for the company Narr Modular Systems GmbH Defense & Security
These terms and conditions are valid for business between companies.
§ 1 Validity
(1) All deliveries, services and quotes by the vendor are made exclusively on the basis of these general terms and conditions. They are an integral part of all contracts entered into by the vendor with any contracting party (hereinafter called “the client“) which include the offered deliveries or services. They shall also apply to all future deliveries, services and quotes for the client, even if they are note agreed again separately.
(2) Terms and conditions of the client’s or third parties will not apply, even if the vendor does not dispute their validity in each case. Even if the vendor refers to correspondence which contains terms and conditions of the client or a third party or refers to such, this shall not constitute any agreement of the validity of these terms and conditions.
§ 2 Quote and conclusion of contract
(1) All offers of the vendor remain free and revocable unless they are not explicit marked as binding or contain a definite term of acceptance. The vendor may accept orders or commissions within fourteen days of their receipt.
(2) The legal relationship between the vendor and the client is only governed by the written sales contract including these general terms and conditions. This sales contract reflects completely the arrangements between the parties of the contract concerning the object of agreement. Verbal confirmations of the vendor before conclusion of this contract are not legally binding and verbal agreements of the contracting parties have to be complemented with a written contract, as long as the terms of the contract do not stipulate that prevailing conditions continue to apply.
(3) Amendments and modifications to the agreements made, including the general terms and conditions must be in written form in order to be valid. With exception of executives or authorized signatories, the employees are not entitled to reach oral agreements which differ from this. Sending the signed confirmation by telefax or e-mail is sufficient to meet the requirements of the written form.
(4) Information from the vendor regarding the object of the delivery or service (e.g. weight, dimensions, practical value, capacity, tolerances and technical data) as well as our illustrations of the same (e.g. drawings and images) are only approximately applicable unless the usability for the contractual intended purpose requires an exact match. They are not a guaranteed characteristic of their state, but a description or designation of the delivery or service. Variations which are usual in trade and variations, which are the consequence of legal regulations or technical improvements as well as the replacement of components by equivalent parts, are permissible as far as they do not impair usability for the contractually agreed purpose.
(5) The vendor retains the property or the copyright for all quotes and cost estimates issued by him as well as all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the client. Without the express agreement of the vendor, the client may not publish these objects or their content, or use or copy them or make them accessible to thirds. On request by the vendor, he must return these objects to him in their entirety and destroy eventual copies, if they are no longer needed in the regular course of business or if a contract does not come to conclusion.
§ 3 Prices and payment
(1) The prices applied to the scope of delivery and service stated in the order confirmations. Additional or special services shall be invoiced separately. The prices are in euro and ex works plus the costs for packaging, the applicable value added tax, for exportations customs duty and other public costs.
(2) Where the agreed prices are based upon the list prices and where the delivery is to be carried out more than four months after the conclusion of the contract, the list prices of the vendor shall be applied, which are valid at the moment of the delivery (in each case minus an agreed percentage or fixed discount).
(3) Amounts invoiced are basically to be paid within thirty days without any discount, unless otherwise agreed in writing. The relevant date of payment is the date the payment is credited to the account of the vendor. Checks shall be considered as payment only when honored. If the client does not pay by the due date, then interest will be charged on the outstanding amount at a rate of 8% p.a.; the application of a higher interest rate and additional damages in case of late payment remains unaffected.
(4) The offsetting with counterclaims by the client or the withholding of payments against such claims is only permitted insofar as the counterclaims are undisputed or have been legally upheld.
(5) The vendor is authorized only to carry out deliveries or to provide services against a prior payment or deposit, if after the conclusion of the contract circumstances became known which are of nature to considerably reduce the creditworthiness of the client or to render the client incapable of settling his open accounts with the vendor based on the contractual relationship (including those from other individual orders to which the same framework contract applies).
§ 4 Delivery and delivery schedule
(1) All deliveries are ex works.
(2) Time periods and deadlines announced by the vendor are always only approximate unless a fixed deadline or data is confirmed and agreed. If shipping has been agreed, delivery dates and deadlines refer to the moment of transfer to the forwarder, carrier or third person who is in charge of the transportation.
