general terms

General provisions

 
 

1.1. These General terms and conditions shall apply to all our business transactions between us (hereinafter referred to as: „the Supplier“) and our customer (hereinafter referred to as "the Customer").

1.2. These GTCs shall specifically apply to contracts concerning sales and/or supply of Products. The GTCs shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of Products with the same Customer without us having to refer to these again in each individual case. In case of amendments of our GTCs we shall immediately notify the Customer thereof

1.3. Unless agreed separately, a contract shall be concluded with the Supplier's written order acknowledgement.

1.4.Individual agreements reached in an individual case with the Customer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these GTCs. A written contract or our written confirmation is decisive for the content of such agreements.

1.5. Any legally significant declarations and notices that have to be given by the Customer to the Supplier after conclusion of the Contract (e.g. deadlines, notifications of defects, declarations on rescission or reduction of the price) must be made in writing to be effective.

Delivery

 

The order for the Products placed by the Customer shall be deemed a binding
offer to enter into a contract. The Supplier's written order confirmation shall govern the scope of supply. Ancillary agreements and alterations require written confirmation of the Supplier.

2.1. Delivery is carried out ex warehouse and this is also the place of performance. Product can be shipped to another location on request and at the expenses of the Customer (Sale to destination). Provided that no alternative arrangements have been made, we are entitled to determine the manner of shipment (especially the transport company, shipment route and packaging).

2.2. Protective devices will insofar also be delivered if this is agreed.

Price and payment

3.1. Unless otherwise agreed, our prices apply "ex works", including loading at the works, packing and unloading excluded. All prices are net prices in EUR, plus the turnover tax valid at the time of delivery of the Products, without further deductions. Unless otherwise agreed, an instalment payment shall be made without any deductions, free paying agent of Supplier namely:
- 1/3 deposit after receipt of the confirmation of order;
- 1/3 as soon as the Customer is notified that the goods are ready for dispatch;
- a balance upon receipt of consignment and invoice, however, at the latest, within one month after the risk transfer.

3.2. If the above payment period lapses the Customer will be in default. During the payment default, interest will be charged on the sales price in conformity with the legal default interest rate. We reserve the right to claim any further damages from default.

3.3. Fulfilment of the contractually warranted features and the scope of supply are subject to the timely agreed upon payment by the Customer.
The right to withhold payments or to offset with counterclaims shall only accrue to Customer to the extent that its counterclaims are undisputed or legally effective.

If after the conclusion of the contract it becomes noticeable that the Supplier’s claim to the payment of the Customer price is at risk due to the insufficient financial capacity of the Customer (e.g. by an application for commencement of insolvency proceedings), the Supplier shall be entitled, according to the statutory provisions, to refuse performance and - if applicable, after affixing a deadline - to rescind the contract.

Term of delivery

 

4.1. The delivery lead time starts on the date that the confirmation order is sent, however it shall not begin before the ordering party has provided the documents, permissions, approvals that are required, nor before receipt of the down payment.

4.2. The delivery deadline has been met when the goods have left the plant before the deadline has expired or the Customer has been notified that the goods are ready to ship. Unless expressly agreed in writing otherwise, the time of delivery quoted shall not be binding. If the item is subject to an acceptance procedure, the delivery date shall be the date of acceptance or, alternatively, the date of notice of readiness for acceptance unless acceptance is refused for good reason.

4.3. Events of force majeure, and any or all circumstances beyond our control which hinder the proper delivery or significantly complicate, shall entitle the Supplier to withdraw from the contract.

4.4. Damage claims related to a delay in delivery are excluded.

4.5. In the event the dispatch is delayed upon the request of the Customer, the
Customer will be charged - commencing 1 month after notice of readiness for dispatch – for the resulting storage costs, for storage at the Supplier's works at least 0,5 % of the invoice for each commenced month. The Supplier shall, however, be entitled, after the setting and the expiry of a reasonable time limit to otherwise dispose of the goods and to supply the Customer within a period reasonably extended.

4.6. Compliance with the delivery time is conditional upon Customer's fulfilling of its contractual obligations.

Transfer of risk and acceptance

5.1. The risk of accidental loss or of accidental impairment of the goods shall pass to the Customer at such time as the goods are handed over at the latest. In the event of sale to destination, however, the risk of accidental loss and accidental deterioration of goods as well as risk of delay is already transferred to the Customer with the delivery to the forwarding agent or the carrier, or the person or organisation performing the carriage also in the event of partial deliveries or even when the Supplier assumes other services, e.g. shipping costs or delivery and installation. On request of the Customer the delivery shall be insured - at the cost of the Customer - by the Supplier against theft, breakage, transport, fire and water damage.

