General Terms and Conditions of Sale and Delivery of INTERMACHINERY GmbH
valid as of 01/10/2014
1. All offers and agreements of INTERMACHINERY GmbH (hereinafter: INTERMACHINERY) are exclusively based on the following General Terms and Conditions of Sale and Delivery. They shall be deemed to have been accepted without reservation by acceptance of the offer, but at the latest by acceptance of the delivery. These terms and conditions shall apply both to existing framework agreements and to the individual order.
2. Deviating terms and conditions of the customer shall only be binding if INTERMACHINERY expressly agrees to them in writing, otherwise they shall not become part of the contract, even if INTERMACHINERY carries out the delivery of the goods in the knowledge of deviating or conflicting terms and conditions.
3. Oral agreements shall only become effective upon written confirmation by INTERMACHINERY. The present provisions shall become an integral part of any contract.
4. These terms and conditions shall apply exclusively to entrepreneurs pursuant to § 310 para. 1 BGB (German Civil Code), legal entities under public law or special funds under public law.
II. Offers, conclusion of contract. Customer protection
1. Offers shall always be without engagement and shall not oblige INTERMACHINERY to accept orders. They may be revoked by INTERMACHINERY at any time until receipt of a written declaration of acceptance or until delivery of the delivery item.
2. Documents which are part of the offer (illustrations, drawings, weights and dimensions) are only to be understood as approximate values unless they have been expressly declared as binding by INTERMACHINERY. Documents provided shall always remain the property of INTERMACHINERY and may not be made accessible to third parties.
3. Orders of the buyer shall be binding. Deliveries or invoices shall be deemed to be an order confirmation unless INTERMACHINERY issues a written confirmation to the contrary. Orders of the buyer which are to be qualified as an offer pursuant to § 145 BGB (German Civil Code) may be accepted by INTERMACHINERY within a period of four weeks. The period shall commence upon submission of the order.
4. Should INTERMACHINERY disclose the location of a machine to the potential buyer, the latter shall not be entitled to disclose the location to third parties unless INTERMACHINERY has given its written consent to do so.
5. In case of culpable infringements by the potential buyer INTERMACHINERY reserves the right to assert financial claims (e.g. damages due to loss of profit, etc.).
III. Delivery date, scope of delivery, delay in delivery
1. Delivery dates and periods shall be deemed to have been agreed approximately unless INTERMACHINERY has given a written, binding commitment at the time of conclusion of the contract. The commencement of a delivery period stated by INTERMACHINERY shall be subject to the timely and proper fulfilment of the buyer’s obligations, otherwise the delivery dates shall be extended accordingly. The defence of non-performance of the contract shall remain reserved. The delivery period shall be deemed to have been complied with if the delivery item has left INTERMACHINERY’s works or INTERMACHINERY has made the delivery item available for delivery and has notified the buyer of its readiness for dispatch by the time of its expiry.
2. INTERMACHINERY shall be entitled to make partial deliveries as far as these do not fall short of the reasonable minimum.
3. The buyer has to check the delivery note as well as the goods and to acknowledge them. Any objections shall be notified to INTERMACHINERY in writing without delay. Otherwise the acknowledged delivery quantity shall be deemed to be accepted.
4. The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, force majeure, official measures, non-delivery by INTERMACHINERY’s suppliers as well as the occurrence of unforeseen, unavoidable obstacles beyond INTERMACHINERY’s control, insofar as such obstacles affect the completion or delivery of the delivery item. This shall also apply if the circumstances occur at sub-suppliers. INTERMACHINERY shall inform the Buyer immediately of the beginning and end of such hindrances in important cases. Force majeure shall also be deemed to exist in the event of industrial action including strikes and lawful lockouts in INTERMACHINERY’s business or at INTERMACHINERY’s sub-suppliers. Claims of the buyer for damages shall be excluded in these cases within the limits of section VII (other liability).
