Terms of Delivery

Edition January 2015

1. Area of application
   1. These Terms of delivery shall apply vis a vis merchants, governmental entities or special governmental estates.
   2. Our deliveries and services are exclusively provided based on the following conditions.
   3. The purchaser’s terms and conditions which are not expressly recognized by us shall not be valid.
2. General provisions
   1. The technical information (including information on weight and dimensions) in our brochures and catalogues as well as in our offers, diagrams and sketches are approximate values in line with industry norms, unless they are expressly described by us as binding.
   2. We retain title, copyright and rights of use for price estimates, designs, sketches, and similar information, be it material or immaterial – including anything in electronic form. This information must not be made available to third parties even after fulfilment or termination of the contractual agreement.
   3. Each contracting party shall use all documents (also included are designs, models and data) and know how obtained during the business relationship, exclusively for the joint purposes, and, if the other contracting party describes them as confidential or has an obvious confidentiality interest in them, shall undertake the same careful measures to keep them confidential with respect to third parties as they would for their own documents and know how. This obligation begins upon initial receipt of the documents or knowledge and ends 36 months following the end of the business relationship. This obligation shall not apply to documents and information which are public knowledge or which were known to the contractual party upon receipt without him having been bound to confidentiality, or which are then conveyed by a third party who has the right to pass them on, or which are produced by the receiving contracting party without using documents or know how of the other contracting party which must be kept confidential.
3. Legal basis of the contract
   1. Constituent parts of a contract to be concluded are in the following order, and in the case of a discrepancy the preceding component takes precedence over the one which follows:
      • our confirmation of an order in writing
      • in the case of installation services our special conditions for installations and in the case of repair work our special conditions for repair on machines and installations
      • these general terms of delivery
      • the statutory provisions of the Federal Republic of Germany

      We do not accept differing conditions of the purchaser even if we perform delivery or service without having explicitly objected to the conditions of the purchaser.

4. Price and payment
   1. Our prices are net ex works excluding packaging which is calculated onto the net cost and becomes the property of the purchaser. For deliveries and services subject to valued added tax the VAT applicable on the date of issue of the invoice is to be added.
   2. For of an increase in cost of materials, wages or energy based on our price estimate and which were not foreseeable by us on conclusion of the contract, which occur after four months following the conclusion of the contract, a corresponding price adjustment shall be agreed upon. Should an agreement not be achieved within a reasonable amount of time, we shall determine a fair price adjustment.
   3. All invoices must be paid within 14 days from the date of issue without any deductions being made.
   4. A discount arranged for early payment always only refers to the invoice value excluding freight and requires that the total sum of all purchaser’s accounts due has been settled at the point in time of the discount. Unless otherwise arranged, discount periods available for early payment are to be calculated from the date of the invoice.
   5. If we have indisputably delivered partly defective goods, the purchaser is nevertheless obliged, to make the payment for the part which is not defective unless he has no interest in a part delivery. The purchaser can only set off with legally valid and enforceable or undisputed claims. We can avert all the purchaser’s rights of retention with a directly enforceable guarantee in an amount equal to the value of the right to be guaranteed.
   6. In the case of a delayed payment we have the right to charge interest on arrears at the rate of interest which the bank calculates for us for current account borrowing, however this interest shall be at least 8 per cent higher than the base rate of the European Central Bank at the time.
   7. In the case of a delayed payment we can, until receipt of the payments, cease the fulfilment of our obligations after informing the purchaser in writing.
   8. Bills of exchange and cheques are only accepted by previous arrangement and only on account of payment under the condition that they are bankable. Discount charges are calculated from the date the sum of the invoice is due. We do not guarantee for punctual presentation of the bill of exchange and cheque, and for the protest of a bill of exchange. If a bill or cheque is not paid in or if the purchaser goes into arrears with an instalment, we have the right to request immediate payment for the total (remaining) sum, also if cheques or bills are given for this.
   9. If it becomes apparent after the conclusion of the contract that our pecuniary claim is endangered due to inability of the partner to pay, then we have the right to refuse to perform further services and give the purchaser an equitable period of time during which he must pay for the delivery step by step or provide security. In the case of refusal by the partner or upon expiry of the time period without a successful outcome, we are entitled to withdraw from the contract and claim damages.
