GCS

General conditions of sale (GCS)

Last update: August 2017

1. Scope

(1)  Our general conditions of sale (hereinafter "GCS") shall apply exclusively. Conflicting or deviating conditions of the customer are not recognised by us unless we have expressly agreed to them. Our GCS shall also apply if we deliver to the customer without reservation in the knowledge of differing or conflicting conditions of the customer.

(2)  All contractual agreements between us and the customer are recorded in writing.

(3)  These GCS shall apply only if the customer is an entrepreneur (Section 14 of the German Civil Code - BGB), is a legal entity under public law or a special public-law fund.

2. Offer

(1)  Our offers are subject to confirmation and are non-binding. They only serve to enable the customer to make us a binding contractual offer. The same applies if we provide the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, price calculations, references to DIN standards), other product descriptions or documents - also in electronic form. We reserve ownership rights and copyright in respect of such documents. Passing them on to any third parties requires our express prior written consent.

(2)  If any technical details are enclosed with our offer, the customer shall read them carefully, check them and take them into account. The customer shall in particular check whether the material proposed by us would be sufficiently resistant in respect of the equipment used by the customer.

(3)  The order by the customer shall be a binding contractual offer. We shall be entitled to accept such a binding contractual offer within a period of 2 weeks.

(4)  The acceptance of the binding contractual offer from the customer may be declared either in writing, i.e. in written or text form (e.g. by order confirmation) or by delivering the goods to the customer.

3. Delivery and place of performance

(1)  Unless otherwise stated in the order confirmation, the parties agree that delivery shall be effected FCA Fritz-Straßmann-Str. 9, D-25337 Elmshorn (Incoterms 2010).

(2)  Place of performance for the delivery and any subsequent performance is our registered office at Fritz-Straßmann-Str. 9, D-25337 Elmshorn.

(3)  The delivery period indicated by us shall only begin upon clarification of all technical questions with the customer.

(4)  Compliance with our delivery obligation also requires the timely and proper fulfilment by the customer of its obligations. We reserve the right to invoke the defence of lack of performance of the contract.

(5)  In any case, a reminder by the customer is required for the admission of delay in delivery. If the delivery does not take place in a timely manner, the customer shall only have recourse to legal remedies of any kind if it has previously set a reasonable grace period which expired without delivery taking place. If a delay of delivery occurs for reasons we are not liable for, the customer may demand a lump-sum compensation for its damage caused by the delay. Such lump-sum compensation shall amount to 0.5% of the net price (value of the delivery) for each full calendar week of delay, but in total no more than 5% of the value of the delivery of the purchased goods which are delivered with delay. We reserve the right to provide proof of the customer not having suffered any damage or only a substantially lower damage than the above lump-sum compensation. If the delayed delivery is due to an intentional or grossly negligent breach of contract we are responsible for or a breach of an essential contractual obligation due to our fault, then we shall be liable according to the statutory provisions. As far as the delayed delivery is due to a grossly negligent breach of contract which we are responsible for or a breach of an essential contractual obligation due to our fault, our liability shall be limited to the foreseeable, typically occurring damage.

(6)  If the customer is in default of acceptance, if it fails to comply with a duty to assist or our delivery is delayed due to other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damages including additional expenditures (e.g. storage costs). Any further claims or rights remain reserved. In such a case, the risk of accidental loss or accidental deterioration of the goods shall transfer to the customer from the time when its default of acceptance occurs or when it fails to comply with a duty to assist.

4. Price and terms of payment

(1)  For orders with  a goods value of under EUR 100.00 net, we charge a surcharge for small orders.

(2)  The purchase price is payable without deduction within 30 calendar days from the date of invoice. For a delivery of a machine the following payment terms apply: 50% without deduction immediately after receiving the order confirmation and the invoice for this advanced payment, the remaining 50% without deduction within 10 days after delivery and receipt of the final invoice. We shall, however, be entitled to demand payment in advance for a delivery at any time and even in the context of an ongoing business relationship. We shall state such a payment term in the order confirmation at the latest. If the customer is in default with its payment obligation, then it shall pay default interest in the amount of 9 percentage points p.a. above the respective base interest rate of the ECB.

(3)  VAT is not included in our prices provided that we did not expressly state anything to the contrary in an individual case. If VAT is charged, this is shown separately in the invoice.

(4)  The deduction of a cash discount requires specific written agreement.

(5)  The customer shall have a right of set-off only to the extent that its right of set-off has been legally established, is undisputed or acknowledged by us. The customer shall be entitled to exercise a right of retention under these same conditions to the extent that its claim against which it wishes to exercise a right of retention arises out of the same contract.

5. Retention of title

(1)  Up to the complete payment of all our current and future claims arising from the purchase agreement and the ongoing business relationship with the customer (secured claims), we reserve ownership of the goods sold.

