1.1. (Applicability) These General Terms and Conditions only apply to contractual relations with entrepreneurs (Sec. 14 German Civil Code).
1.2. (Conflicting business conditions, written form and contract language) These General Terms and Conditions shall apply to all contracts, including all future contracts with the Customer. Other conditions shall not become a part of the contract even if we do not expressly object to such conditions. Customer may claim validity of additional agreements only before or upon conclusion of the contract and only on our immediate written confirmation. Renunciation of the written form is only possible in writing. The contract language is German and/or English.
1.3. (Offers, right to make changes) Our offers are subject to confirmation. We reserve the right to make technical improvements to our products.
1.4. (Recording of data) We may store and process relevant contract data in our EDP systems.
1.5. (Offset and retention) The Customer shall not be entitled to offset his claims against any other claims but those which are acknowledged, uncontested or final. Furthermore the Customer may offset counterclaims based on a right to refuse performance (Sec. 320 German Civil Code) if those claims are for the payment of a sum of money.
1.6. (Place of jurisdiction) The place of jurisdiction shall be the court responsible for our domicile in Wertheim/Mosbach, Germany. We are also entitled to appeal to the court responsible for our Customer’s domicile.
Furthermore, we as Plaintiffs have the right to call upon the arbitral tribunal at the Chamber of Industry and Commerce in Heilbronn, Franconia, Germany. In this case, the arbitral tribunal conclusively decides the legal dispute in accordance with the ICC Rules of Arbitration excluding the due legal process. The initiation of legal dunning proceedings does not imply the exercise of our right to choose the plan of jurisdiction. It is in no way admissible.
1.7. German law is applicable, to the exclusion of the 'UN Convention on Contracts for the International Sale of Goods', CISG.
2.1 Place of performance shall be our factory in Wertheim, Germany. Customer assumes all responsibilities and all risks shall be deemed to be transferred to the Customer when the shipment leaves the ramp in our factory. This shall also apply to partial deliveries, deliveries to a consignment location and all deliveries where we have agreed to provide additional services such as freight forwarding, packing, exportation and installation.
2.2 Should there be any delay in the Customer's acceptance of a shipment we may, at our own discretion, have the products stored at Customer’s expense or, after providing a warning and setting a deadline, sell the products for the Customer’s account.
3. Delivery period, Delay
3.1 Indicated delivery periods are ex works. Delivery deadline shall commence upon Customer's receipt of our order confirmation and after settlement of all technical questions and after we have received all necessary documents, such as diagrams, permits, Customer required releases and all previously agreed upon advances and payments. The delivery deadline is deemed to have been met if the shipment has been declared ready for delivery prior to the expiration of the delivery deadline. All deliveries are subject to the punctual delivery of required materials from our suppliers.
3.2 Force Majeure, strikes, lockouts, operating breakdowns, shortages of raw materials or means of production for which we are not responsible, including delayed deliveries or failure to deliver by upstream suppliers, shall extend the delivery period accordingly and shall release us from our obligation to deliver if delivery becomes impossible as a result thereof. We are considered not to be responsible for the aforementioned circumstances, even where they occur during an existing delay. The same applies in case of additional or amended services requested by the Customer.
3.3 Our deliveries shall not be deemed to be in default unless the Customer has provided us with a written warning and after an indicated reasonable grace period has elapsed.
3.4 In the case of requested damages for delivery delays, our liability for damage compensation shall be limited to 10% of the value of our delayed delivery or service. The limitation does not apply in the case of wilful intent, gross negligence and/or damage to life, body or health. The Customer shall be obligated to promptly notify us in writing of any consequences of delay in delivery or service.
4. Prices, Terms of Payment
4.1 Prices quoted shall be ex works and do not include VAT, if applicable. Charges for packaging, freight and insurance shall be at the Customer’s expense. All prices are understood to be exclusive of costs for returning, recycling and disposal of used equipment returned to us for disposal.
4.2 Invoices shall be paid in full, without deductions and must be credited to our bank account in EURO (€) immediately or by the due date indicated on the invoice. Receipt of payment is applicable. We shall accept bills of exchange or checks only on account of performance and at the Customer’s expense.
4.3 We retain, at our sole discretion, the right at any time to deny any extension of credit to either new or existing customers and/or to request payment in full or a security deposit to the value oft he invoiced amount in advance of any shipment.
