Version: June 2018
I. Subject of the contract, application
1.1. The subject of the contract is provided in these terms and conditions as well as in all provisions agreed in the service specification and pricelists. These regulate the work and services provided by OhmEx GmbH.
1.2. All deliveries, services and offers from OhmEx GmbH are exclusively performed on the basis of these terms and conditions. These are a component of all contracts that OhmEx GmbH concludes with its contract partners (hereinafter also called “customer”) for the offered deliveries or services. These also apply to all future deliveries, services or offers to the customer also when not separately re-agreed.
1.3. Deviating regulations must be issued in writing. The assumption of a guarantee for specific characteristics also requires written confirmation from OhmEx GmbH to be effective.
1.4. The customer’s terms and conditions or those of a third party shall not apply, also if in individual cases OhmEx GmbH does not object to their application. Even if OhmEx GmbH refers to a document that includes or refers to the terms and conditions of a customer or third party, this does not represent an acceptance of such terms and conditions. The general terms and conditions of the contract partner shall not be a component of the contract.
1.5. OhmEx GmbH has the right to amend the general terms and conditions, the respective service specifications or prices upon reasonable notice insofar as the amendment is reasonable for the customer under consideration of the interests of OhmEx GmbH. The customer shall be informed in writing of the amendment.
II. Offer and conclusion of contract
2.1. All OhmEx GmbH offers are subject to change and non-binding unless expressly indicated as binding. Offers and orders may be accepted by OhmEx GmbH within 14 days of receipt.
2.2. OhmEx GmbH is bound to such stated offers for a term of 30 days from compilation of the offer. Upon expiry of the 30 days a new offer is to be obtained by the customer.
2.3. Solely determining for the legal relationship between OhmEx GmbH and the customer is the concluded written contract including these terms and conditions. This documents all agreements between the contract partners regarding the subject of the contract in full. Oral agreements on the part of OhmEx GmbH prior to the conclusion of this contract are legally non-binding. Oral agreements between the contract partners are replaced by the written contract insofar as it is not provided in these expressly that these agreements continue to apply.
2.4. Additions and amendments, including to these terms and conditions are required to be in writing.
2.5. Information provided by OhmEx GmbH on the subject of the delivery or service (e.g. weights, measurements, consumption, stability, tolerances and technical details) as well as the illustration of these (e.g. drawings and images) are only approximate unless an exact compliance with these is required for usability for the contractually intended purpose. They are not guaranteed properties but descriptions or characterisations of the delivery or service. Customary trade differences and differences that occur on the grounds of legal provisions or that represent technological improvements as well as the replacement of components with components of the same quality are permitted, insofar as these do not impair the usability for the contractually intended purpose.
2.6. OhmEx GmbH retains the title and/or copyright to all offers and quotes as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the customer. The customer may not make these as such or the contents thereof accessible, to third parties, publish these, use these themselves, allow a third party to do so or reproduce these without the express permission of OhmEx GmbH. The customer shall at the request of OhmEx GmbH return these in full and destroy any produced copies if these are no longer required in the scope of an orderly transaction or if negotiations do not end in a conclusion of contract.
III. Prices and payment conditions
3.1. The prices apply to the delivery and service scope listed in the order confirmation. Additional or special services shall be invoiced separately. The prices are in EURO ex works plus packaging, the currently applicable VAT and transport costs and with export deliveries plus customs duties and additional fees and other public contributions.
3.2. Insofar as the agreed prices are based on OhmEx GmbH list prices and the delivery should first occur four months following conclusion of contract, the list prices applicable at the time of delivery shall apply.
3.3. OhmEx GmbH has the right to invoice for advance services. The payment term for advance payments is 14 days from order confirmation.
3.4. Our invoice is immediately payable upon issue. The customer falls into arrears without further declaration 14 days following the deadline that corresponds to the date of the issue of invoice, unless this has paid in full. In the event of the existence of a defect the customer has no right to retention unless this is in a reasonable proportion to the defects and the assumed costs for subsequent performance (in particular the rectification of a defect). Invoiced amounts are to be paid in full within 14 days of invoice issue unless otherwise agreed in writing. Determining for the date of the payment is receipt by OhmEx GmbH. Cheques first apply as payment upon clearing. If the customer fails to issue payment by the deadline, the outstanding amount is subject to an interest of 5% p.a. from the payment deadline. For each non-redeemed or returned direct debit the customer shall refund OhmEx GmbH for any incurred costs to the scope in which he is responsible for the event incurring the costs. The right to assert higher interest and further damages in the event of default hereby remains unaffected.
