General terms and conditions [AGB]
General terms and conditions
of the Company Eckhard Mauch GmbH
Mühlacker, version date: 07/2012
1.1 The following General Terms and Conditions for sales and deliveries are exclusively valid for all deliveries, services and offers provided by the Contractor and shall remain valid for all subsequent business until the announcement of new general terms and conditions. Deviating contractual and purchasing conditions shall also without our exclusive objection and even in the case of an effected delivery by us not become valid part and portion of the Contract.
1.2 Basic and estimated offers, drawings, calculations, specifications, performance details, dimensions and weights shall without an explicit written agreement not be binding for the Customer. All and any agreement made with our sales staff and / or other employees as well as any deviations from these General Terms and Conditions, amendments, additional collateral agreements and confirmations shall be effective subject to the written confirmation by the Contractor.
2. Offers, prices and payments
2.1 Offers are always without engagement. The respective contract shall only become effective subject to the written confirmation of the order by the Contractor but not before the parties are in agreement on all business and technical issues and all possibly required authority or other permits have been issued.
2.2 The Contractor calculates the price valid on the date of the delivery. All prices are ex warehouse Mühlacker unless otherwise agreed in the order confirmation, to which packing and shipping costs are added. The Customer is obliged to pay the legal value added (sales) tax on the total at the rate in force on the date of the delivery.
2.3 Invoices are due for payment net 30 days after invoice date, unless otherwise agreed.
2.4 In case of payment delays by the Customer the Contractor shall be entitled to, notwithstanding the claim for further damages, charge interest amounting to 8 % over the respective base rate of the Deutsche Bundesbank [German Federal Reserve Bank]. Payment delays shall also entail that the total Contractor claims for payment shall be due immediately regardless of any previously agreed payment terms. The same applies in the case of a substantial deterioration of the Customer's financial situation and / or in case of a cessation of payments, especially due to over-indebtedness of the Customer and in any case of a filing for insolvency over the assets of the Customer and if any bill and cheque protests become known. In such cases the Contractor shall also be entitled to refuse further deliveries until all claimed payments, whether or not, have been completely satisfied or security has been provided for these.
2.5 Bills of exchange will only be acceptable on the basis of a special agreement. Bills of exchange and cheques are only accepted on account of performance.
2.6 The Customer can only offset undisputed or legally determined claims. The Customer's rights to retention and refusal of service are excluded.
3. Intellectual property and confidentiality
3.1 Drawings, calculations and all other documentation handed over to the Customer remaining the intellectual property of the Contractor and are copyright; these documents can be reclaimed if the respective order is not placed.
3.2 Without a specific written agreement by the Contractor the Customer is obliged to hold all documents and information received from the Contractor secret against any third party and not to use these nor allow them to be used for reproduction purposes. The Contractor is entitled to publish information on its services and performance without the explicit agreement by the Customer.
4. Provision of system components and samples
4.1 Samples will be provided to the Customer in time and in sufficient quantities free of charge. The provision of system components by the Customer shall be in time and at the Customer's risk and expense. The Contractor is in no way liable for the samples provided.
4.2 A delay in the provision of samples or system components can result in delivery deadline delays.
5. Delivery terms
5.1 Delivery dates and times are only binding if explicitly confirmed as such by the Contractor in writing. Delivery deadlines commence on the completion of the Contract but not before the receipt of the agreed deposit payments. If the Customer fails to meet the payment and letter of credit opening deadlines the Contractor shall be relieved of any delivery obligations for the duration of the delay. If the Contractor is at fault for delays in the delivery, default shall only be given after the lapse of an appropriate grace period. The delivery deadline shall be deemed as met if at the agreed date and time the delivery subject is ready for dispatch in the facilities of the Contractor or its subcontractors and suppliers.
5.2 All delivery dates are subject to the timely and correct supplies and deliveries by subcontractors and suppliers to the Contractor. The Contractor shall not be liable for any delays due to delayed or undone deliveries or performance for which subcontractors / suppliers are at fault.
