Terms and Conditions
The present terms and conditions apply for all deliveries and other services provided by the seller. Conditions of purchase shall only be binding to the seller when the seller has explicitly agreed to them in writing.
Quotation and Acceptance
The seller’s quotes are non-binding. All orders or agreements of any kind become legally binding only when the seller has confirmed them in writing. Additional or diverging agreements, guarantees or any other promises made by the seller’s representatives only become legally effective when the seller has confirmed them in writing.
Pricing
All prices are net prices in EURO (€), Ex Works (Incoterms® 2010) including loading at the seller’s plant. Excluded are packaging, shipping, fees, taxes, duties, insurances, unloading or any other additional costs. All costs that are not included in the price will be invoiced additionally or must be carried by the buyer. Prices are calculated on the cost basis of the quote. If prices for material, labor, freight or any other cost factor change the seller reserves the right for price corrections as a subject to change.
Terms of Payment
a) All payments must be settled according to the agreed-on terms of payment. If there are no differing terms of payment defined in the seller’s order confirmation, all payments must be executed according to following rates without any discount on the seller’s account:
- 30% down payment upon receipt of the order confirmation
- 60% once the buyer has been notified that the delivery is ready for dispatch
- 10% after approval of the machine by the buyer, latest 30 days after pick-up of the machine by a shipping company or any other kind of pick-up or delivery
b) For deliveries to buyers outside Germany the seller reserves the right to claim a security from the buyer in the amount of the purchase value. The security has to be an irrevocable documentary credit at one of the banks used by the seller.
c) Spare parts and replacement deliveries including service and maintenance have to be paid in full and immediately after receipt of the invoice.
d) If the buyer gets into default the seller is entitled to charge default interest in the amount of 8% above the base interest rate announced by the “Deutsche Bundesbank”. Default charges can be higher if damages caused by delay are proved by the seller.
e) If the buyer breaks the terms of payment and/ or the pecuniary circumstances of the buyer have changed drastically after the conclusion of contract the residual debt becomes due immediately.
f) The buyer only has a right of offset when his counterclaims are legally valid, indisputable or accepted by us. He is only authorized to carry out his right of retention if his counterclaim is based on the same contractual relationship.
g) If the buyer is in default for more than 3 month the seller reserves the right to stop rendering any further services connected to the contractual agreement. All open claims for services provided and invoiced by the seller remain unaffected.
Terms of Delivery / Delay
a) The delivery time is defined by the agreements in-between the contracting parties. Its fulfillment by the seller requires all commercial or technical questions in-between the contracting parties to be clarified and that the buyer fulfills all his obligations as for example providing samples, templates, drawings, provision of official certifications or permission, or the payment of a down payment. This provision does not apply if delays are caused by the seller in its sole responsibility.
b) Compliance of the delivery date is subject to correct and on time self-delivery by its suppliers.
c) In case of subsequent modifications the seller is entitles to extend the delivery time in reasonable proportions.
d) Delivery time is met if the object of delivery has left our factory or if the readiness for dispatch is reported to the buyer on time.
e) If the delivery times cannot be met due to force majeure, labor disputes, turmoil, strike or any other event which cannot be influenced by the seller the delivery time can will be extended in reasonable proportions.
f) If the seller gets into delay the buyer may claim a compensation of 0.5% for every completed week of the price of the part of that delivery which because of the delay caused a postponement of putting into operation. The compensation is subject to the buyer providing evidence that the delay caused damages and is limited to 5%.
Reservation of Ownership
a) The seller keeps the ownership of the delivery item until it is payed entirely.
b) The buyer must store and insure the delivery item properly.
c) The buyer shall neither sell nor pawn or assign the delivery item as security. In case of distraint, confiscation or any other disposition by a third party the buyer must inform the seller immediately.
d) Any processing or changing of the delivery item or the attachment to other goods by the buyer or any other third party shall be for the sole benefit of the seller. The seller has the right of co-ownership for all newly produced items equal to the value of the delivery items.
e) If the reservation of ownership has no effect according to the laws of where the delivery item is located a security equal to the reservation of ownership is deemed to be agreed. If the buyer must be involved in justifying and obtaining the rights that are needed, he has the duty to do everything that is in his power to support and maintain such rights.
Transfer of Risk / Acceptance
a) The risk is transferred to the buyer when the delivery item has left the plant. This also applies for partial shipments or when additional services as for example delivery and set-up or shipping costs were covered by the seller. As far as an acceptance needs to take place it is decisive for the transfer of risk. The acceptance must take place immediately when the date of acceptance is reached or alternatively when the seller reports readiness for the acceptance. The buyer is not allowed to refuse the acceptance if there is no mayor defect.
b) If there is any delay, or the delivery or acceptance cannot take place at all due to events that cannot be attributed to the seller the transfer of risk will take place the day the delivery item is reported to be ready for shipping or acceptance.
c) Unless defined differently the acceptance takes place at the seller’s plant.
Assembly
If nothing else is agreed on the seller carries out the installation or assembly of the delivery item and the terms of installation of the seller shall apply in addition to all other agreements made. Any work on the delivery item, installation, putting into operation, functional testing, etc. may only be done by the seller’s qualified personnel or by special trained people that act on behalf of the seller.
Warranty
a) The seller warrants that he meets all features that were agreed on in writing, a flawless construction and manufacturing as well as error-free material to a degree where parts that become useless due to defects or where the usability is crucially affected will be repaired or replaced without invoice.
b) The warranty period is 12 month beginning with the date when the transfer of risk took place or 3300 hours of operation. If parts were repaired or replaced the warranty for these parts ends with the warranty of the originally delivered item.
c) The buyer has to report defects in writing and immediately after notice.
d) The seller is not responsible for defects occurring because of inappropriate or incorrect use, faulty installation or commissioning by the buyer or a third party, common wear or tear, incorrect or negligent handling, consequences of improper changes or repair work by the buyer or a third party without our consent. Same applies for defects that reduce the value or suitability of the delivery item marginally.
e) Taking back or replacement of spare parts or consumables can only take place when the faulty good is shipped back in proper packaging. Return shipments without prior agreement entitle the seller to refuse the shipment.
Liability
a) As far as nothing else arises any other or exceeding claims by the buyer against the seller are excluded. All claims, especially compensation claims of the buyer against the seller due to the breach of obligations resulting from the contractual relationship or from tort are excluded. The seller is not liable for missed profits or any other financial losses of the buyer, or any damages besides those that happened to the delivery item itself.
b) The above-mentioned limitations of liability shall not apply in case of intent, gross negligence of our legal representatives or executives and in the case of culpable violation of mayor contractual obligations. The seller is liable for culpable violation of mayor contractual obligations except in case of intent, gross negligence of our legal representatives or executives, limited to damages that are foreseeable and typical regarding the contract.
c) The limitation of liability does not apply when the legal regulations of the product liability act come into effect for defects of the delivery item for personal or property damages to privately implemented objects.
d) Further claims are excluded.
Force Majeure
All parties have the right to interrupt all contractual obligations if the fulfillment is impossible or exceptionally hindered due to: strike, rioting, governmental measures, delayed delivery or non-delivery by the suppliers, or any other unforeseeable, inevitable or serious event. If a mentioned circumstance occurs before or after the conclusion of a contract either party is entitled to end the fulfillment of the contractual obligations only to the degree as the impact on the contractual fulfillments was not foreseeable ate the time of the contractual conclusion.
Jurisdiction
The exclusive place of jurisdiction is the seller’s headquarter in Buende, Germany.
German substantive law shall apply exclusively.
The seller is entitled to file a law suit at the buyer’s headquarter.
Buende, December 21, 2018.