STANDARD TERMS OF BUSINESS AND DELIVERY
1. These Standard Terms of Business and Delivery shall apply to any expression of intent of a person aimed to bring about a certain legal effect (Willenserklärung), contract and legal consequence brought about by a legal transaction (rechtsgeschäftliche Handlung) or implied-in-law contract (rechtsgeschäftsähnliche Handlung) between us and the buyers. The Buyer’s Standard Terms of Purchasing shall herewith be deemed to have been rejected by us. Any Standard Terms of Purchasing of the Buyer (or parts thereof) conflicting with our Standard Terms of Delivery shall only apply if, provided and insofar as we expressly agree thereto. In such a case, however, the legal validity of all other provisions shall remain unaffected.
2. Pictures and information contained in our catalogues or on our website are not considered binding offers.
3. We reserve rights of ownership and rights relating to copyright with respect to drawings, cost estimates and any other documents placed at our customers’ disposal. Our quotes and documents must not be disclosed to third parties, competitors in particular, and must be returned to us on request. Save as otherwise stated, a contract shall be formed upon a buyer’s offer to buy and our written acknowledgement of order.
1. Save as explicitly provided otherwise, our prices are ex our works plus packaging and shipment costs and the cost of unloading at the customer’s business. Unless a fixed price was agreed with us, the prices valid on the date of delivery shall apply. Our prices are generally stated strictly net excluding statutory value-added tax payable at the applicable rate, as amended from time to time.
2. Prices for conveyor systems and equipment are generally stated excluding installation and commissioning costs. Where applicable, installation and commissioning work will have to be ordered separately. Execution and invoicing shall be based on our terms of installation as valid and amended from time to time.
III. Delivery and shipment, delay
1. The period of delivery shall commence upon dispatch of the acknowledgement of order, however, no earlier than provision of the documents, permits or licences, approvals to be obtained by the buyer, if any, and before receipt of a down payment agreed upon, if any. The period of delivery shall be deemed to have been observed if the item to be supplied has left the plant, or in case of notification of readiness of the goods for shipment, before expiry of the time limit. The period of delivery shall be reasonably extended in case of measures taken as part of industrial disputes, including but not limited to strike and lock-out, as well as in case of occurrence of unforeseen obstacles or impediments beyond our sphere of risk, to the extent such obstacles or impediments can be proven to have a material adverse effect on the completion or delivery of the item to be supplied. This rule shall also apply where such circumstances that we cannot be held accountable for occur at subcontractors. We cannot be held accountable for the aforementioned circumstances even if such circumstances occur when the party is already in default. The buyer shall be notified as soon as possible of the beginning and end of any such obstacles or impediments.
2. If we are responsible for any delay on our own part and if such delay incurs any losses on the buyer, the buyer shall be entitled to claim flat-rate compensation for default after setting a reasonable grace period. For each full week of delay it shall be 0.5 per cent – but in total not more than a maximum of five (5) per cent – of the value of the part of the overall shipment which cannot be used in time or in conformity with the contract as a result of the delay. This shall be without prejudice to the buyer’s right to prove that it has sustained greater losses than the aforementioned flat-rate compensation for default. Further claims against us that are based on default in delivery shall be governed exclusively by Section IX.5. of these Standard Terms of Business and Delivery.
3. Where the shipment is delayed at the buyer’s request, the buyer shall be charged the costs incurred by storage from one month after notification of readiness for shipment. In case of storage in our plant, we will charge a minimum rate of 0.5 per cent of the invoice amount per month. The right of the buyer to prove that we have not incurred any loss as a result of the delay, or that the actual loss caused to us as a result of the delay is lower than the liquidated loss stated above, shall remain unaffected. We reserve the right to claim higher or additional damages. After setting a reasonable grace period and after such grace period has expired fruitlessly, we shall have the right to otherwise dispose of the item to be supplied and subsequently effect delivery to the buyer subject to a reasonably extended period. Observance of the period of delivery by us shall be conditional upon the buyer performing the buyer’s contractual duties and obligations.
