Terms and Conditions for the Delivery of Machines and Plants
1. Our services and deliveries are based on these Terms and Conditions as well as on any other separate contractual agreements. Other Terms of Purchase issued by the Orderer will not form part of the contract even though the order is accepted.
2. A contract shall be concluded – unless otherwise agreed – upon written order confirmation on our part.
3. We reserve all property rights and copyrights to samples, cost estimates, drawings and similar information whether of physical and non-physical nature – even in electronic form; they may not be made accessible to third parties. We undertake not to reveal to third parties information and documentation designated as confidential by the Orderer unless being authorised by the latter.
II. Price and Payment
1. Unless otherwise agreed, the prices shall be ex works including loading at our premises, however, exclusive of packaging and unloading. The value-added tax at the appropriate legal rate shall be added to the prices.
2. Unless otherwise agreed, payment should be effected to our account without any deduction, namely:
– 1/3 down payment after receipt of order confirmation,
– 1/3 as soon as the Orderer has been notified of the commencement of indoor installation in the factory,
– balance upon readiness for shipment.
3. The right to withhold payments or to offset with counterclaims shall only accrue to the Orderer insofar as his counterclaims have been uncontested or legally established.
III. Delivery Time, Delayed Delivery
1. The delivery time shall be governed by the agreements reached between the contracting parties. Observance of the same on our part presupposes that all commercial and technical issues have been clarified between the contracting parties and the Orderer has fulfilled all obligations incumbent on him such as, for instance, providing the required official approvals or certificates or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply insofar as we are responsible for the delay.
2. Compliance with the delivery time shall be subject to correct and timely provisions to be made by the Orderer. Impending delays will be notified by us as soon as possible.
3. The delivery time has been met when the delivery item has left our factory by the expiry of period or readiness for dispatch has been notified. As far as acceptance has to take place, the acceptance date shall be decisive or alternatively the notice of readiness for acceptance – except for justified rejection of acceptance.
4. If the shipment and/or acceptance of the delivery item are delayed due to reasons for which the Orderer is responsible, he will be billed for the costs incurred by the delay, commencing one month after notification of readiness for dispatch or acceptance.
5. If the non-compliance with the delivery time is due to force majeure, labour disputes or other events beyond our control, the delivery time shall be extended accordingly. We will notify the Orderer as soon as possible of the beginning and end of such events.
IV. Transfer of Risk, Acceptance
1. The risk shall pass-over to the Orderer as soon as the delivery item has left the factory, even if partial shipments take place or we have also taken-over other services such as, for instance, shipping costs or delivery and installation. Insofar as acceptance has to be carried out, this shall be definitive for the transfer of risk. Acceptance must be carried out immediately on the date of acceptance or, alternatively, after our notification of readiness for acceptance. The Orderer shall not refuse acceptance in the event of a minor defect.
2. In the event of delay or failure of the dispatch or acceptance due to reasons for which we are not responsible, the risk will be transferred to the Orderer as from the day of notification of the readiness for dispatch and/or acceptance. We declare our readiness to take-out insurances which the Orderer demands at the Orderer’s expense.
3. Partial shipments are permitted insofar as acceptable for the Orderer.
V. Retention of Title
1. We retain title to the delivery item until receipt of all payments under the supply contract.
2. We are entitled to ensure the delivery item at the Orderer’s expense against theft, breakage, fire, water and any other damages insofar as the Orderer has not concluded this insurance by himself as proven.
3. The Orderer is not allowed to sell or pledge the delivery item or pass its title as security. In case of pledges and seizure or other orders by third parties, the Orderer shall immediately notify us thereof.
4. Upon culpable breach of essential contractual obligations, in particular with delay in payment, we are entitled to take back the goods after reminder. The Orderer shall be obliged to return the goods. Repossession of the goods and/or assertion of the retention of title or pledging of the delivery item by us do not constitute any rescission of the contract unless we have given an express declaration to that effect in writing.
5. The Supplier ERMAFA is entitled after prior warning to sell the retained goods taken back and benefit from its proceeds after charging for the open claims.
6. The application to open insolvency proceedings on the part of the Orderer shall entitle us to withdraw from the contract and claim the immediate return of the delivery item.
VI. Claims for Defects
We warrant for material defects and defects of title under exclusion of further claims – subject to Section VII – as follows:
1. All those parts which prove to be defective due to a circumstance which has occurred prior to passage of risk are, at our option, either to be remedied or replaced free of defects at no charge. Any discovery of such defects must be immediately notified to us in writing. Parts replaced shall return to our ownership.
2. Following consultation with us, the Orderer is to grant us the time and opportunity required to carry out all remedies or substitute deliveries which we deem necessary, otherwise, we shall be relieved of liability for resultant consequences. Only in urgent cases jeopardising operational safety and/or for the purpose of averting disproportionately great damages whereby we must be informed immediately, the Orderer shall have the right to remedy the defect by himself or have the defect remedied by third parties and demand reimbursement for the costs incurred from us.
