I. General
1. Following terms and conditions apply to all deliveries and services by Zeppelin Power Systems GmbH particularly to the sale and delivery of goods, the provision of services (e.g. re-pair, inspection and maintenance) and the provision of tech-nical staff. They also apply to all delivries and services to be provided in the future.
2. Other terms and conditions shall only become components of contracts if they are expressly included in the contract by way of separate agreement. We hereby object to any terms and conditions which are transmitted by you. We shall not recog-nise these even if we do not object to these again separately once they have been received by us.
3. Unless otherwise agreed our offers shall be non-binding. The documents associated with the offer such as illustrations, drawings, weights, dimensions and specifications are only approximations and remain non-binding unless expressly de-scribed as binding.
4. A contract shall only be concluded – unless otherwise ex-pressly agreed – when we issue written order confirmation. If no immediate objection is made to the written order confirma-tion, this shall be decisive for the content of the contract and the scope of the services to be provided. Collateral agree-ments and amendments to the contract must be confirmed in writing by us.
5. We reserve property rights and copyrights in samples, cost estimates, drawings and similar tangible and intangible infor-mation – including information in electronic form –; these shall not be made accessible to third parties.
6. Unless otherwise agreed, the respective most recent version of the INCOTERMS shall be decisive for the interpretation of delivery clauses.
II. Cost Estimates, Prices and Payment
1. Cost Estimates
1.1. On request we can give you an estimate of the costs which you can expect to be incurred for the services to be provided by us in the form of an estimate of a non-binding contract. The cost estimates shall be based on the average costs in our experience.
1.2 We do not, in principle, invoice for the services provided in connection with the cost estimate separately if these can be used during the later repair. If the agreed services cannot be provided for reasons for which we are not responsible, in par-ticular because
o you do not authorize the repair
o the error objected to did not occur during fault diag-nostics ,
o replacement parts cannot be obtained anymore,
you are obliged to pay for the services provided and any further costs incurred (e.g. travel expenses, costs of identify-ing the error) up until provision of the cost estimate.
2. Prices
2.1 Unless otherwise agreed in writing, goods delivery prices are "Free Carrier" (FCA) excluding packaging. Statutory VAT is charged on top of the prices. The prices are calculated on the basis of EUR. In the case of sales in other currencies, you shall bear the conversion risk for deviations from the daily rate at the time when the payments are credited to our ac-count vis-à-vis the rate applied in our conversion.
2.2 Other services shall be invoiced, unless a fixed price has been agreed in writing, after effective expense at the prices valid when services are performed. You shall bear taxes, cus-toms duties, transport and packaging costs.
2.3 Unless a fixed price has been agreed in writing for the ser-vices of our technical staff, our "charge rates service center", in the version applicable at the time the service are per-formed, shall apply which we would be pleased to provide on request. The remuneration is excluding statutory VAT which is also due to us. You shall bear all travel expenses of our staff in connection with the contract and transport, freight and cus-toms charges, insurance costs for instruments and tools and personal luggage, also costs of telegrams, long-distance tel-ephone calls, etc., also any special equipment necessary, cost of vaccinations, additional health insurance, taxes, charges and similar.
2.4 Costs in connections with the providing of staff are regulated in Para. VI.9. of these conditions.
2.5 If, after entering into the Contract and prior to delivery of the materials and performance of the agreed services, the net purchase price for any of the materials to be supplied or any of the services to be performed to the you increases or de-creases by more than 5 percent compared to the net pur-chase price applicable at the time of entering into the Con-tract for the relevant material or service, both the you and we shall have the right to demand that the price stated in the Contract for the relevant material or service be increased or decreased accordingly on a percentage basis. This price ad-justment can be requested at the earliest four months after entering into the Contract.
3. Payment / Default
3.1 Unless not otherwise agreed, the payment shall be made without any deductions into one of our bank accounts, details provided, directly after receipt of the invoice. The remunera-tion of deliveries and (partial-)services and costs shall be in-voiced at our discretion either weekly, monthly or after com-pletion of the work.
3.2 You are only entitled to retain payments or to set off pay-ments against counterclaims if we have expressly recognised your counterclaims or they have been ascertained finally and absolutely.
3.3 If you fail to settle due payment obligations, despite a re-minder, we are particularly authorized:
o to demand settlement of any due accounts directly.
o to withhold services from uncompleted contracts.
o to activate retention of title and property rights (Para. VIII.)
