§1 GENERAL, AREA OF APPLICATIONI. I. All offers, deliveries and other services of Inotec GmbH – including future ones – are based exclusively on these General delivery and payment Terms. Any other conditions by the customer or conditions not contained in our delivery and payment terms will not be accepted unless Inotec GmbH has provided express written agreement concerning their validity. Counterconfirmations by the customer with reference to his business terms or terms of purchase will be opposed herewith.
II. The General rental contract terms of Inotec GmbH apply for the renting services rendered by us.
§2
PRODUCT DESCRIPTIONS, TECHNICAL ADVICE FOR APPLICATION,
RESERVATION FOR MODIFICATIONI.
I. Machine descriptions in brochures, technical product information etc. do not represent any guarantees for nature. Any written and spoken technical advice and recommendations for application, which Inotec GmbH provides to support the customer or manufacturer are given in accordance with our current level of knowledge. They are non-binding and do not establish either contractual rights or subsidiary obligations from the contract for sale, provided that something different has not been expressly agreed.
II. We reserve the right to carry out design changes and material changes in so far as the foreseen use or the specified use of the subject of delivery according to the contract is not substantially or detrimentally impaired and the change can reasonably be expected of the customer.
§3
DELIVERY PERIOD, INSTALLATION PERIODI.
I. Agreed delivery periods begin upon signing of the contract, but in any case not before the customer has supplied the necessary supporting material, releases and the full clarification of all details of the desired design and all technical questions. Observance of the delivery period always presupposes that the customer has fulfilled contractual obligations.
II. The delivery period shall be extended – also during a delay – as appropriate in the event of acts of God and in the event of all unforeseeable difficulties unknown at the time of signing the contract and for which we cannot be held responsible, in so far as these difficulties can be proved to influence the provision of the obliged performance. This also applies in the event that these circumstances occur with suppliers. We undertake to inform the customer at the earliest possible opportunity of the beginning and end of any such difficulties. If the duration of the delay is longer than three months or it becomes clear that said delay would be longer than three months, both the customer and we have the right to withdraw from the contract.
III. In so far as we have agreed the date and time of a delivery, assembly service or installation service with the customer, the customer is required to take all measurements at the work location in order to be able to carry out the intended work. The customer is required in particular to provide electrical connections, compressed air connections and adequate lighting. If the customer is responsible for us being unable to carry out the intended work or carry it out fully or in a reasonable amount of time, the customer is required to reimburse us for the resultant damages and particularly to reimburse any additional costs which may arise as a result of additional travel and any working hours engendered unnecessarily or required additionally by our employees. The installation period is considered to be met if the installation has been carried out to the point of acceptance by the customer, in case of a contractually scheduled test towards its realisation, by the time of its completion. In the event of delays due to acts of God or circumstances for which the customer is responsible, the installation period will be extended as appropriate.
IV. In the event that the customer experiences damages which arise demonstrably as a result of delays for which Inotec GmbH as the installing company can be held responsible, he has the right to claim compensation for the delay. In the case of a single fault, this will be paid by Inotec GmbH in the form of a lump sum which, for each full week of delay, will amount to 0.5%, but will not exceed 5% in total of the value of the particular part of the total delivery which could not be used in good time or in accordance with the contract as a result of delayed installation.
§4
TRANSPORTATION, TRANSITION OF RISK, PACKAGING, PART DELIVERIESI.
I. Unless otherwise agreed, Inotec GmbH delivers to the named destination carriage forward and uninsured at the recipient’s own risk. In the event of damage in transit, the damage must be confirmed by the carrier before acceptance of the goods. If carriage paid delivery is due this only applies for dispatch and transportation customary in the trade. Additional costs resulting, for example, from express transportation requested by the customer shall be charged to the customer.
II. Unless otherwise agreed, the risk for all dispatched goods is transferred to the customer as soon as these goods have been handed over to the person carrying out their transportation. In the event that dispatch will be impossible without Inotec GmbH incurring fault, the risk is transferred to the customer upon indication of readiness for transportation. If the goods are picked up by the customer, the risk is transferred on hand-over.
III. Unless otherwise agreed, Inotec GmbH delivers without packaging.
IV. Inotec GmbH has the right to undertake part delivery and partial service to a reasonable degree.
§5
PRICES AND PAYMENT, TAKE BACKI.