(3) The seller is authorized – without limiting his further rights of delay of the client – to demand a prolongation of the delivery or service period or a postponement of the delivery and service date for the period the client does not fulfill his contractual obligations.
(4) The vendor is not liable for impossibility of delivery or for delays in delivery as far as they have been caused by force majeure or other events that were not foreseeable at the moment of the conclusion of contract (e.g. breakdowns in business operations, difficulties with the delivery of materials or energy, delays caused by transit problems, strikes or legal lockouts, shortage of labor, energy or raw material, difficulties regarding the necessary official approvals, official measures or non-delivery or incorrect or late delivery by suppliers), for which the vendor is not responsible. If such occurrences cause the delivery or services to be considerably delayed or impossible to provide and the impediment is not only temporary, the vendor is authorized to withdraw from the contract. In the event of impediments that are of temporary duration, the deadlines for delivery and service shall be extended or the delivery and service date shall be postponed by the period of the impediment plus an appropriate run-in period. If as a result of the delay, the client cannot reasonably be expected to accept the delivery or service, he can withdraw from the contract by means of an immediate written notification to the vendor.
(5) The vendor shall only be authorized to make partial deliveries if:
– the partial delivery can be used by the client as part of the contractually intended purpose;
– the delivery of the remaining ordered goods is guaranteed and
– the client incurs no major additional effort or costs (unless the vendor intents to bear those costs).
(6) If the vendor falls behind with a delivery of service or if a delivery or service becomes impossible, for whatever reason, the vendor’s liability is limited to the compensation in accordance with § 8 of these terms and conditions.
§ 5 Place of fulfillment, delivery, packaging, transfer of risk, acceptance
(1) The place of fulfillment for all obligations resulting from the contractual relationship is Balingen, unless otherwise agreed. In so far as the vendor is also responsible for the assembly of the goods, the place of fulfillment shall be the place where the assembly is to be carried out.
(2) The type of dispatch and packaging are subject to the best judgment the vendor. The packaging is separately invoiced unless otherwise agreed in the offer or the order confirmation. Packaging is taken back if it is sent back in good condition and freight prepaid within 30 days.
(3) At the latest, the transfer of risks to the client occurs with the handover of the object of delivery (whereby the commencement of the loading process is decisive) to the forwarder, carrier or third person who is responsible for the transportation. This shall also apply in the cases of partial deliveries or if the vendor has undertaken other obligations (e.g. the shipping or the assembly). If the dispatch or handover is delayed due to circumstances for which the vendor is liable, the transfer of risks to the client takes place on the day when the vendor is ready for dispatch and has notified this to the client.
(4) The consignment will only be covered against theft, breakage, transport, fire and water risk and other risks on demand and on cost of the client.
(5) In so far that an acceptance has to take place, the delivery / assembly is to be seen as legally accepted, if:
– the delivery and – if the vendor is also responsible for the assembly – the assembly is finished;
– the vendor has informed the client about that with reference to the assumed acceptance according to this § 5 and has requested the acceptance of the delivery;
– twelve business days have passed since the delivery or assembly and the client has already begun using the articles of sale (e.g. the equipment has been put into operation) and in this case, if six business days have passed since the delivery or assembly and
– the client has failed to accept the delivered goods within this time period for other reasons than a defect of which the vendor has been informed, that makes the delivered objects impossible to use or if the delivered objects have been considerably damaged.
§ 6 Warranty, defects
(1) The guarantee period amounts to one year on delivery or acceptance, as far as an acceptance is necessary.
(2) The delivered objects have to be accurately inspected immediately after delivery to the client or to a determined third party. They shall be seen as accepted by the client, if the vendor has not received a written notification of visible defects or other defects that should have been visible in the course of a prompt thorough inspection within seven business days on the delivery. Regarding other defects the delivered objects are seen as accepted, if the vendor has not received a notification of defects within seven business days on the moment where the defect became evident; if the defect was earlier evident to the client in the normal utilization of the delivered object, the earlier moment is decisive for the beginning of the notification period. On the demand of the vendor, the client has to send back the defective object freight prepaid to the vendor. If the notice of defects is justified, the vendor will reimburse the costs of the cheapest method of dispatch; this does not apply if the costs increase, because the delivered object is somewhere else than the place of use as determined.