3.4 If you are in default of payment, we have the right to claim interests at the statutory amount. . We retain the right to claim higher damages.
III. Delivery/Acceptance
1. Deliveries of Goods / Remanufactured Parts
1.1 You are responsible to take over the goods within five work-ing days after the notification of readiness for pickup at the agreed delivery/transfer location.
1.2 If you require the delivery of goods it is at your liability and cost. The same applies to possible returns. Without constitut-ing any liability the forwarder/carrier will be selected on the basis of being the mostcost-effective and quickest. Your specific transport instructions will only apply if they have been agreed in writing.
1.3 In the case of delivery of goods, the risk of loss, damage and resulting delays in delivery pass to you when the goods are taken over by the forwarding agent/freight carrier and at the latest when the object of delivery has left the works, even if part deliveries are still outstanding or if we have assumed other services, e.g. the freight costs or transport.
1.4 If we deliver carriage paid, you shall unload the means of transport immediately. In this case you will ensure that the goods are safely transported free of charge to the place of use and bear the costs and risk of unloading. You shall bear the costs of any waiting periods.
1.5 Part deliveries are permissible to the extent that can be rea-sonably accepted by you.
1.6 If you are in default with the acceptance or is a delay of ser-vices caused by you, the risk of loss or damages passes to you after our notification of readiness for pickup. From this date you are liable for all costs of storage (e.g. preservation) and any other occurring costs. Our right to claim further dam-ages remains unaffected.
1.7 Along with the sale of remanufactured parts the title of the used parts passes over to us. You are obliged to return the used parts to us. The return may be delayed until the delivery of the remanufactured parts. The actual transfer of the parts will be substituted by your custody of the parts for us after the sale of the remanufactured parts. You affirm your unre-stricted right to disposal of the used parts.
The used parts must be in an exchangeable, i.e. in a repaira-ble and reusable condition. They have to match the remanu-factured parts in quantity and type and have to be as com-plete as the remanufactured parts. Used parts have to be free of any defects resulting out of improper use that prevent the intended function, in particular but not reduced to fractures and cracks.
The return of used parts must be prompt but no later than two weeks after the delivery of remanufactured parts and on your expense.
If the condition of used engines by the time of delivery of a remanufactured engine differs to the condition of the used engine by the time of sale of the remanufactured engine, we are entitled to claim any relevant reduction in value of the used engine.
If the condition of the used parts returned by you fails our cri-teria, or the time limit for the return of the used parts has ex-pired,
o we are entitled to invoice the difference between the price for
remanufactured parts and the list price for new parts.
o no credit note for the return of the used parts will be given if the price
for the remanufactured part is already based on the list price for new parts.
2. Service Level / Obligation to co-operate
2.1 Unless otherwise expressly agreed in writing, objects to be repaired and provisions of material shall be sent to us at your cost and collected by you once the work is completed. In ad-dition the regulations for deliveries of goods (Para. III.1) ap-ply.
2.2 You are obliged to accept our works as soon as notification has been provided of the completion thereof and any in so far as contractually agreed testing has taken place. You are only entitled to refuse our works in the event of an existing significant defect. If acceptance is delayed and we are not re-sponsible herefor, you shall be deemed to have accepted the work after one week from notification of completion of our works, at the latest, however, when you take/s possession of or start to use the object.
2.3 If the agreed work cannot be carried out, the object to be worked upon shall only be returned to its original condition if you expressly request such and if you reimburse us for the costs incurred herefor, unless the work proposed and carried out by us must be regarded as not expedient - with respect to the time of implementation - on the basis of a proper estima-tion.
IV. Insurance
You shall ensure that the insurance cover for the object to be worked upon and the provisions of material repaired is main-tained during the period in which the object to be repaired is located at our premises.
V. Delivery and Service Periods
1. Delivery Periods / Default in Delivery
1.1 The delivery period is indicated in our agreements. The pre-requisite for the observance of the delivery period by us is that all commercial and technical questions between the con-tractual parties have been resolved and that you have fulfilled all of your obligations, such as the provision of the official certificates or permits required, in-time provision of materials, making a down-payment or provide a guarantee. If this is not the case, the delivery period shall be postponed by a reason-able period. This shall not apply if we are responsible for the delay.
1.2 The delivery period shall be deemed to have been observed if, by expiry of this period, the goods have left our works or are ready for dispatch and notification has been given hereof. If goods need to be accepted, the acceptance date shall be determinative except in the event that acceptance is refused on justified grounds.
