General Terms and Conditions of Purchase
“Conditions”: the terms and conditions set out in this document as amended from time to time.
“Contract”: the contract between the Supplier and Zeiss for the sale and purchase of goods and/or services in accordance with these Conditions.
“Delivery Time”: shall have the meaning as defined in clause 4.1.
“Order”: any order by ZEISS for goods and/or services to be supplied and/or performed by the Supplier.
“Supplier”: the person, firm or company from whom Zeiss purchases goods and/or services.
“Writing”: a reference to writing or written shall include fax and e-mails but not SMS and/or other means of similar electronic communication.
2.1 Any Contract for the sale and delivery of goods and/or services by Supplier to ZEISS shall be subject to these Conditions, which shall apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.2 Any Supplier’s general terms and conditions shall only be applicable to the extent ZEISS has expressly agreed such terms in Writing.
3.1 The Order constitutes an offer by ZEISS to purchase the goods and/or services in accordance with these Conditions.
3.2 The Order shall be deemed accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order; and/or (b) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
3.3 ZEISS shall be entitled at any time to cancel Orders free of charge until such point at which the Contract has come into existence in accordance with clause 3.2.
3.4 Any changes or additions to any Orders by the Supplier must be agreed by ZEISS in Writing.
3.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
4. Time-limits, consequences of delay
4.1 Agreed dates and times for deliveries of goods and/or services (“Delivery Time”) shall be binding on the Supplier and the Supplier acknowledges and agrees that under the Contract time for deliveries shall be of the essence. If delays are expected or occur Supplier shall immediately notify ZEISS in Writing.
4.2 If Supplier fails to deliver or perform the goods and/or services by the Delivery Time, ZEISS shall be entitled (without prejudice to any other remedy available to ZEISS) to exercise one or more of the following remedies:
(a) reject the goods and/or services,
(b) require a full refund of the purchase price for any rejected goods and/or services, (c) terminate the Contract,
(d) recover from the Supplier any costs incurred by ZEISS in obtaining substitute goods and/or services from a third party, and
(e) claim compensation for any other costs, loss, damage or expense suffered by ZEISS which are in any
way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.1 Prices shall be fixed prices as set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.
5.2 The prices shall include all expenses in connection with the goods and/or services provided by Supplier, including (without limitation) the costs of packaging, insurance, carriage and performance but excluding amounts in respect of value added tax (VAT), which ZEISS shall additionally be liable to pay to the Supplier at the prevailing rate subject to receipt of a valid VAT invoice.
5.3 No extra charges for any goods and/or services shall be effective unless agreed in Writing by ZEISS.
6. Execution, delivery
6.1 Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of ZEISS, except where such obligations merely concern the supply of standard parts related to the goods and/or services. In the event of any permitted subcontracting, the Supplier shall remain responsible for all acts and omissions of its subcontractors as if they were its own.
6.2 Any Orders accepted by the Supplier shall be binding with regard to the nature and quantity of the goods and/or services ordered and the Delivery Time. Part-deliveries shall require the prior written consent of ZEISS. However, failure by the Supplier to deliver any one instalment on time or at all or any defects in an instalment shall entitle ZEISS to the remedies set out in clause 12.4.
6.3 All deliveries must be accompanied by a delivery note stating the ZEISS Order number as well as details of the nature and quantity of the contents of any delivered consignment.
6.4 Deliveries shall generally include customary one-way standard packaging. If reusable packaging is used, the fact shall be clearly stated on the delivery note. Return of the reusable packaging shall be carried out at Supplier’s cost and risk. If ZEISS has expressly agreed in Writing to pay for any packaging costs, then these costs shall be calculated on basis of verifiable net costs.
6.5 Where required, a technical description and instructions for use shall be included free of charge. Where applicable technical data sheets regarding the energy efficiency shall be included. In case of software products, the delivery obligation shall only have been met once all the (systems and user) documentation has also been delivered. For software that is specifically developed for ZEISS, the source code shall also be delivered and assigned to ZEISS.
6.6 When Supplier is delivering goods or providing services on ZEISS’ premises, Supplier shall and shall procure that its employees, agents and/or subcontractors at all times adhere to ZEISS’ health & safety policy and any other policies, rules and/or directions concerning (without limitation) security, environmental and fire protection and efficient use of energy currently in force at ZEISS’ premises from time to time.