3.5. In the case of not yet completed performance OhmEx GmbH has the right to only perform outstanding deliveries or services against advance payment or security. This particularly applies in the event of payment default by advance payments or delay on the grounds of a lack of cooperative performance.
3.6. If the payment of a fixed price is agreed OhmEx GmbH has without prejudice to clause 3 a claim to instalment payments for completed parts of the performance. The instalments for completed performance shall be payable after completion of the following project phases:
– prior to commencement of contract under the terms of clause 3
– first partial delivery (engineering)
– any further partial delivery
– provision for work inspection
– readiness for delivery
3.7. OhmEx GmbH is entitled to invoice for additional services. The respective applicable invoice rate for OhmEx GmbH services shall apply.
3.8. If the payment or part of the payment be calculated based on work performed, this shall be based upon conclusion of contract on the generally applicable prices at OhmEx GmbH, unless otherwise agreed. In this case OhmEx GmbH will document the type and duration of the activities and attach this to the invoice.
3.9. In the event of a cancellation of the order by the customer, the customer undertakes to reimburse OhmEx GmbH for all costs incurred up to the time of cancellation.
3.10. The customer only has a right to off-set if the demand has been legally established or is undisputed. The customer only has a right to withhold payment on the grounds of counterclaims arising from this contractual relationship.
3.11. The withholding of payments on the grounds of counterclaims of the customer or off-setting of these as well as deductions from invoices without the written authorisation of OhmEx GmbH is hereby excluded.
IV. Retention of title
4.1. The following retention of title serves to secure all currently existing and future accounts receivable of OhmEx GmbH against the customer from the delivery and service contract existing between the parties.
4.2. The goods delivered by OhmEx GmbH to the customer remain the property of OhmEx GmbH until payment in full of all secured demands. The goods and quasi goods under the terms of this clause subject to retention of title are hereinafter called reserved goods.
4.3. The customer stores the reserved goods without charge on behalf of OhmEx GmbH.
4.4. OhmEx GmbH reserves ownership and rights to be granted until full payment of the owed amount. Prior to this rights are always only temporary and may be revoked at the discretion of OhmEx GmbH at any time.
4.5 In the event of a breach of duty by the customer, in particular in the event of delayed payment, OhmEx GmbH also has the right without setting a deadline to demand the surrender of the delivered goods and/or to withdraw from the contract; the customer is obligated to surrender the goods. The demand to surrender the goods does not represent a declaration of withdrawal on the part of OhmEx GmbH unless this expressly declares a withdrawal from the contract.
4.6. In the event of delayed payment on the part of the purchaser OhmEx GmbH has the right to claim back the goods; the customer is obligated to surrender these. The customer already here permits OhmEx GmbH to enter his premises and offices.
4.7. If the reserved goods are processed by the customer, it is agreed that the processing occurs on behalf of and to the account of OhmEx GmbH as manufacturer and that OhmEx GmbH directly assumes co-ownership if the processing occurs with the goods of several owners or the value of the processed item is higher than the value of the reserved goods to the new product. In the event that no such ownership acquisition should occur at OhmEx GmbH, the customer hereby assigns his future ownership or co-ownership to the newly created product to OhmEx GmbH as security. If the reserved goods are combined with other goods to a unified object or inseparably mixed and one of the other items is to be viewed as the main item, OhmEx GmbH hereby assigns, if the main items is its property, the customer the co-ownership of the combined items at the relationship as described in line 1.
4.8. In the event of a re-sale of the reserved goods the customer hereby assigns as security the account receivable arising from this against the purchaser to OhmEx GmbH. OhmEx hereby accepts this assignment. The same applies to any other demands that replace the reserved goods or arise regarding the reserved goods, such as insurance claims or claims arising for unauthorised actions or loss or destruction. OhmEx GmbH revocably entitles the customer to collect the accounts receivable assigned to OhmEx GmbH in its own name. OhmEx GmbH may only revoke this right to collect in the event of an enforcement event.
4.9. If a third party should acquire the reserved goods, particularly through seizure, the customer shall immediately report the ownership of OhmEx GmbH and inform OhmEx GmbH in order that this can assert its ownership rights. In the event that the third party should not be in a position to reimburse OhmEx GmbH for court and legal fees arising in this conjunction, the customer shall be liable herefor.
4.10. If OhmEx GmbH should withdraw from the contract on the grounds of a breach of contract (enforcement event) on the part of the customer, in particular in the event of a default of payment, this has the right to demand the return of the reserved goods. Further rights such as compensation for use etc. hereby remain unaffected.
4.11. Upon the occurrence of problems with payment, cessation of payment, knowledge of applications for insolvency proceedings, opening of preliminary insolvency proceedings or the issue of an affidavit or a court or out of court settlement the right to further processing, use or instalment of the reserved goods hereby expires.
