General business and delivery terms for firma A & D Verpackungsmaschinenbau GmbH
1. EXTENT OF VALIDITY
1.1 The following General Business and Delivery Terms (GBT) regulate the legal situation between us and our customers and are valid during the term of the business relations, also for future contracts and spareparts deliveries, for all deliveries and services rendered to
1. an individual, who at the time of the contract signing, is conducting business in their professional or self-employed occupation (contractor); 2. a legal entity of public law or of public funding.
1.2 We herewith contradict any divergent or supplemental conditions to our GBT. Any and all of these are not binding for us, even if we do not expressly contradict them or if we complete the delivery after receiving divergent purchasing conditions.
1.3 Supplementary agreements and warranties within the scope of the contract negotiations and after completion of the confirmation of order, as well as changes or supplements to a written contract or contract closed per teletype or these GBT must either be written or via teletype or require our express written confirmation.
2. OFFERS AND ACKNOWLEDGEMENT OF ORDER
2.1 Our offers are without engagement. The extent of our performance obligation is solely determined by our written order acknowledgement.
2.2 Any differences in regards to the customer’s order are considered approved by the customer if he does not contradict these within 8 days of the receipt of the order acknowledgement, unless these differences concern essential terms of the contract for the customer, known to us or which should be known to us.
3. COPYRIGHT AND RETENTION OF OWNERSHIP OF DRAWINGS, ETC.
3.1 We are entitled according to § 2 (1) Item 7 of the Copyright Law to the unrestricted copyright for all structural designs, drawings and other similar documents produced by us. This is not affected by either the payment of the agreed upon price for the design or the delivery of multiple issues of the design documents. Our customers are therefore not entitled, without our express, written consent, to manufacture machinery or tools according to our structural design documents, to totally or partially allow these to be produced, to make or have copies made of the multiple issues or to distribute the received documents or multiple issues, or to leave these to a third-party or to make them accessible to a third-party. Here it is irrelevant whether the structural designs, drawings and other similar documentation has been produced by us or by a third-party contracted by us. Further rights according to the Copyright Laws remain unaffected.
3.2 The original documents always remain our unrestricted property. If we deliver not only the structural design but also the machines or tool, the unrestricted ownership also remains ours. Only the item itself becomes the customer’s property. We expressly refer to 14 of the Copyright Law.
3.3 We reserve the right of ownership of all drawings, sketches, quotations and all other documentation that is attached to our quotes and order acknowledgements. The customer may only use them for the agreed upon purpose and may not make copies without our expressed permission. Upon request, all documentation and all copies are to be returned to us. These documents are not to be made accessible to third-parties.
4. DELIVERY TIME AND DELAYS
4.1 The delivery deadline always starts after the clarification of all technical and commercial details. If, at the time of the contract closing, the parties have reserved the clarification of technical questions to later negotiations, then the deadline first begins after agreement has been reached and the customer has met all of his obligations, such as the furnishing of the necessary certification or permission or the payment of a deposit. This concerns non-binding delivery deadlines in general.
4.2 A binding delivery deadline is exclusively valid only when the delivery deadline is confirmed as binding in writing to the customer.
4.3 The specified delivery time refers to the dispatch date of the article. The deadline is considered fulfilled if the product has left the factory at that point in time or if the customer has been notified that the product is ready for dispatch. If an acceptance test is to be carried out, then the acceptance test date or the notification for the acceptance test is decisive unless there is a legitimate reason for refusing the acceptance test.
4.4 If the delivery of the item is delayed due to reasons caused by the customer, then the costs resulting from the delay will be charged to the customer beginning one month following the notification of delivery or the acceptance test date.
4.5 If we are not able to meet the stated binding deadlines due to acts of God, or owing to unavoidable circumstances, for example labour disputes, war, revolt or other such happenings, such as untimely or imperfect self- supply, as well as other similar grave operating failures beyond our influence, the customer can set us a reasonable grace period of at least four weeks. After the expiration of this period, the customer can resign from the contract per registered declaration if he is no longer interested in the delivery because of the delay. If the order includes solving design and development tasks, then the grace period must be at least two months.
4.6 If delivery becomes impossible or unreasonable due to the abovementioned circumstances, we will be released of our delivery obligation. This is also valid if the mentioned events so strongly affect our company or the capacity of our performance that we are unable to fulfil the contract. We will immediately notify the customer after realization of the impact of such events.