7. Invoices, payments
7.1 Invoices for the price of the goods and/or service plus VAT at the prevailing rate (if applicable) shall be sent by the Supplier to ZEISS separately on or at any time after completion of delivery. Invoices shall state ZEISS’ Order number, the date of the Order, the Supplier’s VAT registration number, and shall be accompanied by any supporting documents that ZEISS may reasonably require.
7.2 Payments by ZEISS shall be due 60 days after delivery of the goods and/or services and/or receipt of the Supplier’s invoice, whichever occurs later. If ZEISS choses to make payment of an invoice within 14 days from the later date of the delivery of the goods and/or services and/or receipt of the Supplier’s invoice, ZEISS shall be entitled to a 3% discount on the purchase price. Payment shall be deemed to have taken place on the day ZEISS’ bank has received the transfer order.
7.3 Payments shall not be deemed to constitute an acknowledgement by ZEISS that the goods and/or services are in accordance with the Contract. In the event that goods and/or services are delayed, defective or incomplete, ZEISS shall be entitled, without prejudice to ZEISS’ other remedies available to it under the Contract, to withhold payment of the purchase price under the Contract until Supplier has delivered the goods or performed the services in accordance with its contractual obligations.
8. Compliance with applicable laws and regulations
8.1 Supplier shall be obliged to comply with all applicable laws and regulations, including but not limited to such laws and regulations relating to workplace and consumer safety and environmental protection. Supplier shall indemnify and hold ZEISS harmless from any and all claims or demands by third parties resulting from Supplier’s failure to comply with such applicable laws and regulations.
8.2 Without prejudice to the generality of clause 8.1, Supplier shall be obliged to comply with all applicable regulations regarding hazardous substances and the Supplier shall not use any banned substances. Supplier shall specify all substances to be avoided and all dangerous substances and submit safety data sheets (in English language) with any Supplier’s offers and/or quotations and also with the delivery note of Supplier’s delivery of goods or services which contain or require use of such substances. If Supplier has any evidence that its delivery may have violated restrictions on substances or contained banned substances Supplier shall be obliged to immediately notify ZEISS in Writing with a description of such violation and/or content.
8.3 With respect to deliveries of goods and performance of services Supplier alone shall be responsible for compliance with regulations for the prevention of accidents. Adequate safety equipment and manufacturer’s instructions shall be supplied by Supplier to ZEISS free of charge.
9. Import and export provisions, conflict minerals
9.1 For goods and services from a country (other than the UK) that is within the EU, the EU value added tax identification number shall be quoted on any invoice issued by the Supplier. In case Supplier is located in an EU-member country, imported goods shall be delivered to ZEISS duty paid unless expressly agreed otherwise by ZEISS in Writing.
9.2 Supplier shall comply with all export regulations (especially the export control and customs regulations) applicable in the country of destination and at Supplier’s place of business and - where applicable - the United States of America. Supplier shall clearly show the corresponding classification (Export Control Classification Number) as well as the applicable statistical product number (HS Code) and the country of origin in the documentation (shipping note, invoice, etc.) provided for all deliverables that are subject to export licenses or US (re-)export regulations. Supplier shall be obliged to provide at its own expense the required declarations and information under Regulation (EC) No. 1207 / 2001, allow checks to be performed by customs officials and furnish the requisite official letters of confirmation.
9.3 Where goods or services to be delivered to ZEISS involve technologies and/or technical knowledge, which are subject to US (re-)export regulations (EAE, ITAR), the European Dual Use regulation or to the UK Strategic Export Control List, Supplier shall be obliged to inform ZEISS in Writing about this circumstance.
9.4 Supplier has implemented reasonable measures to ensure that its goods and/or services are in compliance with the requirements for use of so-called conflict minerals (e.g. tantalum, tungsten, tin or gold) under Section 1502 of the Dodd-Frank Act; the materials Supplier delivers to ZEISS shall not contain conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or adjoining countries.
10. Passage of risk, acceptance, title
10.1 Irrespective of the agreed price terms the risk passes to ZEISS in case of delivery without installation or assembly upon delivery of the goods at the delivery address provided by ZEISS and in the event of delivery with installation or assembly upon successful completion of the acceptance of the installation or assembly of the goods by ZEISS. Commissioning or use of any goods and/or services shall not have as its effect the passing of risk.
10.2 ZEISS shall acquire title to any goods and/or services on delivery and/or on payment whichever occurs earlier.
11. Notification of defects, expenses
11.1 ZEISS shall not be obliged to examine delivered goods for defects. ZEISS will inform Supplier about defects as soon as reasonably possible after their detection according to the circumstances of the orderly course of business.