1.3 Observance of the delivery period is subject to ourselves having been supplied in a correct and timely manner of our supplier.
1.4 If the contractually agreed delivery cannot be made because we have not been supplied by our own suppliers, we are enti-tled to rescind the contract. In the event that the contractually agreed performance should only be determined generically and we should not, respectively not punctually be supplied by a supply hedging transaction concluded for purposes of ful-filling contractual obligations, our contractual obligation (un-der reservation of self-delivery) shall lapse. However, we shall be under the obligation to notify you with regard to non-availability of the delivery item, without delay, and to immedi-ately reimburse any possibly payment already received in this regard.
1.5 If failure to observe the delivery period was due to force majeure, industrial action, fire, epidemics, pandemics, sanc-tions, official measures or other occurrences outside our sphere of influence, the delivery period shall be extended by an appropriate period. We shall inform you as soon as possi-ble about the beginning and end of such circumstances.
1.6 If the dispatch or acceptance of the object to be delivered is delayed for reasons for which you are responsible, we shall be entitled to demand that you reimburse us for the resulting damage.
1.7 Any liability for delayed delivery attributable to us and beside claims for compensation of damages due to a delivery delay attributable to us, the other statutory claims and rights of the buyer, which it shall be entitled to in terms of the law, shall (subject to the provisions set forth under Clause X.) remain unaffected.
2. Completion dates for Services
2.1 The information regarding the completion of services is based on estimates and is therefore non-binding, unless those esti-mates are expressly designated as binding.
2.2 A completion date bindingly accepted by us shall be deemed observed if the object to be worked upon is ready for ac-ceptance, if testing is provided for in the contract, for the test run.
2.3 In the event of additional contracts or necessary additional work, the agreed completion date shall be rescheduled ac-cordingly.
2.4 Should the service be delayed as a result of force majeure, fire, industrial action, in particular strike or lock out,official measures or as a result of circumstances for which we are not responsible, the completion date shall be reasonably post-poned, provided that such impediments have an obvious in-fluence on the completion of the repair; this shall also apply if such circumstances arise after a delay in performance by us.
VI. Provision of Technical Staff
1. Our technical staff shall be selected with the care of a prudent businessman at our due discretion. We reserve the right to exchange our staff.
2. The normal working hours of our staff are stated in our effec-tive “charge rates for after sales services”.
We shall invoice you for any work carried out outside the stated regular working hours separately as overtime. The con-sent of our staff is required to working overtime.
If we provide technical staff and do not invoice here for (work to remedy defects, etc.) and if overtime is carried out at your request, you shall bear the additional payments which result here from.
3. You are obliged to provide our staff with several copies of a receipt with stamp and signature of the timesheet to be sub-mitted to you and to confirm in writing that the work has been completed even if you want to raise objections. Your right to raise objections shall not be affected hereby.
4. All preparatory work must be complete before commence-ment of our work. You shall provide the equipment, tools and other aids (in particular lifting equipment, scaffolding, energy, grease, cleaning materials, fuel and water) necessary for the work at your own cost in due time before commencement of the work; special tools are exempted of this regulation
5. If required by the type and scope of the contract, you shall provide our staff with the following in close vicinity to the place of work:
o suitable and lockable means of storage to store tools, material, etc.;
o suitable and lockable changing rooms with washing fa-cilities;
o suitable and furnished offices which can be locked and which are equipped with internet access and
o toilets and drinking water at the place of work.
6. You shall be responsible for the safety of the workplace, observance of the relevant safety provisions and for ensuring reasonable working conditions for our staff.
You shall point out particular risks to us which could result from the work. You shall inform our staff about
• particular conditions at the workplace under which the contract is to be carried out and about particular risks which could result at the workplace or in using the equipment and tools provided by you and
• you will ensure that any reasonable request made by our staff regarding additional safety measures is met.
You shall inform our staff without special request if in the course of the work it is possible that they will come into con-tact with or release hazardous substances or such which pre-sent a health risk. You undertake, in particular, to inform our staff about the use or the existence of asbestos-containing materials in the workplace and give our staff an exact specifi-cation of the solvent-containing materials provided by you for the work.
You are aware that our staff must strictly observe the statuto-ry, trade union and works safety provisions respectively ap-plicable, when carrying out their work. You shall ensure that the conditions of the workplace permit these provisions to be observed.