4. Surplus or short delivery of up to 5% shall be permitted, in case of delivery of customised objects, up to 10% surplus or short delivery shall be permitted.
5. Where shipment is delayed due to circumstances for which the buyer is responsible, risks shall pass to the buyer on the date of notification of readiness for shipment.
IV. Model facilities
We reserve ownership of mould facilities made by us even if pro-rated costs have already been charged. The buyer shall only have the right to make any claims under copyright or industrial property rights against us to the extent the buyer has pointed out to us the existence of such rights and has explicitly reserved such rights.
V. Passing of risk, formal acceptance of work
1. The risk shall pass to the buyer when the delivery object leaves our works. This shall still apply if partial deliveries are made, or if we have also assumed other services, e.g. shipping costs, or delivery and assembly on the purchaser’s premises. In cases where formal acceptance is required, the passing of risk shall depend on that procedure. It must be carried out without delay on the acceptance date, or in the alternative after we have announced that the item is ready for acceptance. The buyer may not refuse acceptance despite the existence of a defect, if such defect is not substantial.
2. If shipment or acceptance is delayed or shelved owing to circumstances that are not attributable to ourselves, the risk shall pass to the buyer from the date on which we announce that the item is ready for shipment or acceptance. We undertake to effect at the buyer’s expense those insurance policies which the latter demands. Partial deliveries shall be admissible provided the customer can be reasonably expected to accept them.
VI. Terms of payment
1. We reserve title and ownership of the goods supplied until all of the claims we may have against the buyer under the supply contract have been settled in full. We have the right to take back the item purchased where the buyer has acted in breach of contract.
2. The buyer shall have the duty to treat the products with care until title and ownership of the products have passed to the buyer. Any maintenance and inspection work which has to be performed shall be performed by the buyer at the buyer’s expense in due time. Moreover, the buyer shall have the duty to notify us without delay of items delivered being pledged or exposed to any other third-party interference with rights. The buyer shall be liable for any loss that we may consequently incur in the event of inability of the third party to indemnify us against the costs of action incurred in court and out of court pursuant to section 771 of the German Code of Civil Procedure (ZPO).
3. The buyer shall have the right to resell the goods subject to retention of title in the normal course of its business. The customer’s claims from the resale of the goods subject to retention of title shall already be assigned by the buyer to us as of today in the amount of the final invoice amount agreed with us (including value-added tax). Such assignment shall apply regardless of whether the products bought have been resold before or after processing. The buyer shall continue to have the right to collect the claims even after assignment. Our right to collect the claims ourselves shall remain unaffected by this. We, however, undertake to refrain from collecting the claims for as long as the buyer fulfils its payment obligations from the proceeds received, has not defaulted with payment and, in particular, for as long as no petition for commencement of bankruptcy or insolvency proceedings has been filed, or for as long as payment has not been discontinued.
4. Any goods processed and transformed by the buyer shall be processed and transformed for our account and on our behalf. In this case, the buyer’s expectant right shall continue to exist in the transformed object. If and to the extent that the goods are processed together with other objects not belonging to us, we shall be deemed to acquire proportional co-ownership rights in the new object; the share shall be determined by the objective value of the object bought by the buyer in relation to the other objects processed at the time of processing. This shall apply mutatis mutandis in case of intermixture. To the extent items have been intermixed or mingled with each other in such a way that the buyer’s object is to be seen as the main object, the parties are deemed to have agreed that the buyer shall transfer ownership to us proportionally, and that the buyer shall keep the objects with respect to which sole ownership or co-ownership rights have thus been acquired safe on our behalf. In order to secure our claims against the buyer, the buyer shall also assign to us such claims that may accrue to the buyer vis-à- vis a third party as a result of combining the goods subject to retention of title with a parcel of land; we herewith already accept such assignment.
5. At the buyer’s request, we shall release the security to which we are entitled to the extent that the value thereof exceeds the claims to be secured by more than 20%.