11.2 If ZEISS returns defective goods to Supplier, ZEISS shall be entitled (without prejudice to any other remedy available to ZEISS in this respect) to debit back to Supplier the invoice amount paid plus a lump sum for expenses of 5% of the price of the defective goods. ZEISS reserves the right to proof higher expenses. Supplier’s right to proof lower or no expenses shall be reserved.
12. Warranty relating to defects of quality and title
12.1 The Supplier shall ensure that the goods and/or services shall:
(a) correspond with their description and the agreed specification,
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by ZEISS expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement,
(c) be free from defects in design, material and workmanship and remain so for 12 months after delivery,
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the goods and/or services, and
(e) be performed with all due care, skill and diligence and in accordance with best industry practice relevant to the goods and/or services in question.
12.2 Goods and/or services which do not comply with the undertakings in clause 12.1 must be replaced by deliveries that are free from defect immediately on request by and without further cost to ZEISS. This position shall be without prejudice to any other remedy available to Zeiss in respect of the goods and/or services failing to comply with clause 12.1.
12.3 Supplier shall require the express consent by ZEISS in order to repair defective goods and/or services instead of replacing them. Supplier shall bear the risk of loss during the time in which the goods and/or services to be repaired are not in the possession or control of ZEISS.
12.4 If Supplier fails to remedy any defect within a reasonable period granted by ZEISS for this purpose, ZEISS shall be entitled (without prejudice to any other remedy available to ZEISS) to exercise one or more of the following remedies:
(a) reject the goods and/or services or any part thereof,
(b) require a full refund of the purchase price for any rejected goods and/or services, (c) terminate the Contract,
(d) recover from the Supplier any costs and expense incurred by ZEISS in obtaining substitute goods and/or services from a third party, and
(e) claim damages for any other costs, loss or expense suffered by ZEISS which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
12.5 In urgent cases (especially where in the reasonable opinion of ZEISS operating safety is in jeopardy or for the purposes of preventing damage or loss), for the removal of insignificant defects and in the event that Supplier is in default of remedying a defect, ZEISS shall be entitled, after notifying Supplier, to immediately remedy the defect and any resultant damage or loss by itself or through third parties at Supplier’s expense. This shall also apply if Supplier delivers the goods and/or services late and ZEISS has to remedy defects immediately so that ZEISS does not miss its own delivery deadlines.
12.6 If Supplier has to deliver and/or perform in accordance with ZEISS’ specifications, Supplier expressly guarantees the conformity of goods and/or services with such specifications. If delivery and/or performance deviates from such specifications, ZEISS shall have the rights under section 12.4.
13. Repeated default
If Supplier is repeatedly or persistently delivering defective goods and/or services which do not comply with the undertakings in clause 12.1 or any agreed specifications or is repeatedly or persistently delivering goods and/or services after the Delivery Time (each a “Repeated Default”) ZEISS shall on written notice to the Supplier be entitled to exercise the remedies set out in clause 12.4. In the case of a Repeated Default by the Supplier, ZEISS shall in addition be entitled to rescind and/or terminate any other Contracts that is has with the subject Supplier with regards to delivery of goods and/or services.
14.1 The Supplier shall keep ZEISS indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ZEISS as a result of or in connection with:
(a) any claim made against ZEISS for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the goods and/or services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against ZEISS by a third party for death, personal injury or damage to property arising out of or in connection with any defects in goods and/or services, to the extent that the defects are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against ZEISS by a third party arising out of or in connection with the supply of the goods and/or services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
14.2 This clause 14 shall survive termination of the Contract.
15. Technical documentation, tools, means of production
15.1 The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, data and any other materials supplied by ZEISS to the Supplier under and/or in connection with a Contract (“ZEISS Materials”) and all rights in the ZEISS Materials are and shall remain the exclusive property of ZEISS. The Supplier shall hold the ZEISS Materials on trust as a bailee for ZEISS and shall maintain them in good condition until returned to ZEISS, and not dispose or use the same other than in accordance with ZEISS’ written instructions or authorisation.
15.2 In the event that Supplier creates any materials, equipment, tools, drawings, specifications, and/or data in connection with the manufacture of any goods or performance of any services under the Contract (“Contract Materials”) all rights in such Contract Materials shall be vested in ZEISS and Supplier shall keep these Contract Materials safe for ZEISS free of charge. The Supplier shall do any act and execute any document which ZEISS reasonably requires in order to have its rights vested in such Contract Materials from time to time.
