- The conditions below apply to all quotations and conclusions of contract regarding the purchase or delivery of machines and equipment by our company in transactions with entrepreneurs according to Section 14 of the German Civil Code (BGB) and with legal persons under public law or with special funds under public law.
- These conditions also apply to all future contractual relations.
- We hereby expressly revoke any other terms and conditions of the Buyer or Supplier contradicting these conditions and the former shall not constitute part of this contract. This shall also apply to all general conditions which a contractual partner seeks to negotiate as part of order confirmation, also subsequently.
- Insofar as these general conditions of acquisition, sale, delivery and payment are not subject to any special provision, the German Civil Code (BGB) shall apply exclusively in all other cases.
II Quotation and conclusion of contract
- The documents pertaining to the quotation, viz. illustrations and data concerning dimensions, weights, performance and operating costs, are only approximative, provided they are not expressly termed as legally binding. The rights to any modifications to construction or form are reserved, provided they do not substantially change the characteristics of the object purchased.
- Contracts relating to the acquisition or our delivery of machines and equipment shall only come into force with our written order confirmation; our field staff are only entitled to procure orders. Any (ancillary) verbal agreements shall not be valid or shall only become valid if said agreements are confirmed in writing.
III Price and payment
- The prices quoted in our order confirmation are exclusive of the current statutory value-added tax.
- Should a delivery period of more than four months be agreed upon, we shall be entitled to invoice the delivery prices applicable on the day of delivery (new list price less any agreed discount) exclusive of value-added tax, unless the changes in list prices depart from standard commercial practice.
- Our prices are quoted net in Euro from the place of dispatch (e.g. works, warehouse, import depot) exclusive of the costs for packaging, costs for freight and freight forwarding, cartage, packaging, transportation insurance and assembly which shall all be borne by the Buyer.
- At Buyer's option, our invoices shall be settled within 10 days of the date of the invoice in cash or with 2% discount on the invoiced amount including value-added tax or within 30 days in cash without deductions. Our field staff are not authorised to receive payments without an explicit power of attorney for collection. Default shall occur on expiry of the payment deadline set, but at the latest 30 days after receipt of invoice. With effect from this time, the invoice amount according to Section 288 BGB shall be subject to a default rate of interest of 9% above the basic interest rate as under Section 247 BGB. We reserve the right to furnish evidence of greater damage caused by delay. We are entitled to charge a lump sum or €10.00 per reminder without prejudice to provide any other form of proof of higher costs.
- The Buyer shall only be entitled to set off our claims with counter-claims if said counter-claims are uncontested or have been judicially determined, or if a pending lawsuit is not delayed by offsetting. The same shall apply to any withholding right on the part of the Buyer.
- We shall only accept bills of exchange by explicit agreement and only on account of performance. In case of furnishing of a bill of exchange, the customer shall bear the charges accruing from bills of exchange. We assume no liability for timely presentation, protest, notification and return of the bill of exchange, if said bill of exchange is not honoured. In the event of a bill or cheque protest, cash payment shall be effected immediately.
- Failure to comply with payment deadlines or, after conclusion of contract, should we become aware of circumstances which are likely to affect the creditworthiness of the Buyer, we shall be entitled to demand immediate payment of all our demands, regardless of the duration of discounted bills of exchange or agreed payment terms. Furthermore, we shall be entitled at our own discretion to demand either payment in advance or the provision of security. If this demand is not satisfied, we shall be entitled after a reasonable period of grace to refuse fulfilment of contract and claim damages amounting to 15% of the purchase price in lieu of consideration. The Buyer is permitted to furnish evidence that no damage was incurred or not incurred to the amount stated. Furthermore, we shall be entitled to furnish proof of greater damages and to defer or to refuse further deliveries.
IV Delivery, transportation and passage of risk
- Risk shall pass to the Buyer when the deliverable leaves the place of dispatch (e.g. works, warehouse, spare parts store, import depot) or when the Buyer was notified of readiness for shipment; this provision shall also apply to partial deliveries or when we have assumed additional services, e.g. shipment costs or delivery and installation.
- Our performance obligation is fulfilled on transfer of the goods to the forwarding or shipping company. If the Buyer collects the goods himself, the contract shall be deemed fulfilled on readiness of the delivery once the Buyer receives the notification of readiness for shipment.
