General terms and conditions of business and sale

Index of paragraphs:

§ 1 General
§ 2 Quotations, scope of services and contract conclusion
§ 3 Prices and terms and conditions of payment
§ 4 Offset and detention
§ 5 Delivery date
§ 6 Transfer of risk
§ 7 Reservation of ownership
§ 8 Warranty claims
§ 9 Liability

§ 1 General

(1) The followings terms and conditions of sale and delivery exclusively apply for all deliveries and other services; they only apply for entrepreneurs in the sense of § 310, clause 1 in connection with § 14 of the Civil Code.

(2) Deviating conditions of the buyer which are not expressly accepted by the seller are not binding; even if the seller does not expressly reject them.

(3) In the same way as conclusion and interpretation of legal transactions with the buyer; inclusion and interpretation of these terms and conditions of sale and delivery are regulated exclusively according to the legislation of the Federal Republic of German. The application of the uniform law for the conclusion of international purchase contracts for movable assets, of the uniform law for the international purchase of movable assets of the UN purchase law is excluded.

(4) The inefficiency of single provisions of this contract or parts of it does not affect the efficiency of the remaining provisions. As far as reasonable, the contract parties are obliged in good faith to replace the ineffective provision by an effective regulation similar in its economic success, as far as no other significant change of the contract contents results; the same applies if no provision is expressly stipulated for a fact requiring regulation.

(5) Place of fulfilment for all obligations resulting indirectly and directly from this contract relation, including payment duty, is the registered office of the seller.

(6) Place of jurisdiction is the place of court competent for the registered office of the seller, as far as the buyer is a businessman. The seller is also entitled to institute legal proceedings at a court competent for the registered office or an establishment of the buyer.

§ 2 Quotations, scope of services and contract conclusion

(1) Contract proposals of the seller are without engagement.

(2) For the scope of services to be rendered according to contract the order confirmation of the seller is exclusively relevant.

(3) The buyer reserves the right to changes of the design, the material choice, the specification and the type even after submission of an order confirmation, as far as these changes are neither inconsistent with the order confirmation nor with the specification of the buyer. Moreover, the buyer will agree to further proposals for modifications made by the seller as far as they are reasonable for the buyer.

(4) Partial deliveries are permitted.

(5) The documents being the basis of the quotation or the order confirmation, as figures, drawings, dimension and weight details, are normally to be understood only as approximate values, a far as they are not expressly identified as binding.

§ 3 Prices and terms and conditions of payment

(1) The prices are to be understood ex works, excluding packing and other dispatch and transport charges. The packing will be charged at cost price and only taken back if the seller is obliged to do so by virtue of imperative legal regulation.

(2) If more than 4 months have passed between contract conclusion and delivery and the seller is not responsible for this delay in delivery he is entitled to increase the price reasonably taking into consideration the accrued material costs, labour costs and other additional expenses which have to be borne by the seller. If the purchase price is increased by more than 40% the buyer is entitled to withdraw from contract.

(3) If the seller takes into account requests for changes made by the buyer the correspondingly accruing additional costs will be invoiced to the buyer.

(4) In case of culpable non-observance of the payment term, interests of 8% above the respectively valid base interest rate will be claimed under reservation of assertion of further claims.

§ 4 Offset and detention

Offset and detention are excluded, unless the claim for offset is indisputable or legally ascertained.

§ 5 Delivery date

A delivery date is specified to the best knowledge and is prolonged appropriately if the buyer delays or fails to carry out the necessary agreed cooperation actions on his part. The same applies in case of measures in the framework of industrial conflicts, especially strikes and lock-outs as well as with the occurrence of unforeseeable obstacles beyond the will of the seller, e.g. delays in delivery of a sub-supplier, traffic and operational disturbances, lack of material or energy, etc. Modifications of the delivered goods decided by the buyer also result in a reasonable prolongation of the delivery date.

§ 6 Transfer of risk

The risk is transferred to the buyer once the seller has made available the goods to the buyer and advises the buyer correspondingly.

§ 7 Reservation of ownership

(1) The seller reserves ownership of the delivered goods until complete payment. The reservation of ownership also applies until all also future and conditional accounts receivable from the business relation between buyer and seller are settled.

(2) The buyer is not entitled to chattel mortgage and pledging of the goods, however, to a further disposal of the goods under reservation within a regular transaction. He cedes the resulting claims against his business partners to the seller already now.