6. Where the buyer has filed an application for opening of insolvency proceedings, has stopped making payment or is in delay with payment, we shall have the right to rescind the contract and request immediate return of the goods.
VIll. Statutory warranty
1. The statutory warranty period is one (1) year from delivery of the goods. The abbreviated statutory warranty period shall not apply in case of wilful intent or fraudulent concealment of a defect, or to the extent and insofar as we have assumed a guarantee for the condition of the goods. Neither shall such period apply with respect to claims for material defects in cases of injury to life, body or health, claims under the German Product Liability Act (Produkthaftungsgesetz), a breach of duty committed with gross negligence or a culpable breach of material contractual obligations, i.e. such contractual obligations the performance of which constitutes the very basis for making it possible to duly perform the contract, the compliance with which the contracting party may normally rely on and the breach of which would, on the other hand, jeopardise achievement of the purpose of the contract. The statutory period of limitation for recourse claims according to section 479 445b of the German Civil Code (BGB) shall also remain unaffected. 2. In case of a defect in the goods, the customer shall grant us a reasonable grace period to render supplementary or alternative performance. We have the right to reject the remedy chosen by the customer if this type of remedy would entail disproportionately high costs. This shall apply in particular if:
– the costs associated with the remedy exceed the value of the goods if free and clear of defects; or
– the costs associated with the remedy exceed the amount by which the defect reduces the value of the goods; or
– another type of remedy than the one chosen by the buyer would be cheaper but would not be associated with any substantial disadvantages for the buyer.
In this case the buyer’s warranty claim shall be limited to the other type of remedy. If the other type of remedy also entails disproportionately high costs, we shall have the right to reject the buyer’s right to claim supplementary or alternative performance completely.
3. There shall be no entitlement to warranty or guarantee for defects resulting exclusively from faulty assembly or operation on the part of the customer, lack of maintenance as well as intervention and repairs by the customer and third parties not authorised by us. Naturally occurring wear and tear, temperature and atmospheric influence as well as the use of inappropriate accessories shall not be deemed to be covered either unless we can be held responsible for such impairment. Repairs shall, as a matter of principle, be exclusively performed in our plant. We shall become the owners of any parts replaced.
4. Parts that are the subject of complaint shall only be sent to us at our request and, to the extent required, well-packaged and with a packing slip attached indicating the project number concerned. Freight costs shall be prepaid by the buyer. Such costs shall only be reimbursed in case the customer’s complaint was justified. Where the goods and facilities supplied by us are delivered abroad, our warranty shall be limited to the costs that we would incur if satisfying the buyer’s warranty claims in Germany. This rule shall apply even if we were previously aware of the fact that our parts would be supplied by the buyer to a foreign country.
5. We shall only be liable for the functionality of our systems and equipment to the extent and in so far as the systems and equipment have been set up carefully and properly or by our installation specialists. We will keep any samples placed at our disposal in our possession until the warranty period has expired. In case of submission of design documents as a whole or in detail, we shall only be liable for proper and workshop-oriented execution.
6. The buyer must give us an opportunity and enough time to perform any supplementary performance or alternative performance that we believe to be necessary. The buyer may only remedy a defect directly itself, or have it remedied by a third party, and demand from us a reasonable reimbursement of the costs incurred in urgent cases in which operational safety is jeopardised and which we must be notified of immediately, or if we are in default with remedying a defect. Return shipments may only be made subject to prior agreement with us.
IX. Defects in title
1. If using the goods results in an infringement of intellectual property rights or copyrights in this country, then in principle we shall obtain the right to continue using the goods for the buyer at our own expense, or we shall re-work the goods in a manner acceptable to the buyer such that the infringement of property rights is eliminated.
2. If this is not possible on economically viable terms or within a reasonable period, the buyer shall be entitled to rescind the contract. Under these same circumstances, we shall also have the right to rescind the contract.