(3) In case of quality defects of the delivered objects, the vendor is first obliged and entitled within a reasonable period of time to improve or to replace. If the supplementary performance has failed, e.g. because of impossibility, unreasonableness, refusal or undue delay of rectification or replacement, the vendor is authorized to withdraw from the contract or to ask for an appropriate reduction in price.
(4) If the vendor is to blame for a defect, the client may demand compensation under the conditions stipulated in § 8
(5) In case of defects in components from other manufacturers, which the vendor cannot remedy for reasons of licensing law or for other reasons, the vendor will either claim warranty rights against this manufacturer or supplier on the client’s account or transfer this title to the vendor. In the case of such defects, there are warranty claims against the vendor under the conditions of and in accordance with these general terms and conditions, if the legal enforcement of the abovementioned claims against the producer or supplier was unsuccessful or if it was hopeless, for example because of an insolvability. During the period of litigation, the limitation of all relevant claims of the client against the vendor is to be suspended.
(6) The warranty is not applicable if the client or any third party modifies the delivered goods without express consent of the vendor and this makes the rectification of the defects impossible or unacceptably difficult. In all cases, the client has to bear the additional costs of repairing the defect caused by the modification.
(7) A delivery of used goods agreed with the client on a case to case basis, shall be made subject to the exclusion of any warranty.
§ 7 Trademark protected goods
If trademark protected goods are delivered, the client is only allowed to remove the trademarks on the goods or on the packaging in order to resell them under another name, if the vendor agreed in written form.
§ 8 Liability for compensation for damages
(1) The vendor’s liability for damages, regardless of the legal raisons, but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties of the contract and action in tort, is limited in accordance with this § 8, insofar as there is a question of blame in each case.
(2) The vendor is not liable in the case of simple negligence of his bodies, statutory representatives, employees or other vicarious agents, insofar as it is not essential contractual obligations. Essential contractual obligations include for example the obligation to deliver and assemble the requested goods in time, to deliver without defects, which could disturb the working order or the usability more than insignificantly as well as the legal duty to give advice to protect and to care, which should make the contractual use of the delivered goods possible for the client or the protection of life and limb of the labor of the client and the protection of his property against serious damage.
(3) Insofar as the vendor is liable for damages in accordance with this § 8 (2), this liability is limited to damages, which the vendor has foreseen when concluding the contract as a possible consequence of infringement of the contract or must have foreseen by applying due care and attention. Indirect damages and consequential damages resulting from the defects of the delivered goods are only subject to compensation, if such damage is to be typically expected if the object of delivery is used in accordance with its intention.
(4) In the event of liability for simple negligence, the vendor’s obligation to make compensation for property damage or pecuniary damage is limited to an amount of EUR 5.000.000 per case of damage, even if this is a case of infringement of essential contractual obligations.
(5) The aforementioned exclusions of liability or limitations of liability apply to the same extent in favor of the bodies, statutory representatives, employees or other agents of the vendor.
(6) Insofar as the vendor gives technical recommendations or advices and these recommendations and advices are not part of the contractual duty, this is done free of charge and under exclusion of any liability.
(7) The limitations of this § 8 do not apply to the vendor‘s liability for deliberate actions, for guaranteed characteristics, on account of injury of life, limb or health or according to the product liability law.
§ 9 Reservation of title
(1) The following agreed reservation of title serves as security for all and any demands of the vendor against the client from the existing delivery contracts (including claims on account in the event of the operation of open accounts for deliveries of goods).
(2) The goods delivered by the vendor to the client shall remain the vendor’s property up until complete payment has been effected for all secured claims of the vendor. The goods as well as the substituting goods according to the below mentioned conditions, which are subject to reservation of title are hereinafter referred to as “reserved goods”.