(3) If the goods are machined or processed by the buyer the reservation of ownership also applies to the entire new item. The buyer acquires a co-ownership according to the fractional amount corresponding to the proportion of the value of his goods and the goods delivered by the seller.

(4) If the value of all securities of the seller exceeds the actual claims effectively by more than 10 % the seller will release the securities at his option on request of the buyer.

(5) The seller is entitled to assert the rights of reservation of ownership without withdrawing from contract.

§ 8 Warranty claims

(1) If the purchase is a commercial transaction for both parties the buyer has to inspect goods directly on receipt, as far as this is opportune according to a regular transaction, and if a defect is detected he has to notify the seller immediately. If the buyer fails to do so the goods are considered to be approved unless it is a defect which was not identifiable on inspection. For the rest, §§ 377 ff. of the HGB (Commercial Code) apply.

(2) The warranty claims are limited to subsequent fulfilment. In case of failure of the subsequent fulfilment the buyer is entitled to demand reduction of remuneration or rescission of contract at his choice.

(3) Further claims of the buyer are excluded as far as they do not result from acceptance of guarantee. This rule does not apply in case of deliberate act, negligence or breach of material contractual obligations on part of the seller.

(4) The warranty claims will prescribe one year after delivery of the purchased item.

§ 9 Liability

Compensation claims of the buyer are excluded. This does not apply in case of deliberate act, negligence or breach of material contractual obligations on part of the seller or acceptance of guarantee.

Purchase conditions

I. General, scope of application

We exclusively place orders based on our General Purchase Conditions; we do not accept contrary or deviating purchase conditions of the supplier, unless we approved them in writing.

II. Quotation, contract conclusion

1. If the supplier does not accept an order placed by us within two weeks after receipt we are not bound to the quotation anymore.

2. Orders, contracts of any types or their amendments or supplements are only effective if they have been made in writing or by data transfer or on a data media readable by machine.

3. The execution of our order is considered as acceptance of our conditions.

III. Prices, invoices, payment, assignment of claims, offset, right of retention

1. The agreed prices are fixed prices and apply free consignee’s works, including packing and transport charges as well as transport insurance plus the respectively valid statutory value added tax, if not otherwise agreed in the contract.
As far as different agreements have been made in individual contracts, the regulations of the Incoterms in the respectively valid version and/or the rules for the uniform interpretation of the contract clauses of the International Chamber of Commerce, Paris apply for the determination of pricing terms.

2. The payment is made either with a discount of 3 % within 30 days after delivery/service and receipt of a proper invoice as well as the approval of the goods after inspection or after 90 days net.

3. The supplier is not entitled to offset with alleged claims against our companies without our previous approval except the claim has been found to be undisputed or legally valid.

4. The assertion of a retention right by the supplier due to not accepted counterclaims or counterclaims which are not legally ascertained is excluded as far as these claims are not based on the same contractual relationship.

5. Contractual claims against us based on or in connection with the order become time-barred after expiry of two years after the date of receipt of the delivery and the invoice.

IV. Dispatch, delivery, transfer of risk

1. All order references and order numbers always have to be repeated in the documents relating to our order (order confirmation, delivery note, freight documents, invoices, etc.).

2. Delivery notes and invoices are to be submitted in duplicate.

3. A clearance of the trucks takes place only from Monday to Thursday from 7.30 a.m. to 3.00 p.m., on Friday from 7.30 a.m. to 1.00 p.m. or as especially agreed.

4. We only accept higher costs and allowable expenses accruing due to a deviation from the normal dispatch process or from the type of dispatch we required (road, railway or similar) if they have been previously agreed in writing. This applies especially if the goods have to be dispatched by express due to missed deadline.

5. All consignments are to be cleared without freight costs or additional charges. Our respective dispatch regulations have to be observed exactly.

6. The dispatch is carried out at risk of the supplier. The risk of any impairment, including an accidental loss, remains with the supplier until handover at the requested delivery address and/or at the point of use.

7. The supplier is liable for the consequences of an incorrect B/L declaration. A dispatch note has to be submitted immediately on departure of any single consignment. If point of receipt, department, Battenfeld article number, order number, reference or details of issue are missing in the dispatch documents all accruing costs are to be borne by the supplier.

8. We only accept partial deliveries after previous written approval. If partial consignments have been agreed the remaining quantity has to be executed.