   10. We may set off any outstanding claims which we are entitled to receive from the purchaser against any outstanding amounts which the purchaser is entitled to receive from us, irrespective of the legal reason for this.
5. Value added tax evidence of exports
   1. If the purchaser or their representative, is resident outside the EU (exterritorial customer), and collects EU duty‐paid goods or transports or sends them outside the EU zone he shall hand over to us the receipt of export necessary for tax reasons.
      If this receipt is not supplied the purchaser must pay the statutory value added tax payable on top of the invoice amount for the delivery carried out by us.
   2. For deliveries of EU duty‐paid goods from an EU member state to another EU member state then the purchaser must inform us of his valued added tax identification number, under which he pays valued added tax within the EU, before the delivery is made.
      Otherwise he must pay the statutory value added tax owed by us for our deliveries on top of the purchase price agreed to.
      For the payment of deliveries from the Federal Republic of Germany to other EU member states the valued added tax laws of the respective recipient member state come into force if either the purchaser is registered in a different member state or if we are registered in the recipient member state to pay value added tax.
6. Delivery and delivery time
   1. Changes to the construction and form of the delivery goods which increase or do not change its value do not entitle the purchaser to reject the delivery good if the deviations do not impair the intended use (selling‐on, business use etc.).
   2. Qualities and measurements are according to DIN (German Industry standards) /EN standards or material grade sheets or in the absence of these according to commercial usage valid upon conclusion of the contract. Deviations in quality, measurements and weight are permissible according to DIN/European standards or customary practice. Reference to standards, material grade sheets or works inspection documents as well as information concerning quality, measurements, weights and applicability are not representations or guarantees, nor are they declarations of conformity or manufacturer’s declarations with the corresponding labels such as CE (European conformity) and GS (safety checked).
   3. Our partial delivery or partial performance is permitted to a reasonable extent. They are charged for separately.
   4. In so far as nothing else is arranged, we deliver uninsured ex works and the purchaser pays for transport cost. If we arrange for transport we decide on the route and method as well as shipping agent and carrier.
   5. In case we arrange the installation of the delivery goods, the purchaser must make available sufficient space, suitable electricity sources and the facilities necessary for the connection of the delivery goods. They must meet our guidelines and the appropriate technical standards. We are only obliged to make the delivery and perform installation work after a binding agreement has been made between the purchaser and us concerning the conditions of installation at the installation location.
   6. The delivery time arranged begins upon conclusion of the contract, however not before the complete production of the documents which the purchaser must make available, nor before receipt of an advance payment agreed to. If software is also the subject matter of the contract this also applies particularly to the documents and information which must be produced by the purchaser for the system analysis and programming.
   7. If the purchaser is late in his performance of a contractual duty (obligation to co‐operate and/or payment obligation) the delivery date shall no longer be binding. In this case we are entitled, at our reasonable discretion, taking into particular account other obligations, to set the performance/delivery appointment anew.
   8. An appropriate extension to the delivery period occurs in the case of lawful industrial action, in particular strike and lock out, as well as the occurrence of unforeseeable difficulties (force majeure). Accordingly the same applies if the circumstances cited affect our suppliers and because of this raw materials were not provided properly and punctually. We are also not responsible for the obstacles described previously when they occur during a current delivery contract unless we caused the delay wilfully or due to gross negligence. After the obstacles described previously are no longer a factor we shall inform the purchaser of the new delivery date.
   9. If the delivery/service is not carried out by us because the purchaser withdrew from a contract without being authorised to do so we may, without prejudice to the possible right to claim further damages, demand 15% of the price of the delivery/service for the costs amounting from the processing of the contract and for lost profit. The purchaser has the right to provide evidence of damages being lower.
   10. If the completion or dispatch is delayed due to the purchaser’s wishes or if the delivery, despite notification of it being ready for transport, is not retrieved within a time period set by us, it is stored ‐ if need be partly finished ‐ the cost and risk of which shall be borne by the purchaser. If it is not possible to provide storage on our premises storage expenses to the sum of the costs incurred shall be charged every month from the day on which the dispatch was ready, however this shall be not less than ½ % of the invoice amount. After the setting and unsuccessful expiry of an appropriate extended time limit we also may deal with the delivery goods in a different way and delivery to the purchaser after an appropriately extended time period.