5. If INTERMACHINERY is in default, the Buyer shall – to the extent provided by law – grant INTERMACHINERY a reasonable grace period. After expiry of this period of grace he may withdraw from the contract if the goods have not been notified to him as ready for dispatch by that time.
6. In case of delay INTERMACHINERY shall be liable according to the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of § 286 para. 2 no. 4 BGB (German Civil Code) or within the meaning of § 378 HGB (German Commercial Code).
7. INTERMACHINERY shall furthermore be liable in accordance with the statutory provisions insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract for which INTERMACHINERY is responsible; fault on the part of its representatives or vicarious agents shall be attributed to INTERMACHINERY. If the delay in delivery is due to a grossly negligent breach of contract for which INTERMACHINERY is responsible, INTERMACHINERY’s liability for damages shall be limited to the foreseeable, typically occurring damage.
8. If the buyer is in default of acceptance or culpably violates other duties to cooperate, INTERMACHINERY shall be entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses. INTERMACHINERY reserves the right to assert further claims. Insofar as the aforementioned prerequisites exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the buyer at the point in time at which the buyer is in default of acceptance or debtor’s delay.
IV. Prices, terms of payment
1. The prices do not include value added tax, freight, customs duty, postage, packaging, insurance and other expenses. The prices valid on the day of delivery shall be decisive for the calculation of brand-new machines. Packaging shall be charged at cost price; it shall not be taken back.
2. In the absence of special agreements, invoices are due for payment immediately without deduction. The deduction of a discount is only permissible with a special written agreement.
3. Invoices shall be issued by INTERMACHINERY prior to dispatch of the goods. Delivery shall only be made against advance payment unless otherwise agreed. If it is agreed in an individual case that the delivery shall not be made against advance payment, the invoice shall nevertheless be issued and due.
4. If the buyer is in default of payment, the statutory rules concerning the consequences of default of payment shall apply. We reserve the right to claim specific damages for default.
5. The buyer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by INTERMACHINERY. Furthermore, the buyer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
6. If INTERMACHINERY is obliged to make advance performance and if, after conclusion of the contract, INTERMACHINERY’s claim for payment is significantly jeopardised due to a substantial deterioration in the financial circumstances of the buyer, INTERMACHINERY shall be entitled to demand advance payment or security within a reasonable period of time and to refuse performance until the demand has been met. In case of refusal by the buyer or fruitless expiry of the deadline INTERMACHINERY shall be entitled to withdraw from the contract. INTERMACHINERY may also prohibit the resale of goods delivered under retention of title.
V. Transfer of risk. Acceptance
1. The risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon commencement of loading or dispatch of the delivery item to the buyer or upon handover to a forwarding agent, carrier or shipping agent, at the latest upon leaving the factory/warehouse. This shall also apply if INTERMACHINERY has assumed other services, e.g. the shipping costs or delivery and installation and/or commissioning.
2. In so far as the delivery item has to be accepted, the acceptance shall be decisive for the transfer of risk. Acceptance must be carried out immediately on the acceptance date, alternatively after the supplier’s notification of readiness for acceptance, and may not be refused by the buyer due to the mere existence of an insignificant defect.
3. If the goods are ready for dispatch and the dispatch is delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer upon receipt of the notification of readiness for dispatch. The same shall apply accordingly in the event of a delay in acceptance and notification of readiness for acceptance.
4. INTERMACHINERY shall only be obliged to take out transport insurance upon the express request of the buyer. The costs shall be borne by the buyer.
VI. Notice of defects, warranty
1. Claims for defects of the buyer presuppose that he has duly complied with his obligations to examine the goods and to give notice of defects according to § 377 HGB (German Commercial Code). The obligation to inspect and give notice of defects also extends to the assembly instructions. INTERMACHINERY shall be notified of any complaints in writing without delay and the defective parts concerned shall be returned to INTERMACHINERY at its request. INTERMACHINERY shall bear the transport costs for this if the notice of defects is justified. If the buyer does not comply with these obligations or if he makes changes to the goods complained about without INTERMACHINERY’s consent, he shall lose any claims for material defects.
