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GTC
General Terms and Conditions of Sale and Delivery
- Applicable exclusively to entrepreneurs -

1. general

1.1 The following terms of delivery shall apply exclusively to all deliveries of the Supplier. These terms and conditions shall also be deemed to be agreed for all subsequent transactions, even if the Supplier does not expressly refer to them in the case of further contracts - in particular in the case of orders placed by telephone.

The acceptance of the goods delivered by the Supplier or the receipt of the service rendered by the Supplier shall in any case be deemed to be an acknowledgement of these Terms and Conditions of Delivery, unless the contractual partner immediately expresses otherwise to the Supplier.

Deviating agreements or supplements, in particular agreements made with our representatives, are only binding if they are confirmed in writing by the supplier.

Any conflicting terms and conditions of purchase of the Buyer shall not apply, even if they are not expressly rejected in writing.

1.2 The Incoterms 2010 shall apply to the interpretation of commercial clauses.

2 Offer

2.1 The documents, such as illustrations, drawings, weights and dimensions, etc., which are merely attached to the offer but are not part of the offer, are only approximate and do not constitute a statement of the quality of the goods unless they are expressly designated by the Supplier as binding. All offers are subject to change.

Cost estimates are generally non-binding.

2.2 The documents belonging to the offer with all attachments shall remain the property of the Supplier. They may not be made accessible to third parties without the express written consent of the Supplier and must be returned to the Supplier on request if a contract is not concluded. Deliberate infringement shall result in an obligation to pay damages.

3 Conclusion of contract

3.1 The contract shall be deemed to have been concluded when the Supplier confirms the order in writing after receipt of an order, if necessary within the period set by the Purchaser.

3.2 If the Supplier has set a time limit for acceptance by the Purchaser when making a written offer, the contract shall be deemed to have been concluded if the Purchaser has sent a written declaration of acceptance before the expiry of the time limit set for acceptance which is received by the Supplier within one week of the expiry of the time limit at the latest.

3.3 The Parties shall be obliged to provide all documents and other information within their respective responsibility which are necessary for the performance of the Parties' contractual obligations, in particular for the import or export or shipment of the Products.

4 Cancellation of an order

If, after conclusion of the contract, we exceptionally agree to the cancellation of a contract at the request of the customer, this shall only be done against payment of a lump sum for expenses. The cancellation by mutual agreement shall only be made as a gesture of goodwill; there shall be no entitlement to the cancellation of a contract by mutual agreement. The amount of the lump sum is calculated as follows according to the net order value and the time of cancellation: 15% up to 30 days, 25% up to 60 days, 50% up to 90 days and 75% up to 120 days, in each case after receipt of our order confirmation. Cancellation later than 120 days after receipt of order confirmation is not possible.

5. postponement of the delivery date

If, after conclusion of the contract, we exceptionally agree to the postponement of a delivery or part thereof at the request of the customer, this shall only be done as a gesture of goodwill and shall require a separate agreement. The agreed payment dates shall not be affected thereby. However, a postponement of the delivery of more than 14 days is generally excluded.

6. content of the delivery contract

All information provided by the Supplier on the products, in particular the illustrations, drawings, information on quality, quantity, weight, dimensions and performance as well as technical specifications contained in the offers and printed materials shall only be approximate values and shall not be deemed to be information on quality. The quality, suitability, qualification and function as well as the intended use of the Supplier's goods shall be determined exclusively in accordance with the Supplier's performance specifications and technical qualifications included in the contract. Insofar as no limits for permissible deviations are specified in the order confirmation and none result from expressly recognized customer specifications, deviations customary in the industry shall be permissible in any case. Public statements, recommendations or advertising by the Supplier or third parties do not constitute a statement of the quality of the goods.

7. prices

Unless otherwise agreed, prices are generally net ex works, including loading at the factory, but excluding packaging.

8. payment

8.1 Payments shall be made directly to the Supplier's paying agent, not to agents or third parties. Unless otherwise agreed, the following terms of payment shall apply:

a) for machine deliveries and accessories:

30 % net down payment upon receipt of the order confirmation

60 % net upon notification of readiness for shipment

10 % 30 days net after date of invoice

b) for the delivery of spare and wear parts, as well as for contract work:

Payment without deduction immediately upon receipt of the invoice.

8.2 The Buyer shall not be entitled to assert a right of retention or set-off against due counterclaims unless such counterclaims are undisputed, have been finally adjudicated or are ready for decision.

