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General Terms and Conditions of Purchase

of Elb-Schliff Werkzeugmaschinen GmbH

(hereinafter respectively referred to as the "Purchaser")

- Applicable exclusively to companies -

 

1. General Information

1.1. The following terms and conditions of purchase shall apply exclusively to all orders placed by the Purchaser. In the case of ongoing business relations, these terms and conditions shall also be deemed to have been agreed for all subsequent transactions, even if the Purchaser does not expressly refer to them in the case of further contracts - in particular, in the case of orders placed by telephone.

Acceptance of an order by the Supplier shall in any case be deemed to be acceptance of these Terms and Conditions of Purchase unless the Supplier immediately states otherwise to the Purchaser.

Any agreements or contractual supplements deviating herefrom, in particular, arrangements made with our representatives, shall only be binding if they are expressly confirmed by the Purchaser.

Any conflicting terms and conditions of sale of the Supplier shall not apply, even if they are not expressly contradicted in writing.

1.2. Any separate contractual agreements (individual agreements), such as supplements or ancillary agreements to these Terms and Conditions of Purchase, shall be invalid unless confirmed in writing by the Purchaser. This shall also apply to changes agreed after conclusion of the contract.

1.3. The Terms and Conditions of Purchase shall also apply in their respective version to future contracts with the same Supplier without reference being made to them again in each individual case.

1.4. Incoterms 2020 (ICC) must be applied for the interpretation of trade terms.

 

 
2. Order and Order Acceptance

2.1. Offers from the Supplier must be submitted in writing and shall be free of charge for the Purchaser.

2.2. Orders must be confirmed by the Supplier in writing after no longer than two (2) weeks. Delayed confirmation shall be deemed to be a new offer and requires acceptance by the Purchaser.

2.3. Only written orders shall be legally binding.

2.4. The subcontracting of orders to third parties shall only be permitted with the written consent of the Purchaser.

 

3. Prices and Payment

3.1. Unless expressly stated otherwise, the prices quoted to the Purchaser shall include delivery "free domicile", including packaging, insurance and all customs duties and taxes. The price stated in the order shall be binding.

3.2. Where, according to the agreement reached, the price does not include packaging and the fee for packaging - which is being provided more than just on loan - has not been specifically determined, it must be charged at the proven cost price. At the request of the Purchaser, the Supplier must take back the packaging at its own expense.

3.3. Unless otherwise agreed, the Purchaser shall pay the purchase price within 14 days of delivery of the goods and receipt of the invoice, either with a 3% discount or within 30 days net. For the timeliness of the payments owed, receipt of the Purchaser’s payment order by the Purchaser’s bank shall suffice.

3.4. All order confirmations, delivery documents and invoices must state the order number, the item number, the delivery quantity and the delivery address of the Purchaser. If one or more of these details are missing and this causes a delay in processing for the Purchaser in the normal course of its business, the payment periods specified in Clause 3.3 shall be extended by the amount of the delay.

3.5. If delivery is not in accordance with the contract, in particular, a defective delivery, the Purchaser shall be entitled to withhold payment until proper fulfilment without loss of any rebates, discounts or similar payment benefits.

3.6. Payment default by the Purchaser in the absence of a written reminder is hereby excluded. In the event of payment default, the default interest shall be five (5) percentage points above the base interest rate pursuant to Section 247 of the German Civil Code (BGB).

 

4. Delivery, Delivery Period, Transfer of Risk

4.1. The delivery period shall commence on the order date. Receipt of the goods by the Purchaser shall be decisive for compliance with delivery deadlines. If acceptance has been agreed, this shall be decisive for compliance with the delivery date. Early deliveries shall not be permitted.

4.2. If it is foreseeable that the Supplier will not be able to meet the agreed deadline, it must inform the Purchaser immediately in writing, stating the reasons for the delay and the expected delay.

4.3. If the last day on which the delivery can be made can be determined based on the contract, the Supplier shall be in default at the end of this day without the need for a reminder from the Purchaser.

4.4. If, by way of exception, collection by the Purchaser has been agreed, the Supplier shall make the goods available in good time, taking into account the time for loading and dispatch to be agreed with the carrier. If it does not comply with this obligation, the Supplier shall be liable for the delays in delivery caused thereby.

4.5. The Supplier shall guarantee its observation and compliance with all customs regulations. In particular, it shall guarantee that all preferential proofs and certificates of origin as well as Supplier's declarations have been correctly issued. If it fails to comply with this obligation and delivery is delayed as a result, the Supplier shall be liable to the Purchaser accordingly.

4.6. As of the date on which the delay in delivery commences, the Purchaser may demand a contractual penalty from the Supplier in the amount of 0.5% of the order value per commenced week of delay up to a maximum of 5% of the order value. The right to claim further damages shall be expressly reserved. The right to demand payment of the agreed contractual penalty shall not be forfeited by the fact that the contractual penalty is not expressly reserved on acceptance of the delayed delivery.

4.7. The Supplier shall not be entitled to make partial deliveries without the prior written consent of the Purchaser.

4.8. Even if dispatch has been agreed, risk shall only pass to the Purchaser once the goods have been handed over to the Purchaser at the agreed place of destination.

 

5. Materials Provided

5.1. The Purchaser reserves title and copyright to orders placed by the Purchaser and to drawings, illustrations, calculations, descriptions and any other documents made available to the Supplier. The Supplier may not make these available to third parties, nor use or reproduce them itself or through third parties without the express consent of the Purchaser. It shall return these documents in full at the request of the Purchaser if they are no longer required by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. In this case, any copies made by the Supplier must be destroyed; the only exceptions to this shall be storage within the scope of statutory storage obligations and the storage of data for backup purposes as part of the normal data backup.