You alone are responsible for proper disposal of all hazard-ous materials which result from the work carried out by our staff.
7. Non-observance of the above provisions entitles our staff to interrupt their work. Remuneration shall continue to be paid during such interruptions.
8. You shall provide us with all support necessary and reasona-ble to obtain visas and other necessary permits or certificates in order to ensure that our staff can commence work in due time at the place of work and can return to their country of residence. You shall also assist us in handling the necessary customs formalities.
9. Costs
You have to bear also costs of trips home during the period of work. In the case of work abroad, this applies in particular to the Easter, Whit and Christmas public holidays and to a trip home every three months if the work extends over an uninter-rupted period of more than three months. If we are forced to withdraw our staff for a reason for which we are not responsi-ble, you shall also bear the resulting costs hereof.
All costs for the insurance of instruments and tools, personal luggage, telecommunication etc., furthermore special equip-ment, fees for inoculations, additional private health insurance are part of the travel expenses according to this clause.
You shall reimburse all taxes and social charges which are incurred outside Germany and the usual place of taxation of our staff by us or our staff as a result of this contract.
In the event that our staff are injured or fall ill, you shall ensure that they receive the necessary medical care and – if necessary – that they are taken to a suitable hospital and in-form us immediately. You undertake to pay any costs up front (particularly abroad). We will reimburse you therefor in return for the corresponding invoices.
VII. Use of Software / Reverse Engineering
1. Should the scope of delivery contain software, you shall be granted a non-exclusive right to use the software supplied in-cluding the associated documentation, within the scope of the contract purpose. This right is granted for use with the specific goods delivered. The software shall not be used on more than one system.
2. You may only reproduce, modify, translate the software or convert it from the object code to the source code to the ex-tent permitted by statute. You undertake not to remove man-ufacturer's data – in particular copyright data – or to alter it without our express consent.
3. We or the software supplier retain/s all other rights in the software and the documentation including the copies. You shall not be permitted to grant sub-licences.
4. You may not imitate or commercially exploit any of the deliv-eries in any way (including but not limited by way of so-called “reverse engineering”) or let any other person or entity imitate or commercially exploit any of the deliveries in any way.
VIII. Securities / Retention of Title
1. We reserve title in all goods delivered and in all accessory and replacement parts and exchange elements until fulfilment of all claims, irrespective of legal grounds, to which we are entitled against you. This shall also apply if you make pay-ments on claims specifically described.
2. You may neither pledge nor transfer the goods, until the property has not passed to you . You shall notify us without undue delay of any pledges and seizures or other disposals by third parties. You are entitled sell the reserved goods in the ordinary course of business. You hereby assign to us all receivables up to the amount invoiced by us (including VAT) which you accrue from the resale to the customer or third par-ties. The same shall apply for possible claims for damages. You shall still be entitled to collect the receivables after this assignment. However, we reserve the right to collect the re-ceivables ourselves if you do not properly observe your payment obligations.
3. We shall be entitled to a lien in the object of service which has come into our possession on the basis of the contract owing to our claims arising from the service contracts. The lien can also be asserted on the basis of claims arising from earlier work carried out, replacement part deliveries and other ser-vices to the extent that they are associated with the object of service.
4 In the event of conduct in breach of contract by you, in par-ticular in the case of delay in payment, we are entitled to cus-tody the goods supplied after issuing a warning and you are obliged to surrender them. If we assert reservation of title or pledge of the goods delivered, this shall not be deemed to be withdrawal from the agreement.
5 The application for the commencement of insolvency pro-ceedings regarding you or your assets entitles us to withdraw from the contract and to demand immediate return of the goods delivered.
6 In the event that the exploitable value of our goods under reservation of title should exceed our total receivables against you by more than 20 %, we shall release the goods under reservation of title upon your request, if separable, up to the value threshold mentioned.
7 If the reservation of title agreed here or the assignment is invalid under the law of the country to which the reserved goods are delivered, the corresponding security agreed for the reservation of title and assignment in this country shall be deemed agreed. The security must be provided in each case in such a way that the rights of the supplier are also guaran-teed in the event of insolvency. If your cooperation is required to obtain such rights, you undertake to take all measures nec-essary to justify and maintain these rights.