V. Deadlines for deliveries and delay
5.1. Deadlines and dates provided by OhmEx GmbH for deliveries and services always only apply as approximations unless a fixed deadline or date is expressly promised or agreed. Insofar as shipping is agreed, the delivery date refers to the time of handover to the haulier, carrier or other third party commissioned with the delivery.
5.2. OhmEx GmbH may, without prejudice to its rights arising from delay, demand an extension of delivery and service deadlines or a postponement of delivery and service deadlines by the term for which the customer fails to fulfil his contractual duties towards OhmEx GmbH.
VI. Place of performance, shipping, packaging, inspection, transfer of risk
6.1. Place of performance for all duties arising from the contract relationship is Großwallstadt unless otherwise agreed.
6.2. The form of delivery and packaging is at the discretion of OhmEx GmbH.
6.3. Risk shall be transferred upon the assignment of the delivered item to the haulier, carrier or other third party commissioned to perform the delivery to the customer. This shall also apply if partial deliveries are made or OhmEx GmbH has assumed further services (e.g. delivery or installation). If delivery or handover is delayed due to circumstances for which the customer is liable, risk is transferred to the customer on the date on which the delivery item is ready for delivery and OhmEx GmbH has notified the customer of this fact.
6.4. Storage costs arising following the transfer of risk shall be assumed by the customer. In the event of storage by OhmEx GmbH the costs are 0.25% of the invoiced amount for the delivery item per concluded week. The right to assert and prove additional or lower storage costs hereby remains reserved. 6.5. The delivery shall only be insured against theft, damage, transport, fire and water damage or other insurable risks at the express request of the customer.
6.6. For work services OhmEx GmbH may supply part deliveries or part services for acceptance (part acceptance). These include concluded stages to fulfil the specified phases or work for finished and therefore functioning components, completed documents or parts of documents.
6.7. The customer shall perform and declare every inspection (part acceptance) for services provided by OhmEx GmbH without delay. OhmEx GmbH has the right to participate in every inspection.
6.8. If within thirty calendar days or deadline set for the inspection after provision for inspection (part inspection) no complaints of significant defects or if the customer integrates the work results into his productive operation, acceptance applies as issued.
VII. Installation and assembly
To installation and assembly apply, unless otherwise agreed in writing the following provisions:
7.1. The customer is to perform at his expense and provide in a timely manner:
a) all excavation, construction and other additional work outside our sector.
b) the necessary goods and materials required for assembly and initial operation such as scaffolding, lifting machinery and other equipment.
c) power and water at the site of use including connections, heating and lighting,
d) sufficiently large, suitable, dry and lockable rooms for the place of assembly for the storing of machine components, apparatus, materials, tools etc. and suitable work and break rooms for the assembly personnel including suitable sanitary facilities; also the customer to protect the property of the supplier and assembly personnel on the building site will undertake measures as he would undertake to protect his personal property.
e) protective clothing and safety equipment that is required due to special circumstances at the assembly site.
7.2. Prior to the beginning of assembly work the customer shall provide without request the necessary information regarding the location of concealed power cables, gas and water lines or similar as well as the required structural information.
7.3. Prior to the commencement of assembly or installation the required supplies and objects required to commence work must be located at the installation or assembly site and all preparatory work be so advanced that assembly or installation can be commenced as contractually agreed. Access routes to the assembly or installation site must be levelled and clear.
7.4. If assembly or installation are delayed on grounds for which OhmEx GmbH are not responsible, the customer shall assume to a reasonable scope the costs for waiting periods and required additional travel of OhmEx GmbH or the assembly personnel.
7.5. The customer shall verify the length and workhours of the assembly personnel on a daily basis as well as the conclusion of the assembly work, installation or initial operation.
VIII. Duties and obligations of the customer
8.1 The customer shall ensure that all requisite preparatory and co-operative work is performed for OhmEx GmbH in a timely manner at the necessary scope and without charge.
8.2 The customer shall grant OhmEx GmbH employees all requisite assistance in their work at the customer’s plant. This assistance includes that the customer:
– ensures that a qualified employee is available at the place of performance as support
– ensures that employees deployed by OhmEx GmbH are granted free access to the place at which the service is to be performed
– ensure for the benefit of OhmEx GmbH employees that his equipment corresponds to health and safety regulations
– provide OhmEx GmbH employees with necessary information required for their activities in a timely manner
8.3 Data carriers provided by the customer must be defect-free both technically and as regards content. If this is not the case the customer shall compensate OhmEx GmbH for all damage arising from the use of these data carriers and exempts OhmEx GmbH from all third party claims.