5.2. Tools and models made available to the Supplier by the Purchaser shall remain the property of the Purchaser. Tools and models manufactured for contractual purposes and charged separately to the Purchaser by the Supplier shall become the property of the Purchaser. The Supplier shall identify them as the property of the Purchaser, store them carefully, protect them to a reasonable extent against damage of any kind and use them only for the purposes of the contract. In the absence of an agreement to the contrary, the contracting parties shall each bear half of the costs of their maintenance and repair. However, insofar as these costs are attributable to defects in the items manufactured by the Supplier or to improper use by the Supplier, its employees or other vicarious agents, they must be borne exclusively by the Supplier. The Supplier shall inform the Purchaser without delay of any damage to such tools and models which is anything other than negligible. On request, it shall be obliged to return them to the Purchaser in proper condition if they are no longer required by it to fulfil the contracts concluded with the Purchaser.

5.3. Reservations of title by the Supplier shall only apply insofar as they relate to the payment obligation of the Purchaser for the particular products to which the Supplier retains title. In particular, extended or prolonged reservations of title shall not be permitted.

5.4. In the event of an imminent seizure or other impairment of the Purchaser's property by third parties, the Supplier must notify the Purchaser without delay.

 
6. Warranty

6.1. Claims in the event of defects shall become time-barred after 30 months unless a longer limitation period exists under Section 438 para. 1 BGB, regardless of the operational period of use. If goods are procured for resale or for use in the manufacture of machines or products, the limitation period shall commence from the date on which the limitation period for defects for the product fitted with the goods starts to run, but no later than six months after delivery of the goods.

6.2. The statutory provisions (Sections 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial obligation to inspect and give notice of defects, subject to the following proviso: The Purchaser's obligation to inspect shall be limited to defects which become apparent during incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during quality control in the random sampling procedure. Insofar as acceptance has been agreed, there shall be no obligation to carry out an inspection. Moreover, this shall be dependent on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding the Purchaser's obligation to carry out an inspection, the Purchaser's complaint (notice of defect) shall be deemed to have been made without undue delay and in good time, provided it is sent within 10 working days of discovery or, in the case of obvious defects, of delivery.

6.3. The Purchaser may, at its own discretion, assert the statutory claims for defects, in particular, at its own discretion, demand a replacement delivery or the remedying of defects. In the event of a replacement delivery as well as the remedying of defects, the Supplier shall be obliged to remedy the defects immediately at its own expense.

6.4. In urgent cases, in which it is no longer possible to give the Supplier the opportunity to remedy the defect due to the particular urgency of the situation, the Purchaser may remedy the defect itself or have it remedied by a third party, without having to set a grace period, at the Supplier's expense up to the limit of Section 439 BGB. This shall also apply if the Supplier has delivered after the occurrence of the default.

6.5. If more than 10% of the goods in a delivery are defective, the Purchaser shall be entitled to refuse the entire delivery without inspecting the remaining goods at the Supplier's expense.

6.6. In the case of consignments of goods consisting of a large number of identical goods, the Purchaser shall only be required to inspect 3% of the goods delivered for defects. If individual samples of a consignment of goods are defective, the Purchaser may, at its own discretion, either demand that the defective items be separated out by the Supplier or else assert claims for defects.

6.7. Acceptance and payment by the Purchaser as well as the approval of samples submitted do not mean that the Purchaser accepts the goods as being free of defects.

6.8. On receipt of the Purchaser's written notice of a defect by the Supplier, the limitation period for warranty claims shall be suspended until the Supplier rejects the claims or declares the defect remedied or otherwise refuses to continue negotiations on the claims. In the event of replacement delivery and remedy of defects, the warranty period for replaced and remedied parts shall recommence unless the Purchaser had to assume from the Supplier's conduct that the Supplier did not consider itself obliged to undertake the measure but only undertook the replacement delivery or remedy of defects as a gesture of goodwill or for similar reasons.

 

7. Confidentiality

7.1. The Supplier shall be obliged to keep the terms of the order as well as all information and documents made available to it by the Purchaser (except for publicly accessible information) secret and to use them only to execute the order.

7.2. The Contractor agrees to make confidential information of the Purchaser, in particular, information and documents designated as confidential, available to third parties only with the consent of the Purchaser. The Purchaser's proprietary rights to information provided shall not be restricted by its disclosure.

7.3. On request by the Purchaser at any time, but no later than on termination of the contractual relationship, all information provided (including copies or records made, if applicable) and items provided on loan must be returned immediately and in full.

7.4. When providing references or in other publications, the Supplier may only mention the Purchaser's company, brands, trademarks and other names with the Purchaser's express written consent.

7.5. The Supplier shall oblige its sub-suppliers in accordance with this Clause 7.

 

 
8. Industrial Property Rights

8.1. The Supplier shall be liable for ensuring that neither the goods delivered by it nor their further delivery, processing or use by the Purchaser infringe the industrial property rights of third parties, in particular, utility models, patents or licences.

8.2. The Supplier shall indemnify the Purchaser against any infringements of industrial property rights and shall bear all costs incurred by the Purchaser in this context. This shall not apply insofar as the Supplier proves that it is neither responsible for the infringement of the industrial property right nor should have been aware thereof at the time of delivery if it had exercised due commercial care.

8.3. In the event of conflicting industrial property rights of third parties, the Supplier must obtain, at its own expense, consent or approval, which shall also be effective for the Purchaser, for further delivery, processing and use from the entitled party.

 

9. Product Liability, Indemnification, Liability Insurance Cover

9.1. The Supplier shall be responsible for all claims asserted by third parties for personal injury or property damage attributable to a defective product supplied by it and shall be obliged to indemnify the Purchaser against any liability resulting therefrom. If the Purchaser is obliged to carry out a recall involving third parties due to a defect in a product supplied by the Supplier, the Supplier shall bear all costs associated with the recall action.

9.2. The Supplier undertakes to take out product liability insurance with coverage of EUR 10 million per incident of personal/property damage. The Supplier shall send the Purchaser a copy of the liability policy at any time upon request.