I. Unless otherwise agreed, prices are valid without packaging, transportation, insurance, unloading, installation, assembly and start-up and also for delivery ex works or supply depot, plus legal turnover tax at the current rate. The prices given are only valid for the particular individual order. Installation shall be calculated on the basis of time involved if a lump sum price has not been expressly agreed.
II. In the case of contracts with an agreed delivery period of more than two months, both contracting parties can ask for a modification of the agreed price to the degree to which, after signing of the contract, reductions or increases in costs which could not be averted by the contracting parties have been incurred, particularly as a consequence of pay settlements or changes of material costs. The change in price must be restricted to the extent required to compensate the reduction or increase in costs. A party also has a corresponding right to adjust the price if, as a consequence of delays for which the other party is responsible, an actual delivery period of more than two months is produced.
III. Unless agreed otherwise (e.g. if the invoice is sent by post), payments are to be made immediately when the goods are handed over. A payment is only regarded as having been made when Inotec GmbH has access to the sum. The granting of single or multiple payment deadlines only applies to the amount invoiced for the delivery and not to any other accounts receivable (e.g. receivables from other or future deliveries).
IV. In the event that the customer is in arrears with payment, Inotec GmbH has the right to demand at least the legal rate of interest on the arrears.
V. An offset or retention of payments having an effect equivalent to an offset is only permissible due to legal claims made by the customer which are recognised by us and which are not disputed, due to be decided upon or determined by final judicial decision.
VI. Inotec GmbH has the right, despite determinations of the customer to the contrary, to charge payments against his older debts initially and will inform the customer about the type of settlement made. If costs and interest have already been incurred, Inotec GmbH has the right to deduct any payments from the costs first, then from the interest and finally from the main demand.
VII. In the event that the customer delays acceptance of the subjects of delivery or is in arrears with payment, Inotec GmbH may, after fruitless expiry of an appropriate legally required extension determined by Inotec GmbH, withdraw from the contract and / or demand compensation instead of service. In the event of assertion of the claim for compensation, Inotec GmbH may, to compensate for lost profit, demand without the need to furnish proof compensation in the sum of 15% of the price. The contracting parties remain at liberty to prove higher or substantially lower actual damages.
VIII. If we agree to take back goods without legal obligation, the credit note will not be for a sum larger than the value of the goods. We retain the right to deduct the working hours incurred for the resultant expenditure (depreciation, verification, cleaning, freight, packaging, administration effort etc.) at currently applicable cost rates and / or a percentage reduction of the value of the goods from the credit note as well as a rental fee based on currently applicable rental rates upon return of machines.
§6
RESERVATION OF OWNERSHIPI.
I. Inotec GmbH reserves the right to ownership of the goods delivered until all claims from the contract entered into inclusive of all subsidiary claims (e.g. bill of exchange expenses, financing expenses, interests). In the event of delivery of several items for a total price, the right to ownership of all items is retained until such a time as full payment has been made.If a current account agreement has been made with the customer, ownership is retained until said current account balance has been fully settled. When a cheque or bill of exchange is received, fulfilment only sets in when the cheque or bill of exchange has been cashed and Inotec GmbH can access the sum without risk of recourse.
II. The customer is obliged to treat the reserve items with care and to inform Inotec GmbH without delay in the event of attachment, seizure, damage or loss. In the event of attachments, seizure or other third party dispositions, the customer must inform Inotec GmbH without delay. Violation of this obligation provides Inotec GmbH with the right to withdraw from the contract. The customer shall bear all costs, particularly those which have to be spent within the context of a third party action against execution to reverse an attachment and if necessary to replace the subjects of supply, in so far as they cannot be collected by third parties.
III. In the event of the customer being in arrears for a substantial part of his obligations, Inotec GmbH has the right to take back temporarily the goods under reservation. Exercising the right for take back does not represent a withdrawal from the contract unless Inotec GmbH has expressly declared the withdrawal. Costs incurred as a result of exercising the right for take back (particularly for transportation and storage) shall be borne by the customer if Inotec GmbH has threatened take back with reasonable notice. Inotec GmbH has the right to realize the taken back goods under reservation and to satisfy itself from the proceeds as long as Inotec GmbH has previously threatened the realization. When threatening take back, Inotec GmbH is required to set the customer a reasonable period of notice within which to fulfil his obligations.
