General Terms and Conditions of Purchase and Delivery
I. Validity 1. The General Terms and Conditions of Purchase and Delivery below apply to all goods and services. Irrespective of the contractual relationship, they apply to each delivery or further delivery to the Purchaser.
2. These General Terms and Conditions of Purchase and Delivery apply in general. Deviating terms and conditions of the Customer shall not be recognised, even if the Supplier has been informed of them or supplied with them. The Supplier does not need to expressly object to the Customer‘s terms and conditions. The Supplier must have expressly agreed in writing to provisions that deviate from these General Terms and Conditions of Purchase and Delivery. These General Terms and Conditions of Purchase and Delivery shall also apply when, in deviation to its own conditions, the Supplier delivers according to the conditions of the Customer, which, in turn, does not constitute an acknowledgement of their conditions terms.
3. These General Terms and Conditions of Purchase and Delivery apply to all future transactions with the Customer, even when they have not been expressly agreed upon.
II. Prices 1. All prices submitted are quoted ex works, excluding packaging and insurance, plus the respective sales tax applicable under law. Decisive for this are the Supplier‘s prices agreed upon and confirmed in writing. The Supplier‘s price lists do not represent a basis for a claim by the Customer. 2. Engineering services and installation costs, wherever required or requested, and commissioning work are calculated separately, unless otherwise agreed in writing. 3. All prices remain valid for 6 months after written confirmation. After that period, the Supplier is permitted to make changes, provided that during this time the service is not rendered, or the delivery is not yet made or only partially made, or the service or delivery has not been requested in writing by the Customer. 4. If, at the request of the Purchaser, the Supplier is willing to replace or modify the order, the Supplier is entitled to charge for the costs incurred up to that point, such as the costs for demonstrations, deliveries, insurance or other services. At a minimum, the Supplier is entitled to invoice the Customer for the amount incurred for the impairment that results from ageing and usage, plus 20% of the agreed price for the originally agreed delivery item, and, in deviation to the agreed payment terms, to demand immediate payment.
III. Contract Conclusion 1. All documents of any kind that make up part of the offer, including all technical data supplied, are only to be considered approximate, unless expressly stated as binding. The Supplier retains the ownership and copyrights to all cost estimates, 3D models, drawings, misc. samples and sample types, and all other documents, unless he expressly relinquishes these in writing. Third-party access is prohibited and the documents must be returned on request. 2. The Contract shall be concluded once the Supplier confirms his acceptance of the order in writing, by letter, fax or email, or commences with the delivery/service. 3. The Supplier must confirm in writing verbal agreements or amendments to the Contract.
IV. Delivery time, default in acceptance, withdrawal, claims for compensation by the Supplier 1. The delivery time and thus the deadline begins when the Supplier and Customer have agreed on all the particulars of the order execution and all the conditions of the transaction, but not before the Supplier has confirmed the order. The delivery time shall be suspended until the Customer has fulfilled its duty to cooperate under the Contract. 2. The delivery time and deadline shall be met, if, by the end of the deadline, the delivery has left the factory or notification of its readiness for shipment has been provided. 3. The delivery time and deadline shall be extended in the event of force majeure, strikes, lockouts and other exceptional involuntary circumstances. The same applies to delays at an upstream supplier, for whom the Supplier is not responsible and in absence of, incorrect or non-timely performance by an upstream supplier, for whom the Supplier is not responsible. 4. If there is a delay in delivery by the Supplier, this shall not result in him being in default if the delay is caused by circumstances that, with reasonable care, he could not have been expected to foresee. 5. If the Customer defaults on payment, the claims of the Supplier shall be charged with interest at 9.9% above the base rate. The right of the Supplier to claim further damages remains unprejudiced by this. 6. If acceptance of the contractual object does not take place, or its acceptance or collection is refused, the Supplier shall be entitled to withdraw from the Contract following the fruitless lapse of a reasonable period of grace. The same applies if the Customer fails to adhere to the payment terms. In this case, the Customer is obliged to compensate the Supplier according to the merits of the case. In such a case, the Supplier can demand 25.0% and 80.0% of the contract price as compensation for series products and one-off productions respectively without providing any proof. The right to assert higher damages subject to proof remains reserved. 2
V. Payment 1. Unless otherwise agreed in writing, all deliveries of machines, replacement parts and services are due for payment within 7 days of delivery. Payment default occurs from the 8th day after delivery even without warning or reminder. 2. Payments to the Supplier in the form of bills of exchange require written agreement. Bills of exchange and cheques are only accepted for purposes of payment. The Customer bears all collection and discount charges. Cash discounts are not granted for payments made in the form of bills of exchange and for overdue payments. 3. The Customer may only offset undisputed or legally established claims made by the Supplier. A right of retention by the Customer only exists if his counterclaim is based on the same contractual relationship and is undisputed or legally established, or if the Supplier is in gross violation of its obligations from under same contractual relationship. 4. If the Customer defaults on payment, the Supplier is entitled to charge interest on receivables at 9.9% above the base interest rate. The right of the Supplier to claim further damages remains unprejudiced by this.
