general terms and conditions

§ 1 General, Scope 

(1) Unless otherwise agreed to in writing between the TU Bergakademie Freiberg (hereinafter the customer) and the supplier, the present general terms and conditions of contract (hereinafter GT&C) are valid for any and all business relationships entered into by the TU Bergakademie Freiberg as a customer, and in particular for contracts on the provision of services and on the purchase or manufacture of goods. The GT&C are only valid when the supplier is a business entity according to Section 14 of the German Civil Code (hereinafter BGB), a legal entity under public law, or a special fund according to public law. 

(2) These GT&C shall apply exclusively. Supplier’s business conditions or conditions of delivery or payment that deviate from or supplement the GT&C are not part of any contract, unless the customer has agreed to their validity expressly and in writing. This shall also apply if the supplier – in their offer or order confirmation – should refer to their general terms and conditions. The customer’s approval requirement is valid in each and every case, including in cases where, e.g. the customer should accept without reservation the goods and/or services of the supplier while aware of the suppliers terms and conditions. 

(3) It applies successively as integral parts of the contract: 

1. The written order with all the attachments (e.g. service description, specifications, drawings, sketches) 

2. Special contract conditions of the customer where agreed 

3. This GT&C 

4. The general conditions for the carrying out of services (VOL part B alternatively VOB part B) 

In case of discrepancies in the enactment of the original contract, the order of priority is determined by the above-mentioned list. A contradiction as defined above is not implied when a lower prioritised aspect of the contract complements or substantiates a previous aspect. 

(4) In each case, individual agreements made with the supplier (including supplements and amendments) shall always take precedence over this GT&C. For that a written agreement or a written confirmation is decisive. 

(5) Legally relevant declarations and notifications made by the supplier against the customer after the conclusion of the contract (e.g. setting of deadlines, warnings, notice of withdrawal) shall only be made valid in written form. 

(6) References to the validity of statutory regulations shall only have an explanatory function. Even without such clarification the legal provisions shall therefore apply insofar as they are not directly changed or explicitly excluded in this GT&C. 

§ 2 Performance, delivery, transfer of risk, default of acceptance, minimum wage 

(1) Where agreed to by the customer in the contract, the date of delivery of the order is binding. The supplier is obliged to immediately notify the customer in writing if the agreed delivery date—for whatever reason—cannot be met. 

(2) The supplier is not entitled without prior written consent from the customer to have the service delivered by third parties (e.g. subcontractors). Except in the event of a custom-built product, the supplier bears the procurement risk for their services.The supplier assumes the obligation of ensuring that any subcontractor commissioned is contractually bound to comply with all laws pertaining to the minimum wage 

(3) Delivery shall be “carriage paid” to the office of the customer within Germany. The location of the customer is also the place of performance. 

(4) The delivery of the consignment must be accompanied by a delivery note stating the date (of issue and dispatch), content of the consignment (item number and quantity) as well as purchase order identifier of the customer (date and number). Should the delivery note of the consignment be missing or incomplete, then the customer is not responsible for delays in handling and payment. 

(5) The statutory provisions shall apply in cases of default of acceptance by the customer. The supplier must explicitly provide services to the customer as soon as a specific, or definable calendar date, has been agreed for an act or contribution by the customer (e.g. provision of material). Should the customer default of acceptance, the supplier may claim compensation under statutory regulations for additional expenses (§ 304 BGB of the German Civil Code). Where the contract is to be produced specific items (custom-made products), the supplier shall only be entitled to further reaching rights if the customer is obliged to provide assistance and is responsible for the failure to provide the assistance. 

(6) In their fulfilment of the tasks made incumbent upon them by the present contract, the supplier confirms that they are in compliance with the requirements of German minimum wage legislation. Upon request by the customer, the supplier is required without delay to present confirmation from a chartered accountant that their employees have received the specified minimum wage in accordance with German minimum wage legislation. 

§ 3 Prices and payment 

(1) The value specified in the order is binding. All prices are inclusive of statutory VAT when this is not shown separately. 

(2) The price includes all services and fringe benefits of suppliers (e.g. assembly, installation) and all auxiliary costs (e.g. patent royalties, licence fees, appropriate packaging, transportation costs including transportation and liability insurance). The supplier shall remove packaging material at the customer’s request. 

(3) The agreed price is due within 30 calendar days following complete delivery (including any acceptance of service that may have been agreed upon) as well as receipt of a proper invoice. The timeliness of payment is determined by receipt of the transfer order by the customer’s payment institution. In so far as trade discounts are contractually agreed upon or are offered by the supplier on their invoice, the discount period shall begin when the invoice is presented at the customer’s premises (invoicing address (Akademiestraße 6, 09599 Freiberg). The discount period shall be not less than 14 days. Should the customer assert justified pleas or objections, the discount period shall be thereby suspended. 

