1.1 The offers, deliveries and services of the supplier shall be exclusively made on the basis of these general terms and conditions.
1.2 An order is considered accepted only upon written confirmation by the supplier.
1.3 Acceptance with reference to the purchaser’s general terms or conditions is hereby objected to and rejected.
1.3 Variations of these terms and conditions are only effective, if they have been confirmed in writing by the supplier.
1.5 These conditions apply also in case of pending or future business, also if the supplier does not make reference to these terms and conditions again.
2.1 The offers of the supplier are subject to change and without obligation. offers are subject to prior sale.
2.2 Declarations of acceptance and orders require written confirmation of the supplier in order to be effective. The same applies to confirmations, alterations as well as accessory agreements.
2.3 The supplier reserves the full property rights on quotations, drawings, software and other documents and the copyrights thereof and they may be made accessible to third parties only after the supplier has given his consent. All documents are to be returned to the supplier immediately upon request, if the supplier is not awarded the contract.
3.1 Due to the continuous advances in technology, the supplier reserves the right to make changes and improvements regarding construction, material use and equipment. In this respect, documents such as images, drawings, data on measurements and weight, information about procedures, consumption and performance are not binding unless expressly described as such. Specifications are average experience values and subject to change without notice.
4.1 The scope of delivery is subject to the written confirmation of the supplier.
4.2 Accessories will be delivered with the order only if they have been described as normal supplies in the documents.
4.3 Protection devices will be delivered only if it is legally required by German law in permanent conjunction with the item to be delivered.
4.4 The cost of additional equipment necessary due to local conditions, the assembly of machinery parts, rules, regulations or ordinances, which incur after conclusion of the contract or because of varied interpretations at the responsible local authorities with regard to the state-of-the-art technology, shall be borne by the orderer.
4.5 The supplier is entitled to collaborate with subcontractors and use their services.
4.6 The supplier is only obligated to provide user manuals, labeling and software in German. In case of used machinery, the documentation shall only be provided in the same manner in which we have received it from the previous owner. The documents can, however, in most cases be completed. Any costs incurring as a result of this, as well as costs for a requested translation shall be passed on to the customer.
4.7 foundations, pits, conduits and trunking, electricity, compressed air, heating, suctioning, heating plumbing air conditioning, fire protection, auxiliary areas, etc. are to be carried out by the orderer.
4.8 Special conditions apply for the assembly, construction, supervision and putting into operation of the scope of delivery and shall be agreed upon in writing between the orderer and the supplier.
5.1 Delivery ex location, location of overhaul or storage location. The used machinery and systems offered by the supplier are expressly subject to prior sale. If a contract has been concluded between the orderer and supplier concerning the used machinery and systems offered ex location, the owner, however, refuses to hand over the item the supplier will then attempt to furnish an equivalent replacement. No existing collective agreement has been made as a result of this and the supplier expressly rejects any claims for damages.
6.1 Prices for new machines are ex works, for used machinery ex location, overhaul or storage location, including loading, excluding packaging, transport insurance, transport, excluding customs clearance, unloading and assembly. The same applies to partial and express deliveries agreed upon. The prices indicated are subject to the applicable sales tax. Included in the price and to be delivered with the item are only those accessories, which are listed in the confirmation of the supplier.
6.2 If nothing else has been agreed upon, then the payment shall be made in cash without deduction of any kind as follows: 1/3 payment upon receipt of the order confirmation, plus the applicable sales tax, 1/3 payment upon notification that the goods are ready for shipment, plus the applicable sales tax, 1/3 payment within 30 days upon issue of invoice, plus the applicable sales tax,
6.3 The invoices of the supplier are payable and due 30 days after issue of invoice without deduction also in case of refusal to take delivery.
6.4 The supplier is entitled, contrary to the conditions of the orderer, to offset payments against older debts. If costs and interest have incurred, then the supplier is entitled to offset the payment at first against the costs, second against the interest and lastly against the principle service.
6.5 Payment is considered fulfilled only when the sum is available to the supplier.
6.6 Bills of exchange and checks are principally only accepted for payment on account of performance.
6.7 In case of default of payment by the orderer, interest to the amount of 8 percentage points above the respective basis interest rate of the German Federal Bank are to be paid without having to send a reminder.