8.3 Bills of exchange and checks shall only be accepted on account of performance and shall not be deemed payment until they have been honored. The Supplier's claims shall become due immediately, irrespective of the term of bills of exchange accepted on account of performance, if contractual agreements are not complied with by the Buyer. In the event of default in payment, protest of a bill of exchange and suspension of payment by the Purchaser, the Supplier may demand immediate payment of the total claim - including any claims arising from bills of exchange in circulation - irrespective of the agreed due date. This shall also apply if the Supplier becomes aware of circumstances which give rise to justified and substantial doubts as to the solvency or creditworthiness of the Purchaser, even if these circumstances already existed at the time the goods were ordered but were not known or should not have been known to the Supplier. In all the above cases, the Supplier shall also be entitled to make outstanding deliveries only against advance payment or provision of security and, if the advance payment or security is not provided within two weeks of the Supplier's request for advance payment, to withdraw from the contract without setting a new deadline. Further claims shall remain unaffected. The obligation to make advance payment shall not apply in the event of an undisputed or legally established claim of the contracting party against the Supplier.

8.4 If the payment dates are exceeded, the Supplier shall charge default interest in the amount of 8 percentage points p.a. above the respective base interest rate of the Deutsche Bundesbank, unless a higher or lower damage is proven.

8.5 After a reasonable period of grace, the Supplier shall be entitled to withdraw from the contract and/or to claim damages instead of performance.

9 Delivery Period; Force Majeure

9.1 The delivery period shall commence on the date of the order confirmation, but not before the provision of the documents, approvals, releases to be obtained by the Purchaser and not before receipt of an agreed down payment.

9.2 The delivery period shall be deemed to have been complied with if the delivery item has left the works or notification of readiness for dispatch has been given by the time the delivery period expires.

9. 3 In the event of force majeure, such as measures in the context of labor disputes, in particular strikes and lockouts, war, operational disruptions, obstacles due to national or international law, in particular export control regulations, embargoes or comparable sanctions, as well as in the event of non-delivery, incorrect or late delivery by the Supplier's upstream suppliers, irrespective of the reason (reservation of self-supply), and other unforeseen obstacles to performance for which the Supplier is not responsible, the delivery period shall be extended appropriately by the period until the obstacle to performance has been eliminated and a reasonable start-up period thereafter. The Supplier shall notify the Purchaser of the occurrence of such impediment as soon as possible. If the impediment to performance is likely to be permanent, the Supplier shall be entitled to withdraw from the contract in whole or in part. If the Supplier intends to exercise the right of rescission, it shall notify the Purchaser thereof without undue delay after having realized the extent of the impediment to performance, even if an extension of the delivery period had initially been agreed with the Purchaser.

9.4 Compliance with the delivery period shall be conditional upon the fulfillment of the Buyer's contractual obligations. If delivery or assembly is delayed through the fault of the Purchaser, the costs incurred by the Supplier, the waiting time of the workforce and any allowances shall be reimbursed.

9.5 The Supplier shall, however, be entitled to rescind the contract and/or claim damages in lieu of performance after unsuccessful expiry of a deadline to be complied with due to the fault of the Purchaser and after setting and fruitless expiry of a reasonable deadline.

10 Transfer of risk

10.1 All sales are ex works of the Supplier. Shipment and transport shall always be at the risk of the Buyer. The risk shall pass to the Buyer, even in the case of partial delivery, as soon as the consignment has been handed over to the person carrying out the transport - irrespective of whether this is a person belonging to the Supplier's company or a third party, unless Clause 8.2 applies.

The risk shall also pass to the Purchaser as soon as the consignment has left the Supplier's warehouse for the purpose of shipment.

10.2 If the Buyer refuses to accept the goods or if the shipment of the delivery is delayed for other reasons for which the Buyer is responsible, the risk shall pass at the beginning of the Buyer's default in acceptance.

10.3 Insurance against damage in transit shall only be taken out at the order and expense of the Buyer, unless otherwise agreed in the individual case.

11 Retention of title

11.1 All goods delivered shall remain the property of the Supplier (goods subject to retention of title) until all its existing claims and claims arising after conclusion of the contract have been paid, in particular the claim balances shown in each case.

11.2 The Buyer hereby assigns to the Supplier, together with all ancillary rights, the claims arising from the resale of the Retained Goods, also within the scope of contracts for work and services or contracts for the delivery of movable goods to be manufactured or produced. They shall serve as security to the same extent as the reserved goods themselves. Assignment to third parties shall only be permissible with the prior written consent of the Supplier.