8.4 In the event that the customer should perform the requisite and agreed cooperative work either with a delay or not in the agreed manner, the resulting consequences (e.g. delays, additional costs) are to be assumed by the customer.
8.5 OhmEx GmbH and its vicarious agents are to be exempted from all third party claims that are founded on an illegal use of copyright protected performance by the customer or occurs with his agreement or that arise from legal disputes that are in conjunction with the use of the service. The customer shall inform OhmEx GmbH in writing without delay in the event that third parties assert rights against him. The customer shall not acknowledge the infringement of rights alleged by the third party and shall leave all disputes to either OhmEx GmbH or only conduct these with the approval of OhmEx GmbH.
8.6 The customer shall report complaints with a comprehensible description of the fault symptoms in writing and where possible under the provision of written records, hard copy or other documents illustrating the defect.
IX. Guarantee, material defects
9.1. The guarantee term is 18 months following delivery, however 12 months at the most following initial operation. The date of the initial operation is to be reported in writing to OhmEx GmbH.
9.2. If the performance is defective and does not only insignificantly impair its contractual use, OhmEx GmbH initially has the right to perform repairs or a new delivery (subsequent performance). If the customer has set OhmEx GmbH a reasonable deadline upon first request and OhmEx GmbH refuses subsequent performance or this fails, the customer reserves the right regarding the rectification of defects either to rescind the contract or to demand a discount. In the event of an insignificant deviation that does not impair the function the customer may only demand a discount.
9.3. If OhmEx GmbH after the reporting of a fault has performed services but no material defect exists and the customer should have recognised this, the customer shall assume all arising costs. By the invoicing of the costs the respective invoice rates for services from OhmEx GmbH shall be based on the respective applicable list prices.
9.4. Liability for material defects expire as such for services provided by OhmEx GmbH in which the customer modifies or intervenes with the performance unless the customer proves that the intervention did not cause the defect. Liability for material defects shall also expire if the customer after recognising the defect does not report this without delay to OhmEx GmbH or the performance is not used under the contractually agreed conditions corresponding to the documentation.
9.5. A legal defect of the contractual performance is given when the rights required for the contractually intended purpose have not been sufficiently granted. In the event of legal defects OhmEx GmbH provide assurance that it shall create a legally defect-free possibility of use for the contractual performance or will take back the performance subject to the contract with the deduction of a reasonable compensation for use at the discretion of OhmEx GmbH. The latter is only permitted if a remedial action is not reasonable for OhmEx GmbH.
9.6. Customer claims for expenses for the purpose of subsequent performance, particularly transport, work and material costs are hereby excluded, insofar as the costs are increased due to the subject of the performance being subsequently relocated to a site other than the place of performance.
9.7. The customer is entitled to guarantee claims against OhmEx GmbH for one year from acceptance of the respective performance. This restriction does not apply to claims to compensation that arise on the grounds of a breach of claims to subsequent performance by defect by OhmEx GmbH. Claims to damage that are on the grounds of a rejected subsequent performance may only be asserted during the statutory period of limitation if the claim to subsequent performance is asserted by the customer within the shortened term for claims to material defects.
9.8. The provisions of clause IX apply to all claims to damages.
9.9. OhmEx assumes no liability for damage through corrosion.
X. Industrial property rights and copyrights
10.1. Insofar as a third party asserts claims against a third party on the grounds of an infringement of an industrial property right or copyright (hereinafter protected rights) by a product supplied by OhmEx GmbH and used for the contractual purpose, OhmEx GmbH is liable to the customer as follows:
a) OhmEx GmbH shall at its discretion and at its expense either obtain rights of use for the product, modify the product so that protected rights are not infringed or exchange the product. If this is not possible for OhmEx GmbH under reasonable conditions, it shall take back the product against refunding of the purchase price.
b) The aforementioned obligations on the part of OhmEx GmbH only exist when the customer informs OhmEx GmbH regarding claims asserted by a third party in writing and without delay, does not acknowledge an infringement and reserves all defence measures and settlement claims to OhmEx GmbH. If the customer should cease use of the product for limitation of damage or other important grounds he is obligated to inform the third party that the ceasing of use does not represent any acknowledgement of an infringement.
10.2. Claims on the part of the customer are excluded insofar as he is responsible for the infringement of protected rights.
10.3. Claims on the part of the customer are furthermore excluded insofar as the infringement of protected rights is based on special instructions of the customer, through an application not foreseeable by OhmEx GmbH or is caused in that the customer modifies the product or using this together with a product not supplied by OhmEx GmbH.
