General terms & conditions
General terms and conditions
1. All services and supplies are subject to these Terms & Conditions as well as any other separate contractual agreements. Deviating Customer purchasing conditions shall not become part of this contract even in the event of contract acceptance.
If no specific agreement is reached, a contract comes into effect with the Supplier’s written order confirmation. Cancellations require written confirmation from the Supplier to be effective. Any possible verbal ancillary agreements shall not apply.
2. The Supplier reserves the right to ownership of copyright of samples, quotes, drawings and similar information of a tangible and intangible – including electronic – form; they may not be made accessible to third parties. The Supplier agrees that any information and documents marked as confidential by the Customer shall only be made accessible to third parties with the Customer’s permission.
II. Prices and Payments
1. Unless otherwise agreed, prices are valid ex works including loading at works, however, exclusive of packaging and unloading. Prices are exclusive of value-added tax at the respective valid rate.
2. Unless otherwise agreed, payment shall be made cash without any deduction free at our payment office, namely:
- For new machinery:
- 45% upon order placement;
- 45% upon delivery, as soon as the Customer has been notified that the main parts are ready for dispatch;
- the remaining amount within one month of transfer of risk.
Due immediately in the case of spare part deliveries and performances with provision of services.
3. The Customer is only entitled to withhold payments or offset them against counterclaims inasmuch as the counterclaim is undisputed or legally established.
III. Delivery date, delivery delays
1. The delivery date results from the agreements between the contractual parties. Adherence to this date by the Supplier is on the assumption that all business and technical questions between the contractual parties have been clarified and the Customer has fulfilled all of its contractual obligations such as the provision of necessary official certificates or approval or the payment of a deposit. If this is not the case, the delivery date shall be delayed accordingly. This does not apply inasmuch as the Supplier is responsible for the delay.
2. Adherence to the delivery date is subject to the correct and timely receipt of own supplies.
3. The delivery date has been observed if the item of supply has left the Supplier’s works or notification of readiness for delivery has been given prior to the end thereof. If acceptance is required, the date of acceptance shall be decisive, except in the case of warranted refusal, alternatively the notification of readiness for acceptance.
4. If the dispatch or acceptance of the item of supply is refused for reasons for which the Customer is responsible, costs resulting from the delay will be charged to the Customer commencing one month after notification of readiness for dispatch or acceptance.
5. The delivery date shall be delayed accordingly if failure to adhere to the delivery date is due to force majeure, labour disputes or other events which lie outside of the area of influence of the Supplier. The Supplier will notify the Customer as soon as possible of the start and end of any such circumstances.
6. The Customer can withdraw from the contract without notice if the complete performance becomes impossible for the Supplier prior to the transfer of risk. Furthermore, the Customer can withdraw from the contract if the execution of a part of a delivery of an order becomes impossible and the Customer has a warranted interest in the refusal of a part delivery. If this is not the case, the Customer shall pay the contractual price relating to the part delivery. The same applies to inability to perform on the part of the Supplier. Other than this, section VII.2 shall apply.
The Customer shall remain responsible for counter-performance if the impossibility or inability occurs during the delay in acceptance or if the Customer is responsible for these circumstances alone or to a large extent.
7. If the Supplier is in default of performance and the Customer suffers damages as a result thereof, the Supplier is entitled to demand lump-sum damages for default of performance. For each full week of default, this shall amount to 0.5 % in total, however no more than 5 % of the value of the respective part of the total delivery which cannot be used in good time or in accordance with the contract as a result of the delay.
If the Customer sets the Supplier in default an appropriate deadline for performance – taking into account statutory cases of exception – and if the deadline is not observed, the Customer is entitled to withdraw from the contract in compliance with statutory regulations.
Further rights as a result of default of delivery shall be determined according to section VII.2 of these terms and conditions. The Supplier retains the right to provide proof that the occurred damages are less than the agreed lump sum amount (Section 309, 5 b).
IV. Transfer of risk, acceptance
1. The risk is transferred to the Customer as soon as the vendor has handed the sold items over to the haulage company, the carrier or any other person or firm authorised with the execution of delivery, even if part-deliveries take place or the Supplier has agreed to undertake other performances, e.g. dispatch costs or delivery and installation. Insofar as acceptance is required, it shall be decisive for the transfer of risk. This must be carried out immediately upon the acceptance date, alternatively upon notification by the Supplier of readiness for acceptance. The Customer may not refuse acceptance in the event of an insignificant fault.
2. If delivery or acceptance is delayed or does not take place due to circumstances for which the Supplier is not to be held responsible, transfer of risk to the Customer shall take place on the date of the report of readiness for dispatch or acceptance. The Supplier agrees to take out such insurance as required by the Customer at the cost of the latter.
3. Part-deliveries are permitted insofar as this is acceptable for the Customer.
4. If the Customer does not accept the contractual delivery being offered by the Supplier despite an existing effective agreement, or if circumstances for which the Customer is responsible make it impossible for the Supplier to make delivery, the Supplier is entitled to demand from the Customer lump-sum compensation for non-fulfilment to an amount of 15 % of the purchase price plus value-added tax at the current valid rate. Any higher claim for damages by the Customer shall remain unaffected by this.
The Supplier retains the right to prove that the occurred damages are lower than the agreed lump-sum amount (Section 309, 5b).
V. Right of retention
1. The Supplier reserves the right to ownership of the item of supply until receipt of all payments due under the terms of the supply contract.
2. The Supplier is entitled to insure the item of supply at the Customer’s expense against theft, breakage, fire, water and other damage, insofar as the Customer has not taken out such insurance and provided proof thereof.
