisions of the export and foreign trade laws of the Federal Republic of Germany, the European Union and all other applicable national and international export control regulations and foreign trade laws. All contract conclusions shall be subject to the proviso that the delivery of the ordered products is permitted according to their content and the natural persons and companies directly or indirectly involved therein in accordance with all of the above provisions.
7.2 In the case of cross-border deliveries, the Purchaser shall be responsible for making all declarations, taking all actions and procuring all documents necessary for export from Germany and introduction into the relevant country of destination in good time and for complying with the requirements for possible export controls or other restrictions on marketability.
7.3 All deliveries shall be subject to the proviso that there are no obstacles to performance due to national or international regulations, in particular export controls as well as embargoes or other sanctions.
7.4 Insofar as deliveries are subject to approval, Infraserv is entitled to delay the deliveries until an export permit has been issued and proven by the Purchaser. In such cases, Infraserv shall not be liable for delayed performance or non-performance.
7.5 If the Purchaser breaches any obligation under this Clause and/or if any transaction by the Purchaser is partly or wholly prohibited, Infraserv shall be entitled to rescind the contract in whole or in part for good cause without notice. Further claims against the Purchaser shall remain unaffected.
8 Delivery Dates
8.1 The delivery period shall commence on the date on which all commercial and technical requirements for performance of the contract have been clarified with the Purchaser, documents to be provided by the Purchaser have been received by Infraserv, any necessary permits and approvals have been issued and any agreed advance payments have been credited to an Infraserv bank account. The delivery period shall be deemed to have been complied with if the delivery item has been handed over to the first carrier or the client has been notified that the item is ready for shipment before the delivery period expires, provided that the client has fulfilled his contractual obligations. Partial deliveries are permissible to a reasonable extent. Delivered items shall be accepted by the Customer even if they have minor defects; the delivery times shall be deemed to have been complied with in this respect.
8.2 If the Purchaser is in default of acceptance or culpably violates other duties to cooperate, Infraserv shall be entitled to demand compensation for the resulting damage, including any additional expenses. Infraserv reserves the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the purchaser at the time the purchaser defaults in acceptance or payment.
8.3 If the delivery is delayed due to force majeure, the delivery period shall be reasonably extended, but no longer than six months. Force majeure shall include, for example, strikes, lockouts, sabotage, operational disruptions for which Infraserv is not responsible, official permits that are not granted or not granted on time, and all other unforeseen events.
8.4 Infraserv shall in any case be liable only for delays in delivery caused intentionally or by gross negligence. Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
9 Terms of payment
9.1 Unless otherwise agreed by the parties, the agreed price shall be due for payment within 14 calendar days of delivery and performance (and acceptance, if applicable) and receipt of a proper invoice. Partial deliveries shall entitle to invoice for the corresponding part.
9.2 Payments shall be made exclusively to one of Infraserv’s paying agents. They shall be made on the due date without postage or charges and without any deduction; any fees, charges or other costs incurred by Infraserv as a result of the separately agreed acceptance of bills of exchange or cheques shall be borne by the Client. The due date shall be determined by the date of the invoice or the date of notification of readiness for shipment. For payments of any kind, the date of performance shall be the date on which Infraserv can dispose of the amount.
9.3 Withholding payments due to counterclaims and offsetting payments against counterclaims shall be permitted only if the counterclaims are undisputed or have been finally adjudicated.
10 Retention of title
10.1 The delivered goods shall remain the property of Infraserv until all claims of any kind, including ancillary claims, arising from the business relationship and existing at the time of invoicing have been paid in full. If the client is in default of payment, Infraserv is entitled, without reminder, to take back the delivery item as security. The assertion of the reservation of title and the seizure of the delivery item by Infraserv shall not be deemed to be a withdrawal from the contract, unless the Consumer Credit Act applies. If the validity of the reservation of title is subject to special formal requirements or other preconditions in the Purchaser’s country, the Purchaser shall ensure that they are fulfilled.
10.2 The Customer shall be entitled to dispose of the delivery item in the ordinary course of business. Claims arising for the Purchaser during the period of retention of title from such a disposal or from an unauthorized disposal are hereby assigned to Infraserv. Subject to revocation at any time, the Purchaser is authorized to collect the claims.