15.3 Supplier shall be obliged to service and maintain any ZEISS Materials and Contract Materials and remedy any defects caused by normal wear and tear at the Supplier’s expense.
16. Provision of materials
16.1 The Supplier shall ensure that any ZEISS Materials and Contract Materials shall be adequately and safely stored free of charge to ZEISS. Supplier shall keep ZEISS Materials and Contract Materials separate from its and any property of third parties and shall mark them as the property of ZEISS.
16.2 In the event that Supplier processes or transforms the ZEISS Materials or Contract Materials provided, this shall be deemed to have been done on behalf of ZEISS. ZEISS shall become the direct owner of the resulting new objects. If the materials provided only constitute a part of the new objects ZEISS shall be entitled to ownership of the new objects on a pro rata basis according to the value of the materials provided and contained therein.
17.1 The Supplier (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by ZEISS (”disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
17.2 This clause 17 shall survive the termination of the Contract.
18.1 Assignment and other dealings
(a) ZEISS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
(b) The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of ZEISS.
18.2 Entire agreement
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in Writing and signed by ZEISS.
A waiver of any right or remedy is only effective if given in Writing and shall not be deemed a waiver of any subsequent breach or default.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in Writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in Writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address of the registered office of the recipient party, if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in legal action.
18.7 Third party rights
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
18.8 Governing law
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
General Terms and Conditions of Sales
1.1 Any delivery of goods and services by us shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made. As far as the client’s general terms and conditions are inconsistent with ours, their application shall be subject to our explicit written approval.
1.2 Any claims held against us may not be assigned to third parties. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
1.3 The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German, EU, US export control regulations as well as by the export control regulations of further countries. Any resale of goods to embargoed countries or to denied persons or persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. Customer declares with his order the conformity with such statutes and regulations and that the goods will not directly or indirectly delivered into countries that prohibit or restrict the import of such goods. Customer declares to have obtained all licenses required for export and import.
2. Information, Consultancy
Information and consultancy in relation to our goods and services is provided as deemed appropriate from existing experience. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experiments under standard laboratory conditions. We cannot assume any commitment for our products to precisely meet the quoted values and areas of application. Section 10 of these Terms and Conditions governs any issues of liability.
3.1 The prices quoted in our order confirmation shall solely apply. Additional services will be invoiced separately.
3.2 All prices are quoted as net prices and do not include value added tax, which is to be paid additionally by the Customer in the amount specified by applicable law.
3.3 Unless otherwise expressly agreed, our prices are quoted ex works Jena/Germany. The Customer shall bear all additional freight costs, packing costs in excess of standard packing, public fees (including withholding taxes) and duties.
4.1 Unless otherwise expressly agreed, we shall deliver ex works Jena/Germany.
4.2 Delivery periods shall only be binding if expressly agreed in writing. Delivery periods shall begin on the date of our order confirmation, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of our own.
4.3 With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may -two weeks after expiry of such a delivery period or date- set us an adequate grace period for delivery. We may only be deemed to be in default after expiry of such a grace period.
4.4 Without prejudicing our rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations to us. In case we do not comply with our obligations we shall only be liable for all types of damages in accordance with section 10 of these Terms and Conditions.
4.5 We reserve the right to carry out a delivery using our own delivery organisation.
4.6 We may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer.
4.7 The Customer may rescind the contract after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.
4.8 Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by us, shall be forfeited.
5. Shipment, Passing of Risk
5.1. Unless otherwise expressly agreed, shipment shall always be carried out at the Customer's risk. The risk shall pass to the Customer as soon as the goods have been handed over to the person executing the shipment.
5.2 If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of our readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims.
5.3 If the Customer defaults in accepting, we shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.
6.1 Payment shall be made in full within 30 days from the date of the invoice. Payment shall be considered to have been made on the day the payable sum is received. Bills of exchange and cheques shall not be deemed payment until after they have been honoured and will be accepted without any obligation to make timely presentation and timely protest.
6.2 Immediately upon default of payment –or from the due date if you are a businessman within the meaning of the German Commercial Code (HGB)– we are entitled to demand default interest of 8 (5 in case the Customer is a consumer) percentage points above the base lending rate p.a.. We reserve the right to claim a higher actual damage.
6.3 Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
6.4 Any of our receivables shall be immediately payable in the event of a default in payment, a notice given in protest against a bill of exchange or suspension of the Customer's payments, independent of the term of the bills of exchange which may have already been accepted. In any of these aforementioned cases, we shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to cancel the contract without fixing another extension term. This shall not affect any further claims.