3. The item of supply may neither be sold, pledged nor transferred as security by the Customer. The Customer shall notify the Supplier immediately in the case of attachment, confiscation or other dispositions by third parties.
4. In the event of a non-contractual behaviour by the Customer, in particular payment default, the Supplier is entitled to take back the item of supply after due warning, and the Customer is under obligation to surrender possession thereof.
Assertion of the retention of ownership as well as attachment of the item of supply by the Supplier does not constitute a withdrawal from the contract.
5. Application for bankruptcy proceedings entitles the Supplier to withdraw from the contract and demand the immediate return of the item of supply.
The Supplier provides warranty for as follows for redhibitory faults and deficiencies in title of the delivery under exclusion of any further claims – subject to section VII:
Liability for defects
1. Any parts which are found to be faulty as a result of circumstances which existed prior to the transfer of risk shall be repaired or replaced with a new delivery at the discretion of the Supplier. The Supplier is to be notified immediately upon discovery of any such fault. Replaced parts become the property of the Supplier.
2. By agreement with the Supplier, the Customer shall provide the Supplier with the necessary time and opportunity to carry out all repairs and replacement deliveries as deemed necessary by the Supplier; other than this, the Supplier is exempted from the liability from the resulting consequences.
The Customer only has the right to repair the fault or have it repaired by a third party and demand compensation for incurred costs in urgent cases of danger to operating safety or in order to prevent unreasonably large damage, in which case the Supplier is to be notified immediately.
3. Within the framework of statutory regulations, the Customer has the right to withdraw from the contract if the Supplier – taking into account statutory exceptions – allows to lapse an appropriate deadline it has been set for repair or replacement delivery due to a material deficiency. If the fault is insignificant, the Customer only has a right to reduction of the contractual price. Other than this, the right to reduction of the contract price remains excluded.
4. No warranty is provided under the following circumstances:
Unsuitable or incorrect use, faulty assembly or commissioning by the Customer or third parties, natural wear and tear, faulty or negligent treatment, incorrect maintenance, unsuitable operating means, faulty construction work, unsuitable foundations or chemical, electrochemical or electrical influences – insofar as they were not caused by the Supplier.
5. The Supplier shall accept no liability for any resulting consequences if the Customer or a third party carries out any rectification of faults incorrectly.
The same applies to any modifications made to the item of supply without the prior permission of the Supplier.
6. If the use of the item of supply results in an infringement of industrial property rights or copyright in Germany, the Supplier shall at own cost provide the Customer with the fundamental right to further use thereof or modify the item of supply in such a manner which is acceptable for the Customer so that the infringement of such rights no longer exists. The Customer is entitled to withdraw from the contract if this is not possible on financially acceptable terms or within an acceptable period. Under the aforementioned conditions the Supplier is also entitled to withdraw from the contract. In addition, the Supplier shall exempt the Customer from undisputed or legally enforceable claims of the owner of the respective property right.
7. The Supplier’s duties named in section VI.6 are conclusive subject to Section VII.2 for occurrences of infringement of industrial property rights and copyright. This shall only apply on condition that
- the Customer notifies the Supplier immediately of asserted infringements of industrial property rights or copyright
- the Customer assists the Supplier in due extent in averting asserted claims and enables the Supplier to carry out the modification measures pursuant to section VI.6,
- the Supplier retains the right to all defensive action including out-of-court settlements
- the legal infirmity does not base on an instruction by the Customer and
- the legal violation has not resulted from the Customer altering the item of supply of own accord or using it in a non-contractual manner.
1. The regulations of sections VI and VII.2 shall apply accordingly, under exemption of any further claims by the Customer, if the Customer is unable to use the item of supply in due contractual manner on grounds for which the Supplier shall be held liable as a result of omitted or incorrect execution of proposals and advice provided before or after the signing of contract or as a result of an infringement of other contractual subsidiary duties – in particular instructions for the operation and maintenance of the item of supply.
2. The Supplier shall only be liable for damages – irrespective of the legal grounds – which have occurred elsewhere than on the item of supply itself in cases of
- gross negligence by the owner/company organs or executives
- culpable injury to health, life or limb
- faults that have been intentionally concealed or the absence of which has been guaranteed
- faults to the item of supply inasmuch as liability applies for personal or property damage to privately used items according to product liability law.
In the case of culpable infringement of significant contractual obligations, the Supplier shall also be liable for gross negligence by non-executive staff and ordinary negligence, in the latter case restricted to typical contractual, reasonably foreseeable damages. Further claims are excluded.
VIII. Statutory limitation
All claims by the Customer – irrespective of legal grounds – shall become void after 12 months or 2,500 hours in single shift operation. In the case of used machinery or furnaces, the period of statutory limitation shall be 6 months.
The statutory periods apply for malicious behaviour as well as claims pursuant to product liability law. They also apply for faults in a construction or for items of supply that have been used in accordance with their usual method of use for a construction and which have caused its defective state.
IX. Sofware usage
Inasmuch as software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the provided software including its documentation. It is provided for use on the intended item of delivery.
Any use of the software on more than one system is forbidden.
The Customer may only copy, revise, translate or convert this from the object code to the source code within the legally permitted scope (Section 69a et seq. German Copyright Law/Urhebergesetz). The Customer agrees not to remove manufacturer’s details – in particular copyright marks – or to change them without the explicit prior permission of the Supplier.
All other rights to the software and the documentation including copies thereof remain with the Supplier or the supplier of the software. Issuing sub-licences is not permitted.
X. Legislation, court of jurisdiction
The respective legislation of the Federal Republic of Germany shall apply for all legal relationships between contractual parties within Germany. The court of jurisdiction shall be Dinkelsbühl. The Supplier, however, is entitled to take legal action at the head office of the Customer.