   11. If a contractual penalty for late delivery is forfeited then the retention of the contractual penalty by the purchaser is indisputable as soon as the good/service has been received or performed.
   12. In the case of late delivery the purchaser, within statutory limits, may only claim for damages instead of or for the good or service or to withdraw from the contract, after he set a fair warning period, unless statutory exceptions for a lack of necessity for a time period exist (§§ 281 section 2, 323 section 2 German Civil Code).
   13. Further claims based on late delivery may only be raised under section X. 2 of these conditions.
7. Passing of risk, acceptance
   1. Unless alternative arrangements are made risk is transferred to the purchaser as soon as the goods leave our warehouses or the warehouses of our subcontractors, unless we deliver the goods with our own vehicles. The transfer of risk to the purchaser also occurs unequivocally if the dispatch takes place within the same town, if the dispatch is sent using the vehicles of our subcontractors, and if partial deliveries occur or if we have taken on other services (e.g. handling and shipping costs, the transport by subcontractors or any other third parties or installation).
      If a delivery acceptance takes place then this shall be final for the transfer of risk.
   2. If the dispatch or the delivery acceptance is delayed due to circumstances which the purchaser is responsible for, the risk is transferred to the purchaser upon receipt of the notification of being ready for dispatch or for delivery acceptance.
   3. Items delivered must, even if they show minor deficiencies, be accepted by the purchaser without prejudice to the rights in section IX.
   4. If according to the contract or due to statutory requirements a delivery acceptance of the item by the purchaser is planned, then the acceptance takes place in line with a delivery acceptance test which is carried out by us. For this the purchaser must, in good time, make available to us any parts which he possibly has to supply which are necessary for the acceptance test. The acceptance takes place after the successful execution of the function test. The function test has been executed successfully if test programmes or procedures developed by us for this purpose detect no malfunctioning of the contractual item.
      Provided we install the delivery item as per the agreement, the function test is carried out by us after the delivery and installation at the point of installation. After the successful function test the purchaser must accept the delivery item, if it also corresponds to the contract in other aspects.
      For all other delivery items we carry out the function test within the scope of the final inspection in our works or in the works of our subcontractor. In this case the delivery acceptance shall be deemed to have taken place unless the purchaser expressly protests the acceptance giving precise details of the deficiency within 14 days of the delivery and we, at the beginning of this time period have clearly indicated to him the predicted meaning of his conduct. If the purchaser wishes to take part in the function test, then he must inform us of this without delay after receiving our order confirmation.
      The purchaser may not avoid delivery acceptance by presenting a deficiency which is not major.
8. Retention of title
   1. Until all claims (including outstanding balance claims) which we are entitled to for any legal reason from the purchaser now or in the future are paid, we are guaranteed the following collateral, which is released should we make a demand at our discretion unless its realisable worth exceeds our claim not only temporarily by more than 10%.
   2. We retain title to goods supplied. Processing or transformation is always carried out for us as manufacturer, but without our obligation. Should our (co)ownership rights cease by virtue of amalgamation it shall now be agreed that the (co)ownership of the purchaser in the unitary object shall be assigned to us according its proportionate value (based on the invoice value). The purchaser shall look after our (co)owned property free of charge. Goods for which we are entitled to (co)ownership shall here forth be referred to as retained goods. In the case of processing or transformation the expectant right of the purchaser for property acquisition on the old item is also carried over to the new item or it is re‐affirmed. The purchaser shall be obliged to handle the retained good carefully and to carry out the service and maintenance work necessary for proper care of the retained good and do so at his own expense. The same shall apply for any necessary maintaining‐ and repair work.
   3. The purchaser is entitled to sell or use the retained good during his ordinary business, and to do so in return for payment or under retention of title, provided he is not in arrears with payment. He is not entitled to other measures, particularly mortgaging ‐ chattel or any other type. The authority which the purchaser has to sell is under the condition that the purchaser does not arrange a prohibition of assignment in relation to his payment demands for the resale.