- If delivery is delayed or fails to take place due to circumstances for which we are not responsible, risk shall pass to the Buyer on the day of notification of readiness for shipment.
- Partial deliveries are permitted, provided they can be considered reasonable for the Buyer.
- The Vendor shall not insure the goods against transport damages. However the Vendor is entitled – at his own discretion and at the cost of the Buyer – to conclude an insurance to cover war risk and transportation.
V Delivery deadlines, delays in delivery
- The delivery periods and deadlines specified by us shall only be legally binding if they are expressly agreed upon. Every delivery period shall only start on receipt of all documents required to execute the order and after receipt of payment, provided payment in advance was agreed upon. If, following order confirmation or order acceptance, the Buyer demands any modifications to the order affecting production time, the delivery period shall start only on acknowledgement of the modification by the Vendor.
- Compliance with the delivery deadline is subject to punctual and correct delivery by our own suppliers.
- The delivery period shall be deemed fulfilled if the deliverables leave the works before expiry of the delivery period or if readiness for dispatch was notified.
- If shipment is delayed for reasons which the Buyer is responsible, the Buyer shall bear the costs incurred by the delay.
- If non-compliance with the delivery period is attributable to force majeur, industrial disputes or any other events that lie beyond our control, the delivery period shall be extended by a reasonable amount. We shall notify the Buyer of the start and end of such circumstances as soon as possible.
- However, in case of delay in delivery, the Buyer may only withdraw from the contract on expiry of a reasonable period. The Buyer is also obliged to accept the goods after expiry of said period if we failed to receive the declaration of withdrawal before shipment of the goods or before sending the notification of readiness for shipment.
- If we are responsible for the occurrence of the delay by wilful intent or gross negligence or we guaranteed a fixed date or the Buyer no longer has an interest in delivery because of the delay, we shall be liable in accordance with the statutory provisions.
- Provided the delivery delay is the result of the culpable violation or a fundamental contractual obligation, liability shall be limited to the foreseeable damage that may typically occur.
- Any further liability for delivery delay on the part of the Vendor is excluded.
VI Retention of title in case of sale
- We shall retain the title to the deliverables until such time as payment is made in full to our current account for all our claims from deliveries and services to which we are entitled now or in future (conditional commodities) and which arise against the Buyer from this business relation.
- Cash payments, payments by cheque and bank transfers which are executed against submission of a bill of exchange issued by us and accepted by the Buyer are only valid as payment after the bill of exchange is honoured by the drawee and we are thereby discharged from the bill liability, even if the bill of exchange is issued at a later date.
- We are entitled to insure the conditional commodities at the Buyer's cost against theft, failure, fire and vandalism, unless the Buyer provides evidence that he has already taken out insurance cover himself. In such case, the Buyer transfers to us all insurance rights that may occur during the period of retention of title.
- In the event of access by third parties to the conditional commodities, the Buyer shall inform the third party of our title and notify us immediately.
- The following provisions shall apply to the duration of retention of title: The Buyer is authorised to put into operation the conditional commodities within the scope of his proper business activities, whereby he shall treat the conditional commodities with all due care. Any other use of the conditional commodities (e.g. resale, lease, pledging, transfer as security, etc.) shall only be permitted to the Buyer with our previous express consent. The Buyer is entitled to resell said conditional commodities as part of his business activities. As of the present time, the Buyer assigns to us all claims to the conditional commodities to which he is entitled and arising from resale or any other legal grounds. If the conditional commodities are resold together with other goods which do not belong to us, the claims of the Buyer against the purchaser shall be considered as assigned to us to the amount of the delivery price agreed between us and the Buyer. The Buyer is entitled until this right is revoked to collect the receivables assigned to us in his own name and for his account. The authority to collect may be revoked by us in case the Buyer fails to fulfil his obligations of payment properly. Upon our request, the Buyer shall be obliged to provide information about all assigned receivables, and prepare in particular a list of debtors with names, addresses, the amount of the claims, the date and number of the invoices and provide us with all the documents required for asserting the assigned claims.
- If the Buyer acts in breach of contract, in particular in the event of a default in payment, we are entitled to take back the conditional commodities and to demand the assignment of the claims for return of the goods held by the Buyer against third parties. The Buyer authorises us irrevocably to collect the conditional commodities and to enter his property and buildings for this purpose. The taking back and seizure of the conditional commodities by us shall not constitute a rescission of contract, nor disclosure of the assignment by way of security.