9. If delivery is carried out earlier than agreed we reserve the right to send the goods back to the account of the supplier. If the goods are not sent back in case of an early delivery we will store them on account and at risk of the supplier. The payment of the invoice will be executed in due time referring to the agreed date.

V. Delivery dates, delays in delivery, penalties, acceptance of the goods, rescission

1. The dates agreed are binding. The receipt of the goods in perfect quality at the delivery address we indicated and/or at the point of use and/or the timeliness of the successful acceptance are decisive for the observance of the delivery date or the delivery time.

2. If the supplier realises that the agreed dates cannot be observed for any reasons he has to inform us immediately in writing indicating the reasons and the duration of the delay.

3. In case of a delay in delivery we are entitled to claim a penalty of 0.1% of the value of the goods to be delivered per working day delay, however, maximum 5 % of the value of the goods to be delivered.
We have the right to declare reservation of the penalty to the supplier still within 10 working days from receipt of the delayed delivery.

VI. Environmental protection and accident prevention regulations

The supplier is obliged to take all necessary precautions for the environmental protection and the industrial safety and to consider all regulatory and legal requirements. We are entitled to demand a certificate of the competent professional association from which the observance of all regulations for the prevention of accidents results.

VII. Specification, guarantee, liability

1. The supplier guarantees that at the moment of delivery all objects he delivered and services he rendered correspond to the latest state-of-art, to the relevant legal provisions and regulations and to the guidelines of authorities, professional associations and trade associations. If deviations from these regulations are necessary in certain individual cases the supplier has to ask for our written approval. The obligation of warranty and/or guarantee of the supplier is not affected by this approval.

2. We have principally the right to choose the type of additional fulfilment, even in case of a contract for services. § 439 BGB (German civil code) applies correspondingly.

3. We have the right to remove a defect and demand the compensation of the necessary expenses in case of a defect at the product delivered or of the performed service after unsuccessful expiry of an appropriate time we determined for the additional fulfilment if the supplier does not refuse the additional fulfilment rightfully. In this regard the legal regulation for self-execution in case of service contracts (§ 637 BGB) applies correspondingly for the purchase contract. Without prejudice of the legal regulation, we have the right to remove the defect ourselves to the account of the supplier in urgent cases, and especially to hold off an acute risk of significant damages even without fixing a period for additional fulfilment.

4. If we had to take back the good delivered or the service rendered by the supplier, if we had to accept a reduction of the purchase price and/or of the remuneration or if our customer claims indemnity or reimbursement of expenses as consequence to a deficiency of the goods delivered and/or the service rendered by the supplier, an appointment of a date - otherwise necessary - is not required for our guarantee claims against the supplier (§§ 437, 634 BGB) due to the claim ascertained by the customer against us.

5. We are entitled to claim compensation of the expenses from the supplier which we have to pay to our customer regarding additional fulfilment (especially the accrued transport, road, working and material costs) if the defect claimed by our customer had already existed on transfer of risk to us.

6. The guarantee period amounts to 24 months, as far as not otherwise expressly agreed. It starts on handing-over of the delivered item to us or to the third party we named at the place of receipt and/or use designated by us. As far as an acceptance has to be carried out according to law or contract, the guarantee period starts with a successful acceptance. If the acceptance of the delivered item is delayed without fault of the supplier the guarantee period starts 12 months after provision of the delivered item for acceptance at the latest.

7. If a defect occurs within the first 12 months of the guarantee period it is assumed that this defect already existed at the moment of transfer of risk, except this assumption is inconsistent with the type of matter or of defect.

8. All above-mentioned warranty claims and legal guarantee claims become time-barred 24 months after raising the warranty claim within the guarantee period as far as legislation or contract do not provide a longer period. However, the period of limitation does not end before end of the guarantee period. The limitation of the above-mentioned warranty claims and legal guarantee claims applies two months after the moment at which we have met possible recourse claims of our customer based on this defect at the earliest. This inhibition of expiry ends five years after the supplier has delivered the item to us and/or we have accepted the service at the latest.

9. If the supplier meets his obligation of additional fulfilment by removal of the defect the period of limitation for this service newly starts after acceptance of the works for the removal of the defect. If the supplier meets his obligation of additional fulfilment by replacement the period of limitation newly starts for the product / service delivered as replacement after its handing-over/acceptance.