 
10. Withdrawal

10.1. The Purchaser shall be entitled to withdraw from the contract at any time by written declaration stating the reason if

a) the Purchaser is no longer able to use the products ordered in its business operations or is only able to use them at considerable expense due to circumstances that occurred after the conclusion of the contract and for which the Supplier is responsible (such as the lack of compliance with legal requirements), or

b) the financial circumstances of the Supplier deteriorate after conclusion of the contract to such an extent that delivery in accordance with the contract cannot be expected.

 

11. Compliance with Laws

11.1. In connection with the contractual relationship, the Supplier shall be obliged to comply with the statutory provisions applicable to it in each case. This concerns, in particular, anti-corruption and money laundering laws as well as antitrust, labour and environmental protection regulations.

11.2. The Supplier shall ensure that the products supplied by it comply with all relevant requirements for placement on the market within the European Union and the European Economic Area. It must prove such conformity to the Purchaser upon request by submitting the appropriate documents.

11.3. The Supplier shall use reasonable efforts to ensure compliance by its sub-suppliers with the obligations incumbent upon the Supplier under this Clause 11.

 

12. Prohibition of Assignment

The Supplier has no right to assign its claims arising from the contractual relationship to third parties. This shall not apply insofar as monetary claims are concerned.

 
13. Place of Performance, Place of Jurisdiction, Applicable Law

13.1. The place of performance for both parties and the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Aschaffenburg, Germany.

13.2. This contract shall be governed exclusively by German law, excluding its conflict of law rules. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) as well as any other, including future, intergovernmental or international treaties, even after their transposition into German law, is hereby excluded.

 

14. Final Provisions

14.1. Transactions with legal entities under public law and special funds under public law shall be treated equally.

14.2. If any provision of this contract, including these Terms and Conditions, is or becomes invalid in whole or in part, the parties shall jointly agree on a new provision which shall replace the provision which is invalid in whole or in part. The same shall apply to unintentional gaps in this contract.

 

Version: 16/8/2023

 

General Terms and Conditions of Sale and Delivery

of Elb-Schliff Werkzeugmaschinen GmbH

(hereinafter respectively referred to as the "Supplier")

- Applicable exclusively to companies -

 

1. General Information

1.1 The following Terms and Conditions of Delivery shall apply exclusively to all deliveries made by the Supplier. In the case of ongoing business relations, these terms and conditions shall also be deemed to have been agreed for all subsequent transactions, even if the Supplier does not expressly refer to them in the case of further contracts - in particular, in the case of orders placed by telephone.
Acceptance of the goods delivered by the Supplier or the receipt of the service rendered by it shall, in any case, be deemed to be an acknowledgement of these Terms and Conditions of Delivery, unless the contracting party immediately states otherwise to the Supplier.
Any agreements or contractual supplements deviating herefrom, in particular, arrangements made with our representatives, shall only be binding if they are expressly confirmed by the Supplier.
Any conflicting terms and conditions of purchase of the Purchaser shall not apply, even if they are not expressly contradicted in writing.

1.2 Incoterms 2020 (ICC) must be applied for the interpretation of trade terms.

 

2. Offer

2.1 The documents, such as illustrations, drawings, weights and dimensions, etc., which are merely attached to the offer but are not part thereof, are only approximate and shall not constitute a statement of the quality of the goods unless they are expressly designated as binding by the Supplier.

2.2 Supplier offers and prices shall only apply to the place of performance in accordance with Clause 19.1 or the customer site named in the Supplier's offer, unless expressly agreed otherwise between the parties. For other delivery sites, the Supplier reserves the right to charge an additional fee.

2.3 Subject to express confirmation by the Supplier, the Supplier shall be bound by its offer for 30 days. Upon expiry of this period, the Supplier shall no longer be bound by its offer, which shall thereafter be subject to change. Cost estimates shall always be non-binding.

2.4 The documents belonging to the offer, including all attachments, shall remain the property of the Supplier. They may not be made accessible to third parties without the express written consent of the Supplier and must be returned to the Supplier or destroyed upon request if a contract is not concluded. Deliberate infringement of this requirement shall result in an obligation to pay damages.

 

3. Conclusion of Contract

3.1 The contract shall be concluded when the Supplier, on receipt of an order, expressly confirms the order, within the period set by the Purchaser, if applicable.

3.2 If the Supplier has set a time limit for acceptance by the Purchaser when making a written offer, the contract shall be deemed to have been concluded if the Purchaser has sent a written declaration of acceptance before expiry of the time limit set for it and the declaration of acceptance is received by the Supplier within one week of expiry of the time limit at the latest.

3.3. The parties shall be obliged to provide all documents and other information within their respective sphere of responsibility which are necessary for the fulfilment of the contractual obligations of the parties, in particular, for the import or export or shipment of the products.

 

4. Cancellation of an Order

If, after conclusion of the contract, the Supplier agrees, by way of exception, to the cancellation of a contract at the request of the Purchaser, this must be completed in writing, unless expressly agreed otherwise. In any case, this shall only occur against payment of an administration fee. Cancellation by mutual agreement shall only occur as a gesture of goodwill; there shall be no entitlement to cancellation of a contract by mutual agreement. The minimum amount of the fee shall be 25% of the purchase price. Cancellation more than 30 days after receipt of the order confirmation shall not be possible. Goods may only be returned with the express consent of the Supplier and are subject to a restocking fee of 10% of the purchase price of the goods returned. If the work performed up to the time of receipt by us of the cancellation, including the materials and raw materials used for this purpose, exceeds the minimum fee of 25% of the purchase price, the Purchaser shall be charged in full for the work performed by us, including the materials and raw materials used for this purpose. The fee of 25% of the purchase price shall be added to the invoice amount in that case. The restocking fee shall not be added to the invoice but, if incurred, shall be charged separately.