7. Retention of Title
7.1 Delivered goods shall fully remain our property (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up.
7.2 In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, we shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where our co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to us those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of our title. He shall also be responsible for holding such rights in safe custody on our behalf and at his own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to section 7.1 of these Terms and Conditions.
7.3 The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which we retain title. We shall be promptly notified about any hypothecation or other seizure of goods under retention of title through a third party. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of our title under the same terms which we have applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.
7.4 The Customer immediately assigns to us any receivables resulting from a resale of goods initially sold with retention of our title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorised to resell such goods if his receivables therefrom accrue to us.
7.5 If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, Customer shall assign to us his receivables from such resale in the same amount as stated in our invoice for goods initially sold with retention of title.
7.6 If an assigned receivable is included into a current account, the Customer immediately assigns to us that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.
7.7 Until we give notice of revocation, the Customer shall be authorised to collect receivables assigned to us. We shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with us in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify us of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. We reserve the right to personally advise the debtors of such assignment.
7.8 If the value of the collateral deposited in our benefit exceeds the amount of secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that we insofar release securities of our own choice.
7.9 If we claim retention of title, this shall only be understood as rescind of the contract if expressly stated so by us in writing. The Customer's right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.
8. Software Rights
8.1 Software programs will fully remain our property. No program, documentation or subsequent upgrade thereof may be disclosed to any third party, unless with our prior written consent, nor may they be copied or otherwise duplicated, even for the Customer's internal needs apart from a single back-up copy for safety purposes.
8.2 The Customer is granted a non-exclusive, non-assignable right to use the software, including any related documentation and updates, for no other purpose than that of operating the product, for which such software is intended. For programs and documentation created and delivered at the Customer's request, we shall grant that Customer single end user licences for non-exclusive nonassignable exploitation.
8.3 Typically, no source programs are provided. This shall require a special written agreement in each particular case.
9.1 The goods claimed to be defective shall be returned to us for examination in their original or equivalent packaging. We shall remedy defects if the warranty claim is valid and within the warranty period. It is at our discretion whether we remedy the defect by repair or replacement. We shall only bear costs necessary to remedy the defect.
9.2 We shall be entitled to refuse to remedy defects in accordance with our statutory rights. We may refuse to remedy defects if the Customer has not complied with our request to return the goods claimed to be defective.
9.3 The Customer shall be entitled to rescind the contract or reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given us twice a reasonable period to remedy the defect which we have failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of rescission, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the goods as well as for failure to derive benefits from the goods.
9.4 If we maliciously withhold disclosure of a defect or give a quality warranty in accordance with section 444 of the German Civil Code (a representation by the seller that the goods will have certain qualities at the time the risk passes and acceptance by seller of strict liability in the event that they do not), the Customer’s rights shall be governed exclusively by the statutory provisions.
9.5 Any rights of the Customer to receive damages or compensation shall be governed by the provisions in section 10 of these Terms and Conditions.
9.6 Specifications of our goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods.
9.7 Unless limits for variations have expressly been agreed in the order confirmation, such variation shall be admissible that are customary within the trade.
9.8 We shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against us in respect of defects in goods sold as lower-class or used goods.
9.9 Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with our original product specifications, unless the Customer can show that the defect in question resulted from another cause.
9.10 Provided that the Customer is a businessman, the Customer shall be obliged to notify defects to us in writing or via fax.
9.11 The limitation period for claims for defects shall be 12 months (24 months in case Customer is a consumer). This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which we are responsible or claims for damages based on our intentional or grossly negligent conduct.
9.12 If the customer purchases used products from us, then we shall deliver such products with no guarantees, unless we have expressly agreed otherwise with the customer in writing. Our field employees are not authorized to enter into any agreements with customers concerning warranty provisions on used equipment.
10. Limited Liability
10.1 In case of a breach of contractual obligations, defective deliveries or tortuous acts, we shall only be obliged to compensate damages or expenses –subject to any other contractual or statutory conditions for liability– if we acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, our liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract.
10.2 Our liability for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.
10.3 The exclusions and limitations of liability in sections 10.1 – 10.2 shall not apply in cases of a quality warranty in accordance with section 444 of the German Civil Code (see section 9.4), in cases where we have maliciously failed to disclose a defect, in case of damages resulting from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
10.4 The limitation period for claims against us –based on whatever legal ground– is 12 months (24 months in case Customer is a consumer) from the date of delivery to the Customer and in case of tortious claims, 12 months (24 months in case Customer is a consumer) from the date the Customer becomes aware or would have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligence. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in section 10.3 of these Terms and Conditions.