IX. Warranty / Provisions / Liability / Statute of Limitations
1. To preserve your warranty claims you shall inspect the goods delivered and protest against defects according to section 377 German Commercial Code. If you omit to protest against defects, the goods shall be deemed to have been accepted, unless the defect is one which could not be recognised on in-spection. If such a defect is discovered later, you shall inform us within one week after discovery. Otherwise, the goods shall also be deemed to have been accepted with regard to this defect.
In case of the delivery of goods which shall be installed in another property, the inspection owed by you according to section 377 German Commercial Code shall be carried out prior to the installation.
In the same way, you shall be obliged to inform us, without delay, after detection of any damages attributable to us, which are caused due to breach of duty during contract nego-tiations (culpa in contrahendo), breach of other obligations and actions of tort. In the event that you should default on such notification, you shall lose all and any claims based on damages in question.
2. You shall also inspect all other deliveries and services pro-vided by us, in particular services if there are any defects, you shall inform us thereof without undue delay. If you omit to inform us, the service provided by us shall be deemed to have been accepted, unless the defect is one which could not be recognised on inspection. If such a defect is discovered later, you shall inform us without undue delay after discovery. Otherwise, the service provided by us shall also be deemed to have been accepted with regard to this defect.
3 If any defect should be prevalent, we shall be entitled to, at our own discretion, select supplementary performance through elimination of defect (rectification of defect) or deliv-ery of defect-free goods. No claim on supplementary perfor-mance or any specific manner of handling such supplemen-tary performance shall exist. In the event that the purchase price has not yet been fully or only partially paid, subsequent performance may – by taking into account the defect assert-ed – be made subject to the condition that part of the pur-chase price be paid.
Subsequent performance shall at the earliest be deemed abortive after the second attempt has failed, if no further at-tempts to subsequent performance should be appropriate or reasonable upon you due to the subject matter of the con-tract. Claims for compensation of damages based on defect may only be asserted by the buyer once subsequent perfor-mances have proven to be abortive under the regulations set forth under clause X.
4 We shall only bear expenses in connection with subsequent performance if they are reasonable in the individual case, in particular in relation to the purchase price of the goods and do not exceed 150 % of the value of the goods. Expenses of the buyer for the self-remedy of the defect are excluded, without the legal requirements for this being fulfilled.
We shall only assume expenses in accordance with the costs of dismantling and assembly insofar as the contract is a con-sumer good purchase.
We do not assume expenses incurred because the sold goods have been taken to a place other than your registered office or your branch, insofar as these exceed the expenses normally incurred within Germany.
5. Used objects of purchase shall, if nothing to the contrary has been agreed, be sold under exclusion of any and all warranty whatsoever. This shall also then apply, if the purchased ob-ject should not reflect any apparent defects, which were not specified in the contract of purchase at the point in time of handover or upon conclusion of the contract. Remanufactured and reconditioned parts shall be deemed to be used objects within the definition of this regulation.
X. Liability
1. In the event of slightly negligent breach of contractual obliga-tions, which in the first place permits due and proper perfor-mance thereof and where compliance therewith is regularly trusted by a purchaser and may be trusted (cardinal obliga-tions/-fundamental contractual obligations); our liability shall be limited to predictable and typically occurring damage ac-cording to such type of performance. In the event of slightly negligent breach of non-fundamental contractual obligations our liability shall be precluded.
Compensation for consequential damages, e.g. lost profits, in case of a slightly negligent violation of obligations shall be precluded.
The same shall apply to grossly negligent breach of obliga-tion against minor contractual obligations caused by our ordi-nary vicarious agents.
This limitation of liability and non-liability shall also apply to claims based on fault at the time of concluding the contract (culpa in contrahendo), other breach of obligations and tort. This shall not apply to cases of health effects, human injury or loss of life attributable to us or claims in terms of product liability law.
2 Our liability shall under all circumstances be limited to a maxi-mum sum of liability to the aggregate of 100% of the particu-lar contract value, except in the case of intent or gross negli-gence by our organs or executives and in the case of health effects, human injury or loss of life, in the case of claims based on the product liability laws. Any higher maximum amount of liability shall expressly be agreed in the written form.
3. We shall not be liable for damages, which are caused by sole fault of any person deployed by you, even not if such indi-vidual should be supervised by our technical staff and receive instructions at the time of rendering services.
4. The limitation of liability and the exclusion of liability men-tioned hereinbefore shall also apply to claims against our staff, employees, labourers, representatives and vicarious agents.
