General terms for the delivery of machines
For use with:
1. a person who, at the completion of the contract, is acting within their commercial, or independent, professional scope of activities (contractor);
2. legal entities of public law or of special funds under public law.
I. General
1. Offer:
The documents pertaining to the offer, such as illustrations, designs and details of size and weight are only approximations, unless they are not expressly designated as being binding.
2. These terms and conditions and any separate contractual agreements form the basis for all deliveries and services. Any differing conditions of purchase for the purchaser shall not be included in the contractual terms, even if the order is confirmed. In the absence of any separate agreements, a contract shall enter into force when the supplier gives written confirmation of the order.
3. The supplier reserves all ownership rights and the copyright to models, cost estimates, designs, etc., and both tangible and intangible information, including in electronic forms; these cannot be disclosed to third parties. The supplier shall undertake to disclose information and documents marked as confidential by the purchaser to third parties only with the permission of the purchaser.
II. Price and payment
1. Unless separate agreements are made, prices shall be ex works, including loading in the factory; however, this excludes packaging and unloading. Value added tax at the relevant legal rate shall be added to the prices.
2. In the absence of separate agreements, payment shall be made to the supplier in advance without any deductions. This shall amount to: a 30% down payment following receipt of the order confirmation, 60% as soon as the purchaser is informed that the main parts are ready for shipping and the remaining sum within one month following the transfer of risk.
3. The purchaser shall have the right to withhold payments or to offset them with counter-claims only insofar as their counter-claims are declared to be uncontested or legally binding.
III. Delivery time, delays in delivery
1. The delivery time shall be stipulated in the agreements made by the contractual parties. The supplier's compliance with these shall be conditional upon all commercial and technical questions being resolved between the contractual parties and the purchaser also fulfilling all obligations to which they are subject, such as supplying the necessary official licences or authorisations or making a down payment. If this does not occur, the delivery time shall be extended accordingly. This shall not apply if the delay is attributable to the supplier.
2. Compliance with the period of delivery shall be based on the condition that we ourselves receive the items correctly and on time. If delays are likely, the supplier shall inform the purchaser as soon as possible.
3. The period for delivery shall be regarded as adhered to if the item for delivery has left the supplier's factory before the period elapses or the item is declared ready for shipping prior to this point. In cases where approval is required, unless the item is rejected on justifiable grounds, the date of approval shall be binding or alternatively, the date on which the purchaser is notified that the item is ready for approval shall be binding.
4. If the shipping or approval of the item for delivery is delayed for reasons attributable to the purchaser, this purchaser shall be invoiced for costs arising because of the delay beginning one month after notification is sent that the item is ready for shipping/approval.
5. If non-compliance with the delivery time is caused by force majeure, industrial disputes or other occurrences beyond the scope of the supplier's influence, the time of delivery shall be extended accordingly. The supplier shall inform the purchaser as soon as possible about the beginning and end of such circumstances.
6. The purchaser may withdraw from the contract without a notice period if the supplier is made permanently unable to provide all services as a result of a transfer of risks. Furthermore, the purchaser may withdraw from the contract if completing part of the delivery becomes impossible for a particular order and the purchaser has a legitimate interest in rejecting partial delivery. If this is not the case, the purchaser must pay the contract price apportioned to the partial delivery. This also applies to failures of the supplier. Section VII.2. shall also apply. If the inability or failure occurs during the delay in acceptance or if the purchaser is solely or predominantly responsible for these circumstances, the obligation to make payments shall remain.
7. If the supplier falls behind and damage arises for the purchaser as a result, the purchaser shall be entitled to demand a flat-rate compensation fee for delays. This shall amount to 0.5% for each full week's delay – starting one month after the date of delivery specified in the order confirmation – but shall not exceed a total of 5% of the value for that part of the full delivery that cannot be used on time or according to the contract, as a result of this delay.
Further claims for delivery delays are identified only in accordance with Section VII.2. of these terms and conditions.
IV. Transfer of risks, approval
1. Risks shall be transferred to the purchaser when the item for delivery has left the factory and also when partial deliveries are made or the supplier has assumed other services, e.g. shipping costs or delivery and assembly. If approval is required, this shall be binding for the transfer of risks. This must be completed immediately on the date of approval or alternatively following the notification from the supplier that the item is ready for approval. The purchaser may not refuse to grant approval in the event of one insignificant fault.