(2)  The customer is obliged to handle the goods with care and to take out adequate insurance. If maintenance and inspection work is required, the customer shall perform these in a timely manner and at its own expense.

(3)  The goods which are subject to retention of title may neither be pledged nor transferred to third parties as security until full payment of all secured claims. The customer shall immediately notify us in writing if an application for opening of insolvency proceedings is made or if a third party exercises any rights over the goods belonging to us (e.g. seizure).

(4)  If the customer is in breach of contract, in particular if it does not pay the purchase price due, we shall be entitled to take back the goods being subject of the purchase. Taking back the purchased goods equates to the rescission of the contract. We are entitled to dispose of the goods that were taken back and the proceeds – minus reasonable realisation costs - shall be set off against the customer’s liabilities.

(5)  The customer may sell the goods which are subject to retention of title in the ordinary course of business and/or process them unless notice has been given in accordance with (c) below. In this case, the following provisions shall apply in addition:

(a) the retention of title extends to the products created by processing, mixing or combining with our goods up to their full value and we shall be deemed the manufacturer. If after processing, mixing or combining our goods with goods of third parties whose ownership is also retained, we shall acquire co-ownership in the ratio of the invoice value of the processed, mixed or combined goods. In addition to the above, the same rules shall apply to the created products as to the goods delivered subject to retention of title.

(b) The customer assigns herewith already as security the claims it will have against third parties for the sale of the goods or products in their total amount or up to the value of co-ownership referred to in the preceding paragraph. This also applies to claims of the customer against the third party arising from the connection of the purchased goods with a plot of land. We accept this assignment. The obligations of the customer referred to in paragraph 3 shall also apply in respect of the assigned claims.

(c) Besides us, the customer retains the right to collect receivables for its claims. We undertake not to collect receivables for the claims as long as the customer meets its payment obligations towards us, its performance is not at fault and we have not invoked any of the rights arising from the retention of title in accordance with paragraph 4. If this should be the case, we shall be entitled to require that the customer informs us about the assigned claims and their debtors, provides us with any information necessary for the collection of receivables, provides us with all related documents and informs the debtors (third parties) about the assignment. We shall also be entitled in this case to revoke the customer’s permission to sell and process the goods subject to retention of title.

(d) If the value of the possible receivables to be collected in respect of the securities exceeds our claims by more than 10%, we shall, at the customer’s request, release securities of our choice.

6. Licences

(1)  If the customer acquires a product which is operated by means of a software provided by us, we grant the customer a non-exclusive right for an unlimited period of time to use the software as it is normally used in order to operate the purchased product.

(2)  The customer shall not reproduce, rent out or sub-license the software in any way, it shall not display it in public on wired devices or wirelessly and shall not give access to it or make it available to any third party against payment or free of charge. The customer's right to sell the goods together with the software for the intended use remains unaffected.

7. Warranty

(1)  Warranty claims of the customer require it to fulfil its statutory obligations of inspection and notification of defect. The customer shall inspect the goods within 5 working days after the delivery and notify any discovered or obvious defects immediately in writing. Defects that could not be discovered during inspection must be notified in writing within 5 working days after discovery. If the customer omits to properly inspect the goods and/or omits to notify a defect, our liability for the defect which has not been notified or not been notified in a timely manner or not properly been notified is excluded in accordance with the statutory provisions. Only if we have fraudulently concealed the defect we may not invoke this exclusion of our liability.

(2)  If the supplied goods are defective, we may first choose whether we provide subsequent performance by rectifying the defect (subsequent improvement) or by delivery of faultless goods (replacement delivery). Our right to refuse subsequent performance under the statutory provisions shall remain unaffected.

(3)  We are entitled to make the subsequent performance owed conditional on the customer paying the due purchase price. The customer is however entitled to withhold a portion of the purchase price which is appropriate in consideration of the defect.

(4)  The customer shall give us the time and opportunity required for the subsequent performance owed, in particular it shall hand over the defective goods for inspection purposes. In the case of a replacement delivery, the customer shall return to us the defective item in accordance with the statutory provisions. Subsequent performance neither includes the removal of the defective item by dismantling nor the new installation if we were not originally required to install.

(5)  We shall bear the costs required for the purpose of testing and subsequent performance, in particular the costs for transport, travel, labour and materials (not: removal and installation costs), if the purchased goods were actually defective. Otherwise we shall be entitled to demand payment by the customer of the costs arising from the unjustified request for the removal of a defect (in particular costs for testing and transport) unless it was not possible for the customer to recognise the lack of a defect.