11.3 If the Purchaser sells the Retained Goods together with other goods not purchased from the Supplier, the assignment of the claim arising from the resale shall only apply to the amount of the invoice value of the Retained Goods at the time of delivery. In the event of the sale of goods in which the Supplier has co-ownership, the assignment of the claim shall apply in the amount of this co-ownership share.

11.4 The Purchaser may only sell the Retained Goods in the ordinary course of business on its normal terms and conditions and subject to the agreement of a retention of title to the extent drawn by the Supplier. The Buyer shall be entitled to collect the claims arising from the resale.

11.5 If the Purchaser fails to fulfill obligations under this contract or other contracts with the Supplier, or if circumstances become known which reduce its creditworthiness, the Purchaser shall, at the Supplier's request, inform the Supplier of the names of the third party debtors. In the event that the Purchaser fails to properly fulfill its contractual obligations to the Supplier, the Supplier shall be entitled to prohibit the Purchaser's authorization to resell as well as to process the Retained Goods and to combine and mix them with other goods and to revoke the authorization to collect.

11.6 Any treatment or processing of the Retained Goods shall be carried out for the Supplier as manufacturer within the meaning of § 950 of the German Civil Code (BGB) without any obligation on the part of the Supplier. In the event that the reserved goods are processed, combined or mixed by the Buyer with goods of other origin to form a new item or a mixed stock, the Supplier shall be entitled to co-ownership thereof in the ratio of the invoice value of the reserved goods at the time of delivery to the value of the other processed or mixed goods. If the goods subject to retention of title are combined or mixed with other items and if an item belonging to the Buyer is to be regarded as the main item within the meaning of § 947 of the German Civil Code (BGB), it is hereby agreed that a co-ownership share in the ratio of the invoice value of the goods subject to retention of title to the value of the main item shall pass to the Supplier and the Buyer shall keep the item in safe custody for the Supplier free of charge.

11.7 The Purchaser shall keep the Retained Goods in safe custody for the Supplier. Upon request, the Supplier shall be enabled at any time to take stock of the Retained Goods at the place of their respective storage and to adequately mark them. If the value of the existing securities exceeds the claims of the Supplier by more than 20% in total, the Supplier shall be obliged to retransfer securities to this extent at the request of the Purchaser.

12. drawings and drafts

12.1 Unless otherwise agreed, drawings of the products offered do not have to be approved by the Buyer.

12.2 Without the consent of the Supplier, the Purchaser shall not hand over, lend, show, sell or otherwise make available to any third party any drawings, photographs or specifications or reproductions thereof produced by the Supplier which would enable anyone other than the Supplier to produce similar equipment, software licenses or parts thereof.

13. software license

13.1 Upon full payment of the applicable software license fees as part of the price shown in the respective order and subject to the fulfillment of the contract including the provisions of the respective order by the Buyer, the Supplier grants the Buyer a limited, non-exclusive, non-transferable right of use (license) to use the Supplier's software and any third party software delivered under this agreement exclusively in the form of executable object code; the right of use is geographically limited to the country shown in the "Delivery Address" ("Licensed Software"). The granting of rights shall be made solely in accordance with the following terms and conditions of this Section 11 and in accordance with all supplements and additional user restrictions agreed between the parties.

13. 2. Supplier shall retain sole and exclusive ownership of all rights, title and other legal interests in and to the Licensed Software and derivative products of the Licensed Software, as well as copyrights and other intellectual and industrial property rights therein, limited only by the rights expressly granted to Buyer and by the rights granted to the owners or holders of third party software; neither a change of ownership nor a transfer of exclusive rights nor the granting of rights to sublicense are the subject of the granted right of use, corresponding legal positions have not been granted either expressly or implicitly.

13.3 This license is limited to the Buyer's use of the licensed software for the purpose of handling its own business operations - as defined in the order. The license is further limited to the specific product module or machine with which the licensed software was delivered.

13.4 Buyer shall not be entitled to use the Software for the purposes of third parties or to make it available to third parties without consent. To the extent that any impediments to operation (e.g. compatibility difficulties with third party software programs) arise with respect to the Software, the Purchaser shall first contact the Supplier to remedy such difficulties. The Purchaser shall only be entitled to engage third parties after an explicit and written refusal by the Supplier.