2. If the shipping and/or approval is delayed or stopped due to circumstances that cannot be attributed to the supplier, the risk shall be transferred to the purchaser from the day on which the purchaser was informed that the item was ready for shipping/approval. The supplier is required to take out the insurance demanded by the purchaser, at the purchaser's expense.
3. Partial deliveries are permitted as long as this is acceptable for the purchaser.
V. Retention of ownership
1. We shall retain the ownership and right of disposal to the items for delivery until all payments stipulated in the supply contract and previously concluded contracts are completed. This includes bills of exchange and cheques, as well as amounts receivable from ongoing billing or current accounts. If our liability for a bill is established in connection with the payment, retention of ownership shall not expire until our claim is excluded from the bill of exchange.
2. Before our aforementioned claims are fully settled, the purchaser may continue to use the products delivered within the scope of proper business operations, unless an assignment prohibition has been or will be negotiated with third parties for claims transferred to us in advance. Prior to this, pledging or chattel mortgaging is also prohibited and resellers are permitted to resell the items in normal business operations only on the condition that the reseller receives payment from the customer and transfers this to us immediately. Any costs from interventions shall be borne by the purchaser.
3. In case of seizure, confiscation or other injunctions,
as well as third-party interventions, the purchaser must inform us immediately.
4. In the event of counter-contractual conduct on the purchaser's part, particularly delayed payments, we are entitled to recall the item following a warning and the purchaser is obligated to return it. Otto Mayer Maschinenfabrik GmbH, Fischbachstrasse 7, D-72290 Lombach, Lossburg, Germany. As at: January 2009. Page 2 of 3.
5. The assertion of the retention of ownership and the seizure of the delivery item by us shall not constitute withdrawal from the contract.
6. The purchaser shall transfer to us all claims amounting to the proportional sum of our invoice, including value added tax, with all supplementary rights that arise from resale to customers or third parties. This shall also apply in the event that the purchaser places the purchase price claim, to which they are entitled as a result of resale, in a current account agreed with a customer or third party. We shall accept this transfer.
7. In case of a connection with a plot of land or moving objects belonging to third parties, as well as handling or processing within the scope of a service contract, the purchaser shall transfer to us the labour cost claims and/or the resulting co-ownership share amounting to our proportional invoice total, including value added tax for the processed goods subject to retention. We shall accept this transfer.
8. The purchaser is hereby authorised to personally incorporate the preceding transferred claims within the scope of normal business operations, as long as the sums received are transferred to us immediately. In case of delayed payment, an application for legal or extra-judicial bankruptcy proceedings or a cheque or bill protest, this authorisation shall expire until entry of the claim transferred.
9. If the feasible value of the securities present for us exceeds our secured demands by more than 10%, solely because of this provision for the retention of ownership, or alongside other securities, then we shall be obligated to release securities of our choosing, should the purchaser demand this.
10. We have the right to insure the item for delivery against theft, fire, water and other damages, at the purchaser's expense, if the purchaser cannot prove that they have already taken out their own insurance.
11. The request to initiate bankruptcy proceedings shall entitle us to withdraw from the contract and to demand immediate return of the delivery item.
VI. Warranty claims
The supplier shall provide a guarantee for material and legal defects in the delivery, to the exclusion of further claims – subject to Section VII – as follows:
Material defects
1. All parts that prove to be defective as a result of circumstances prior to the transfer of risks shall be repaired or replaced by an equivalent without defects, free of charge and depending on the supplier's choice. If such defects are identified, the supplier should be notified immediately in writing. Replaced parts shall become the property of the supplier.
2. In order to carry out all repairs and replacement deliveries deemed necessary by the supplier, the purchaser must allow the necessary time and give ample opportunity on agreement with the supplier; otherwise, the supplier shall be released from liability for consequences resulting from this. The purchaser shall have the right to rectify the defect personally or have it rectified by a third party and to then demand compensation for the necessary expenses from the supplier only in urgent cases of risk to operational safety and/or in order to avoid disproportionately large damages where the supplier must be informed immediately.
3. Insofar as the objection proves to be legitimate, the supplier shall bear the costs of the replacement part, including postage, that arise directly from repair or replacement costs. The supplier shall also bear the costs of removal and installation, as well as the costs of the necessary provision of required technicians and assistants, including travel costs, as long as this does not cause a disproportionate expense for the supplier.