 

5. Postponement of the Delivery Date

If, after conclusion of the contract, the Supplier, by way of exception, agrees to postpone a delivery or part thereof at the request of the Purchaser, this shall only occur as a gesture of goodwill and shall require a separate agreement. The agreed payment dates shall not be affected by this.

 

6. Content of the Supply Contract

The quality, suitability, qualification and function as well as the intended use of the Supplier's goods shall be determined exclusively in accordance with the Supplier's performance specifications and technical qualifications included in the contract. Objective and subjective requirements for the goods that go beyond the quality agreed between the parties are hereby excluded. Insofar as no limits for permissible deviations are specified in the order confirmation and none arise from expressly recognised customer specifications, deviations customary in the industry shall be permitted in any case. Public statements, promotions or advertising by the Supplier or third parties shall not constitute a statement of the quality of the goods if the Supplier was not aware of these statements and could not have been aware of them, if the statement had been corrected in the same or an equivalent manner at the time the contract was concluded or if the statement could have influenced the Purchaser's decision to purchase.

 

7. Prices

7.1 Unless otherwise agreed, the prices shall always be net plus VAT EXW - Ex Works Aschaffenburg, Bollenwaldstrasse 116, 63743 Aschaffenburg - or Ex Works Troisdorf, Genker Strasse 9, 53842 Troisdorf - excluding packaging and transport insurance.

7.2 If, after the conclusion of the contract, the circumstances relevant for determination of the prices, in particular, the costs of the materials, raw materials and energy required for production of the goods, the cost of transport of the goods as well as public charges to be borne by us change in a way which was neither foreseeable for us at the time of conclusion of the contract nor in a way for which we are responsible, we reserve the right to adjust our prices in equal proportion at our reasonable discretion. An increase in prices shall only be considered if the increase in the respective type of cost is neither fully nor partially offset by other costs underlying the prices for the product in other areas and which may be decreasing. Insofar as the above circumstances lead to a reduction in costs, we undertake to reduce our prices in equal proportion for the Purchaser. When exercising our reasonable discretion, we shall choose the respective times of a price change in such a way that price reductions are not taken into account based on standards that are any less favourable to the Purchaser than price increases, i.e. price reductions must change prices to at least the same extent as price increases. All cost increases or cost reductions must be proven to the Purchaser upon request. The same shall apply to the fairness of the revised price of the product concerned. In the event of a price increase of more than 20% since conclusion of the contract, the Purchaser shall have the right to withdraw from the contract.

 

8. Payment

8.1 Payments shall be made directly to the Supplier's paying agent, not to representatives or third parties, and shall be made strictly net, without discount. Unless otherwise agreed, the following terms of payment shall apply:

a) for machine deliveries and accessories within the standard range:
40% net down payment on receipt of order confirmation.
50% net on notification of readiness for dispatch, before delivery.
10 % net immediately after final acceptance by
the customer, but no later than the start of the warranty
b) for machine deliveries and accessories with customer-specific adaptations, applications or modifications:
30% net down payment on receipt of order confirmation.
30% net after approval of construction drawings, but no later than four months after receipt of order.
30% net on notification of readiness for dispatch, before delivery.
10% net immediately after final acceptance by the customer, but no later than the start of the warranty.
c) for the supply of spare and wear parts, as well as for contract work:
Payment without deduction immediately after receipt of the invoice.

8.2 The Purchaser shall not be entitled to assert a right of retention or set-off against due counterclaims unless these are undisputed, ready for decision or have been established by a court of law. Excluded from this shall be counterclaims of the Purchaser which are in a reciprocal relationship to our main performance and concern the contractual core area. The Purchaser shall only be entitled to assert rights of retention on the basis of counterclaims from the same contractual relationship.

8.3 Bills of exchange and cheques shall only be accepted on account of performance and shall only be deemed payment after they have been honoured. The Supplier's claims shall become due immediately, regardless of the term of bills of exchange accepted on account of performance, if contractual agreements are not complied with by the Purchaser. In the event of default in payment, protest against a bill of exchange and cessation of payment by the Purchaser, the Supplier may demand immediate payment of the total debt claim - including any debt claims from circulating bills of exchange - without regard to the agreed due date. This shall also apply if the Supplier becomes aware of circumstances which give rise to justified and substantial doubts about the solvency or creditworthiness of the Purchaser, even if these circumstances already existed at the time the goods were ordered but were not known to the Supplier or else should have been known to the Supplier. In all of the stated cases, the Supplier shall also be entitled to make outstanding deliveries only against advance payment or provision of security and, if the advance payment or security is not provided within two weeks of the Supplier's request for advance payment, to withdraw from the contract without setting a new deadline. Further claims shall remain unaffected. The obligation to make an advance payment shall not apply in the event of an undisputed, ready-for-decision or legally established debt claim of the contracting party against the Supplier.

8.4 If the payment dates are exceeded, the Supplier shall charge interest on arrears at a rate of 9 percentage points p.a. above the respective base interest rate of the European Central Bank, unless higher losses are proven.

8.5 Upon expiry of a reasonable grace period, the Supplier shall be entitled to withdraw from the contract and/or to claim damages instead of performance.

 

9. Terms and Conditions of Delivery and Delivery Period, Delay, Force Majeure

9.1 Delivery shall be FCA - free carrier Aschaffenburg, Bollenwaldstrasse 116, 63743 Aschaffenburg - or FCA Troisdorf, Genker Strasse 9, 53842 Troisdorf - unless expressly agreed otherwise between the parties.

9.2 Delivery periods and dates shall be agreed individually and expressly stated by us on acceptance of the order, usually in the form of an order confirmation. The delivery periods and dates stated by the Supplier are only approximate, unless they have been expressly agreed as binding. Fixed deadlines or fixed dates shall be specially marked as such with a corresponding addition.