13.5 The Buyer undertakes not to copy, modify, edit or otherwise rework, duplicate, decompile, disassemble or otherwise reverse engineer the Licensed Software (and the associated manuals) in any form, either itself or through third parties, or to attempt to determine the underlying source code, unless the action is expressly permitted by law. The Purchaser also undertakes not to allow third parties to perform the aforementioned acts. The mandatory provisions in §§ 69d, 69e UrhG (German Copyright Act) shall remain unaffected, whereby the Buyer shall only be entitled to take decompilation measures if the Supplier does not provide the Buyer with the necessary information to establish interoperability upon the Buyer's request.

13.6 Buyer agrees not to sublicense the Licensed Software, sell, transfer, lease, rent, distribute or otherwise make Licensed Software available to third parties.

13.7 Insofar as a transfer of the Licensed Software is permissible by way of exception, a transfer of the rights to use the Software to third parties shall require the Supplier's consent. Consent shall not be withheld contrary to good faith; however, the Supplier shall be entitled to make its consent conditional upon (i) the Purchaser confirming in writing that it will not retain or delete any components of the Software or backup copies thereof, (ii) the Purchaser being obliged to notify the Supplier of the name and address of the transferee, and (iii) the transferee agreeing to be bound by the provisions of these Software License Terms.

13.8 The Purchaser shall permit the Supplier to inspect the facilities and systems to ensure compliance with this License at reasonable intervals, provided that such inspections are made during normal business hours and a prior appointment has been made between the parties.

13.9 The Supplier reserves the right to terminate the Limited License and the underlying Agreement without further obligation or liability to the Purchaser if

 

a) the Buyer materially breaches these General Conditions and fails to remedy such breach within thirty (30) days after written notice by the Supplier stating such breach,

b) the Buyer breaches Clause 11 or 12 and fails to remedy such breach within five (5) days after written notice of such breach by the Supplier; or

c) insolvency proceedings are instituted against the Buyer's assets or a petition to that effect is dismissed for lack of assets, a receiver is appointed in respect of any part of the Buyer's business or its assets are assigned to creditors.

13.10 The Purchaser undertakes to indemnify the Supplier against liability for all damages and claims or demands of third parties resulting from the unauthorized use or unlawful transfer of the Licensed Software.

14 Confidentiality of Protected Information

14.1 Buyer, its customers and end users (if any) shall not obtain any rights in or claims to patents, inventions, designs, discoveries, technical data, copyrights, trademarks, know-how, trade secrets or other intellectual and industrial property rights arising out of Supplier's performance or otherwise relating to the Product delivered or made available. The Supplier shall remain the sole owner of such rights.

14.2 Buyer acknowledges that Supplier has developed or otherwise obtained, often at great cost, certain proprietary information and techniques that are of great value to its business and for that reason are kept confidential by Supplier and have been disclosed to Buyer only in connection with the purchase of the Product subject to this Agreement.

14.3 Buyer agrees to keep all Proprietary Information confidential and not to copy, publish, summarize or disclose such information, directly or indirectly, to any third party without the prior written consent of Supplier.

14.4 Buyer agrees to take all necessary steps (including non-disclosure agreements with Buyer's employees and consultants, and the steps Buyer takes to protect its own Proprietary Information) to protect any Proprietary Information received from Supplier and to prevent its disclosure to and/or use by third parties. For purposes of this Section, "Proprietary Information" includes, but is not limited to,

a) information relating to the Supplier's secrets in connection with the integration of manufacturing processes;

b) information created by the Supplier relating to the functions, user interface, distribution, use or maintenance of the Product; and

c) information pursuant to Clauses 10 and 11 of these General Terms and Conditions.

14.5 Buyer acknowledges that Supplier shall be entitled to seek judicial assistance to protect, preserve, defend and enforce its rights in such proprietary information, in addition to any other available remedies.

15 No Assignments

Buyer shall not assign any rights or claims granted to it by Supplier.

16 Warranty

16.1 The Buyer shall carefully inspect the delivered goods for any material defects immediately upon arrival at the place of destination. If the Buyer discovers a defect, he shall notify the Supplier thereof in writing or by telex without delay, at the latest 8 days after receipt of the goods at the place of destination, giving a precise description of the defect. Otherwise, the delivery shall be deemed to have been accepted as free of defects. If the defect was not recognizable despite careful inspection of the goods at the time of delivery, it must be reported immediately after its discovery. Notices of defects shall always be addressed directly to the Supplier.