4.4 If the period between conclusion of the contract and delivery is longer than four months, we reserve the right to demand an extra charge at our discretion, corresponding to our cost increase.
4.5 Duly authorized returns of products free of defects are subject to an inspection- and processing fee of 15% of the invoiced value (10 euros minimum).
4.6 Should the Customer be in default of our payment terms, payment of all of our receivables shall be immediately due in full and we shall not be obliged to make any further deliveries regardless of the terms prescribed in current delivery contracts.
4.7 Should the Customer be in default of payment, default interest on arrears at a rate legally applicable shall be due and payable. The assertion of a higher claim for damages caused by default remains unaffected.
4.8 We reserve the right to offset accounts payable to the Customer, such as credit notes, against our claims against the Customer.
5. Retention of Title and Assignment of Future Claims
5.1 Products delivered shall remain our property until the complete and unconditional payment of all of our claims against the Customer. Should there exist any further claims against the Customer, we reserve our proprietary rights until Customer’s complete payment of these claims.
5.2 The Customer shall neither consume products nor merge nor inseparably connect products subject to retention of title with other objects, which a third party may have rights to. If products subject to retention of title, however, become a component of a new object (e.g. through the connection with other objects), then we shall be a direct proportional co-owner of this object even if it constitutes a new legal entity. Our proportion of co-ownership shall be based on the relation of the invoice value of the conditional products to the value of the new object at the time of the connection.
5.3 The Customer may resell the products subject to retention of title in his due course of business as long as his claims from the resale have not been assigned, hypothecated or otherwise encumbered.
5.4 The Customer shall herewith assign to us in advance as collateral any claims against his customers from the resale of the products subject to retention of title (see clause 5.3) and/or new objects (see clause 5.2) in the amount of our invoice for the products subject to retention of title. If the Customer is not in default of payment for the products subject to retention of title, he may collect the assigned claims in his due course of business. However, he may only use the proportional proceeds for the payment of our products subject to retention of title.
5.5 Upon the Customer’s request, we shall release collateral at our sole discretion, if and to the degree that the nominal value of the collateral exceeds 120 percent of the nominal value of our open debt claims against the Customer.
5.6 The Customer is required to immediately inform us of any distress, confiscation or any other disposition of a third party with regard to the products subject to retention of title or the products co-owned by us.
5.7 If any monetary instrument should be returned to us for insufficient funds, if debit requests or direct debit authorizations are not carried out or are retroactively cancelled, or if the Customer or the end user becomes insolvent, Customer shall lose all rights as per clause 5.3 above. The Customer must immediately notify any subsequent purchaser of our extended retention of title. He may only use the proportional proceeds, which are based on the assignment, for the payment of the products delivered.
5.8 In case of default of payment or those cases covered in clause 5.7, we shall be authorized to withdraw from the contract, and/or to demand the return of any products subject to retention of title being in the possession of the Customer and/or to directly collect the assigned claims (see clause 5.4). In order to determine our rights, we reserve the right to have the Customer's documents and books concerning our reserved rights examined by a person who is subject to the professional duty of confidentiality.
6. Warranty, Limitation of Liability
6.1 We warrant that our products are free from defects in materials and workmanship (under normal conditions of use and service) at the time of the transfer of risk. The required characteristics, shelf life and use of our products are based solely on the written contractual specification, product description and/or operating instructions. Any information beyond this and in particular in preliminary discussions, advertisement and/or referenced industrial standards shall only become a part of the contract if they are expressly referenced in writing.
6.2 If the Customer requires the products for purposes other than those agreed, Customer must check before use if the products are especially suitable for such purposes - including all aspects pertaining to product safety - and Customer is required to ensure that products comply with all relevant technical, legal and official regulations and requirements. We shall not be liable for the fitness of our products for any application not expressly confirmed by us in writing. Further we shall not be liable for the accuracy of designs, specifications or materials furnished or specified by the Customer and thus have no particular testing obligation.
The observation of safety-related and occupational health regulations depends on the place and conditions of the product’s use. The observation of these regulations is, therefore, the responsibility of the Customer.
