General Terms and Conditions (GTC)
of the ELB-Schliff Werkzeugmaschinen GmbH & aba Grinding Technologies GmbH
(hereinafter referred to as “Supplier”)
These Terms and Conditions shall apply to persons who at the time of concluding the contract act in the exercise of their commercial or independent professional activity (entrepreneurs), and to legal persons under public law or a special fund under public law.
- In addition to any separate contractual agreements (individual agreements) all our deliveries and services are subject exclusively to these Terms and Conditions. Deviating Terms and Conditions of the Purchaser do not become part of the contractual relationship with the acceptance of the order.
- Orders and all other agreements, including those arranged by representatives of the Supplier must be confirmed in writing by the Supplier and shall only then be deemed accepted. If a written confirmation is omitted orders shall nevertheless be deemed accepted as soon as the Supplier begins with the delivery or performance of other services.
- Any separate contractual agreements (individual agreements), such as amendments or collateral agreements to these Terms and Conditions, also require the written confirmation by the Supplier in order to be valid. This applies also to changes made after conclusion of the contract.
- Samples, estimates, drawings or similar information of a material or immaterial nature (also in electronic format) must not be made available to third parties. The Supplier reserves the rights of ownership and copyrights.
- The Supplier commits to always obtain the Purchaser’s approval before making information and documentation marked as confidential available to third parties.
2. Prices and payments
- Subject to deviating agreements, prices are for delivery ex works, however excluding packaging and insurance. All prices are net prices; VAT will be added at the respective statutory amount. International shipments are delivered untaxed and duty unpaid.
- Subject to deviating agreements, the payment shall be made into the Supplier’s account without any deductions as follows.
I. Machines: Unless agreed otherwise, the following shall apply:
30% upon receipt of the order confirmation,
60% upon notification of readiness for shipment
before delivery of the machine,
10% after final acceptance by the client
II. Spare parts: no later than 30 days from invoice date.
III. Contract work, repairs or provision of technician: Within 10 days from invoice date
IV. Advance payment: The Supplier reserves the right to advance payment.
- In the event of a default a default fee of 8% p.a. above the basic interest rate is to be paid.
- The Purchaser has the right to withhold or offset payments against counterclaims only if his counterclaims are undisputed or legally ascertained.
3. Delivery time, delay in delivery
- The delivery time or date are determined by the agreements the contracting parties have made. The delivery time starts on receipt of the order confirmation, for payment by instalments on receipt of the first instalment. Adherence by the Supplier requires that all commercial and technical questions between the parties have been clarified and the Purchaser has fulfilled all his obligations, such as the submission of official certificates or permits, the submission of documents or the effecting of the corresponding payment. If this is not the case the delivery time shall be extended or the delivery date shall be moved accordingly. This does not apply if the Supplier is responsible for the delay.
- Adherence to the delivery time or date is subject to a correct and timely self-delivery, provided that the Supplier has concluded a congruent hedging transaction, i.e. he has designed his corresponding supply contracts in such a way that, viewed objectively, an objective execution is secured.. If delays become foreseeable, the Supplier shall notify the Purchaser as soon as possible.
- The delivery time or date shall be deemed adhered to if the delivery item has left the plant of the Supplier on expiry of the delivery time or the delivery date or the readiness for shipment has been announced. If acceptance has to take place, the acceptance date shall be the delivery date – except in case of justified non-acceptance – or alternatively no later than the notification of the readiness for acceptance by the Supplier.
- If the shipment or the acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, he will be charged the costs incurred as a result of the delay. The calculation of the costs starts one month after shipment or readiness for acceptance.
- If the failure to adhere to the delivery time or date is due to force majeure, labour disputes or other events which are beyond the control of the supplier, the delivery time shall be extended or the delivery date moved appropriately. The Supplier shall notify the Purchaser of the beginning and the end of such circumstances as soon as possible.