VI. Notice of defects and warranty 1. On receipt, the Customer shall immediately inspect the delivered goods for defects and notify the Supplier of these in writing immediately. The Supplier is to be immediately informed of the existence of any defects and claims in writing. The Customer shall provide the Supplier with adequate time and opportunity to perform all the repairs and replacements that appear necessary to the Supplier. In all other cases, the Supplier is released from liability for the consequences that result from this. 2. Unauthorised repairs undertaken by the Customer, or performed by the Customer or third parties authorised by the Customer, result in the loss of all warranty claims against the Supplier. The cost of improvements performed by the Customer or third parties authorised by the Customer that are undertaken without the prior express written consent of the Supplier shall not be borne by the supplier. The assignment of third parties generally requires the consent of the Supplier. Costs incurred without the written consent of the Supplier shall not be reimbursed by the Supplier. 3. The Supplier provides no warranty for defects for the sale of used machines, equipment or parts. The Supplier provides no guarantee for features. 4. The warranty period comprises a max. of 12 months from the date of delivery or collection by the Customer, from the day of provision. The respectively valid warranty provisions of the Supplier apply to warranty claims.
VII. Legal Safeguard 1. Delivery items remain the property of the Supplier until full payment of the agreed price has been made along with all other present and future claims arising from the business relationship with the Customer. The retention of title of the Supplier only expires once full payment is made. 2. If the delivery item is resold, the Customer shall pre-assign now all claims to the value of the delivery item, along with all possible secondary claims, to the Supplier. At the request of the Supplier, the Purchaser shall disclose all business transactions concerning the resale of goods delivered by the Supplier. In this case, the Supplier is entitled to demand payment to the actual consignee, as the customer of the Customer, or to seize the delivered goods. 3. The Customer shall maintain the delivery item in an orderly condition and avert any damage to it during the period of retention of title. The Customer shall insure the delivery item against all commonly imaginable risks. All maintenance and repair work scheduled by the Supplier is to be performed. If the Customer is not a specialist dealer and repair workshop at the same time, the Customer shall inform the Supplier in writing of the necessary maintenance, which shall then be carried out by the Supplier, or by third parties on its behalf. The Customer shall bear the cost of this. 4. The assertion of claims for retention of title or the seizure of the delivery item by the Supplier shall not count as a withdrawal from the Contract, and the Contract shall remain unprejudiced in its original version. 5. If the retention of title, attachment or assignment is not subject to the respective laws of the country in which the Customer is located, then the statutory regulations that apply in this country to the retention of title or assignment shall apply as agreed. Shipment of the goods abroad by the Customer is only permitted if the Supplier consents to the shipment beforehand in writing.