- After reclaiming the conditional commodities, we shall be entitled to dispose of said commodities in the best possible way by private sale. Subject to the provision of evidence for additional costs by us, we may invoice in such cases a lump sum amounting to 10% of the purchase price. The Buyer has the right to prove that less or no damages were incurred.
- We undertake to release the securities to which we are entitled insofar as their value exceeds the accounts receivable to be secured by more than 10%, provided said accounts receivable have not yet been settled.
VII Warranty in case of sale
- Complaints due to obvious defects or such defects which the Buyer ascertains by careful inspection on delivery of the purchased items shall be reported in writing within 14 days of delivery. Defects not yet recognisable on delivery shall be notified immediately in writing on their discovery. The warranty obligation shall expire if the Buyer fails to comply with his obligation to inspect and submit complaints.
- The warranty period applies to all new equipment and, provided the Buyer is an entrepreneur, is fundamentally limited to one year with effect from delivery of the goods to the Buyer. If the Buyer is an authorised dealer, the one-year warranty period shall commence on delivery to the end-customer, but no later than 9 months after delivery of the equipment to the authorised dealer.
- In the case of claims which are justified and made in good time, we shall at our discretion perform repairs or supply a replacement. On agreement, the Buyer shall grant us the necessary time and opportunity to perform all the repairs and substitute deliveries which appear necessary to us. If the Buyer carries out the repairs himself, his entitlement to reimbursement for actual working time shall be limited by the standard labour times x the agreed hourly rate (or the customary local hourly rate in the absence of an agreed hourly rate) plus value-added tax. If the defect does not impair suitability for use and if the defect is insignificant, we shall have the right to grant a reduction in price instead of effecting remedy in the form of repair or replacement. Further entitlements of the Buyer shall require that we were unable to remedy essential defects within a reasonable period of grace or two attempts at remedy resulted in failure.
- Specifications regarding the properties of our products, their processing and application and the suitability for a certain purpose shall only constitute part of the contract if they were expressly agreed upon.
- In accordance with his own obligation, the Buyer shall undertake before every grinding operation to check the grain size of the grinding products in his use by grinding a small area of maximum 1.5 m². The Buyer is obliged – in case of resale – to agree upon a similar obligation with his customer.
- If the Buyer or a third party makes any incorrect modifications, we shall not be liable for any consequences resulting therefrom. This shall also apply to any modifications made to the goods without our previous consent.
- A warranty for used equipment and materials is excluded, provided the Buyer is an entrepreneur and this was not explicitly agreed with him in writing.
- According to statutory regulations, we shall be liable in case of wilful default, gross negligence, personal injury and in case of defects which were fraudulently concealed or the absence of which was guaranteed and if the Buyer or his customer did not violate an obligation in the use of the purchased goods (e.g. Clause VII Paragraph 5).
- If we negligently violated an essential contractual obligation, our obligation to pay compensation for property loss shall be limited to damages which might be typically expected to occur.
- Further claims, in particular regarding consequential damages resulting from a defect, shall be excluded insofar as this is permissible by law.
IX Severability clause
Should a provision within these terms and conditions of business be invalid, this shall not affect the validity of all other conditions or agreements. The ineffectual provision shall be replaced by a provision which the parties would have agreed upon if they had been aware of the invalidity of the provision in question. Similarly, this shall apply in the event of a loophole in the contract.
X Place of performance - governing law - place of jurisdiction
- The place of performance for our delivery obligations and for the obligation incumbent upon the Buyer shall be our place of dispatch (e.g. works, warehouse, spare parts store, import depot).
- The laws of the Federal Republic of Germany shall apply to these terms and conditions of business and all legal relationships between us and the Buyer or supplier to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). For Buyers or suppliers with their place of business located abroad, it is explicitly agreed that all costs for legal prosecution in case of payment delay by the Buyer or delivery delay by the supplier, both judicial and extrajudicial, shall be borne by the Buyer or the supplier.
- The sole place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be the location where our company has its principal office to the extent legally permissible and shall also apply to processes regarding cheques and bills of exchange.
- We wish to point out that all data including electronic data, accruing in connection with the contractual relationship shall be stored. The contractual partner hereby expressly agrees to the use of electronic communication, e.g. by telefax or email etc.