- The Purchaser can withdraw from the contract without notice, if the Supplier is permanently unable to deliver the entire service before transfer of risk. Furthermore, the Purchaser can withdraw from the contract, if the execution of part of the delivery becomes impossible for one order and he has a justified interest in the refusal of the part delivery. If this is not the case, the Purchaser has to pay the price of the part delivery. The same applies in case of inability of the Supplier to deliver. For all other cases, paragraph 9.b. of these Terms and Conditions applies.
If the impossibility or the inability occurs during the delay in acceptance or if the Purchaser is solely or mainly responsible for the circumstances, he remains liable to provide consideration.
- If the Supplier is in default and the Purchaser suffers a loss from this, he is entitled to demand a lump-sum compensation, unless the Supplier can prove that the Purchaser suffered no damage at all or a damage that is less than the lump-sum compensation. For each week of the delay, the lump-sum compensation shall be 0.5%, but no more than 5% of the total value of the part of the entire delivery which cannot be used in due time or according to the contract due to the delay.
If the Purchaser sets the Supplier an appropriate time-limit for the fulfilment of the service after the due date – and taking into account the legal exceptions – and if the term is not kept, the Purchaser is entitled to withdraw from the contract within the framework of the legal regulations.
Any further claims from a delivery delay are ruled exclusively by paragraph 9b of these Terms and Conditions.
4. Place of fulfilment, transfer of risk, acceptance
- Place of fulfilment for all services from the contract is the Supplier’s head office.
- The risk is transferred to the Purchaser on loading the goods at the Supplier’s plant, even if part deliveries are made or the Supplier has taken on other services, such as the shipping cost or delivery and assembly.
If an acceptance test at the Supplier’s plant has to take place, this is relevant for the transfer of risk. In this case, the delivery item is accepted geometrically in-plant in accordance with DIN and has to undergo a functional test. The mode of acceptance at the Supplier’s plant is carried out exclusively in accordance with his standards. Differences to this regulation, must be agreed separately. A report is written about the acceptance test, no matter where this acceptance test takes place at. Both parties have to approve the report by signing it. The delivery item is thus considered as accepted. If the delivery item is used in production before the acceptance report is written and signed, it shall be considered as accepted even without a signed acceptance report. The acceptance has to be carried out without delay by the date of acceptance, alternatively after the Supplier’s notification of the readiness for acceptance. The Purchaser must not refuse acceptance if an unessential defect exists.
If the acceptance does not take place, for a reason that is not the supplier’s fault, the final acceptance will be given automatically at latest 3 months after delivery.
- If the shipment or the acceptance is delayed or does not take place for reasons which are not the Supplier’s responsibility, the risk is transferred onto the Purchaser from the day of readiness for shipment or acceptance. The Supplier commits to take out insurances at the Purchaser’s cost and request.
- Part deliveries are allowed insofar as they are deemed acceptable to the Purchaser.
5. Reservation of proprietary rights
- The Supplier reserves all propriety rights to the delivery item until all payments from the delivery contract have been received. This applies also when the delivery item is to be processed further by the Purchaser. The Supplier shall then become owner or co-owner of the new item in proportion to the value of the delivery item. The receivables obtained by the Purchaser through the sale of the new item shall be relinquished to the Supplier at the above-mentioned proportion.
- The proprietary rights shall be transferred onto the Purchaser only when all claims – including future ones – from the business relationship have been settled by the Purchaser.
- The Supplier is entitled to insure the delivery item at the Purchaser’s cost against theft, breakage, fire, water and other damages, insofar as the Purchaser himself has not already verifiably taken out the insurances.
- The Purchaser must not sell, pawn or transfer the delivery item as a security until all payments from the delivery contract have been received by the Supplier. In case of attachment, confiscation or any other injunction by third parties, he has to notify the Supplier immediately.
- In case of a possible resale the Purchaser shall relinquish all claims arising from this resale to the Supplier already in advance as a precaution. The Supplier shall accept these assignments.
- In case of a breach of contract by the Purchaser, especially in case of default of payment, the Supplier is entitled, after sending a reminder, to take the delivery item back, and the Purchaser is obliged to surrender it.