10.5 If the Customer is an intermediary seller of the goods obtained from us and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against us by the Customer shall be the period specified by statute.
10.6 Our liability for software supplied by us shall be limited to liability for losses or alteration of data caused by the program; however, we shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
11. Industrial Property Rights, Copyrights
11.1 In the event of claims against the Customer because of breach of an industrial property right or a copyright in using our deliveries or services in accordance with the contractually defined manner, we shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and our rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using our deliveries or services under reasonable economic conditions, it shall be understood as agreed that we may, at our discretion, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to us less a certain deduction to account for the age of the delivery or service in question.
11.2 The Customer shall have no further claims alleging infringement of industrial property or copyrights provided we have neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. We shall have no obligations in accordance with section 11.1 in case breaches of rights are caused by exploiting our deliveries or services in any other manner than contractually defined or by operating these together with any other than our own deliveries or services.
12.1 Customer is obliged to closely observe our goods accompanying documents and to ensure the correct disposal of the goods in accordance with the applicable law. In the event the goods are disposed of, evidence of the disposal must be promptly sent to us.
12.2 In case Customer is a businessman, Customer shall be obliged to dispose the goods at own costs. Customer shall be obliged to transfer this obligation on the purchaser of the goods or parts thereof in case of a resale of the goods. In case the Customer is a Consumer the statutory provisions regarding disposal of waste shall apply.
13 Reporting Duties, Resale
13.1 The customer is obligated to promptly notify us concerning all events, which happened or almost happened and which involved our products, and shall do so irrespective of whether it must notify government agencies pursuant to the applicable regulations for medical products.
13.2 The customer must promptly inform us about each resale or other transfer of our products, indicating the purchaser or recipient, or must take other suitable action to ensure that we can identify the location of our products at any time.
13.3 In the event our products are resold, the customer must take the appropriate actions to ensure that at the time of and following the sale, all applicable statutory provisions (specifically those involving medical products) are observed.
14.1 Unless otherwise expressly stipulated in writing, no information provided to us in connection with orders shall be regarded as confidential, unless their confidential nature is obvious.
14.2 We point out that personal data in relation to our contractual relationship may be stored by us and may be transferred to companies associated with us in the Carl Zeiss group, too.
15.1 The place of jurisdiction, provided that you are a businessman, a legal person under public law or a special fund under public law, shall be Jena/Germany. However, we may also take legal action against you at your place of business.
15.2 Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.3 Should any of the clauses of these Terms and Conditions be wholly or partially invalid, the validity of the remaining clauses or parts thereof shall not be affected.
General Terms and Conditions for Service
1.1 In these Conditions:
“ACCOUNT HOLDER” means a Client who has been allocated a client credit account by the Supplier
“CLIENT” means the person, firm or company for whom the Supplier has agreed to provide the Specified Service in accordance with these Terms;
“CONTRACT” means the contract for the provision of the Specified Service;
“DOCUMENT” includes, in addition to a document in Writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form;
“EQUIPMENT” means any instrument, machinery or equipment in respect of which the Supplier has agreed to perform Specified Services;
“Group Company” or “Group Companies” means in relation to the Supplier its subsidiaries or holding company or any subsidiary of such holding company;
“INPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Client relating to the Specified Service;
“MINIMUM TERM” means any minimum period of time (if any) set out in the Specification Sheet or elsewhere in the Contract during which the Supplier has agreed to perform the Specified Services;
“OUTPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Supplier relating to the Specified Service;
“SPECIFICATION SHEET” means the sheet to which these Terms are appended;
“SPECIFIED SERVICE” means the service to be provided by the Supplier for the Client under the Contract and referred to in the Specification Sheet, together with any other services which the Supplier provides, or agrees to provide, to the Client;
“SUPPLIER” means Carl Zeiss Limited (registered in England under number 00542141);
“SUPPLIER’S STANDARD CHARGES” means the charges shown in the Supplier’s brochure or other published literature relating to the Specified Service from time to time.
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Supply of the Specified Service
2.1 The Supplier shall provide the Specified Service to the Client subject to these Terms. Any changes or additions to the Specified Service or these Terms must be agreed in Writing by the Supplier and the Client.
2.2 These Terms shall apply to the Contract to the exclusion of any other terms subject to which any quotation for the Specified Services is accepted or purported to be accepted, or any order for the Specified Services is made or purported to be made by the Client.