4.7 The customer is not entitled to make claims for damages in the previously mentioned cases be it from cancellation or delay. This is not effective, if we are charged with intent or gross negligence.
4.8 We are entitled to make partial deliveries. This is not valid when the customer has no interest in a partial delivery and the agreed upon delivery deadline has been exceeded. Objections to a partial delivery do not entitle the rejection of the remaining delivery.
5. INSPECTION AND RISK PASSAGE
5.1 The customer must inspect the contract item in our plant within 8 days after being notified of completion.
5.2 The risk passes to the customer at inspection, as of the day of unfounded refusal of inspection, at the customer’s idleness after the expiration of a week’s time limit regarding Item 5.1, after expiration of a specially agreed upon inspection time limit and, in any case, as of the commissioning of the contract item. Approval may not be refused due to a minor defect.
5.3 If transportation of the contract item is arranged directly to the customer or a third-party, then the risk is passed over to the shipping company (shipper, railroad, private trucker, etc.).
5.4 If we take the contract item back, for faults not our own, the customer bears the risk until the item has reached us.
6. PRICES AND PAYMENT TERMS
6.1 Binding pricing is first set by our written confirmation of order, providing that the order data based on the confirmation remain unchanged.
6.2 The indicated prices are ex works in Euros plus VAT in the legal amount valid at the time of delivery excluding transportation insurance and packaging. One hundred percent (100 %) payment without any deductions is to be made cost-free to our paying office after receipt of our confirmation of order.
6.3 If the date of payment is exceeded, we are entitled to charge default interest in the amount of 8 % above the basic rate of interest of the European Central Bank irrespective of the possibility to assert higher actual costs. The customer is at liberty to prove that no or lower costs were incurred.
7. RETENTION OF TITLE
7.1 The ownership on the goods delivered by us is not transferred to the customer until payment of all receivables stemming from the 2 business dealings is complete. The retention of title also remains intact when individual receivables to the customer are listed in a running bill and the account balance is drawn or approved. The customer, who indicates to us at the time of ordering, that he is a reseller, is entitled to resell the retention goods in normal business dealings. He is not entitled to pawning or to a security transfer. The customer is required to secure our rights during the resale of the retention goods on credit.
7.2 The customer transfers the requirements from the resale of the retention goods at the conclusion of the contract for the resale; we accept this transfer. The customer carries out any handling or processing of the retention goods for us without causing us any obligations. With the processing or interconnecting of the retention wares with other goods, not belonging to us, we are entitled to the resulting joint ownership of the new object in proportion to the value of the retention goods compared to the remaining goods. Should the customer acquire the sole ownership of the new object, then we are agreed, that the customer grants us in relation to the value of the processing or interconnecting of the retention goods joint ownership of the new object and holds it free of charge in custody for us. The customer is bound to make extraordinary disposal of the property (i.e. pawning, mortgage transfer) only with our previous consent.
7. 3 If requested, the customer must give us the necessary details of the collection regarding the transferred claims and to inform the debtor about the transfer. The customer must inform us immediately about foreclosure measures by a third party on the retention goods and give us the necessary documents for an intervention.
7.4 If retentions of title in a foreign country with rights extended to usage are not effective or require, apart from the contractual agreement, for example, a registration, then the customer is bound at his expense to collaborate on all measures, especially those necessary as far as he is concerned to submit the necessary declaration to make the retention of title effective or to secure surety for us, which is equal in value to the retention of title.
8.1. Claims for damages against us, our employees and/or persons employed by us during the performance of our obligations, which are due to minor negligence and do not include damages of injuries to life, personal and/or health, are – as far as legally possible – excluded. Irregardless, whether they stem from breach of contract or a breach of minor contractual obligations (i.e. §§ 280, 241 Abs. 2 German Civil Code), from unauthorized action, even from the liability of the producer (because of design, production and information errors, as well as errors during product control, i.e. § 823 German Civil Code). Not exempt is the liability of damages according to the Product Liability Law.
8.2. In the case of culpable violation of essential, contractual obligations (cardinal obligations) an executive body or general manager will also be liable for negligence; however, limited to the contracttypical, reasonable, predictable damages. This limit does not extend to injuries to life, personal and/or health.