5.3 The Contractor shall not be liable for delivery delays due to force majeure or unforeseeable circumstances, such as material procurement difficulties, operational disruptions, industrial action, authority directives and the like, including if these occur at the subcontractors and suppliers, even if the delivery deadlines have been agreed as binding. In these cases the delivery deadline is extended accordingly, the Contractor shall also be entitled to withdraw partially or completely from the Contract due to the incomplete delivery. Insofar the Customer's damage claims are excluded.
5.4 The Customer is obliged to accept early and partial deliveries.
6. Place of performance and risk transfer
6.1 Place of performance for all obligations in this Contract, especially deliveries and payments, is Mühlacker.
6.2 All risks are transferred to the Customer at the time of dispatch and as soon as the Contractor or a supplier authorized by the Contractor has handed over the goods to a shipping enterprise for delivery to the Customer. This also applies if the forwarding or shipping enterprise has been selected by the Contractor. The goods will always be insured at the Customer's expense unless explicitly and bilaterally instructed in writing otherwise by the Customer.
6.3 If due to missing instructions from the Customer, unavailability of transport or because of default on the Customer's part to satisfy contractual obligations it becomes necessary to put the delivery goods in storage, the Customer shall be liable for the risks and expenses arising from the appropriate storage of the goods at the transporting enterprise's, at the Contractor's or its subcontractors' and suppliers' facilities.
7.1 The Contractor warrants a flawless function of the system in single shift operation for a period of 12 months. If the Customer operates the machinery in more than one shift the warranty period is reduced accordingly (to 6 or 4 months). The warranty period shall commence on the date of commissioning at the Customer's site. If the commissioning is delayed for reasons for which the Contractor is not responsible the warranty period shall commence on the date of delivery to the Customer regardless of the actual commissioning of the goods. Prerequisite for any warranty are proper maintenance and care for the systems according to the guidelines in the operating instructions or to the instructions by Contractor staff respectively.
7.2 The Customer is obliged to inspect the delivered goods immediately upon receipt. Obvious defects must be reported to the Contractor no later than one week in writing. Other defects not discovered in the course of a thorough inspection during this time must be reported immediately in writing when discovered.
7.3 The warranty shall cover a free of charge delivery of all parts required for the rectification of defects arising from material of manufacturing faults. Depending on the extent of the defect found the Contractor will determine whether a rectification of the defect can be performed on site or whether the system needs to be returned to the Contractor. The Contractor is entitled to more than one rectification or delivery of replacements. If the rectification of defects or the delivery of replacements is not effected in the grace period set for the Contractor or if such action is refused by the Contractor, the Customer shall be entitled, at its discretion, to rescind the Contract or demand a reduction of the purchase price. The Contractor shall not be liable for damages incurred by the Customer due to production disruption or operational losses. The Contractor shall also not be liable for a certain performance of the delivered goods nor a specific quality of the goods manufactured, unless otherwise explicitly agreed and guaranteed in writing.
7.4 Any warranty is excluded if fault or defects or damages arise through or are caused by normal wear and tear, improper treatment, force majeure, intervention by third parties or storage under conditions not in compliance with the Contractor's instructions. This applies especially to faults caused by unsuitable additions or connected devices or by the improper installation of other devices in the system.
8.1 Any liability on the Contractor's part to the Customer for unpermitted actions and for breach of contract is excluded, except for the liability for the breach of essential contractual obligations. Inasmuch the Contractor is liable for damages arising from non-performance due to default or because of the impossibility of performance for which the Contractor is at fault said liability is limited to the value of the goods at the time of delivery and risk transfer, excluding indirect or consequential damages.
8.2 The above liability limitations are not applicable if the damages have been caused intentionally or gross negligence on the part of the Contractor, its managing employees or its agents and authorized representatives, for which the Contractor cannot be discharged in cases of tort liability according to § 831 (1) BGB [German Civil Code]. For damages caused by gross negligence on the part of the Contractor's agents the Contractor shall only be liable if such damages were foreseeable at the time of the conclusion of the Contract.