9.3 Subject to receipt of a formal order, the delivery period shall commence on the date of the Supplier's order confirmation, but not before clarification of all technical and commercial details and provision of the documents to be procured by the Purchaser, such as all necessary working documents, approvals, releases, as well as before receipt of an agreed down payment. The delivery period may vary depending on the scope of delivery and the order situation and must be confirmed once again by the Supplier at the time of order placement.

9.4 The delivery period shall apply subject to previous orders affecting the Supplier's delivery schedule and shall be deemed to have been complied with if the goods are loaded onto the Purchaser's means of transport on the agreed delivery date or, if the Purchaser fails to provide the means of transport in good time, are made available for transport on that date. The right to correct and timely self-delivery remains reserved. Any change in the technical composition of the machine by the Purchaser may affect the delivery.

9.5 If the Supplier is unable to comply with binding delivery periods or delivery dates for reasons for which the Supplier is not responsible ("unavailability of performance"), the Supplier shall inform the Purchaser thereof without undue delay and at the same time notify the Purchaser of the expected new delivery period or delivery date. If the goods ordered are also not available within the new delivery period or by the new delivery date, the Supplier shall be entitled to withdraw from the contract in whole or in part; in this case, the Supplier shall immediately refund any consideration already paid by the Purchaser. A case of unavailability of performance in this sense shall be deemed to be, in particular, the failure of the Supplier to obtain supplies from its sub-suppliers in good time, if the Supplier has concluded a congruent hedging transaction, neither the Supplier nor the sub-supplier is at fault or if the Supplier is not obliged to effect procurement in the individual case.

9.6 A delivery delay on the part of the Supplier shall be determined in accordance with statutory provisions. However, in any case, a reminder from the Purchaser shall be required. The statutory right of the Purchaser to withdraw from the contract if it has unsuccessfully set the Supplier a reasonable deadline for performance or subsequent performance shall remain unaffected.

9.7 In the event of a delay in delivery or impossibility, the Supplier shall only be liable for claims for damages in accordance with Clause 16.

9.8 The Supplier and the Purchaser shall be released from their respective obligation to perform the contract for as long as the party concerned is prevented from fulfilling its respective obligation due to force majeure, unless the event leading to exclusion of the obligation to perform the contract was at least partly caused by the respective contracting party or is attributable to circumstances which could have been avoided, taking into account respective reasonable care. If the party concerned is the Supplier, this shall apply regardless of whether the impediment to performance has occurred at the site of the Supplier or its suppliers or sub-suppliers (reservation of self-supply), if the Supplier has concluded a congruent hedging transaction, if neither the Supplier nor the sub-supplier is at fault or if the Supplier is not obliged to effect procurement in the individual case. Cases of force majeure shall include, in particular, industrial disputes, lawful strikes, lockouts, wars, terrorism, natural disasters, epidemics and pandemics, operational disruptions and/or interruptions, shortages and/or scarcity of operating materials, raw materials and/or energy, including delivery bottlenecks, performance disruptions, supply disruptions at raw material and/or energy suppliers and/or upstream suppliers of the Supplier, as well as traffic and shipping disruptions, transport bottlenecks and disproportionately increased transport costs, government sanctions and official orders, embargoes and other obstacles due to national or international law. Cases of force majeure shall also expressly include the currently existing and ongoing COVID pandemic, including the resulting consequences for the national and international movement of goods, in particular, delays in the Supplier's supply chain. The Supplier shall notify the Purchaser of the occurrence of such an impediment without delay. If the impediment to performance is expected to last for more than four months, the Supplier shall be entitled to withdraw from the contract either in whole or in part. If the Supplier wishes to make use of the right of withdrawal, it must inform the Purchaser immediately after recognising the extent of the impediment to performance, even if an extension of the delivery period was initially agreed with the Purchaser. In the cases of withdrawal stated above, the Purchaser shall not be obliged to render counter-performance; the Purchaser shall not be entitled to any claims for damages against the Supplier as a result. Any statutory rights of withdrawal shall remain unaffected.

9.9 Compliance with the delivery period shall require fulfilment of the Purchaser's contractual obligations. If the Purchaser is deemed to be in default of acceptance, fails to cooperate or if the delivery or assembly is otherwise delayed through the fault of the Purchaser, the costs incurred by the Supplier, the waiting time for any workers and any allowances paid must be reimbursed. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser at the time of default of acceptance or any other breach of obligations to cooperate. Further claims of the Supplier shall remain unaffected. In particular, it shall be entitled to withdraw from the contract and/or demand damages instead of performance after unsuccessful expiry of a deadline to be complied with due to the fault of the Purchaser and after the setting and fruitless expiry of a reasonable deadline.

9.10 Unless otherwise agreed in an individual contract or in these terms and conditions, the General Conditions for the Supply of Machinery for the Export of Machinery and Equipment of ECE Conditions Nos 188, 188A, as well as 188B, in their applicable version at the time of conclusion of the contract, shall apply exclusively.

 

10. Transfer of Risk

10.1 All sales shall be FCA - free carrier Aschaffenburg, Bollenwaldstrasse 116, 63743 Aschaffenburg or Troisdorf, Genker Strasse 9, 53842 Troisdorf.

10.2 Any insurance against transport losses or damage must be taken out - if desired - by order and at the expense of the Purchaser.

 

11. Retention of Title

11.1 All goods delivered shall remain the property of the Supplier (reserved goods) until all of its existing debt claims and debt claims arising after conclusion of the contract have been paid, in particular, the debt balances shown in each case.

11.2 Software installed on machines for use must first be activated by the Supplier. The final activation of the software on these machines (and thus the machine) shall only take place on full payment of the fee for the machine, including the software installed on it. Until the fee has been paid in full, the Supplier shall only tolerate, to the extent necessary, activation of the software (and thus use of the machine) for machine acceptance purposes. The Supplier shall only activate the software temporarily for this purpose.

11.3 The Purchaser hereby assigns to the Supplier, together with all ancillary rights, the debt claims arising from resale of the reserved goods, including within the scope of contracts for work and services or contracts for the delivery of movable goods to be manufactured or produced. These must serve as security to the same extent as the reserved goods themselves. Assignment to third parties shall only be permitted with the prior written consent of the Supplier.