3. Moreover, if property rights are infringed, we shall indemnify the buyer from and against claims filed by the proprietors of the rights, which are undisputed or are established in a non-appealable declaratory judgment. The buyer must inform us without delay if any claim is brought against it by a third party and must give us an opportunity to comment on the alleged infringement. We shall make available to the buyer those particulars and documents which are required for putting up a defence against the third-party claims.
X. Notice of defects
Customer complaints shall only be taken into consideration if made in writing within eight (8) days of receipt of the goods. We must be notified in writing without delay, within eight (8) days of discovery of the defect at the latest, of any defect that was not discovered within the aforementioned period despite a thorough inspection having been performed. In this case, any planned processing of parts must be stopped immediately. No further warranty claims may be asserted after 12 months following the transfer of risk with respect to the goods.
XI. Right of buyer to rescind the contract
1. The buyer may rescind the contract if it becomes impossible for us with definite effect to render the whole performance prior to transfer of risk. The same rule shall apply in case of incapacity on the part of our company. The buyer shall also have the right to rescind the contract in case of partial impossibility of performance if it is only possible to order a part quantity of the same type of goods and if it is in the justified interest of the buyer to reject partial delivery; if this is not the case, the buyer shall have the right to reduce the consideration payable accordingly.
2. The buyer shall have the right to rescind the contract if we are in delay with performance within the meaning of Section III.2. of these Terms of Delivery and the buyer has granted us a reasonable grace period, explicitly declaring that following expiry of this grace period the buyer would no longer accept the performance and the grace period was not observed.
3. The buyer shall also have a rescission right in other cases of failure on our part to remedy a fault or to make alternative performance. In the case of a minor defect, the buyer shall only have the right to reduce the contract price. Otherwise the right to reduce the contract price shall be excluded.
4. The buyer’s duty to pay a consideration shall continue where performance becomes impossible whilst the buyer is in delay with acceptance or for a reason attributable to the buyer.
XII. Exclusion of liability
1. Claims for damages based on breach of duty or tort and claims to compensation for wasted expenditures are excluded, both vis-à-vis ourselves and vis-à-vis our performance assistants and vicarious agents.
2. This limitation of liability shall not apply if the loss or damage has been caused with intent or results from gross negligence, or in the event of a breach of cardinal duty, i.e. a contractual duty performance of which is a prerequisite for due implementation of the contract in the first place and may always be relied upon by the contractual partner, and which conversely may jeopardise attainment of the contractual purpose if breached. This shall not apply for losses based on mortal injury, physical harm or health damage if we are responsible for the breach of duty. Moreover, the limitation shall not apply for losses that result from the lack of a warranted characteristic if we have assumed a guarantee, or for losses for which provision is made under the Product Liability Act.
3. In cases of entitlement to compensation for a slightly negligent breach of cardinal duty and in cases of a grossly negligent breach of secondary contractual duty, our liability shall be limited to the foreseeable loss or damage typical for the type of contract. This shall not apply in cases of personal injury, or for losses that result from the lack of a warranted characteristic, or for losses for which provision is made under the Product Liability Act.
XIII. Use of software
To the extent delivery comprises software, the buyer shall be granted a non-exclusive right to use the software supplied including documentation. The software shall be assigned for the purpose of use on the item delivered on which it is intended to be used. Use of the software on more than one system shall be prohibited. The buyer shall only have the right to reproduce, revise or translate software or convert the object code of a software into source code to the extent permitted by the law (German Copyright Act, UrhG). The buyer undertakes to refrain from removing and changing the manufacturer’s specifications - copyright notices in particular - without our prior express approval. We and/or our software supplier reserve all other rights in the software and documentation including copies. It is not permitted to grant sub-licences without having obtained our express consent.
XIV. Place of performance and place of jurisdiction
Berching shall be the place of performance as far as delivery and payment is concerned and place of jurisdiction in case of any disputes arising from and in connection with contracts with customers. In case of dispute we shall also have the right to take legal action against the buyer at the court which has jurisdiction over the buyer’s registered office. This contract shall be governed by German law even if delivery is made to a foreign country. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as German private international law shall be excluded.
As amended in 11/2018