6.8 If the orderer does not fulfill his payment obligations, or if the supplier becomes aware of other circumstances, which makes the creditworthiness of the orderer questionable, then the orderer can demand security for the total purchase price or compensation for work or any other expenditure and set a reasonable deadline for the orderer to provide the security. Upon lapse of the deadline, the supplier is entitled to withdraw from the contract or to reject the contractual fulfillment and to demand compensation for damages due to non-fulfillment.
6.9 The orderer is only entitled to exercise set-off or restraint with respect to the purchase claim or the supplier’s claim for loan compensation, if the supplier has expressly agreed to this or if the counter claims are indisputable or have become res judicata. he rejection of goods does not justify the right of retention.
6.10 In case of shipment to countries outside of the Federal Republic of Germany in which fees, taxes, customs duties or any other fees incur in the country of the orderer, then these fees shall be borne by the orderer, or the sum of these fees shall be added to the agreed upon price, if they are to be borne by the supplier. Customs declarations provided to the orderer are to be observed according to regulation; otherwise, the supplier will demand reimbursement for the incurring costs.
6.11 Down payments made by the customer serve to secure the order. In the event of customer default, repayment of the down payment is excluded.
7.1 The place of fulfillment for all obligations arising from the contract is the domicile of the supplier. The place of fulfillment does not change when the supplier carries out the shipment of the delivery items.
8.1 The dates and deadlines indicated by the supplier are without obligation in as far as nothing else has been expressly agreed upon in writing. The orderer can demand in writing that the supplier deliver within a reasonable period six weeks after lapse of a non-binding delivery period or a delivery deadline without obligation. The supplier is in default only after receiving this reminder.
8.2 The delivery deadline begins with the sending of the final order confirmation, however not before the orderer has provided all of the necessary documents, technical specifications, authorizations, releases, etc. and not before advance payment agreed upon has been received.
8.3 The delivery deadline has been met if up to its lapse the scope of delivery has left the supplier, or the location, or the storage location or notification that the goods are ready for shipment has been given.
8.4 In the event of force majeure and unpredictable events, which make delivery extremely difficult or impossible – this includes e.g. also disruptions of operation of any kind, strikes, lock-outs, fire, flooding, difficulties in procuring materials, shortages in means of transportation, government action, etc. -, also if these events occur at the vendor of the supplier or his sub-agents, the deadline shall be extended accordingly and the supplier shall not be held responsible also in case of delivery periods and deadlines agreed upon which are binding. These events entitle the supplier to extend the time of delivery for the duration of the impediment plus an adequate start-up period, or to partially or completely withdraw from the contract for the part of the scope of delivery that has not been fulfilled. If the impediment lasts longer than three months, the orderer is entitled after granting an additional period of time of reasonable length to withdraw from the contract with respect to the unfulfilled scope of delivery. In important cases, the supplier will inform the orderer of the beginning and end of such impediments as soon as possible.
8.5 If the supplier is in default, the orderer is entitled to withdraw from the contract only after he has granted an additional period of time of reasonable length in writing with the express declaration that the goods will be rejected after lapse of the deadline. In the event that a delivery deadline to which the supplier has committed has lapsed, the period of grace must be at least six weeks long and three weeks in case of default according to section 8.1.
8.6 If the orderer suffers damages as a result of a delay, which are proven to have been caused by significant fault of the supplier, then the orderer is entitled under exclusion of additional claims to demand compensation for damages caused by the default. The compensation amounts for each completed week of delay to ½ %, however, in total of a maximum of 3 % of the respective part of the total scope of delivery, which could not be used on time or not in accordance with the contractual agreement as a result of the delay.
8.7 If the delivery is delayed at the request of the orderer, then he shall be invoiced starting one month after notification that the goods are ready for shipment each month for the costs arising due to storage. The supplier is entitled, however, after a reasonable deadline set by him has lapsed to no effect, to otherwise dispose of the scope of delivery and to supply the orderer during a reasonably extended period of time.
8.8 The meeting of delivery deadlines is subject to the fulfillment of the obligations of the orderer.
8.9 The supplier is entitled to make partial delivery.
9.1 The delivery is considered to be fulfilled when the scope of delivery is ready for shipment and the orderer has been informed of this. At this point in time, the risk is transferred to the orderer, irrespective of whether the delivery item is at the domicile of the supplier or at another location. This also applies to partial deliveries or if the supplier has taken over other services, e.g. shipping costs or delivery and assembly.