16.2 In the event of a justified and timely notice of defect, the Supplier shall, at its discretion, provide subsequent performance by repair or replacement.

16.3 If the repair or replacement delivery finally fails, the Buyer may demand a reduction of the purchase price or rescission of the contract.

16.4 If the Buyer remedies the defect itself, i.e. if the Buyer does not grant the Supplier the opportunity to remedy the defect, or if the Buyer otherwise carries out work on the software and thereby causes a defect in the goods, the assertion of rights based on defects shall be excluded.

16.5 If the Purchaser receives defective assembly instructions and has not yet assembled the subject matter of the contract, the Supplier shall only be obliged to deliver assembly instructions free of defects. This shall only apply if the defect in the assembly instructions prevents proper assembly.

16.6 The above provisions conclusively contain the warranty for the Supplier's goods. In particular, the Supplier shall be liable for all other claims for damages to which the Purchaser may be entitled due to or in connection with defects of the delivered goods, irrespective of the legal basis, exclusively in accordance with Clauses 14.7 - 14.9.

16.7 The Supplier shall only be liable for claims for damages due to culpable acts, irrespective of the legal grounds, including delay, defective delivery, breach of duties arising from a contractual relationship or of duties during contractual negotiations, tort, product liability (with the exception of liability under the Product Liability Act), in the event of intent or gross negligence. Liability for slight negligence is excluded, unless an obligation is violated, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). The term "cardinal obligation" in this respect abstractly describes such obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the contractual partner may regularly rely. In this case, the Supplier shall only be liable for the typical damage foreseeable at the time of conclusion of the contract. This limitation shall not apply to injuries suffered by the Buyer to life, body or health.

16.8 Any personal liability of the legal representatives, vicarious agents and employees of the Supplier for damage caused by them due to slight negligence shall be excluded.

16.9 Warranty claims of a customer shall become statute-barred within one year from delivery of the goods, insofar as the claim for subsequent performance, the right to withdraw from the contract or the right to reduce the purchase price is concerned. This shall not apply if the Supplier can be accused of fraudulent intent.

16.10 Agreements between the Purchaser and its customers which go beyond the statutory warranty claims shall not be for the Supplier's account.

17. compensation by the buyer

In the event of culpable non-performance of the contract by the Purchaser in breach of duty, the Supplier shall be entitled to claim an amount of 15% of the net invoice value as liquidated damages. The assertion of further damages remains unaffected. The Purchaser shall have the right to prove that the Supplier has not suffered any damage at all or that the damage is lower than the lump sum.

18 Commissioning

18.1 If the installation costs are included in the Supplier's price, the Purchaser shall in any case be responsible for the laying and connection of electricity lines to the machine, switching and light sources and water supply and drainage lines at its own expense. The same applies to the creation of the necessary structural conditions including a machine foundation. Accommodation and catering costs for fitters shall be borne by the purchaser. Unless expressly agreed otherwise, the prices offered shall only apply if the entire plant is ordered, uninterrupted assembly and subsequent commissioning. If delivery or assembly is delayed through the fault of the Buyer, the additional costs incurred by the Supplier as a result, the waiting time of the fitters and the fitter's release shall be remunerated separately by the Buyer in accordance with the applicable rates of the Supplier.

18.2 Work not included in the scope of the quotation shall be charged to the Purchaser in accordance with the wage and material portions actually incurred.

19 Place of performance, place of jurisdiction, applicable law

19.1 The Supplier's place of business (Rendsburg) shall be the place of performance for delivery and payment.

19.2 In the event of any direct or indirect disputes arising from the contractual relationship, legal action shall be brought before the court having jurisdiction over the Supplier's place of business. The Supplier shall also be entitled to bring an action at the Purchaser's place of business. Statutory provisions on exclusive jurisdiction shall remain unaffected.

19.3 The contract shall be governed exclusively by German law, excluding the conflict of laws rules. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) as well as other, also future, intergovernmental or international conventions, even after their adoption into German law, shall be excluded.

20. final provisions

20.1 Transactions with entrepreneurs shall be treated equally with transactions with legal entities under public law and special funds under public law.

20.2 Should any provision of this contract be or become invalid in whole or in part, the invalidity of such provision shall not affect the validity of all other provisions of this contract. The invalid provision shall be replaced by a legally valid provision which, from an economic point of view, comes as close as legally permissible to the regulatory purpose pursued by the invalid provision. The same shall apply to any loopholes in this contract.

Status July 2021