10. In case of defects of title the supplier indemnifies us from possibly existing claims of third parties. The period of limitation for defects of title amounts to three years. This period of limitation starts with the end of the year in which the claim occurred and in which we learned about the circumstances of the claim and about the person of defaulter or in which this should have taken place without culpable negligence, irrespective of the knowledge or the grossly negligent lack of knowledge within ten years from appearance.

11. If the supplier has concerns regarding the type of execution which we desire or if he detects errors in our documents or drawings he is obliged to inform us immediately in writing.

12. The inspection of the goods for possible deviations in quality and quantity is carried out in due time if it takes place within 10 working days after handing-over; the notice of defect is made in time if the supplier receives it within 10 working days after detection.

13. By acknowledgement of the receipt of the delivered items and by acceptance or approval of the presented drawings we do not waive any warranty claims or other rights.

14. The notional acceptance regulated in § 640 clause 1 sentence 3 is excluded.

15. The acceptance by completion certificate according to § 641a BGB is excluded.

VII. Documents for order, items

1. If the supplier produces tools, moulds, models, printing plates, etc. according to our specifications and/or design documents the documents and samples which we made available have to be returned to us after completion of the order within 10 workings without request.

2. The supplier expressly undertakes not to leave the documents, samples and items made available to him to a third person neither for reference nor for disposal without our written consent and not to hand over to a third person the items produced on this basis without our approval.

3. The tools, moulds or equipment become our property with full payment. The transfer of the tools to us is replaced by the duty of retention of the supplier and the surrender of the tools to the supplier on loan basis to execute our orders.

4. The supplier is liable for any prejudice caused by loss, damage or improper use of the tools, moulds and/or equipment. The supplier also bears the risk of loss.

IX. Product liability, release

1. If claims are made on us due to regulatory safety regulations violated by the supplier or due to domestic or foreign product liability regulations regarding the defectiveness of our product which is traced back to a product of the supplier we are entitled to demand compensation of the damage from the supplier, as far as he is involved due to his products. The same applies for actions against us on the basis of the product safety law.

2. The supplier is obliged to release us from compensation claims of third persons on first request within the scope of his product responsibility. In this regard, the supplier is also obliged to compensate possible expenses resulting from or in connection with a call-back we possibly have to carry out.

X. Corporate clearance clause

We are entitled to carry out clearance by and against due and undue, also future claims to which the Zeim Systems or Zeim PLC is entitled against the supplier and/or to which the supplier has a right against mentioned companies.

XI. Property rights

1. The supplier guarantees and ensures that all deliveries are free from property rights of third persons and especially that patents, licences or other property rights of third persons within Germany are not violated by the delivery or the use of the delivered items. If the supplier knows that we also sell his products in certain countries the aforementioned applies also for these countries.

2. The supplier indemnifies us and our customers from claims of third persons resulting from possible violations of property rights and bears all costs which we have to pay in this context.

3. Taking into consideration the due diligence of a prudent businessman we are entitled to obtain the approval for use of the respective delivered items and services from the beneficiary to the account of the supplier.

XII. Miscellaneous, court of jurisdiction, place of fulfilment, severability clause

1. Additionally our special assembly conditions apply for assemblies.

2. Drawings of the supplier for machine parts, etc. which are subject to wear, as well as general drawings and similar documents are to be put at our disposal free of charge. For this reason, we have the right to use these drawings ourselves or by third parties we have engaged to produce spare parts, carry out modifications or similar. Claims resulting from the violation of rights of the supplier are excluded at any rate.

3. Possible visits, preparation of scheduling and similar are not reimbursed. The submission of quotations is always free-of-charge.

4. If the supplier is a businessman, a legal person of public law or a responsible body of public-legal special assets the court of jurisdiction is the court competent for our headquarters or the subsidiary receiving the delivery. However, we have the right to sue the supplier also at his general court of jurisdiction. The same applies if the supplier has no general court of jurisdiction at home, has relocated his domicile or usual residence from home after contract conclusion or if his domicile or usual place of residence are not known at the moment of legal action.

5. As far as not expressly otherwise agreed, the place of fulfilment for the delivery obligation is the place of receipt and/or the place of use which we indicated.

6. If single parts of these General Purchase Conditions are ineffective the validity of the remaining provisions is not affected.

7. Additionally the legislation of the Federal Republic of Germany applies excluding the Conventions Relating to A Uniform Law on the International Sale of Goods of the UN from 11 April 1980.

8. Contract language is German. If the contract partners use another language the German wording has priority.