2. The seller shall be notified immediately of any transport damage. The buyer shall arrange the necessary formalities with the carrier.
3. INTERMACHINERY’s warranty shall be excluded in case of sale of used products, unless otherwise provided for below. Used machines shall be delivered by INTERMACHINERY with the accessories still present in the condition in which they are at the time of conclusion of the contract. Any liability for obvious and hidden defects shall be excluded even if the machine has not been inspected by the buyer beforehand.
4. In so far as there is a defect in a new purchased item, INTERMACHINERY shall be entitled at its discretion to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. The buyer shall always give INTERMACHINERY the opportunity to convince itself of the defect and the possibility of subsequent performance within a reasonable period of time. In the event of removal of the defect or replacement delivery INTERMACHINERY shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs up to the amount of the purchase price. If the supplementary performance fails, the buyer shall be entitled to demand rescission or reduction at his discretion. If the defect represents an insignificant breach of duty, the buyer shall neither be entitled to withdraw from the contract nor to claim damages instead of the entire performance.
5. INTERMACHINERY shall be liable in accordance with the statutory provisions insofar as the buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of INTERMACHINERY’s representatives or vicarious agents. Insofar as INTERMACHINERY is not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
6. INTERMACHINERY shall be liable in accordance with the statutory provisions insofar as it culpably breaches an essential contractual obligation; also in this case the liability for damages shall be limited to the foreseeable, typically occurring damage.
7. Insofar as the buyer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, INTERMACHINERY’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
8. Liability for culpable injury to life, body or health shall remain unaffected. This shall also apply to the mandatory liability under the Product Liability Act.
9. Unless otherwise provided for above, liability is excluded. In particular, liability for defects – due to corrosion or normal wear and tear – is also excluded. The warranty does not extend in particular to the wear and tear of wearing parts. Wearing parts are all rotating parts, drive parts and tools. When selling a machine, these warranty regulations are based on use in one-shift operation. INTERMACHINERY shall not be liable for damage caused by external influence, improper handling/installation/use, faulty assembly/commissioning, unprofessional maintenance, overloading by the buyer or his customers.
10. Only in urgent cases of danger to operational safety or to prevent disproportionately great damage, in which case INTERMACHINERY shall be notified without delay, shall the buyer have the right to remedy a defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from INTERMACHINERY. Irrespective of the existence of a defect, the warranty claims shall also expire if the buyer or a third party carries out alteration or repair work without the approval of INTERMACHINERY.
11. Unless otherwise agreed, the warranty period shall be 12 months after delivery of the goods delivered by INTERMACHINERY to the buyer. If the shipment is delayed through no fault of INTERMACHINERY, the liability shall expire at the latest 18 months after readiness for shipment. The statutory warranty periods shall remain unaffected in the following cases: Damages resulting from injury to life, body or health, damages based on an intentional or grossly negligent breach of duty by INTERMACHINERY, its legal representatives or vicarious agents. The limitation period shall also remain unaffected in the event of a delivery recourse according to §§ 478, 479 BGB (German Civil Code); it shall be five years, calculated from the delivery of the defective item.
VII. Other liability
1. Any further liability for damages than provided for in III. and in VI. is excluded. This shall apply in particular to claims for damages based on culpa in contrahendo, other breaches of duty or claims in tort for compensation for damage to property pursuant to § 823 BGB.
2. Insofar as INTERMACHINERY’s liability is excluded or limited, this shall also apply to the personal liability of INTERMACHINERY’s employees, representatives and vicarious agents.
3. The statutory provisions on the burden of proof shall remain unaffected.
VIII. Retention of title. Securities
1. INTERMACHINERY shall retain title to the delivery item until receipt of all payments from the business relationship with the buyer. In the event of conduct of the buyer in breach of the contract, in particular in the event of default in payment, as well as in the event of an application for the opening of insolvency proceedings, INTERMACHINERY shall be entitled to take back the delivery item after issuing a reminder and the buyer shall be obliged to surrender the delivery item. The taking back of the object of sale by INTERMACHINERY shall constitute a withdrawal from the contract.