XI. Limitation
1. Subject to deviating written agreement, claims due to you based on defect shall become statute barred at the latest af-ter 12 months. This limitation deadline shall commence upon delivery of objects, however at the latest on the day of taking delivery and in the case of rendering other services, on the day of acceptance.
2. Claims arising from fault at the time of concluding the con-tract (culpa in contrahendo) and other breach of contractual obligations shall become statute barred at the latest after 24 months. Limitation deadline shall commence on the day on which you become aware of the circumstances constituting such claim or should have become aware of such circum-stances, if you were not grossly negligent. Irrespective of your knowledge or grossly negligent lack of knowledge, such claims shall become statute barred, with the exception of claims based on health effects, human injury or loss of life or deprivation of liberty at the latest after 5 years as of its emer-gence. This provision shall not be applicable to claims arising from or in connection with product liability.
3. In deviation of § 212 Para. 1 No. 1 “BGB”, the statute barring limitation period set forth in the provisions hereinbefore as regards claims you are entitled to shall solely be revived, if we expressly acknowledge such claims to you in writing.
4. The before mentioned statute barring regulations shall also apply to claims against our staff, employees, labourers, rep-resentatives and vicarious agents.
XII. Export control
1. The contract shall be subject to the condition precedent that any necessary export licences are issued by the competent authority or that it is established that an export licence is not required. In addition, the contract is subject to the condition precedent that no other applicable embargo or sanction pro-visions conflict with the performance of the contract. You are obliged to provide immediately all information and docu-ments required for the export or transfer cross-border within the European Union if we take on the application for the per-mit. Deadlines and delivery times shall be extended accord-ingly due to delays due to export inspections or licensing procedures as well as culpably delayed provision of the in-formation and documents required for export or shipment.
2. You are obliged to comply with the applicable regulations of national and international (re-) export control law when pass-ing on the goods supplied by us (hardware and/or software and/or technology as well as associated documents, irre-spective of the manner in which they are provided) or the work and services provided by us (including technical sup-port of any kind) to any third party in Germany and abroad. In particular, you comply with Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine, as amended, Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus, as amended, and Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures against actions undermining or threatening the territorial integrity, sovereignty and inde-pendence of Ukraine, as amended.
3. Please be advised that due to the possibility of US-American percentage of the goods, the US-American re-export law could be applicable. A resale to Iran, North Korea and Syria which is subject to the economic, trade or financial sanctions or embargos adopted by the United States of America with regard to Iran, North Korea and Syria is prohibited to the ex-tent that it is not contrary to European or German legal provi-sions, in particular Council Regulation (EC) No. 2271/96 of 22 March 1996 on the International Sale of Goods (IPPC). No-vember 1996, last amended by the delegated regulation (EU) 2018/1100 of the Commission of 6 June 2018 (EU Blocking Regulation), as well as § 7 of the Foreign Trade and Pay-ments Regulation."
4. You shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in Russia, Belarus, Iran, Syria, North Korea any goods supplied under or in connec-tion with this contract especially if they fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.
You shall undertake to do your best efforts to ensure that the purpose of the forgoing paragraph is not frustrated by any third parties further down the commercial chain, including by possible resellers.
You shall set up and maintain an adequate monitoring mech-anism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of the forgoing paragraphs.
Any violation of clause XII.4.(1), (2) or (3) shall constitute a material breach of an essential element of the contract, and we shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of the contract; and (ii) a penalty of 15 % of the total value of the conttract or price of the goods exported, whichever is higher.
You shall immediately inform us about any problems in ap-plying the foregoing paragraphs, including any relevant activi-ties by third parties that could frustrate the purpose of the foregoing paragraphs. You shall make available to us infor-mation concerning compliance with the obligations under this paragraph within two weeks of the simple request of such in-formation.
5. Furthermore, you warrant that the deliveries and/or parts thereof to be transported under this contract may not and will not be transported through the territory of Russia and/or oth-er embargoed countries unless you have obtained export li-cences from the competent authorities of the respective country for the transit of the deliveries through the territory of Russia. Prior to the delivery date of the supplies and services or parts thereof (in case of partial delivery), you shall provide us with transport documents confirming the transport route of the supplies and the absence of Russia and other embar-goed countries (for the transit of the supplies) on this route. Such documents can be the description of the transport route confirmed by you, the transport application and its confirma-tion by the customer with details of the transport route (con-firmed transport order) as well as other transport documents.