9.1 We are liable for flaws in the delivery, including the absence of expressly warranted or guaranteed features as follows:
The liability based on the Product Liability Law of the Federal Republic of Germany is unrestricted. This is also effective in the event of the absence of features, which by way of exception are expressly warranted or guaranteed, and the warranty or guarantee aims to protect the customer from damages, which were not caused to the delivery item itself.
9.2 The delivery is to be checked immediately upon arrival at its destination. It is considered approved if we have not received a notification of defect because of obvious flaws within three (3) business days of the arrival at the destination with an exact description of the facts of the case in writing. Notification of defects of hidden flaws and such flaws, which can only be recognized when the machine and tools are in operation, must be immediately asserted after their discovery with an exact description of the facts of the case.
9.3 The term of limitation according to § 438 Abs. 1 Nr. 3 German Civil Code is limited to one (1) year. Cases of wilful deceit are excluded from this. The term of limitation complies with the law.
9.4 The warranty is void if the customer works on the product or sells it after he has discovered the flaw or should have discovered it, unless he can prove that the reworking of the product or sale was necessary to avoid greater damages.
9.5 Warranty will not be accepted for damages resulting from subsequent causes to the delivery item: Unsuitable or improper use, incorrect commissioning by the customer or a third party, natural wear and tear, incorrect or negligent handling, unsuitable service fluids, exchanged materials, chemical, electrochemical, electric and comparable influences, in as much as we are not at fault.
9.6. The customer must give us the necessary time and opportunity to carry out all seemingly necessary repair work and spare parts deliveries according to our just discretion; our liability is eliminated for the resulting consequences due to a breach of these obligations – excluding damages to life, personal, and/or health.
9.7 If we deliver the product as per order directly to a third party, this does not change any of the customer’s obligations within the scope of the forthcoming terms concerning inspection obligation and notice of defect.
9.8 We reserve the right to charge the customer for travel expenses and accommodation costs, as well for the wage of our fitter/mechanic doing the reworking, and for the material costs when we are not responsible for the defects.
9.9 Our warranty is carried out in the scope of the legal terms by our choice of the type of reworking either by us or a third party, by the exchange of parts or a substitute delivery for legitimate and timely notices of defect excluding any further claims. Replaced parts become our property. A warranty for the delivery of used machines and parts is principally ruled out.
9.10 If the delivery item is abroad and this was not know to us at the time of the quotation, then we are only responsible to do reworking in our factory, whereby the customer must cover the costs for delivery to and from our company. If the customer wants the reworking to be done at the foreign location, then the customer must cover the travel and accommodation costs of our fitters, as well as the transportation costs for the spare parts; whereby we are entitled to charge an appropriate advance on the expected costs. The remaining costs will be covered by us. The customer must cover or repay us for any turnover tax and/or duties levied by the foreign country on the import of spare parts.
9.11 In so far as our liability is effectively eliminated or limited, this is also valid for the individual liability of our employees, workers, representatives and persons employed at the time of performance of our obligation.
10. SOFTWARE USAGE
10.1 In as much as software is included in the scope of supply, the customer is granted the right to use the supplied software including the documentation. It is to be used on the contract item intended. Usage of the software on other systems or on more than one system is prohibited.
The customer may only copy, revise, or translate the software or convert the object code into the source code to a legally allowed extent (§§ 69 a ff. Copyright Law). The customer is obligated not to remove or change the manufacturer’s data – especially copyright notification – without our prior explicit consent. Apart from that, the customer’s right to usage is determined by the licence terms for the respective products.
11 PLACE OF PERFORMANCE, GENERAL JURISDICTION
11.1 The authoritative law of the Federal Republic of Germany is valid for all legal relations between the customer and us. The use of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is barred.
11.2 Place of performance for all commitments is the place of business of A & D Verpackungsmaschinenbau GmbH.
11.3 General jurisdiction is the competent court in the Federal Republic of Germany responsible at the location of A & D Verpackungsmaschinenbau’s location. However, we are entitled to institute proceedings at the location of the customer’s headquarters.
12 CONCLUDING TERMS
12.1 If conditions of these General Business Terms are proven to be invalid, that will not affect the validity of the remaining conditions. Together with the customer, we will replace the invalid regulations with new conditions, which are legally permitted and which come closest to the intended economical aim and object.