10.4. Further claims against OhmEx GmbH are hereby excluded; the agreements to liability remain however equally unaffected as the right of the customer to withdraw from the contract.
XI. Liability for compensation on the grounds of culpability
11.1. OhmEx GmbH is liable to the customer
a) for damage caused by gross negligence or culpable act on the part OhmEx GmbH, its vicarious agents or representatives,
b) in accordance with the German Product Liability Act and
c) for damage arising through death, personal injury or endangerment of health caused by OhmEx GmbH, its legal representatives or vicarious agents.
11.2. OhmEx GmbH is not liable for soft negligence, unless it has breached a significant contract duty that enables the correct performance of the contract or a breach of which endangers the purpose of the contract and which the compliance to which the customer would customarily rely.
This liability is by material damage and financial loss limited to contract-typical and foreseeable damage. This also applies to pure economic loss and lack of cost saving. Liability for other indirect consequential damage is hereby excluded.
11.3. Any declaration on the part of OhmEx GmbH (e.g. in service specifications, product descriptions etc.) expressly does not represent a guarantee declaration. A guarantee is only then to be assumed if an express and written declaration is issued and the subject and content of the guarantee is specified. From a guarantee declaration OhmEx GmbH is only liable to compensation if this is expressly assumed in the guarantee. This liability is by soft negligence limited to the limitations in clause 11.2.
11.4. To claims to compensation for expenditure and other liability claims against OhmEx GmbH clauses 11.1. to 11.3. apply correspondingly. This limitation does not apply to claims to damages that are on the grounds of a breach of the duty to provide subsequent performance on the part of OhmEx GmbH. Claims to damages on the grounds of a rejected subsequent performance may only be asserted during the term of the statute of limitation if the claim to subsequent performance is asserted by the customer within the shortened term for material defects.
11.5.Insofar as OhmEx GmbH provides technical information or acts as an adviser and this information does not belong to the contractually agreed performance, this is free of charge and subject to the exclusion of all liability.
The customer shall independently comply with all applicable import and export regulations to the delivery and service. For cross-border delivery or service the customer shall assume arising customs duties, fees and other costs. The customer shall independently execute statutory or official procedures in conjunction with cross-border deliveries at his own responsibility.
The contract partners are obligated to each other without a time limitation not to disclose company or trade secrets or information described as confidential that is revealed in conjunction with the performance of the contract. Forwarding to third parties not involved in the performance of the contract may only occur with the advance written permission of the other contract party. The contracting parties shall also impose this obligation on their employees and any involved third parties.
XIV. Force majeure
14.1. OhmEx GmbH is not liable for force majeure events that significantly hinder the contractual performance, temporarily prevent the correct performance of the contract or make this impossible. Force majeure includes all circumstances independent from the will and influence of the parties such as natural catastrophes, governmental measures, official decisions, blockades, war and other military conflicts, mobilisations, internal disturbance, terrorist attacks, strike, lockout and other labour disputes, seizure, embargo or other circumstances that are unforeseeable, significant and are not the culpability of the contracting parties and occur following conclusion of contract.
14.2. Insofar as one of the contracting parties is hindered through force majeure in fulfilling its contractual duties, this is not considered a breach of contract and the deadlines set in or in conjunction with the contract shall be extended correspondingly. The same applies, insofar as OhmEx GmbH is reliant of third party advance performance and this is delayed on the grounds of force majeure.
14.3. Each party shall make every effort to undertake that which is necessary and reasonable to limit the extent of the consequences that are caused through force majeure. The contracting party affected by force majeure shall inform the other party in writing without delay of the beginning and the end of the obstruction.
XV. Data Protection
The parties shall ensure compliance with all statutory and applicable regulations on data protection. Especially the regulations of the GDPR (General Data Protection Regulation EU 2016/679). In particular, the parties shall implement the obligation of its employees to maintain data secrecy pursuant to GDPR. Additional information on data protection can be found in the data privacy information at www.ohmex.datenschutzhinweise.de.
XVI. Legal venue
16.1. Legal venue for all disputes arising from the business relationship between OhmEx GmbH and the customer is exclusively the domicile of OhmEx GmbH. Mandatory statutory provisions regarding exclusive legal venues hereby remain unaffected by this provision.
16.2. German law shall apply to the contractual relationship under exclusion of the CISG dated 11 April 1980.
16.3. Contractual language is German. In the event of different wording of this text occur between the German and English texts, the German version is decisive.
16.4. Insofar as the contract or these terms and conditions should contain loopholes, the supplementation of these with legally applicable provisions applies as agreed, which the contracting parties would have agreed in accordance with the financial aims of this contract if they had recognised the loophole.
Großwallstadt, June 2018