6. You shall indemnify us and/or the manufacturer of the goods and services against all claims, fines, penalties, damages, losses and liabilities arising from your failure to comply with Clause XII. Failure to comply with any part of Clause XII shall constitute a material breach of the contract.
7. You shall be liable for breach of any of the above representa-tions and/or warranties. You shall indemnify us unconditional-ly for all losses, damages, fines and costs incurred by Zep-pelin and/or any company of the Zeppelin Group in connec-tion with any breach attributable in whole or in part to your breach of any representation or warranty.
8. If, prior to the actual delivery of the goods and services and/or their parts to you, we discover that any of the above representations and/or warranties do not correspond to the actual circumstances and/or you have not provided an ac-ceptable written confirmation of compliance with the said rep-resentations and warranties within 5 (five) working days of re-ceipt of the request from us, we shall have the right to unilat-erally terminate this contract in whole or in part by written no-tice to the customer. Any such repudiation shall be deemed lawful and shall not give rise to any liability on our part. In addition, we shall have the right to recover damages incurred in connection with the termination of this contract.
XIII. Supply chain security
1. You warrant that you are an Authorised Economic Operator (AEO-F or AEO-S) or that you fulfil the following require-ments regarding supply chain security:
goods, which are produced, stored, forwarded or carried by our order, which are delivered to us or which are taken for de-livery from us,
- are produced, stored, prepared and loaded in secure business premises and secure loading and shipping ar-eas, and
- are protected against unauthorized interference during production, storage, preparation, loading and transport
Furthermore, you warrant that reliable staff is employed for the production, storage, preparation, loading and transport of these goods, that business partners who are acting on your behalf are informed that they also need to ensure the supply chain security as mentioned above and that this also applies to service providers at your location.
2. The AEO-F or AEO-S certificate has to be proven immediate-ly, at the latest upon first delivery by way of submitting a copy of the official certificate. In case you are not an Author-ised Economic Operator, you will immediately, at the latest upon first delivery, submit a security declaration according to which you undertake to comply with the above stated re-quirements regarding supply chain security. Once you do not comply with the requirements stated in the security declara-tion anymore, you shall inform us immediately.
3. You hereby undertake to comply with the Zeppelin Code of Conduct for Suppliers and the Zeppelin Code of Conduct for Business Ethics and Compliance in the context of all busi-ness relationships (including contracts existing in this con-text) with ZPS. The current version is available for download on the homepage of ZPS (www.zeppelin-powersystems.com) and will be sent to you upon request.
XIV. Applicable Law, Place of Jurisdiction
1. The law of the Federal Republic of Germany shall apply ex-clusively to all legal relationships between you and us. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. The place of jurisdiction for all legal relationships between you and us shall be Hamburg. However, we are entitled to file claims against you at any place where there is jurisdiction against you on the basis of the applicable legal provisions.
XV. Miscellaneous
1. This agreement does not grant rights to third parties. An assignment of rights and claims under this agreement by you requires our prior written consent to be valid.
2. We collect and process data from you, which may possibly also have a personal reference. Corresponding information on data protection in accordance with Art. 13 GDPR (obligation to provide information when collecting data) can be found under the following link https://www.zeppelin-powersystems.en/data-privacy/.
3. Foreign principals shall submit a certificate without undue delay which states that the goods are to be sent abroad. If it is not possible to obtain such a certificate, you or the party instructed by you must confirm on the transfer papers or the delivery note receipt of the goods and that the goods will be shipped abroad. This also applies in the event that you collect the goods yourself. In the event of non-observance of this provision or non-fulfilment of other preconditions for VAT-free delivery, we must charge you VAT at the rate applicable in the Federal Republic of Germany which must then in this case be paid to us with the invoice amount.
4. In the event that individual contractual provisions should be entirely or partially invalid or become invalid, the remaining part of this agreement shall not be affected thereby; this shall also apply in the event that it should transpire that this con-tract contains any gaps. Any entirely or partially invalid provi-sion shall be replaced by an appropriate provision, which – insofar as legally possible – comes as close as possible to the intent of the contractual parties or which the parties would have agreed upon within the objective of this agreement, if such event should have been contemplated at the time of contractual conclusion. The same shall apply to filling any gaps contained in this contract.
6. In the event of any deviance of this English version of the General Terms and Conditions from the German original ver-sion only the German original version shall be relevant and binding.