10.3 The Purchaser shall process the delivery item on behalf of Infraserv without any obligations arising for Infraserv. If the delivery item is processed, combined, mixed or blended with items not belonging to Infraserv (§§ 947 et seq. BGB), Infraserv shall be entitled to a co-ownership share in the new item in the ratio of the value of the delivery item to the other processed goods at the time before the processing, combination, mixing or blending. If the Purchaser acquires sole ownership by operation of law, he hereby grants Infraserv a corresponding co-ownership share and keeps the item in safe custody for Infraserv.
10.4 In the event of seizure or other interventions by third parties, the client must notify Infraserv immediately.
10.5 The Purchaser is obligated to adequately insure the delivery item against theft, breakage, fire and water damage at its own expense during the retention of title and to provide Infraserv with proof of this upon request. If the requested evidence is not provided within a reasonable period of time, Infraserv may insure the delivery item at the expense of the client.
11 Warranty
11.1 In the event of defects in the delivery item that occur as a result of circumstances prior to the transfer of risk (e.g. design or material defects, lack of warranted characteristics), Infraserv shall be entitled, at its option, to repair or replace the delivery item.
11.2 If the repair or replacement fails, the client may demand rescission of the contract or a price reduction.
11.3 Defects must be notified within 3 weeks of delivery. Deviating from this, defects which are not recognizable even upon inspection of the delivery item shall be notified immediately upon their discovery. The notice of defect must state which defects were discovered and whether they were noticed immediately or only after further processing of the parts. Infraserv is entitled to inspect the defectiveness by its own employees.
11.4 After consultation with Infraserv, the client must allow Infraserv the necessary time and approval to carry out all repairs and replacement deliveries that Infraserv deems necessary in its reasonable discretion; otherwise, Infraserv shall be released from its liability for defects. Only in urgent cases of danger to operational safety and to prevent disproportionately great damage, in which case Infraserv must be notified immediately, or if Infraserv is in default in remedying a defect, shall the client have the right to remedy the defect himself or have it remedied by a third party and to demand reimbursement of the necessary costs from Infraserv.
11.5 Of the direct costs arising from the repair or replacement delivery, Infraserv shall bear – insofar as the complaint proves to be justified and the complaint was made properly and in good time – the costs of the replacement part, including the costs of shipment, as well as the reasonable costs of removal and installation of the defective part, if this can be reasonably demanded in the individual case. Otherwise, the Customer shall bear the costs.
11.6 The limitation period for claims based on defects of the delivery item shall be 6 months from the start of commissioning, but no longer than 12 months from delivery or from storage; it shall be extended by the duration of the interruption of the productive use of the delivery item caused by rectification work.
11.7 Warranty claims with regard to the replacement part and the rectification of defects shall expire after 3 months, but not before the expiry of the limitation period for the delivery item.
12 Liability for infringement of property rights
12.1 In the absence of any special notice from Infraserv, the delivered item shall be free from third party industrial property rights to the best of its knowledge of the state of the art in the Federal Republic of Germany. If, however, at the time of conclusion of the contract, the delivery item or a part thereof infringes an industrial property right already granted and published in the Federal Republic of Germany or, if the delivery item expressly includes a specific process right, a corresponding process right, and if legal proceedings have therefore been instituted against the customer, Infraserv shall, at its own expense and at its own discretion, within a reasonable period of time, either procure for the customer the right to continue to use the delivery item or the part in question or the process in such a way that there is no longer any infringement of the rights of third parties, or withdraw from the contract. Infraserv shall not assume any further liability, in particular for processes, applications, products, etc.
12.2 If drawings submitted or information provided by the client infringe the property rights of third parties, the client shall be responsible for the infringement and shall indemnify Infraserv in the event of a claim.
13 Other Liability of Infraserv; Client’s Right to Rescind.
13.1 Further claims and claims other than those expressly stated in these Terms and Conditions, irrespective of their legal basis, in particular for loss of profit and consequential damages, shall be excluded unless liability is mandatory due to intent, gross negligence, breach of material contractual obligations or under the Product Liability Act for personal injury and damage to privately used property or in the absence of expressly warranted characteristics if the warranty is specifically intended to protect the Purchaser against damage that has not occurred to the delivery item itself.
13.2 The Customer’s statutory right of rescission in the event of default and impossibility shall remain unaffected.
14 Place of performance, place of jurisdiction, applicable law
14.1 The place of performance and jurisdiction is Munich. Infraserv shall also be entitled to bring an action at the place of business of the client.
14.2 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).