4. Within the scope of legal provisions, the purchaser has the right to withdraw from the contract if the supplier – taking into account legal exceptions – allows an appropriate deadline placed on them for repairing or replacing material defect to pass without completing these tasks. If there is only one minor defect, the purchaser only has a right to a reduction in the contractual price. Otherwise, the right to reduce the contractual price is excluded.
Further claims shall be identified in accordance with section VII.2. of these terms and conditions.
5. Unless caused by the supplier, there shall be no liability assumed, particularly in the following cases: inappropriate or improper use, incorrect installation and/or start-up by the purchaser or third parties, natural wear, incorrect or negligent handling, lack of proper maintenance, unsuitable operating equipment, inadequate construction works, unsuitable foundations, chemical, electrochemical or electrical factors.
6. If the purchaser or a third party performs improper repair work, the supplier shall bear no liability for the consequences of this. This also applies to modifications made to the item delivered without the supplier's prior consent.
Legal defects
7. If the use of the item delivered violates industrial property rights or copyright laws within the country, the supplier shall provide the purchaser with the right to continue using it at the supplier's cost or shall modify the item delivered in such a way that is acceptable to the purchaser and that removes the property right violation.
If this is not possible in economically appropriate conditions or within an appropriate time frame, the purchaser shall be entitled to withdraw from the contract. The supplier shall also have a right to withdraw from the contract based on the conditions stipulated.
Moreover, the supplier shall release the purchaser from uncontested or legally binding claims made by the owner of the industrial property rights in question.
8. The supplier's obligations listed in Section VI.7. are final, subject to Section VII.2. for the case of intellectual property right or copyright violations.
These violations exist only if:
• the purchaser informs the supplier immediately of intellectual property right or copyright violations that have been asserted,
• the purchaser supports the supplier in defending against the claims asserted to an appropriate extent and/or enables the supplier to implement modification measures in accordance with Section VI.7.,
• the supplier reserves the right to take all defensive actions, including extra-judicial regulations,
• the legal defect is not based on an instruction given by the purchaser, and
• the legal violation was not caused by the purchaser modifying the item delivered without authorisation or using the item in a counter-contractual manner.
VII. Liability
1. If the purchaser cannot use the item for delivery in accordance with the contract because of faults caused by the supplier as a result of incomplete or deficient implementation of proposals or advice given before or after the contract was concluded, or because of the violation of other ancillary contractual obligations – particularly instructions for the operation and maintenance of the item for delivery – then the regulations of Sections VI. and VII.2. shall apply accordingly to the exclusion of other purchaser claims.
2. The supplier shall only be liable for damages that do not occur to the item for delivery itself – for whatever legal reasons – if the damage involves one or more of the following:
a. wilful intent,
b. gross negligence of the owner/institutions or management employee,
c. culpable injury to life, body or health,
d. defects that the supplier knowingly concealed or provided a guarantee against the absence of,
e. defects in the item for delivery if the Product Liability Act stipulates that liability for damages to persons and things must be assumed for privately used items.
In the case of a culpable violation of significant contractual obligations, the supplier shall also be liable in the event of gross negligence by non-management employees and slight negligence, restricted to the ordinary contractual and reasonably foreseeable damage for the latter case.
Further claims are excluded.
VIII. Limitation period
All claims by the purchaser – on whatever legal grounds – shall expire after 12 months. For compensation claims in accordance with Section VII.2. a-e, the legal time scales shall apply. These also apply to defects in a construction or for items delivered that were used in accordance with their usual manner of use for a construction and thereby caused the construction's defectiveness.
IX. Use of software
If software is included in the scope of delivery, the purchaser shall be granted a non-exclusive right to use the software and its documents. This shall be transferred for use on the item for which it was intended. Use of this software on more than one system is prohibited.
The purchaser may replicate, revise or translate the software or convert it from the object code to the source code only within the legally permitted scope (Articles 69 a.ff. of the Copyright Act (UrhG)). The purchaser has an obligation to not remove manufacturer specifications – particularly copyright notices – and to not change these specifications without express prior consent from the supplier.
The supplier and/or the software provider shall retain all other rights to the software and the documents, including copies. Granting sublicences is not permitted.
X. Applicable law, court of jurisdiction
1. For all legal relationships between the supplier and the purchaser, the applicable law shall be the law of the Federal Republic of Germany, which is definitive for the legal relationships between domestic parties.
2. The court of jurisdiction is the court with authority over the supplier's main office. However, the supplier is entitled to file a complaint at the purchaser's main office.