(6)  If the subsequent performance has failed or a reasonable period of time for subsequent performance set by the customer has expired without subsequent performance occurring or subsequent performance is not required in accordance with the statutory provisions of the German Civil Code (Bürgerliches Gesetzbuch or BGB), the customer shall be entitled to rescind the contract or to reduce the purchase price. If the defect is only minor, the customer shall not have the right to rescind the contract.

(7)  The customer shall only be entitled to claim damages or compensation for wasted expenses due to defective goods in accordance with Section 8 below and any other claims shall be excluded.

(8)  The limitation period for claims arising from defects is 12 months.

8. Further liability

(1)  Unless otherwise provided in these GCS including the following provisions, we shall be liable for breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2)  We shall be liable to pay damages - irrespective of their legal grounds - for intent and gross negligence. In cases of ordinary negligence, we shall be liable subject to a more lenient standard of liability in accordance with the statutory provisions (e.g. for care in one’s own affairs) only

(a) for damages from injury of life, body or health,

(b) for damages resulting from a substantial breach of an essential contractual obligation (i.e. obligation, the fulfilment of which makes the proper performance of the contract even possible and the fulfilment of which the other party regularly relies on and may rightly rely on); in this case, our liability is, however, limited to the compensation of the foreseeable, typically occurring damage.

In case of gross negligence, our liability is also limited to the compensation of the foreseeable, typically occurring damage. This shall not apply to damages from injury of life, body or health.

(3)  The limitations of liability provided for in paragraph 2 shall also apply to breaches of duty by or for the benefit of persons whose faults we are responsible for in accordance with the statutory provisions. They shall not apply if we have fraudulently concealed a defect or if we have provided a warranty in respect of the quality of the goods and for the customer’s claims according to the law on product liability.

(4)  The customer may only rescind the contract or terminate it for breach of duty which does not consist in a defect if we are responsible for that breach of duty. A right of termination by the customer without cause shall be excluded. In addition to this provision, the statutory prerequisites and legal effects shall apply.

(5)  If our liability for damages is excluded or restricted, this shall also apply to the personal liability for damages of our employees, workers, staff, representatives and persons assisting us in performing our contractual obligations (Erfüllungsgehilfen).

(6)  If the UN Convention on the International Sales of Goods (CISG) applies, our liability for ordinary negligence shall be excluded. Furthermore, our liability for damages for pure financial losses (e.g. loss of production) is limited to EUR 300,000.00. The preceding limitations shall not apply to damages from injury of life, body or health as well as claims of the customer arising from the law on product liability.

(7)  If the UN Convention on the International Sales of Goods (CISG) applies, we shall assume liability for the absence of third-party rights in respect of the purchased goods, which arise from industrial or intellectual property rights in accordance with Art. 42 CISG only for infringement of rights in the Federal Republic of Germany. We declare, however, that (without having undertaken any specific investigation) no infringements of rights in other countries are known to us.

(6)  If the UN Convention on the International Sales of Goods (CISG) applies and if we are obliged to pay interest, then the interest rate shall amount to 5 percentage points p.a. above the respective base interest rate of the ECB.

(8)  The limitation period for contractual and non-contractual claims for damages of the customer is 12 months, except where the application of the regular statutory limitation period would lead to a shorter limitation period in a particular case. Claims for damages of the customer according to Section 8 para 2 sentence 1 and 2(a) and according to the law on product liability shall be limited only in accordance with the statutory limitation periods.

9. Repairs of parts

(1)  If the customer requests a cost estimate for the repair of individual parts and if the customer then does not commission us with the repair, then we charge a lump-sum fee for the preparation of the cost estimate including cleaning and inspection of the part.

(2)  The customer shall inform us within 10 working days after receipt of the cost estimate whether it would like to commission us with the repair.

(3)  If the repair is not commissioned, then the customer shall inform us about whether it would like us to return the part. The transport costs for CPT Fritz-Straßmann-Str. 9, 25337 Elmshorn, Germany (Incoterms 2010) shall be charged to the customer. If the customer wishes no return, then we shall dispose of the part at our expense.

10. Governing law, arbitration clause and jurisdiction

(1)  German law, including the UN Convention on the International Sales of Goods (CISG), shall apply to these GCS and the contractual relationship between us and the customer.

(2)  All disputes arising out of or in connection with this agreement or its validity shall be settled by final decision in accordance with the rules of arbitration of the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) (German institution for the settlement of arbitration proceedings) to the exclusion of the ordinary courts.

a)    The place of the arbitration proceedings shall be Hamburg.

b)    The arbitration proceedings shall be decided by a single arbitrator.

c)    The language of the arbitration proceedings shall be German. If the customer has its headquarters in a country whose official language is not German, then the language of the arbitration proceedings shall be English.

d)    The arbitral tribunal shall apply German law in accordance with paragraph 1 above.