(4) The customer does not owe any interest. The supplier’s claim for the customer to pay default interest remains unaffected. Statutory provisions apply at the commencement of default by the customer. In all cases, the supplier is required to issue a reminder of payment. 

(5) The supplier shall only have right of offset or retention in the event of claims not legally established or undisputed counterclaims. 

(6) Prepayments (payment before fulfilment) are only possible in so far as they are customary in the industry (Section 56 of the Federal Budgetary Regulations / Budgetary Regulations of Saxony) and insofar as the supplier can provide a valid guarantee of payment from a credit institute registered in the European Union and accepted by the customer. The payment guarantee declaration must be submitted 

open-ended and in writing, waiving the defence of failure to pursue remedies according to Section 771 of the German Civil Code, voidability according to Section 770 Pgh. 1 of the same, and set-off according to Section 771 Pgh. 2 of the same. The waiver of the defence of set-off shall not be valid insofar as the counterclaim is found to be legally binding. Furthermore, the guarantor must declare that for disputes arising from such a guarantee, the laws of the Federal Republic of Germany shall apply exclusively, and that the place of jurisdiction shall be the registered offices of the customer. Moreover, prepayments shall only be made of up to 30% of the value of the contract. For payment, Section 3 Pgh. 3 Lines 1 and 2 are correspondingly valid, provided that the prepayment occurs after receipt of the order confirmation and of the invoice. 

§ 4 Invoice 

(1) A single copy of the invoice is to be issued to the customer. 

(2) Partial invoices due to partial services provided, the delivered service and the remaining quantities must be clearly evident. The last partial invoice must be clearly marked as the final invoice. 

(3) A claim for payment of the invoice exists only when auditable documents relating to the service delivered to the customer exists; this includes signed delivery slips or service records. 

§ 5 Poor performance 

(1) According to the relevant legal provisions, the supplier is liable for defects of title and quality.In all cases, the product descriptions in particular through designation or reference in the order from the customer are the subject matter of the respective contract or incorporated contract in the same way as these GT&C are regarded to be included in the contract. It makes no difference whether the product description originates from the customer, the supplier or the manufacturer. 

(2) Notwithstanding Article 442, paragraph 1, sentence 2 BGB of the German Civil Code, the customer is also entitled to claim for defects without restriction if the defect remained unknown to the customer upon conclusion of the contract because of gross negligence. 

(3) The legal guidelines shall apply to the commercial inspection and requirements to give notice of defects as follows: the customer’s duty to inspect incoming goods is limited to defects which become apparent upon visual check and including the inspection of delivery documents as well as in the case of a random quality control procedure (e.g. transport damage, wrong delivery and/or short delivery). Apart from that, it depends on the extent to which examination is expedient according to proper business procedures, taking into account the circumstances of the particular case. The obligation to give notice of defects discovered at a later point in time remains unaffected. 

(4) The purpose of inspection and repair costs incurred by the supplier shall be borne even if it turns out that in fact no shortage existed. The liability of the customer for unauthorized removal of defects remains unaffected; insofar, the customer in particular will be liable only if the customer has detected or has not detected by gross negligence, that there was no defect. 

(5) If the supplier does not honour their obligation to rectify the defects, at the discretion of the customer, by removing the defect (repair) or by requiring that a defect-free replacement within an appropriate time period be delivered to the customer; if this deadline is not met, the customer can demand a commensurate advance payment from the supplier in order to replace the defective goods. In case the supplier’s attempt of subsequent delivery shall be abortive or unacceptable (e.g. due to particular urgency, endangerment of operational reliability or imminent occurrence of disproportionate damages), no time limit need be set; the supplier shall be informed of this immediately, if at all possible in advance. 

§ 6 Quality assurance, technical, safety and occupational requirements 

(1) The supplier undertakes to provide only for services that meet the statutory as well as regulatory provisions and the generally accepted technical, safety and occupational health regulations. 

(2) The properties of submitted samples and patterns as well as the above-mentioned properties under paragraph 1 are assured. 

§ 7 Assignment of receivables, reservation of propriety, choice of law, place of jurisdiction 

(1) The supplier is not entitled to assign claims against the customer to a third party, unless the assignment of claims has been previously approved. Should the supplier intend to provide the reservation of propriety, the supplier should notify the customer whether a transfer of ownership has taken place. 

(2) For this GT&C and all legal relations between the customer and the supplier the law of the Federal Republic of Germany will apply to the exclusion of all international and supranational legal systems, in particular the United Nations Convention on Contracts for the international sale of goods. 

(3) If the customer is a merchant within the sense of the German Commercial Code, a legal entity under public law or a separate property under public law, the exclusive - and international - place of jurisdiction, for all disputes resulting directly or indirectly from the contractual relation, is Freiberg/Saxony. The customer shall also be entitled to take actions in the fulfilment of delivery obligations. 

Version 10/2016 

Attention: Only the German version is legally vaild.