11.4 If the Purchaser sells the reserved goods together with any other goods that were not purchased from the Supplier, any assignment of the debt arising from the resale shall only apply to the invoice value of the reserved goods at the time of delivery. If the goods over which the Supplier holds a co-ownership share are sold, the assignment of the debt shall apply to the value of this co-ownership share.

11.5 The Purchaser may only sell the reserved goods in the ordinary course of business under its normal terms and conditions and in agreement of a reservation of title to the extent drafted by the Supplier. The Purchaser shall be entitled to collect the debt claims arising from the resale.

11.6 If the Purchaser fails to meet the obligations arising from this contract or other contracts with the Supplier, or if circumstances become known which reduce its creditworthiness, the Purchaser must, at the Supplier's request, inform the Supplier of the names of the third party debtors involved. In the event that the Purchaser fails to properly meet its contractual obligations towards the Supplier, the Supplier shall be entitled to prohibit the Purchaser's authority to resell the reserved goods as well as to prohibit the processing of the reserved goods, as well as their combination and mixing with other goods and also to revoke its debt collection authority.

11.7 If the Purchaser processes the reserved goods, the Supplier shall be deemed to be the manufacturer within the meaning of Section 950 of the German Civil Code (BGB). If the reserved goods are processed, combined or mixed by the Purchaser with goods of a different origin to form a new item or mixed stock, the Supplier shall be entitled to co-ownership thereof in the ratio of the invoice value of the reserved goods at the time of delivery to the value of the other processed or mixed goods. If the reserved goods are combined or mixed with other items and if an item belonging to the Purchaser is to be regarded as the main item within the meaning of Section 947 BGB, it is hereby agreed that a co-ownership share in the ratio of the invoice value of the reserved goods to the value of the main item shall pass to the Supplier and the Purchaser shall store the item for the Supplier free of charge.

11.8 The Purchaser shall store the reserved goods for the Supplier. Upon request, the Supplier may, at any time, be authorised to take an inventory of the reserved goods at the place where they are stored and to mark the reserved goods adequately. If the value of the existing securities exceeds the claims of the Supplier by more than 10% in total, the Supplier shall be obliged to retransfer securities of this amount at the request of the Purchaser.

11.9 The Supplier reserves the right to perform technical modifications to the reserved goods at any time, after prior consultation with the Purchaser, provided these serve to improve the product.

 

12. Drawings and Designs

12.1 Unless otherwise agreed, drawings of the products offered do not have to be approved by the Purchaser.

12.2 Without the Supplier's consent, the Purchaser may not hand over, lend, show, sell or otherwise make available or accessible to any third party any drawings, photographs or specifications or reproductions thereof produced by the Supplier which would enable anyone other than the Supplier to produce similar equipment, software or parts thereof.

 

13. Software Licence

13.1 Upon payment in full of the applicable software licence fees as part of the price shown in the relevant order and subject to the Purchaser's performance of the contract including the terms of the relevant order, the Supplier shall grant the Purchaser a limited, non-exclusive, non-transferable right of use ("Licence") to use the Supplier's software and any third-party software supplied under this agreement solely in the form of executable object code; the right of use shall be geographically limited to the country shown in the "Delivery Address" ("Licensed Software"). Rights shall be granted solely in accordance with the following terms and conditions of this Clause 13 and in accordance with all supplements and additional user restrictions agreed between the parties.

13.2 The Supplier shall retain sole and exclusive ownership of all rights, title and other legal positions with respect to the Licensed Software and derivative products of the Licensed Software, as well as with respect to the copyrights and other intellectual and industrial property rights therein, limited only by the rights expressly granted to the Purchaser and by the rights accruing to the owners or holders of third-party software; neither a change of ownership nor a transfer of exclusive rights nor the granting of rights to sublicense shall be the subject of the right of use granted. The corresponding legal positions were neither expressly nor tacitly granted.

13.3 This Licence shall be limited to the Purchaser's use of the Licensed Software for the purpose of conducting its own operations - as defined in the order. The Licence shall be further limited to the specific product module or machine with which the Licensed Software was delivered.

13.4 The Purchaser shall not be entitled to use the software for the purposes of third parties or to make it accessible to third parties without the consent of the Supplier. Insofar as processing impediments (e.g. compatibility difficulties with third-party software programmes) arise in relation to the software, the Purchaser shall be obliged to first contact the Supplier in order to remedy these difficulties. The Purchaser shall only be entitled to hire third parties after the Supplier has expressly refused to do so in writing.

13.5 The Purchaser undertakes not to copy, modify, edit or otherwise rework, duplicate, decompile, disassemble or otherwise reverse engineer the Licensed Software (and the associated manuals) in any form, nor to attempt to do so, nor to determine the underlying source code, either itself or through third parties, unless this action is expressly permitted by law. The Purchaser also undertakes not to allow third parties to perform the above-stated actions. The mandatory provisions in Sections 69d, 69e of the German Act on Copyright and Related Acts (UrhG) shall remain unaffected, whereby the Purchaser shall only be entitled to take decompilation measures if the Supplier fails to provide the Purchaser with the necessary information to establish interoperability upon the Purchaser's request.

13.6 The Purchaser undertakes not to sub-license the Licensed Software; sell, transfer, lease, rent, distribute or otherwise make the Licensed Software available to third parties.

13.7 Insofar as a transfer of the Licensed Software is permitted by way of exception, a transfer of the rights to use the software to third parties shall require the consent of the Supplier. Consent shall not be withheld in bad faith; however, the Supplier shall be entitled to make its consent conditional upon (i) the Purchaser confirming in writing that it will not retain or delete any part of the software or back-up copies thereof, (ii) the Purchaser being obliged to notify the Supplier of the name and address of the acquirer and (iii) ensuring that the recipient agrees to be bound by the terms of these software licence terms.