6.3 The consequences of normal wear and tear of wearing parts such as diaphragms, seals, valves, vanes, condensers, oil and the breakage of glass, plastic or ceramic parts are excluded from this warranty. The warranty does also not apply for the consequences of improper handling, use, servicing or operation of the products or the consequences of chemical, electrochemical or electrical influences or the failure to follow the instructions in the operating instructions. The exclusive initial remedy of Customer in the event of a justified deficiency claim is the replacement or repair (at our sole discretion) of any defective product. Any additional warranty claims shall only exist due to rejection, impossibility or failure of said subsequent performance. Additional expenses, resulting from the fact that the goods have been relocated from the initial place of delivery, shall be borne by the Customer.
6.4 The Customer shall be obliged to promptly and carefully check incoming products - also for product safety - and to notify us of any apparent deficiencies in writing, and of any hidden defects as soon as they become apparent. The Customer must notify the carrier immediately of any transport damage. Non-observation of the obligation to check and give notice of defects will void any and all warranty claims for those deficiencies.
6.5 Our liability for slight negligence is limited to claims owing to injury to life, the body or the health, to claims from product liability as well as claims from the culpable breach of essential contractual duties, through which the contract is endangered. Incidentally, our liability for slightly negligent breach of essential contractual duties is limited to the typically incurring damages which we could have foreseen when the contract was concluded.
6.6 If the Customer uses the delivered products with materials that are harmful to the environment, poisonous, radioactive or dangerous in any other way, Customer shall be obliged to clean them prior to any return shipment. All cleaning, decontamination, and disposal costs shall be the sole responsibility of Customer.
7. Warranty period, Limitation of Actions
The warranty period for all our products shall be one year and starts at the time of delivery of products to the Customer. The same shall apply to claims for damages irrespective of legal basis. The period of limitations of Sec. 438, paragraph 1, no. 1 and 2, Sec. 479, paragraph 1 and Sec. 634a, paragraph 1, no. 2 of the German Civil Code remain unaffected.
Any of the above limitations and or exclusions of remedies or damages shall not apply to claims according to malicious non-disclosure of a defect, to product liability and for damages from injury to life, the body or the health and for other damages, which are due to wilful intent or gross negligence.
8. Software use
8.1 As far as software is contained in the delivery, the Customer will be granted the non-exclusive right to use the software delivered including its documentation on the specific item of delivery. Use of the software on more than one system is prohibited.
8.2 The Customer may only copy, transfer or translate the software in a legally acceptable scope (Sec. 69a ff. German Copyright Law (UrhG)) or convert from the object code into the source code. The Customer is obliged to not remove our and/ or the Software Supplier’s instructions, especially copyright entries, or to change them without our prior permission.
8.3 All remaining rights to the software and the documentation thereof, including copies, remain with us and/or Software Supplier. Granting of sublicenses is strictly forbidden.
9.1 Installation costs shall be invoiced monthly. Fixed installation prices shall only apply to the installation work as far as agreed upon.
9.2 As far as required the Customer shall be responsible for providing the following at his own expense: lighting, motive power, compressed air, water, electrical power for welding, heating including any required connections, electrical installations for the connection of the products delivered by us, the required devices (e.g., hoisting equipment), a lockable room for storing material, tools and clothing during the installation.
10. Spare Parts, Maintenance/Repair
10.1 For spare parts, maintenance, and repair our current repair and replacement price list shall apply.
10.2 In case we have an obligation to maintain/deliver spare parts, the obligation shall be limited to a period of five years from the date of delivery of the products. As far as spare parts are not manufactured by us or are no longer available on the market, e.g. electrical components, or as far as raw materials required for spare part production are no longer available, our obligation to supply spare parts shall be void.
10.3 Any servicing and/or calibration service shall only be performed upon presentation of a proper and duly signed declaration on the absence of health hazards.
11. Legal reservation, Industrial proprietary rights, secrecy
11.1 We reserve ownership in any of the tools, moulds, samples, diagrams, commercial or technical documents produced or provided by us as well as all copyrights, proprietary and intellectual property rights in any such item. This also applies if the corresponding costs are wholly or partly borne by the Customer. The Customer may use any of the above only as agreed to in writing. The Customer may neither manufacture nor have manufactured subjects of this agreement without our prior written approval.
11.2 If we deliver products according to designs or other requirements specified by the Customer (models, samples etc.), the Customer shall be liable by default for eventual infringements of industrial property rights or other rights of third parties by manufacturing and delivery of such products. He shall be obligated by default to provide compensation for all damages resulting from such legal infringements.
11.3 All information acquired through the business relationship with us which is not deemed to be public knowledge shall be deemed proprietary and may not be disclosed to any third party.
Status as of: March 2012