   4. The purchaser now already assigns all claims arising from the resale or any other legal reason (insurance, unauthorized business) with all ancillary rights concerning the retained good to us. In the case where the purchaser’s claims arising from the resale or further processing are received into a current account, the purchaser also hereby already assigns his claims from his current account with respect to his customers to us. In any case the assignment shall only occur for the amount for which we have charged the purchaser for the resold or processed retained good. The purchaser is entitled, until this is revoked, to collect the claims transferred to us. We can revoke this if the purchaser falls behind in his payments or if his pecuniary condition has worsened considerably. On our request the purchaser shall disclose the assignment and provide us with the necessary information and documents.
   5. In vase of third party´s claims to the retained good the purchaser shall inform of our ownership and notify us immediately. Costs and damages shall be borne by the purchaser.
   6. In the case of contract breach by the purchaser, particularly late payment, we are entitled to withdraw from the contract and take back the retained good after expiry of a suitable time period set for the purchaser to perform. Statutory provisions pertaining to lack of a necessity to set a time period shall remain unaffected by this. The purchaser must return the retained good. Furthermore, we are entitled to withdraw from the contract and take back the retained good should a request for the opening of insolvency proceedings for the assets of the purchaser be filed.
   7. If we have declared that we are withdrawing from the contract in accordance with section VI. 6 then we are entitled to the unconstrained use of the retained good at the expense of the purchaser analogously to § 1234 of the German Civil Code.
9. Claims of deficiency
   For material defects and legal deficiencies of the delivery, excluding further claims – subject to section X, we make the following guarantee:
   1. Material defects
      1. The condition of the good/service is to be determined on the basis of the technical delivery regulations arranged. Unless an alternative arrangement has been made the good/service is delivered / implemented in the finish and condition, as is customary taking into consideration the technical rules recognised by us at the time of delivery/service. Should we have to supply an item according to sketches or designs by the purchaser he shall take on the risk of the suitability in relation to the application foreseen. The point of transfer of risk is final and conclusive in ascertaining that the condition of the good corresponds to the contract.
      2. Unless arrangements are expressly made to the contrary we do not guarantee that the static and/or dynamic forces produced by the delivery good will have a harmless affect at the installation point or in its surroundings. Also precluded is the guarantee for damage which the purchaser at least had a big role in causing through unsuitable or improper use or installation, failure to take our special operating regulations into account, misuse and improper handling, natural wear and tear, improper or negligent upkeep and maintenance work by the purchaser or a third party, unsuitable operating equipment/substances, replaceable materials, chemical, electronic or electric influences unless such influences have the delivery item as their cause.
      3. All those parts which emerge to be defective due to a circumstance present before the transfer of risk must be mended at our discretion or be replaced without defect. The ascertainment of such a defect must be reported to us immediately in writing. Replaced parts become our property.
      4. After notifying us the purchaser must give us the opportunity and time necessary to make all repairs and spare parts deliveries which we perceive to be required; otherwise we shall not be held liable for the resulting consequences. Only in urgent cases where operating safety is endangered or to prevent unusually great damage, in which case we must be notified immediately, the purchaser has the right to rectify the defect himself or to let a third party rectify it and to claim the necessary expenditure from us.
      5. We are entitled to deduct the repair or the spare part delivery from a part payment on the delivery item taking the defect into consideration up to the value of the defect item. The purchaser may, however, in individual cases retain a higher sum if the purpose of collateral requires this, or refuse payment completely if the defect item is of no worth to him.
      6. If we do not fulfil our duties concerning repairs or spare part deliveries in accordance with the contract within a suitable time frame the purchaser may set a final time limit in which we must fulfil our duties. When this time period has expired without result the purchaser can, in case of deficient construction work request a price reduction, or in case of other deficiencies withdraw from the contract, or request a reduction. Instead of withdrawing from the contract or a reduction the purchaser may carry out the necessary repair himself or have a third party do it at our expense, and our risk. No reimbursement of cost shall be owed if expenses increase because the goods were moved to another location, unless this is in accordance with the conditions of the good’s use.
      7. Further claims by the purchaser are defined according to section X. 2 of these conditions.
      8. The limitation period for the guarantee claims made to us are defined in section XII of these conditions.
      9. If we have made a guarantee for the condition of a good/service we guarantee this condition based on statutory law. Any guarantee for us requires the written form.