5.2. If dispatch is delayed due to circumstances beyond Supplier’s control, the risk passes over to the Customer as of the date of dispatch readiness; however, the Supplier is obliged, at the request and cost of the Customer to provide adequate insurance.

5.3. Customer is to accept delivered goods irrespective of his rights under Section VII, even if they contain insignificant defects.

5.4. Partial deliveries are permitted. Section 3.1 is applicable.

Title retention

6.1. We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the Customer contract and a current business relationship.

6.2. The Supplier shall be entitled to insure the goods, at the cost of the Customer, against fire, water damage and other damages; unless the Customer can provide proof that he has obtained the insurance himself.

6.3. Until payment has been effected in full the Customer may neither dispose of or pledge the delivered item nor transfer it by way of security In the event of seizure as well as confiscation or other orders by third parties he must notify the Supplier of such without delay.

6.4. In the case of conduct by the Customer in breach of contract, in particular in the case of delay in payment, the Supplier has the right to withdraw from the contract and to require the return of the goods. The Supplier may only assert these rights, if he has previously set the Customer a reasonable period for payment without result.

6.5. An application to commence insolvency proceedings shall entitle the Supplier to withdraw from the contract and to demand the immediate return of the goods

6.6. The Customer shall be permitted to resell and/or further process any goods subject to the reservation of ownership in the ordinary course of business. In this case, the following provisions shall apply additionally.

6.6.1. The retention of title covers the products resulting from the processing, mixing or connecting of our goods up to the resulting products' full value, and we shall be deemed to be the manufacturers. If during the processing, mixing or combination with items of third parties their property right should persist, we thus shall acquire co-ownership in such processed goods in proportion to the invoice value. Incidentally the same shall apply to the produced product as to the goods delivered under reservation of title.

6.6.2. The Customer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share, to us as collateral according to the afore-mentioned section. We herewith accept such assignment. The obligations of the Customer stated in section 6.3 shall also apply in view of the assigned claims.

6.3 genannten Pflich-ten des Bestellers gelten auch in Ansehung der abgetretenen Forderungen.

6.6.3. We and the Customer are authorized to collect any debts. However, we agree not to recover debts ourselves as long as the Customer complies with his payment obligations to us, does not become in default of payment, no application is made for opening insolvency proceedings, and there is no other deficiency in the Customer's performance capacity and solvency. Should this be the case, however, we may demand that the Customer discloses to us the assigned claims and their debtors, gives us all the information and relevant documents necessary to assert our rights and informs his debtors (third parties) of the assignment.

6.6.4. If the realized value of the securities exceeds our demands by more than 10 % then, at the request of the Customer, we will release securities according to our choice
.

Liability for defect of the delivery

Unless otherwise provided below, the Customer's rights in the event of any defect in the quality, or defect in the title which shall include the lack of expressly warranted qualities, the Supplier is liable under the exclusion of further claims by the Customer as follows. The primary basis of liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions which are subject matter of the individual contract are considered as agreement about the quality of the goods and which have been provided to the Customer prior to its purchase order or have been incorporated in the agreement in the same way as these GTCs.

7.1. The Supplier shall repair or replace all parts that are proved as defective due to certain circumstances prevalent before the transfer of risk, as per the Supplier's discretion. The Customer shall immediately notify the Supplier in writing of such defects. Parts replaced shall become the property of the Supplier. This warranty of the Supplier can be maintained only if it is ensured that the Customer uses only original spare and wear parts such as blades, bands and welding rods. Should the shipment, the installation or the initial operation be delayed, without fault on part of the Supplier, then the liability will expire at the latest 12 months after the transfer of risk.

7.2. The Customer, upon agreement with the Supplier, shall allow the latter the time and opportunity to carry out all of the repairs and replacement deliveries, which appear appropriate in his judgement; otherwise Supplier shall be exempt from liability for the resulting consequences. Only in urgent cases such as endangerment of the operating safety, to ward off unreasonably serious damages - where the Supplier must be informed immediately - or if the Supplier has come into default with the rectification of the fault, will the Customer have the right to rectify the fault himself or have it rectified by third parties and to demand from the Supplier reimbursement of the necessary costs..

7.3. Of the costs arising from the repair or replacement delivery, the Supplier shall, in the event that the complaint is revealed to be justified, bear the costs of the replacement part including shipment as well as the reasonable costs of dismantling and installation by assembly personnel and auxiliary staff. This shall not apply in the event if the claim turns out to be unjustified. In this case the above costs are borne by the Customer.