2.3 The Client shall at its own expense supply the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to the Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
2.4 The Client shall procure that prior to the commencement of the Specified Services
2.4.1 the Equipment (including, where relevant, the area in which the Equipment is located) is decontaminated, and
2.4.2 the Supplier is fully informed in Writing of any safety precautions necessary for the Supplier (or its employees, agents or sub-contractors) to perform the Specified Services.
If in the reasonable opinion of the Supplier the Equipment or the location of the Equipment is not properly decontaminated or the performance of the Specified Services is deemed unsafe, the Supplier shall be entitled (without prejudice to any other remedy it may have) on giving written notice to the Client:
(a) to cancel the Contract or suspend the Specified Services; or
(b) to decontaminate the Equipment or location of the Equipment and charge the Client for the reasonable costs incurred by the Supplier in doing so.
2.5 The Client shall ensure that the Supplier (including its employees, agents or sub-contractors) is granted access to any Equipment in respect of which the Specified Services are to be performed and that adequate numbers of operating personnel are being made available by the Client to operate the Equipment as required by the Supplier.
2.6 The Client shall grant the Supplier (including its employees, agents or sub-contractors) access during reasonable hours to its premises where such access is reasonably necessary to enable the Supplier to provide the Specified Services in accordance with the Contract.
2.7 Subject to any special terms agreed, the Supplier shall arrange for the mode of transport for shipments of any Equipment or Output Material to the Client. The risk of loss or damage to any Equipment or Output Material shall pass to the Client at the time at which the Equipment or Output Materials have been tendered for delivery at the delivery address expressly agreed by the parties or in absence of such express agreement, at the Client’s principal place of business or residential address (as the case may be) within the territory of the United Kingdom.
2.8 Any dates quoted for delivery of the Equipment or Output Materials are approximate only and the Supplier shall not be liable for any delay in delivery however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Supplier in Writing. The Equipment or Output Materials may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Client.
2.9 If the Client fails to take delivery of Equipment or Output Materials or fails to give the Supplier adequate delivery instructions at the time stated for delivery then, without limiting any other right or remedy available to the Supplier, the Supplier may store any Equipment or Output Material until actual delivery and charge the Client for the reasonable costs (including insurance) of storage.
2.10 Subject to any special terms agreed, the Supplier shall perform the Specified Services during normal working hours on a business day (excluding, Saturdays, Sundays and public holidays in the UK).
2.11 The Client shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.
2.12 The Specified Service shall be provided in accordance with the Specification Sheet and otherwise in accordance with the Supplier’s current brochure or other published literature relating to the Specified Service.
2.13 Further details about the Specified Service, and advice or recommendations about its provision or utilisation, which are not given in the Supplier’s brochure or other promotional literature, may be made available on Written request.
2.14 The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Specified Service without any liability to the Client.
2.15 The Supplier may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Specified Service.
3.1 Subject to any special terms agreed, the Client shall pay the Supplier’s Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Specified Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
3.2 The Supplier shall be entitled to vary the Supplier’s Standard Charges from time to time by giving not less than six (6) weeks’ Written notice to the Client.
3.3 All charges quoted to the Client for the provision of the Specified Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate.
3.4 Subject to any special terms agreed, materials, spare parts, and any other substances used by the Supplier for the provision of the Specified Services will be charged and invoiced separately to the Client.
3.5 Subject to any special terms agreed, the Client shall bear the costs of shipping (packaging, transport and insurance) of any Input Material, Output Material, Equipment or any other material which are incurred in connection with the performance of the Specified Services and the Supplier shall charge the Client for such shipping costs separately.
3.6 Where hourly rates apply, time worked will be rounded up to the next full hour. Travelling time, equipment set-up time and waiting time (except where delay is caused by the Supplier) shall be counted as chargeable working time. Any taxes or duties incurred by the Supplier in connection with performing the Specified Services outside of the UK shall be borne in full by the Client.
3.7 The Supplier shall be entitled to invoice the Client following the end of each month in which the Specified Service is provided, or at other times agreed with the Client.
3.8 The Supplier’s Standard Charges and any additional sums payable shall be paid by the Client (together with any applicable Value Added Tax, and without any set-off or other deduction)
3.8.1 if the Client is an Account Holder within thirty (30) days of the date of the Supplier’s invoice; and
3.8.2 in all other cases and subject to any specific payment terms agreed by the Supplier in Writing payment shall be made to the Supplier (or its agents or subcontractors) immediately on delivery of an invoice for the Specified Services to the Client or(where relevant) on delivery of any Equipment or Output Material in respect of which the Specified Services have been performed.