VIII. Risk of loss, shipment and receipt 1. Transfer of risk to the Customer takes place on dispatch of the delivery item at the latest. This shall also apply if the Supplier bears the costs of shipment and has organised or performed the transport for the Customer. The Supplier shall bear no liability for selecting the most favourable consignment or most rapid transport time. 2. If delivery, shipment or receipt of the delivery item by the Customer is delayed, then all risk - including the risk of deterioration or loss of the delivery item, and all risk emanating from the object itself - is transferred to the Customer from the time the shipment is announced ready or notification of completion is provided. 3. Shipments to the Customer shall only be insured to the extent desired by the Customer at the written request of the Customer. The Customer shall bear the cost of insurance.
IX. Withdrawal from the Contract 1. The Customer can withdraw from the Contract if the Supplier is incapable of performing the service as agreed upon under the Contract and/or cannot render it to the extent agreed. A claim for compensation by the Customer owing to the final impossibility of performing the Contract is excluded. 3 2. The Customer can also withdraw from the Contract if the Supplier in is default with the contractual performance he has promised in writing. The Supplier initially enters into default when the Supplier has set a reasonable deadline that has not been met. A claim for damages by the Customer is excluded. 3. Claims by the Customer against the Supplier for damages of any kind shall lapse within one year. The period begins on the date when the claim arose. The only exception to this is when intent or gross negligence is formally proven against the Supplier. In this case, the statutory provisions apply. 4. Insofar as a liability of the Supplier is excluded or limited, this also applies to a potential personal liability of its legal representatives and employees.
X. Software 1. A non-exclusive right of use shall be granted to the Customer for the software supplied within the scope of delivery. However, this right of use only ever applies to a specific delivery item. Multiple uses are prohibited, as is modification or extension of the software. The software still remains the intellectual property of the Supplier. Modifications or extensions by the Customer to the software require the written consent of the Supplier. 2. The Customer shall exclude access by third parties. The Supplier retains all rights to the software. Only the Supplier is entitled to grant licenses or sub-licenses. 3. The software may only be used by the Customer under the relevant statutory provisions.
XI. Property Rights 1. If the Supplier is required to perform according to the specifications of the Customer vis-a-vis his drawings, samples and models etc., the Customer shall assure the Supplier that the rights of third parties are not violated as a result. 2. The Customer shall indemnify the Supplier against all third-party claims for the infringement of potential property rights.
Ludger Glaap & Fritz Brinkmann Machines GmbH & Co. KG An der Heller 4-12 33758 Schloß Holte
Germany Phone: +49 (5207) 9247 3-0 Fax: +49 (5207) 9247 3-100 Email: email@example.com Web: www.gb-machines.de District Court Bielefeld, Registration Number: HRA 15925 Managing Directors: Fritz Brinkmann, Ludger Glaap, Kerstin Jüchter Personally Liable Partner LGFB Verwaltungs-GmbH in Schloß Holte District Court Bielefeld, Registration Number: HRB 41000
Damages and costs incurred by the Supplier shall be reimbursed to the Supplier. If a third party prohibits manufacture or the delivery to the Customer citing a property right, the Supplier is entitled to stop work and withdraw from the Contract. In this case, the Supplier can demand reimbursement of his costs and expenses and possible compensation for lost profits. Any further legal claims and rights of the Supplier remain unprejudiced by this.
XII. Place of performance/Jurisdiction 1. The law of the Federal Republic of Germany applies exclusively to all present and future transactions between the Supplier and the Customer. Standard purchasing laws (the Convention on the International Sale of Goods, CISG) do not apply or only to the extent that they are expressly agreed upon in writing. 2. Place of performance is 33758 Schloß Holte, Germany. Jurisdiction, ratione loci and ratione materiae, is the official district court in Bielefeld. 3. If any provisions of these General Terms and Conditions of Purchase and Delivery are wholly or partially invalid, it does not affect the validity of the remaining provisions. The invalid provision shall be replaced by one that comes closest to the stated provision in terms of commercial purpose, or is regulated by appropriate legislation.