- The application to open insolvency proceedings entitles the Supplier to withdraw from the contract and to demand the immediate return of the delivery item.
6. Warranty for defects on delivered new items
- The warranty begins after the final acceptance of the machine. If no final acceptance has been agreed, the time of the delivery is significant.
- Claims for defects on delivered goods or services rendered lapse within one year of delivery of the goods.
- Excluded are all parts of the delivery item which have become unusable through incorrect usage or through operation that was not carried out in accordance with the Supplier’s instructions, as well as all parts that are subject to wear.
- The Supplier does not provide any warranty for defects on used delivery items. Provision 9 shall remain unaffected.
7. Sales returns
If the Purchaser notices after receiving the delivery item that individual parts are not needed, he is entitled to send these parts back to the Supplier. For returned parts the Supplier shall charge a handling fee of 20% of the gross value of the goods, however no less than €50, plus VAT. The return delivery is carried out at the Purchaser’s expense.
8. Claims for defects
To the exclusion of further claims – subject to paragraph 9 of these Terms and Conditions – the Supplier shall provide warranty for material defects and defects of title as follows:
- Material defects
i. The goods have to be checked for possible material defects immediately after delivery. The Supplier has to be notified promptly of any defect in writing. If the notice of defect is omitted, the defect is deemed authorised. Defects that occur during acceptance have to be included in the acceptance report, otherwise the machine is deemed free of defects. All parts that prove defective due to circumstances that occurred before the transfer of risk, have to be repaired or replaced with a part that is free of defect, at the Supplier’s option and free of charge. Replaced parts become the Supplier’s property.
ii. In order to carry out all the repairs and delivery of replacement goods that appear necessary, the Purchaser has to communicate with the Supplier and give him the necessary time and opportunity. In particular, he has to give the Supplier the right to rectification of defects at least twice, provided that a corresponding time limit for such a rectification of defects is not expendable. Otherwise, the Supplier is exempt from the liability for the consequences that may arise from that. Only in urgent cases with danger to life and limb or in order to avoid existential damage, does the Purchaser have the right to remedy the defect himself or have it remedied by a third party, and to demand compensation of the Supplier for the necessary expenses. In such a case the Supplier has to be notified immediately and in writing.
iii. In case the complaint about a defect proves justified, the Supplier shall bear the cost of the replacement part incl. shipping out of the immediate cost arising from the repair or delivery of replacement goods. Furthermore, he shall bear the cost of the removal and fitting and the cost for the required provision of the necessary technicians and assistants including travel cost, insofar as this does not entail a disproportionate burden for the Supplier.
iv. The Purchaser has the right to withdrawal from the contact within the legal provisions if the Supplier – taking into consideration legal exceptions – lets an appropriate time limit given to him for the rectification of defects (repair or delivery of replacement goods) for a material defect elapse fruitlessly or if the rectification of defects fails permanently. The Supplier has to be given the right to rectify the defects at least twice, provided that a corresponding time limit for such a rectification of defects is not expendable. If the defect is only negligible, the Purchaser has merely the right to a reduction of the contract price. The right to a reduction of the contract price shall otherwise remain excluded.
Further claims are defined in paragraph 9.b. of these Terms and Conditions.
v. In particular in the following cases no liability is accepted:
1. Improper or incorrect usage
2. faulty assembly or commissioning by the Purchaser or third parties.
3. natural wear,
4. faulty or negligent treatment,
5. invalid servicing,
6. unsuitable equipment,
7. faulty construction work,
8. unsuitable building ground,
9. chemical, electrochemical or electric influences
unless they are the Supplier’s responsibility.
vi. If the Purchaser or a third party carries out repairs in an incorrect way, the Supplier shall not be liable for the consequences arising from this. The same applies to changes to the delivery item which have been carried out without the Supplier’s prior consent.
- Defects of title
i. If the usage of the delivery item gives rise to the infringement of industrial property rights or copyrights, the Supplier shall categorically provide the Purchaser with the right to continued use at his own expense or he shall modify the delivery item in a manner that is reasonable for the Purchaser, and in such a way that the infringement of industrial property rights ceases to exist.