(3) The client shall hold the goods on behalf of the vendor at no charge.
(4) The client is authorized to process and sell the reserved goods in normal business dealings up to the case of enforcement (paragraph 9). Pledge and transfer by way of security are prohibited.
(5) If the reserved goods are processed by the client, it shall be seen as agreed that this processing takes place in the name and on behalf of the vendor as manufacturer and that the vendor directly acquires property or – if the processing involves materials provided by several owners or the value of the processed goods exceeds the value of the reserved goods – joint title (co-property) in the newly created goods in the proportion of the value of the reserved goods to the newly created goods. For the case that no such acquisition of property occurs for the vendor, the client shall transfer now his future property or – in the aforementioned ratio – his co-property in the newly created goods for reasons of security. If the reserved goods are combined with other movable goods to become homogeneous goods or to be inseparably mixed and if one of the other goods shall be seen as the principal good, the vendor transfers to the client the co-property in the homogeneous good partially, insofar as the principal good belongs to him, according to the proportion mentioned in sentence 1.
(6) In the case of resale of the reserved goods, the buyer shall already now transfer his claims against the purchaser to the vendor for reasons of security – in the event of co-property of the vendor in the reserved goods, he transfers his claims proportionally to the co-property share. The same shall apply to any other claims that take the place of reserved goods or result from reserved goods, as e.g. insurance claims or claims resulting from unauthorized handling in case of loss or destruction. The vendor shall confer revocable authority to the client to collect on his behalf the claims assigned to the vendor. The vendor may revoke this authorization for collection only in case of enforcement.
(7) If third parties take hold of the reserved goods, in particular by garnishment, the client has to point out immediately the property of the vendor and to inform the vendor about this, in order to enable him to assert his rights of property. In the event that the third party is unable to reimburse the costs for the legal or out of court expenses that incurred, the client shall be liable for the vendor.
(8) The vendor shall release any reserved goods as well as substituting goods or claims insofar as their value exceeds the value of the secured claims by more than 50%. The selection of the goods to be released in detail is up to the vendor.
(9) If, in the event of a behavior by the client that is contrary to the terms of the contract – in particular late payment – the vendor withdraws from the contract (case of enforcement), he is entitled to demand the return of the reserved goods.
§ 10 Special conditions for the process of building and assembling activities
(1) At the beginning of the assembly, the building activities have to have progressed so far, that a safe and unhindered assembly by our installers can be carried out. Our assembling costs are calculated in a way that the assembly shall take place in one session. Interruptions for which we are not responsible are at the client’s charge. Supplementary work, which is not part of the contract as well as waiting are invoiced on a case by case basis. Scaffoldings and hoists have to be provided on-site by the client free of charge.
(2) A lockable stock room for the material and tools has to be provided. Losses caused by non-performance are at the client’s charge. We accept the warranty for assembling activities and deliveries regarding the quality of the material as well as regarding the professional and correct service. The client has to indicate defects in writing.
(3) If a defect is due to special instructions of the client or to raw material provided or stipulated by the client or to the quality of the advance services of another, we are not liable for these defects. The warranty shall also expire if modifications of our products have been carried out without our agreement or if our products are damaged for reasons for which we are not liable.
§ 11 Final provisions
(1) In case the client is a businessman, a corporate body under public law or a special fund under public law or if he has no place of jurisdiction in the Federal Republic of Germany the place of jurisdiction for all eventual litigation based on this business relationship between the vendor and the client is Balingen. Mandatory legal regulations about exclusive jurisdiction remain unaffected by this regulation.
(2) The relationship between the vendor and the client is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of April 11th, 1980 (CISG) is not applied.
(3) Should the contract or these general terms and conditions contain any gaps, those legally effective regulations, which the contracting parties would have arranged if they had known about this gap, are considered as agreed, upon respect of the economic goals of the contract and these general terms and conditions.
The client shall take note of the fact that the vendor stores data from the contractual relationship in accordance with § 28 and he reserves is right to transmit these data to thirds (e.g. insurances), if this is necessary to fulfill the obligations of the contract.
August 2nd, 2016, version 1