9.2 The delivery occurs at the expense of the orderer and at his own risk. In the event that the orderer has not given any specific instructions with respect to shipping, the supplier is entitled to make delivery according to his own discretion. The transport risk shall be borne by the orderer, also in the event of freight-free delivery in which the supplier uses his own vehicles.
9.3 The supplier agrees to take out transport insurance if the transport is to be carried out by him. The orderer shall bear the costs. The orderer is entitled to any insurance claims.
9.4 If the supplier must construct buildings, the risk shall be transferred to the orderer upon completion of the construction.
9.5 The orderer is to accept the delivery without prejudice to the rights under section 11, even if it has defects.
9.6 Costs, which incur due to unnecessary waiting time during the delivery, e.g. due to a lack of suitable lifting equipment, means of transportation, customs clearance, etc, shall be borne by the orderer.
10.1 The scope of delivery remains the property of the supplier until payment of all current or future claims, irrespective of the cause in law, up to the discharge and encashment of all of the bills of exchange and checks given to the supplier as payment, including the incurring interests and costs. If the purchase price has been paid for specific claims and the orderer has selected a type of financing in which the supplier receives the purchase price, however – e.g. the supplier continues to be liable due to joint liability from a bill of exchange, the supplier shall retain title of the scope of delivery until the bill of exchange has been discharged. In case of current account, the reserved scope of delivery shall be considered security for the supplier’s outstanding balance claim.
10.2 The retention of title also applies to the tools, materials, accessories and spare parts delivered.
10.3 In as far as the property is reserved, the orderer agrees to keep the scope of delivery at his own cost in an orderly condition and to insure it against any damages.
10.4 In as far as the orderer combines the scope of delivery, or parts thereof with another thing, then this shall happen only for a temporary purpose. A possible combination shall take place for the supplier. If the orderer permanently combines processes or blends the delivery item, then the supplier is entitled to co-ownership on the new item in the ratio of the invoice value to the reserved item to the final price of the new thing. The co-ownership is considered to be the retained goods in terms of these conditions.
10.5 The orderer not only expressly recognizes, but also agrees with us unanimously that the retained goods will only be connected to the ground for a temporary purpose up to fulfillment of the security purpose. The contractual partners are in agreement that neither has the intention of connecting the retained goods to the ground other than for a temporary purpose before the fulfillment of the safety purpose. The property rights of the reserved thing, which is connected to the ground, shall be transferred to the orderer only after the security purpose has been achieved.
10.6 The orderer may not sell the supplier’s delivery items as long as he has not fulfilled his obligation of payment, unless he has acquired the goods from the supplier for subsequent sale in his business and is not in default. In this case, the orderer must reserve the ownership rights of the supplier on the goods against the purchaser until payment of the purchase price has been made in full to the supplier.
10.7 The orderer herewith surrenders any claims arising from the re-sale (also from bills of exchange or checks) or from any other legal ground (insurance, illicit actions, etc.) with respect to the retained goods to the amount of the invoice value to the supplier. Supplier and orderer are in agreement that bills of exchange received are the property of the supplier and the orderer only has them in his possession for the supplier. The supplier authorizes the orderer to collect the assigned claims in his own name at the request of the supplier the orderer will disclose the assignment and provide the necessary information and documents.
10.8 In the event of third-party access to retained goods, the orderer will refer to the ownership of the supplier and will immediately inform him. Costs and damages shall be borne by the orderer.
10.9 In case of breach of contract on the part of the orderer, in particular default in payment, the supplier is entitled to confiscate the retained goods at the expense of the orderer or, if necessary, to extend the transfer of the orderer’s right to demand surrender to third parties. The assertion of the retention of title as well as the attachment of the scope of delivery by the supplier is not considered to be a withdrawal from the contract with the exception that the supplier has expressly declared this in writing.
10.10 The supplier agrees to release according to his choice the securities he is entitled to according to above-mentioned conditions, when the value of the claims to be secured increases by 25%, however with the proviso that with the exception of the delivery in arranged overdraft facility a release is only to take place for such deliveries or for their replacement values, which have themselves been paid in full.