7.4. The Supplier may refuse to remedy defects as long as the Customer does not fulfil its obligations.

7.5. Unqualified alterations or maintenance work executed by the Customer or any third party without prior approval from the Supplier, however, will exclude all liability for consequences resulting therefrom.

7.6. No warranty is given for damage resulting from any of the following causes: an unsuitable or improper use; faulty mounting or commissioning by the Customer and/or third party, natural wear and tear, incorrect or negligent handling-especially excessive strain-, maintenance not carried out in accordance with the rules, unsuitable subsoil, chemical, electrochemical or electrical influences unless they can be traced back to negligence on part of the Supplier.

7.7. Further claims are determined exclusively according to section 8.2 of these terms and conditions

7.8. If the use of the goods leads to violation of national intellectual property rights or copyrights, the Supplier shall at its cost in all cases either procure for the Customer the right of further use or shall modify the Products in a manner that is reasonable for the Customer such that the infringement no longer exists. If this is not possible at commercially reasonable conditions or in a reasonable period, the Customer is entitled to withdraw from the agreement. Under the above conditions, the Supplier, too, shall be entitled to rescind the contract. Furthermore, the Supplier shall indemnify the Customer against any undisputed or legally enforceable claims of the respective holders of the intellectual property rights.

7.9. The Supplier's obligations named in section 7.8 hereof are finally subject to section 8.2 in the event of proprietary-right or copyright infringement. They shall apply only if the Customer notifies the Supplier without delay of asserted infringements of industrial property or copy rights, the Customer assists the Supplier to a reasonable extent in rejecting as-
serted claims or enables the Supplier to execute modification actions accord-
ing to section 7.8., the Supplier reserves the right to all defensive measures, including out-of- court arrangements, the defect of title is not due to an instruction of the Customer and, the infringement of rights was not caused by the fact that the Customer modi- fied or utilised the delivery item in a manner that is contrary to the accor-dance of contract.

 

 

Liability of the Supplier, Disclaimer of liability

8.1. If as a result of fault on the part of the Supplier, the delivery item cannot be used by the Customer according to the agreement as a result of neglect or incorrect execution of suggestions and advice specified prior to or after conclusion of the contract, or by the violation of any other collateral obligation under the contract – in particular including instructions for operating and servicing the Item of Supply –, the stipulations of sections 7 and 8.2 shall be valid accordingly, to the exclusion of further claims of the Customer.

8.2. The Supplier shall be liable for damages which did not occur to the delivered goods themselves – on whatever legal grounds– only
a) in the case of wilful intent,
b) gross negligence by its organs or executive staff,
c) in the event of culpable injury to life, body and health,
d) for defects which it has fraudulently concealed,
e) within the scope of a guarantee promise,
f) in the event of defects in the delivery item, insofar as there is liability for
physical or material damage to objects used in the private sphere in accordance with the Product Liability Act. In case of faulty breach of substantial contractual obligations the Supplier shall also take over the liability for gross negligence of nonexecutive employees and for ordinary negligence, the last case being limited on the contractual and reasonably predictable damage. Further claims are excluded.

Limitation period

 

All of the Customer's claims - regardless of the legal grounds and if not otherwise specified herein - become time-barred in 12 months after delivery. If acceptance has been agreed, the limitation period begins with the acceptance. For compensation claims according to Section 8.2 a-d and f, the relevant legal periods apply.

Software usage

 

If software is included within the scope of delivery, the Customer obtains a non- exclusive license to use the software together with the enclosed instruction book. It is entrusted for the sole purpose of utilisation on the designated delivery item. Usage of software on an additional system is not allowed. Customer may duplicate, adapt, translate, or convert software from object code to source code only within the legally permissible scope (§§69a ff. UrhG, German Copyright Act). The Customer undertakes not to remove manufacturer information, in particular copyright notes, and not to alter them without the express prior consent of the Supplier. All other rights to the software and to the documentation, including copies thereof, are reserved by the Supplier or the software supplier. It is not permitted to grant sublicenses.

Jurisdiction

 

11.1. The entire legal relations between the Supplier and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany with the exception of the UN Sales Convention. The prerequisites for and the effects of retention of title in accordance with Section 6. shall be governed by the law in force at the place where the goods are stored if, under that law, the choice of German law would be inadmissible or void.

11.2. For all disputes arising out of the contact, action is to be raised at the court that is competent for the Supplier's head office. The Supplier is also entitled to raise action at the Customer's head office.