3. If the complaint turns out to be justified, we shall bear, out of the costs of remedy and/or substitute delivery, only the costs of replacement part including dispatch costs. Further, we shall also bear the costs for dismounting and assembly as well as the costs for probably required provision of fitters and auxiliary personnel including travel expenses unless this would impose an excessive burden to us.
4. In the framework of statutory provisions, the Orderer has the right to rescind the contract if we – taking into account of statutory exceptional cases – allow a reasonable period set for the remedy or substitute delivery due to a material defect to elapse fruitlessly. In case of a minor defect, the Orderer shall only be entitled to a reduction of contract price. Otherwise, the right to reduction of the contract price shall be precluded.
Any further claims shall be governed by Section VII.2 of these Terms and Conditions.
5. No warranty will be granted particularly in the following cases:
Unsuitable or improper use, use of material compounds not agreed contractually, defective assembly and/or putting into operation by the Orderer or third parties, nor mal wear and tear, defective or negligent treatment, improper servicing, unsuitable operating resources, imperfect construction work, unsuitable building ground, chemical, electrochemical or electrical influences insofar as we cannot be held liable for them.
6. If the defect is improperly remedied by the Orderer or a third party, we will assume no liability for the consequences resulting therefrom.
Defects of title
7. If the use of the delivery item leads to an infringement of industrial property rights or copyrights at home, we will, at our expense, provide the right for the Orderer to generally continue to use the delivery item or modify the delivery item in a manner reasonable for the Orderer such that the infringement of property rights no longer exists.
If this is not possible at commercially reasonable conditions or within a reasonable period, the Orderer shall be entitled to withdraw from the contract.
Moreover, we will release the Orderer from undisputed or legally effective claims of the relevant property right holders.
8. The obligations set forth in Section VI.7 hereof shall be final in the event of an infringement of industrial property rights or copyrights subject to Section VII.2.
These provisions shall apply only if:
• the Orderer gives us prompt notice of the industrial property right or copyright infringement claimed,
• the Orderer gives the Vendor reasonable support in defending such claims and/or enables us to undertake the modifications in accordance with Section VI. 7,
• if all defence measures including out-of-court settlements are retained for us,
• if the defect of title does not relate to a direction given by the Orderer, and
• the legal breach was not caused by that the Orderer has modified the delivery item by himself or used it in a manner not agreed in the contract.
1. If the delivery item cannot be used by our default for the intended purpose as a result of omitted or incorrect implementation of proposals or advice made or provided before or after signing of contract, or if other subsidiary contractual obligations are infringed – in particular the instructions for operation and maintenance of the delivery item – then the provisions made under Sections VI and VII.2 shall apply accordingly with the exclusion of any further claims raised by the Orderer.
2. We will be liable for damages not arising on the delivery item itself – on whatever legal reasons- only in the case of
b. gross negligence on the part of the owner / committees or corporate executives,
c. culpable injury of life, body, and health,
d. defects which were maliciously concealed or the absence of which was guaranteed,
e. defects in the delivery item insofar as liability is given for personal or material damage to objects used in the private sphere in
accordance with the Product Liability Act.
In the event of a culpable breach of fundamental contractual obligations, we shall also be liable in the event of gross negligence of non-executive employees and slight negligence, in the latter case limited to the reasonable and foreseeable typical contract damage.
Further claims are excluded.
VIII. Non-Solicitation Agreement
Our employee and freelance employees, mechanics or installation personnel may not be hired, employed or commissioned, either directly or indirectly, for up to 24 months after the customer’s last order has been completed without our permission. Nor may they make an offer either orally or in writing or in any other way for such an activity.
For violations, a compensation of 100,000.00 € (in words: one hundred thousand euros) is due.
IX. Statute of limitation
All claims of the Orderer – raised for whatever legal reasons – become time-barred in 12 months. The statutory periods shall apply for compensation claims pursuant to Section VII.2 a – e. They also apply for defects in a building or for delivery items which have been used according to their usual manner of use for a building and have caused its defectiveness.
IX. Software use
If software is included in the scope of supplies, the Orderer shall be granted a non-exclusive right to use the software delivered including its documentation. It shall be transferred exclusively for use on the delivery item intended for this purpose. Use of software on more than one system is forbidden.
The Orderer may copy, revise or translate the software or convert it from object code onto source code only to the extent permitted by law (Section 69 a et seq. of the German Copyright Act). The Orderer undertakes not to remove or modify manufacturer’s data – in particular copyright notices – without our previous explicit consent in writing.
All other rights to the software and documentation including copies thereof are reserved by us and/or by the software supplier. Granting of sublicenses is not permitted.
X. Applicable law, place of venue
1. All legal relationships between the company ERMAFA and the Orderer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic contracting parties.
2. The place of venue shall be Chemnitz. However, we shall also be entitled to file suit against the Orderer at his headquarters.