8.3 Any further liability claims are excluded.
8.4 The Contractor's liability for all cases, contractual or extra-contractual, is limited, unless otherwise specified by the Contract or these General Terms and Conditions, to the extent of our insurance cover.
9. Reservation of proprietary rights
9.1 All goods delivered shall remain the Contractor's property in main and secondary cause until the full payment of all demands including other, present and future claims arising from the business relationship with the Customer. This shall also apply if single or all claims have been to a current invoice, with a balance struck and accepted.
9.2 The Contractor shall be entitled to insure the delivery goods at the expense of the Customer against theft, breakage, fire, water and other damages, unless the Customer does not provide evidence of such an insurance policy in place.
9.3 Upon breach of essential contractual obligations, in particular payment defaults, the Contractor is entitled to repossess the goods, and the Customer is obliged to surrender the goods. Repossessing or seizure of goods constitutes a withdrawal by the Contractor only in those cases where this is explicitly declared in writing. If a third party attempts to take possession of the reserved goods the Customer is obliged to notify the Contractor immediately and to inform the third party on the Contractor's proprietary rights.
9.4 The Customer is entitled to further process the delivered goods according to the regulations below and to sell the processed goods in a proper business action. As far as the delivered goods have been reformed or further processed the Contractor shall be deemed as the manufacturer according § 950 BGB [German Civil Code] without any obligations and the Contractor shall obtain proprietary rights on the intermediate and finished products. The Customer is insofar obliged to provide storage free of charge. If the reserved property is joined or processed with other objects not in the property of the Contractor the Contractor shall obtain joint proprietary rights on the new product in the ratio of the reserved property value to the value of the other objects. The joint proprietary rights thus created shall be regarded as the reserved property.
9.5 The Customer herewith assigns to the Contractor at this time all claims and secondary rights arising from reselling against the purchaser or third parties, including as well insofar as the goods provided by the Contractor have been joined or processed with other objects. In this case the Customer's claims amounting to the invoiced amount of the reserved property shall be deemed as assigned. The Customer is entitled to the collection of this claim even after the assignment. This collection entitlement can only be revoked if the Customer does not meet its payment obligations properly. The entitlement of the Contractor to collect the claims directly remains unaffected. However, the Contractor is obliged not to collect the assigned claims as long as the Customer meets the payment obligations in favour of the Contractor. The Customer is obliged, however, to name the third party debtor on request and to present the assignment to these. The amounts collected by the Customer must be immediately remitted to the Contractor in case these claims are due.
9.6 The Contractor is obliged to release the assigned claims and / or the acquired proprietary and joint proprietary rights on processed goods at its discretion when so requested by the Customer if these exceed the claims to be secured by more than 25%. If a third party attempts to take possession of the claims assigned to the Contractor the Customer is obliged to notify the Contractor immediately.
10. Third party rights
10.1 The Contractor assures in good faith that there are no third party rights affecting the production, the sale and the use of the delivery goods for the purpose as agreed between the Parties.
11. Applicable law, jurisdiction, severability
11.1 For all legal relations between the Contractor and the Customer the laws of the Federal Republic of Germany except for § 305 (2) and (3), and §§ 307 to 309 BGB [German Civil Code] shall be applicable.
11.2 All disputes arising in connection with this Contract or regarding its validity will be decided according to the arbitration code of the Deutschen Institution für Schiedsgerichtsbarkeit e.V. (DIS) [German Institute for Arbitration Inc.] under exclusion of the recourse to ordinary courts of law.
- Venue for the arbitration proceedings is Mühlacker.
- One arbitrator will be appointed.
- The arbitration will be in the German language.
- The applicable material law is German law except for § 305 (2) and (3), and §§ 307 to 309 BGB [German Civil Code].
11.3 Otherwise Mühlacker is the place of jurisdiction for the respective court of law.
11.4 In case one or more of these directives and agreements are or will be ineffective in part or entirely this shall not affect the remaining directives and agreements. Invalid or ineffective passages are to be replaced by such that are most likely to legally reflect the economic sense and intention of the passage found ineffective or invalid.