2. The buyer shall be obliged to treat the object of sale with care; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft. If he does not prove to INTERMACHINERY that he has taken out such insurance, INTERMACHINERY shall be entitled to take out such insurance itself at the Buyer’s expense. Insofar as maintenance and inspection work is required, the buyer must carry this out in good time at his own expense.
3. In the event of seizure or other interventions by third parties, the buyer shall immediately notify INTERMACHINERY in writing so that INTERMACHINERY can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure).
4. The processing or transformation of reserved goods shall always be carried out by the buyer for INTERMACHINERY. If the object subject to retention of title is processed with other objects not belonging to INTERMACHINERY, INTERMACHINERY shall acquire co-ownership of the new object in the ratio of the value of the object of purchase (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
5. If the object of sale is inseparably mixed with other objects not belonging to INTERMACHINERY, INTERMACHINERY shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the buyer’s item is to be regarded as the main item, it shall be deemed agreed that the buyer transfers co-ownership to INTERMACHINERY on a pro rata basis. The buyer shall keep the sole ownership or co-ownership thus created for INTERMACHINERY. If the object of sale is combined with other movable objects to form a uniform object and if the other object is to be regarded as the main object, it shall be deemed to be agreed that the buyer shall transfer co-ownership to INTERMACHINERY on a pro rata basis insofar as the main object belongs to him. For the rest, the same shall apply to the object created by the processing, transformation or combination as well as mixing as to the goods subject to retention of title.
6. INTERMACHINERY shall be entitled to demand appropriate securities for the proper fulfilment of the Buyer’s obligations.
IX. Obligation to fulfil. Impossibility
1. INTERMACHINERY’s obligation to deliver shall be subject to proper, complete and timely self-supply. In case of incorrect or untimely delivery by suppliers as well as previous owners of the goods INTERMACHINERY shall not be liable for impossibility of delivery or for delays in delivery for which INTERMACHINERY is not responsible. Insofar as such incorrect or untimely delivery makes delivery and performance considerably more difficult or impossible for INTERMACHINERY and the impediment is not only of temporary duration, INTERMACHINERY shall be entitled to withdraw from the contract. If the impediment is only of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the impediment plus a reasonable start-up period. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to INTERMACHINERY.
2. If the entire performance becomes impossible for INTERMACHINERY before the passing of risk, the buyer may withdraw from the contract. In the event of partial impossibility, the above provision shall only apply to the corresponding part. In this case, however, the buyer may withdraw from the entire contract if he can prove a justified interest in refusing the partial delivery.
3. If the impossibility occurs during the Buyer’s default of acceptance or if the Buyer is solely or predominantly responsible for the circumstance on the basis of which INTERMACHINERY does not have to perform, the Buyer shall remain obliged to perform.
X. Place of performance, place of jurisdiction, applicable law
1. Unless otherwise agreed by contract, the place of performance for payment and delivery of goods shall be INTERMACHINERY’s place of business.
2. The exclusive place of jurisdiction for all disputes shall be the registered office of INTERMACHINERY.
3. These terms and conditions of sale and delivery as well as the legal relations between INTERMACHINERY and the buyer resulting from this contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
XI. Legal validity, data protection
1. Should one of the provisions of these General Terms and Conditions of Sale and Delivery be or become invalid, this shall not affect the validity of the remainder of the contract. The statutory provision shall apply in its place. In no case shall the relevant provision in these General Terms and Conditions of Sale and Delivery be replaced by the Buyer’s terms and conditions.
2. Legally relevant declarations of intent such as notices of termination, declarations of withdrawal, demands for a reduction in the purchase price or for damages shall only be effective if they are made in writing.
3. INTERMACHINERY shall be entitled to process and store the data about the buyer received in connection with the business relationship, even if they originate from third parties, within the meaning of the Federal Data Protection Act and to have them processed and stored by third parties commissioned by INTERMACHINERY.