If this is not possible at economically appropriate conditions or within an appropriate time limit, the Purchaser as well as the Supplier shall have the right to withdraw from the contract.
ii. The Supplier’s duties listed in paragraph 8.b.i of these Terms and Conditions are final subject to paragraph 9.b. of these Terms and Conditions in the case of infringement of industrial property rights and copy rights. They only exist if
1. the Purchaser notifies the Supplier immediately of any asserted infringements of industrial property rights and copyrights,
2. the purchaser supports the Supplier to an appropriate extent in the protection against asserted claims or enables him to carry out modification measures in accordance with paragraph 8.b.i. of these Terms and Conditions,
3. all defensive measures, including out-of-court settlements, are reserved to the Supplier,
4. the defect of title is not caused by an instruction issued by the Purchaser, and
5. the infringement was not caused by the Purchaser making changes to the delivery item at his own authority or in a non-contractual way.
- If the delivery item cannot be used by the Purchaser according to contract due to the Supplier’s fault as a result of omitted or faulty execution of suggestions or advice from before or after the conclusion of the contract or as a result of the violation of other contractual collateral duties – especially the instructions for the operation and service of the delivery item – the regulations under paragraph 6 and 9.b. of these Terms and Conditions shall apply accordingly and to the exclusion of further claims of the Purchaser.
For damage that was not caused on the delivery item itself, the Supplier shall only be liable for whatever legal reasons if it happened
i. with intent,
ii. through gross negligence of the owner / the organs or chief executives,
iii. through culpable injury to life, limb and health,
iv. for defects which he concealed maliciously or the absence of which he guaranteed,
v. for defects of the delivery item insofar as there is liability for damage to persons and property of privately used objects in accordance with product liability law.
In case of culpable violation of contractual duties, the fulfilment of which is necessary for the proper execution of the contract, the violation of which jeopardizes the achievement of the purpose of the contract and on the observance of which the customer relies regularly, the Supplier shall be liable, also in case of gross negligence of non-executive staff and in case of slight negligence, in the latter case limited to the damage which is typical for the contract and is reasonably predictable.
10. Further claims are excluded
All claims of the Purchase for whatever legal reasons shall lapse after 12 months. For claim for damages in accordance with paragraph 9.b. the legal time limits apply. They also apply for defects on a building or for delivery items which are used for a building in accordance with their ordinary manner of use and which have caused defects on the same.
11. Use of software
- Insofar as any software is included in the scope of delivery, the Purchaser is granted a non-exclusive right to use the software delivered including its documentations. It is ceded for use with the specified delivery item. The use of the software with any item other than the delivery item is forbidden.
- The Purchaser may only copy, edit, translate or change the software from the object code to the source code within the legally permitted scope (§§69a et seq, German Copyright Act). The Purchaser undertakes not to remove manufacturer information – especially copyright notes – or to alter them without prior express consent by the Supplier.
- All other rights for the software and the documentation, including copies, remain with the Supplier or the software supplier. The granting of sub-licences is illegal.
12. Property and copyright
- The Purchaser, his clients and end-users (if applicable) shall not receive any rights or claims to patents, inventions, designs, discoveries, technical data, copyrights, brands, business secrets or other intellectual or commercial property rights which result from the Supplier’s service or refer to the product delivered or made available in any other way. The Supplier shall remain the sole proprietor of such rights.
- All information shall be treated as confidential and this information shall not be copied, published, summarized or disclosed to a third party, either directly or indirectly, without a prior written authorisation by the Supplier.
13. Applicable law, place of jurisdiction
- For all legal relationships between the Supplier and the Purchaser the law of the Federal Republic of Germany which is relevant for any legal relationship between domestic parties shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is specifically excluded.
- Subject to deviating agreements, the district court of Dieburg and the regional court of Darmstadt shall be place of jurisdiction. The Supplier is, however, entitled to take legal action at the Purchaser’s head office.