   2. Deficiency in title:
      1. Should the use of the delivery goods infringe industrial property rights or copyright we shall provide the purchaser, at our expense, with the general right for further use, or modify the delivery good in a suitable way so that the industrial property right is no longer infringed.
         If this is not possible under appropriate economic conditions or in a reasonable time limit, the purchaser is entitled to withdraw from the contract. Under the same premises we are entitled to withdraw from the contract.
         In addition we shall indemnify the purchaser against claims by the proprietor of intellectual property rights concerned, which are established as undisputed or legally binding.
      2. Subject to section X. 2 the obligations cited in section IX.2.1 for the case of infringements of intellectual property and copyright are final and conclusive.
         They shall only exist if
         • purchaser informs us without delay of alleged infringe infringements of intellectual property rights or copyright,
         • purchaser reasonably supports us in the defence against asserted claims or enables us to carry out the modifications according to section VIII. 8
         • we are reserved the right to undertake all defensive measures, including out‐of‐court arrangements
         • the title defect is not based upon an instruction by the purchaser, and
         • the infringement of rights was not caused by the purchaser arbitrarily altering, or using the delivery item in a non‐contractual manner.
10. Liability
    1. If the delivery good cannot be used by the purchaser in a contractual manner, for which we are culpable, because suggestions made or advice given, were not carried out, or were carried out incorrectly, prior to or after conclusion of the contract, or through the infringement of additional contractual obligations – particularly instructions for use and maintenance of the delivery item, then the provisions of sections IX and X. 2 shall apply excluding any further claims by the purchaser.
    2. We are only liable for damages which did not occur on the delivery item itself – for whatever legal reason it may be – in the case of
       1. Intent
       2. gross negligence of our officers
       3. negligent injury to life, limb or health
       4. defects that were deceitfully concealed
       5. defects in the delivery goods to the extent we are liable pursuant to the German Product Liability Act for personal injury or property damage to privately used objects.

       In the case of negligent infringement of substantial contractual obligations we are also liable for gross negligence of junior executives and for slight negligence. If the latter is the case the liability is limited to the damages typical to the contract which are reasonably foreseeable.
       Further claims are ruled out.

11. Spare parts
    We do not guarantee spare parts which we deliver for natural wear. Furthermore, our liability from section IX.1.2 is additionally limited to double the invoice value of the relevant spare part for every individual case of damage, unless the premises according to section IX.1.9 or X. 2 a to e exist.
12. Limitation period
    All claims by the purchaser for whatever legal reason may no longer be made after 12 months from the beginning of the respective statutory limitation period. For damage claims according to section X. 2 a – e as well as for claims according to section IX. 9 the statutory time periods shall apply. They shall also apply for defects to a structure or for delivery goods which were used in line with their regular purpose for a building and caused its fault. Subsequent repairs and spare part delivery of parts of an entire plant do not cause the limitation period for guarantee claims to begin again.
13. Software use
    Where software is supplied the purchaser is granted the nonexclusive right to use the software supplied and its documentation. It is passed on for use with the relevant delivery good. Using the software on more than one system is forbidden.
    The purchaser is only allowed to duplicate, revise, translate within a legally permissible context (§§ 69 a ff. UrhG) or convert from the object code to the source code. The purchaser is obliged not to remove manufacturer information – in particular copyright marks – without our express agreement beforehand.
    Any other rights to the software and the documentation including the copies remain with us or the software supplier. The issuing of sublicenses is not permitted.
14. Governing, place of jurisdiction, partial invalidity
    1. Exclusively the laws of the Federal Republic of German shall apply to the contractual relationship. The United Nations Convention on the International Sale of Goods of the 11th April 1980 (CISG) shall not apply.
    2. Sole place of jurisdiction for all possible disputes (also concerning cheques or bills of exchange) is Magdeburg. However, we are also entitled to take legal action at one of the purchaser’s places of jurisdiction.
    3. Should a provision or part of a provision in these general terms of delivery or in any other contractual arrangements be or become null and void the applicability of the remaining provisions or the remaining part of the provision shall remain unaffected by this.
15. Applicable Version
    1. The German version of these General Purchase Terms is definitive and final.