13.8 The Purchaser shall permit the Supplier to test the facilities and systems to ensure compliance with this Licence at reasonable intervals, provided that such tests are carried out during normal business hours and a date has been arranged in advance between the parties.

13.9 The Supplier reserves the right to terminate the limited granting of rights of use and the underlying agreement without further obligation or liability to the Purchaser if

a) the Purchaser materially breaches these General Terms and Conditions of Sale and Delivery and fails to remedy such breach within thirty (30) days after written notice by the Supplier indicating the breach;
b) the Purchaser breaches the provisions of Clause 13 or 14 and fails to remedy such breach within five (5) days of written notice of such breach by the Supplier; or
c) insolvency proceedings are opened against the Purchaser's assets or a corresponding application is rejected for lack of assets, an insolvency administrator is appointed for any part of the Purchaser's business or its assets are transferred to creditors.

13.10 The Purchaser undertakes to indemnify the Supplier against liability for all damages and claims or demands of third parties resulting from the unauthorised use or unlawful transfer of the Licensed Software.

 

14. Confidentiality of Protected Information

14.1 The Purchaser, its customers and end users (if any) shall not obtain any rights or claims to patents, inventions, designs, discoveries, technical data, copyrights, trademarks, know-how, trade secrets or other intellectual and industrial property rights arising from the Supplier's performance or otherwise relating to the Product supplied or made available. The Supplier alone shall remain the holder of such rights.

14.2 The Purchaser acknowledges that the Supplier has developed or otherwise obtained, often at great cost, certain proprietary information and techniques which are of great value to its business and for that reason are kept confidential by the Supplier and have been disclosed to the Purchaser only in connection with the purchase of the Product subject to this agreement.

14.3 The Purchaser agrees to keep all proprietary information confidential and not to copy, publish, summarise or disclose such information, directly or indirectly, to any third party without the Supplier's prior written consent.

14.4 The Purchaser agrees to take all necessary steps (including non-disclosure agreements with employees and consultants of the Purchaser, and the steps taken by the Purchaser to protect its own proprietary information) to protect any proprietary information received from the Supplier and to prevent its disclosure to and/or use by third parties. For the purposes of this Clause, "proprietary information" shall include, but is not limited to,

a) information relating to the Supplier's trade secrets in connection with the integration of manufacturing processes;
b) information produced by the Supplier relating to the functions, user interface, distribution, use or maintenance of the product; and
c) information pursuant to Clauses 12, 13 and 14 of these General Terms and Conditions of Sale and Delivery.

14.5 In particular, the Purchaser may not obtain confidential information by observing, testing, examining or reassembling the product or the object (so-called “reverse engineering”).

14.6 The Purchaser acknowledges that the Supplier shall be entitled to seek judicial assistance to protect, preserve, defend and enforce its rights to such proprietary Information in addition to any other available legal remedies.

 

15. Prohibition of Assignment

The Purchaser may not assign any rights or claims granted to it by the Supplier.

 

16. Warranty, Liability and Limitation Period

16.1 The Purchaser shall carefully inspect the delivered goods for any material defects immediately upon arrival at the place of destination. If the Purchaser discovers a defect, it must immediately notify the Supplier in writing or by written telecommunication with a precise description of the defect, no later than eight (8) days after receipt of the goods at the place of destination. The delivery shall otherwise be deemed to have been accepted free of defects. If the defect was not identifiable despite careful inspection of the goods upon delivery, it must be reported immediately as soon as it is discovered. Notices of defects must always be submitted to the Supplier directly.

16.2 In the event of justified and timely notice of a defect, the Supplier shall, at its own discretion, provide subsequent performance by either remedying the defect or delivering a replacement.

16.3 If the remedy or the replacement delivered is ultimately unsuccessful, the Purchaser may demand a reduction in the purchase price or rescission of the contract. The remedy or replacement delivery shall be deemed to be definitively unsuccessful if an adequate contractual situation pertaining to the delivery could not be created, even after a total of three (3) remedy or replacement delivery efforts made by the Supplier. Contracts for the delivery of goods that are not prefabricated and for the manufacture of which individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer (usually attachments or machines with customer-specific adjustments, adaptations and processes) shall be excluded from rescission or replacement.

16.4 If the Purchaser remedies the defect itself, i.e. if the Purchaser does not grant the Supplier the opportunity for supplementary performance, or if the Purchaser otherwise carries out work on the software and thereby causes a defect in the goods, the assertion of rights based on defects shall be excluded.

16.5 If the Purchaser receives defective assembly instructions and has not yet assembled the subject matter of the contract, the Supplier shall only be obliged to supply assembly instructions that are free of defects. This shall only apply if the defect in the assembly instructions prevents proper assembly.

16.6 The above provisions conclusively contain the warranty for the Supplier's goods. In particular, it shall be liable for all other claims for damages to which the Purchaser may be entitled due to or in connection with defects in the delivered goods, regardless of the legal grounds, exclusively in accordance with Clauses 16.7-16.12.

16.7 The Supplier shall only be liable for claims for damages due to culpable acts, regardless of legal grounds, including delay, defective delivery, breach of obligations arising from a contractual relationship or obligations during contractual negotiations, tort, product liability (with the exception of liability under the German Product Liability Act), in the event of intent or gross negligence. Liability for ordinary negligence is hereby excluded, unless an obligation is breached and compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). In this respect, the term "cardinal obligation" describes, in the abstract, such obligations whose fulfilment makes the proper performance of the contract possible in the first place and compliance with which the contracting party may ordinarily rely on. In this case, the Supplier shall only be liable for damage that was foreseeable and typical at the time of conclusion of the contract. This limitation shall not apply to injuries suffered by the Purchaser to life, body or health.

16.8 Personal liability of the legal representatives, vicarious agents and employees of the Supplier for damage caused by them through ordinary negligence is hereby excluded.