11.1 Agents or travelers of the supplier are not authorized to acknowledge any defects or warranty claims.
11.2 New Machinery
For defects in the delivery in as far as no warranted characteristics are missing, the supplier shall be liable under exclusion of all further claims as follows: The supplier agrees to improve free of charge all of those parts, which are defect as a result of a circumstance occurring before transfer of the risk. If the supplier is in default with the subsequent improvement, the orderer is entitled to set a reasonable period of grace –usually at least six weeks- with the express declaration that he will withdraw from the contract after lapse of the deadline. After lapse of the deadline the orderer is entitled to rescission of sale or reduction of the purchase price. The same applies if the supplier is unable to eliminate the defect or if additional subsequent improvements are unreasonable for the orderer. Additional claims of the orderer in particular a claim for a loss of profit and for indirect damages do not exist.
11.3 Used machinery
Warranties of any type are excluded for used machinery, at any case, however, only granted in the scope intended for new machines.
11.4 Exclusion of warranty
Liability for defects does not exist or is no longer applicable:
a) if the defect is not reported immediately in writing upon inspection or discovery.
- the notification must be in writing in order to be effective -,
b.) if the delivery item has been incorrectly or carelessly handled, in particular if it has been excessively utilized and/or if inappropriate equipment and lubricants, tools or substitute materials have been used.
c.) if the orderer has implemented changes without the consent of the supplier.
d.) if the scope of delivery has not been assembled and put into operation by a service technician of the supplier or a service technician of the manufacturer, unless the orderer can prove that the defect was not caused by this, nor was the elimination of the defect made more difficult as a result.
11.5 Warranted characteristics
The specifications made by the supplier concerning the supplied delivery item are considered as warranted characteristics only if they have been expressly confirmed to be such in writing. In case there are no warranted characteristics, a warranty as implied according to the legal regulations shall apply. Compensation claims for damages are limited, however, to the interest in the performance of the contract.
11.6 Limitation period
The limitation period for warranty claims and any kind of compensation claims is six months. In case of multi-shift operation, the limitation period is three months.
12.1 Compensation claims due to the impossibility of performance, due to positive breach of claims, from debt on the conclusion of contract and from non-permissible acts are excluded toward the seller as well as his assistants as long as there is no case of deliberate action or gross negligence and in as far as no essential contractual obligations have been breached.
12.2 Compensation claims are limited to replacement of the damages predictable at the time of conclusion of the contract, unless the supplier or member of the managerial staff has acted deliberately or grossly negligent.
If the orderer cancels the contract or if the supplier can claim for damages as a result of non-fulfillment, then the supplier is entitled to reimbursement of the minimum damage to the amount of 15 % of the gross purchase price or gross compensation for work irrespective of further claims. If the orderer can prove the damages were less, then the lesser amount is to be reimbursed.
14.1 In as far as the scope of delivery contains software, the orderer will be granted a non exclusive right to utilize the software delivered including the documentation. It shall be left to be used on the delivery item it has been specified for. Usage of the software on more than one system is not permitted.
14.2 The orderer may only copy, process and translate the software only in the scope permitted by law. Alteration of the software is not permitted. The orderer agrees not to remove or change the producer’s specifications- in particular the copyright notice.
14.3 The supplier or the software supplier shall retain all other rights on the software and documentation including the copies. The issuance of sub-licenses is not permitted, nor is the transfer to other countries, to other companies or individuals in general permitted and requires written confirmation of the supplier or the software supplier.
14.4 In case of infringement of the above-mentioned points, the orderer shall be obligated to pay for damages arising as a result.
15.1 German law applies to the business terms and the entire legal relationship between supplier and orderer. The application of UN Convention on Contracts for the International Sale of Goods is hereby excluded. The agreements made in German are decisive. This also applies in as far as this concerns deliveries abroad.
15.2 Place of jurisdiction for all disputes arising from the contractual relationship is the responsible court at the location at the registered office of the supplier. The supplier is entitled, however, to select the location of the orderer as place of jurisdiction.
15.3 Should a provision of these terms and conditions of business dealings or a provision of other agreements become invalid, the validity of all other provisions or agreements shall not be affected by this.
15.4 The rights of the orderer arising from the contractual relationship are not transferable without the authorization of the supplier. The supplier shall grant the authorization if the transfer is necessary for the financing.
16.1 The supplier processes data using his own data processing system. For this purpose, information of companies and individuals will be collected, stored, processed and if necessary deleted for his own purposes. Any other confidential data between supplier and orderer which has been agreed upon in writing shall be made inaccessible to third parties.