3.9 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 5 % above the base rate from time to time of the Bank of England from the due date until the outstanding amount is paid in full. 4 Rights in Input Material and Output Material
4.1 The property and any copyright or other intellectual property rights in:
4.1.1 any Input Material shall belong to the Client
4.1.2 any Output Material shall, unless otherwise agreed in Writing between the Client and the Supplier, belong to the Supplier, subject only to the right of the Client to use the Output Material for the purposes of utilising the Specified Service.
4.2 Any Input Material or other information provided by the Client which is so designated by the Client and any Output Material shall be kept confidential by the Supplier, and all Output Material or other information provided by the Supplier which is so designated by the Supplier shall be kept confidential by the Client; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
4.3 The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
5 Warranties and Liability
5.1 The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the specification and at the intervals and within the times referred to in the Specification Sheet
5.2 Where the Specified Services concern the maintenance, repair or refurbishment of any Equipment, then subject to the conditions set out in clause 5.2 below and always subject to any other warranty terms expressly agreed by the Supplier in Writing, the Supplier warrants that:
5.2.1 Repaired or refurbished parts of the Equipment will perform free from defects in workmanship for a period of twelve (12) months from the date of the completion of the Specified Services; and
5.2.2 any goods or spare parts manufactured by the Supplier or by any of its Group Companies (hereinafter referred to as “the Supplier Goods”) which are installed in any Equipment or are otherwise provided by the Supplier in connection with the performance of the Specified Services will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve (12) months from the date of installation or (as the case may be) delivery of the relevant Supplier Goods to the Client;
5.3 The above warranty in clause 5.2 is given by the Supplier subject to the following conditions:
5.3.1 the Supplier shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Client;
5.3.2 the Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier’s instructions (whether oral or in Writing), misuse or alteration or repair or relocation of the Supplier Goods or the Equipment without the Supplier’s approval;
5.3.3 the Supplier shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Specified Services has not been paid by the due date for payment; and
5.3.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Supplier or any of its Group Companies, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier.
5.4 Where a claim is made by the Client under the warranties set out in clause 5.2, the Supplier may provide such further repair services or replace the Supplier Goods (or the part in question) free of charge or, at the Supplier’s sole discretion, refund to the Client the price for the relevant part of the Specified Services in question or the price for the Supplier Goods (or a proportionate part of the price), in which case the Supplier shall have no further liability to the Client.
5.5 Subject as expressly provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
5.6 Where Supplier Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Client are not affected by these Terms.
5.7 Notwithstanding any other provision contained in these Terms, the Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
5.8 Except as otherwise provided in these Terms, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Specified Service or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Specified Service, except as expressly provided in these Terms.
5.9 Notwithstanding clause 5.8, the Supplier shall not be liable for any loss of or damage to any electronic data of the Client in any form. It shall be the Client’s responsibility to protect any electronic data prior to the commencement of the Specified Services by making adequate back up copies.
5.10 The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
5.11 Nothing in these Terms shall exclude the Supplier’s liability in respect of death or personal injury caused by the Supplier’s negligence or fraudulent misrepresentation.
6.1 Subject always to clause 6.2, either party shall be entitled to terminate the Contract at any time by giving not less than one (1) month’s Written notice to the other party.
6.2 If the Client cancels or terminates the Contract prior to the expiration of an agreed
Minimum Term (if any), then the Client shall indemnify the Supplier in respect of any losses, damages, costs, expenses, liabilities howsoever arising suffered by the Supplier as a direct result of the cancellation or termination of the Contract prior to the expiration of the agreed Minimum Term.
6.3 The Supplier may (without limiting any other remedy) at any time terminate the Contract by giving Written notice to the Client if:
6.3.1 the Client commits any breach of any of the terms contained in the Contract and (if capable of remedy) fails to remedy the breach within 30 days after being required by Written notice to do so, or
6.3.2 if the Client goes into liquidation, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters administration, or a moratorium comes into force in respect of the other (within the meaning of the Insolvency Act 1986);
6.3.3 an encumbrancer takes possession of any of the property or assets of the Client;
6.3.4 the Client ceases, or threatens to cease, to carry on business; or
6.3.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
7.1 These Terms (together with the terms, if any, set out in the Specification Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in Writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
7.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
7.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
7.4 The Contract shall be personal to the Client and the Client shall not be entitled to assign or transfer the Contract without the Supplier’s prior written consent.
7.5 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
7.6 English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.