16.9 A customer's warranty claims shall become time-barred within one year of delivery of the goods, insofar as the claim for subsequent performance, the right to withdraw from the contract or the right to reduce the purchase price is concerned. This shall not apply if the Supplier can be accused of fraudulent intent. Insofar as acceptance has been agreed, the warranty shall commence on acceptance of the goods. The date of the acceptance protocol shall be decisive in this respect. Clause 18 shall apply accordingly. If acceptance is delayed for reasons for which the Supplier is not responsible, the warranty shall commence no later than (4) four weeks after delivery of the goods.

16.10 The above limitation period for warranty claims shall also apply to contractual and non-contractual claims for damages of the Purchaser which are based on a defect of the goods and for which liability is limited under Clause 16.7, unless the application of the ordinary statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the Purchaser for which liability is not limited under Clause 16.7, claims for damages arising from tort and claims under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

16.11 Parts subject to wear and tear and all machine parts that become unusable due to improper use or operation not in accordance with the Supplier's instructions shall be excluded from the warranty. Warranty shall be excluded for repairs carried out by persons not authorised by the Supplier. The warranty may also be voided if correct preventative maintenance, as recommended by the Supplier, is not carried out, recorded and dated accordingly.

16.12 Agreements between the Purchaser and its customers which go beyond the statutory warranty claims shall not be at the Supplier's expense.

 

17. Compensation by the Purchaser

In the event of culpable non-fulfilment of the contract by the Purchaser in breach of duty, the Supplier shall be entitled to claim an amount of 15% of the net invoice value as liquidated damages. The assertion of further damages shall remain unaffected. The Purchaser reserves the right to prove that the Supplier has not suffered any damage whatsoever or that the value of the damage is lower than the flat-rate allowance.

 

18. Machine Acceptance, Final Acceptance and Commissioning

18.1 Unless expressly agreed otherwise between the parties, the goods, i.e. the machine offered by the Supplier, shall be geometrically accepted in-house in accordance with DIN and subjected to a functional test (machine acceptance) before dispatch. The acceptance mode at the manufacturer's factory is carried out exclusively according to the manufacturer's guidelines.

18.2 If the machine is used in production before an acceptance protocol has been created, it shall be deemed to have been accepted (final acceptance).

18.3 If assembly costs are included in the Supplier's price, the Purchaser shall in any case be responsible for laying and connecting electricity lines to the machine, circuitry and light sources and water supply and drainage lines at its own expense. The same shall apply to the creation of the necessary structural requirements, including a machine foundation. Accommodation and catering costs for fitters shall be borne by the Purchaser. Unless expressly agreed otherwise, the prices offered shall only apply to orders for the entire system, uninterrupted assembly and subsequent commissioning. If delivery or assembly is delayed due to the fault of the Purchaser, the additional costs incurred by the Supplier as a result, the waiting time for the fitters and the fitter's release shall be paid for separately by the Purchaser in accordance with the respective valid rates of the Supplier.

18.4 Work not included within the scope of the offer shall be charged to the Purchaser according to the actual wage and material shares.

 

19. Place of Performance, Place of Jurisdiction, Applicable Law

19.1 The Supplier's place of business (Aschaffenburg) shall be the place of performance for delivery and payment.

19.2 If the Purchaser is a merchant within the meaning of Section 14 of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Supplier and the Purchaser shall be the Supplier's place of business or the Purchaser's place of business, at the discretion of the Supplier's. In these cases, however, the Supplier's place of business shall be the exclusive place of jurisdiction for actions against the Supplier. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

19.3 The contract shall be governed exclusively by German law, excluding its conflict of laws rules. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) as well as any other, including future, intergovernmental or international treaties, even after their transposition into German law, is hereby excluded.

 

20. Export Control, Origin of Goods & Customs Regulations

20.1 The fulfilment of the contract by the Supplier shall be subject to the proviso that there are no obstacles to fulfilment based on national or international regulations contained in foreign trade law and no embargoes and/or other sanctions. US export control law, US sanctions and embargoes must be taken into account here, insofar as the consideration does not violate EU law.

20.2 The Supplier's products, software and technical know-how (technology transfers) may be subject to export restrictions and therefore require approval by the competent authority. In the case of its own exports, the Purchaser shall strictly observe the export regulations relevant to the products. Whether export licences are required must be checked by the Purchaser in the case of its own exports. The Supplier shall not be under any special obligation to provide information in this regard. In the case of its own exports, the Purchaser must ensure that it has the information necessary for inspection. The Supplier shall not be obliged to actively participate in the inspection. The present knowledge of the Supplier must be disclosed upon request. However, the Supplier shall not be obliged to carry out its own tests or to prepare documentation.

20.3 The Supplier must provide information or documents relating to

• non-preferential origin of goods (e.g. certificate of origin);
• preferential origin of goods - in particular, preferential proofs and (long-term) Supplier declarations

to the Purchaser only insofar as this is possible for it and only against reimbursement of costs, insofar as no differing contractual arrangement has been made.

20.4 Insofar as the Supplier provides the Purchaser with information relating to

• the "Export Control Classification Number" according to the "U.S. Commerce Control List" (ECCN),
• the German export list numbers or the list item to the Annexes of the EC Dual-Use Regulation,
• the statistical commodity code according to the current commodity classification of foreign trade statistics and the HS ("Harmonised System") code or
• the country of origin and country code, insofar as no data or documents under Clause 20.3. are concerned, the information shall be provided without any guarantee as to the correctness of the information.

 

21. Final Provisions

21.1 Transactions with legal entities under public law and special funds under public law shall be treated equally.

21.2 If any provision of this contract, including these Terms and Conditions, is or becomes invalid in whole or in part, the parties shall jointly agree on a new provision which shall replace the provision which is invalid in whole or in part. The same shall apply to unintentional gaps in this contract.

Version: 16/8/2023