IV. The customer already now assigns the claims for the purchase price, wages or other claims (including the admitted balance from a current account agreement, or in the case of an insolvency of the business partner of the customer the ‘causal balance’ that is in existence at the time) resultant from the resale or further processing or any other legal argument (insurance, unlawful act, loss of ownership as a result of connection of the subject of delivery with property) concerning the goods under reservation to the amount of the invoice value of the goods under reservation (including turnover tax) to Inotec GmbH; Inotec GmbH accepts the assignment. Until further notice, Inotec GmbH authorises the customer to collect in his own name the claims assigned to Inotec GmbH for account of Inotec GmbH. This collection mandate can only be revoked if the customer does not meet his financial obligations in accordance with the regulations. Upon demand by Inotec GmbH in such a case, the customer must state the information required to collect the assigned claims, produce any relevant supporting material and show the assignment to the debtor. The assignment of a claim consistent with clause 1 serves to secure all claims - including any future claims - from the business connection with the customer.
§7
NOTICE OF DEFECTS, CLAIMS IN THE EVENT OF MATERIAL DEFECTSI.
I. For a contract with a consumer (§13 German Civil Code), the legal requirements that came into force on 1.1.2002 apply.
II. If the purchase is commercial business for both parties, the customer is required to give written notice of all manner of defects without delay, in so far as this corresponds with a regular business process – hidden defects should however be notified upon discovery, otherwise the goods will be regarded as approved.
III. In so far as the object of delivery and/or the associated assembly service are defective, during a period of 12 months from the transfer of risk, the customer can choose whether the subsequent performance by Inotec GmbH shall be either rectification of the fault (reworking) or delivery of an object that is free of defects (replacement delivery). If we are not prepared or not in a position to offer reworking/replacement delivery, and in particular if reworking/replacement delivery delays above and beyond a reasonable period of time occurs for reasons for which we can be held responsible, or in the event that the reworking/replacement delivery should fail in any other manner, the customer, in so far as any further attempts for later fulfilment are unreasonable for him, has the right to choose to withdraw from the contract or depreciate the purchase price. The customer may only withdraw from the contract as the result of an insignificant defect with our approval.
IV. No claims for material defects can be made in the event of unsuitable or improper use or handling of the goods, erroneous installation or start-up by the customer or third parties, natural wear and tear (particularly of wearing parts), unsuitable operating materials or conditions, inadequate maintenance etc.
V. In so far as the defective goods are third party products, we have the right to assign our claims for material defects against our suppliers to the customer and to refer him to these (legal) claims. A claim can only be made against us if the claims against our supplier cannot be enforced despite timely (legal) claim or the claim is unreasonable in the individual case.
§8 LIMITATION FOR LIABILITYI.
I. Inotec GmbH is liable in accordance with the regulations set down in product liability law as well as in cases of inability and impossibility for which it is responsible. In addition, we are liable for damages according to legal provisions in cases of intent, gross negligence or in the event of a fatal injury, bodily injury or damage to health for which we can be held responsible. In addition, if we violate a cardinal obligation or a fundamental contractual obligation by simple negligence, our obligation for compensation is limited to contractually typical, foreseeable damages. In all other cases of liability, claims for compensation due to violation of an obligation from the contractual obligation as well as due to unlawful act are excluded, such that we are not in this respect liable for lost profit or other pecuniary damage of the customer.
II. In so far as the liability of Inotec GmbH is excluded or limited on the basis of the above provisions, this also applies to the personal liability of employees, personnel, staff, representatives and agents of vicarious liability of Inotec GmbH.
§9
SUPPORTING MATERIAL, DEMONSTRATION DEVICES, PROPERTY RIGHTS
I. We reserve the right to ownership and copyright of drawings, drafts, cost estimates and any other supporting materials, particularly models and demonstration devices. Supporting material and objects may not be copied or made accessible to third parties without our expressly specified agreement.
§10
JURISDICTION, APPLICABLE LAWI.
I. The laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISC) apply to these General Terms of Delivery and Payment and to all legal relations between Inotec GmbH and the customer.
II. If the customer is a business person as defined by the German Commercial Code, a legal entity under public law or is a special fund under public law, the place of jurisdiction for all rights and obligations of the contracting parties arising from all types of transactions – including disputes regarding bills of exchange and cheques – is Waldshut-Tiengen (Federal Republic of Germany). This also applies accordingly if the customer does not have a general place of jurisdiction in Germany, or if the customer moved their domicile or usual location out of Germany after the contract had been concluded or if the domicile or usual location is not known at the time the legal action was commenced. Inotec GmbH also has the right to take legal action against the customer at the customer's place of jurisdiction.
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