General Terms and Conditions of Sale and Installation of Torres & Getrost GbR
§ 1 Scope
1.1 Our terms and conditions of sale apply exclusively; we do not recognize any customer terms and conditions that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale also apply if we carry out a delivery to the customer without reservation despite being aware of customer terms and conditions that conflict with or deviate from our terms and conditions of sale.
1.2Our terms and conditions of sale apply only to entrepreneurs within the meaning of Section 310 of the German Civil Code (BGB).
1.3Our Terms and Conditions of Sale, in their respective versions, shall also apply as a framework agreement for all future transactions of the same type with the customer, without us having to refer to them again in each individual case; in this case, we will inform the customer of any changes at the latest upon conclusion of the respective contract.
§ 2 Offer – Prices – Terms of Payment
2.1 Our offers are subject to change and non-binding, unless the offer expressly indicates an intention to be legally bound. A contract is only concluded upon our order confirmation and exclusively under the terms and conditions confirmed by us in writing, or upon delivery.
2.2Our prices are exclusive of statutory VAT for delivery ex works (Incoterm 2010) Sonnenschein 57, D-68305 Mannheim, Federal Republic of Germany.
2.3 Unless otherwise agreed in the order confirmation, the payment term is 14 days net. Any agreed discount on new invoices is not permitted if older invoices due have not yet been paid. The payment date is the date on which we can dispose of the received funds. If down payments or advance payments have been agreed, statutory sales tax will also be added to the down payment or advance payment amount.
2.4The parties may agree that the customer shall open a documentary credit through their bank (or another bank acceptable to us). In this case, the credit shall be opened in accordance with the General Customs and Practice for Documentary Credits, Revision 2007, ICC Publication No. 600 ("UCP").
2.5 The customer is only entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed, or have been recognized by us, or if a consideration resulting from the contractual relationship is affected, in particular in the case of a counterclaim arising from a claim for non-cash performance that justifies refusal of performance. The customer is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
2.6 Subsequent changes or additions to the order or the essential results of the order must be recorded in writing and confirmed by both parties. In cases where we provide services for which no fixed price has been agreed, the price will be determined by us using our standard billing rates valid at the time the services are provided. Furthermore, we may invoice all incurred costs, including a reasonable surcharge. We will document the surcharge upon request.
§ 3 Delivery and execution
3.1 Compliance with all our delivery and execution obligations requires the timely and proper fulfillment of the customer's obligations and the clarification of all technical issues.
3.2 The delivery item will be shipped using the most economical shipping method and at the customer's risk and expense. If the customer so requests, we will cover the delivery with transport insurance. The customer shall bear any costs incurred in this regard.
3.3Partial deliveries are permitted if:
the partial delivery can be used by the customer within the scope of the contractually intended purpose,
the delivery of the remaining ordered delivery item is ensured and
the customer does not incur any significant additional expenditure or costs as a result (unless we agree to cover these costs). 3.4 Customary deviations of the delivery item from order confirmations, offers, samples, brochures, data sheets, trial and preliminary deliveries are permissible in accordance with the applicable DIN/EN standards or other relevant technical standards.
3.5 Items from properly completed deliveries may only be returned if we authorize the return. In this case, the customer shall bear the return shipping costs.
3.6 Force majeure, official regulations, and other circumstances beyond our control, in particular traffic and operational disruptions, labor disputes, material shortages, fire damage, war, or a state of emergency, release us from our delivery and performance obligations for the duration of their effects. We are entitled to withdraw from the contract if, for the reasons stated above, we can no longer reasonably be expected to fulfill the contract. Unreasonableness does not exist if the impediment to performance resulting from the reasons stated above is foreseeably only temporary. Compensation against us is excluded in these cases.
3.6.1
We are liable for impossibility or delay in performance, insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, in accordance with the statutory provisions. However, in cases of gross negligence, our liability is limited to the foreseeable damage typical for the contract.
3.6.2
In cases of slight negligence, our liability for damages and reimbursement of wasted expenses due to impossibility of performance is also limited to the typical, foreseeable damages. Further claims by the customer due to impossibility of performance are excluded. The customer's right to withdraw from the contract remains unaffected.
3.6.3
In cases of slight negligence, our liability for delayed performance is limited to a total of 10% of the value of the service for damages in addition to the service, and to a total of 10% of the value of the service for damages in lieu of the service. Further claims by the customer due to delayed performance are excluded, even after the expiration of a deadline set for performance. These provisions also apply to reimbursement of wasted expenses.
3.6.4
The limitations of this Section 3.6 do not apply if liability is incurred due to injury to life, body, or health or due to the breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and upon which the customer may rely. The above provisions do not involve a change in the burden of proof to the detriment of the customer.
§ 4 Reservation of self-supply
We do not assume the procurement risk. If, despite having concluded a corresponding purchase agreement on our part, we do not receive the delivery item or do not receive it in full with regard to essential parts of the delivery item, we are entitled to withdraw from the contract with the customer. Our liability for intent and negligence remains unaffected. We will immediately inform the customer of the unavailability or late availability of the delivery item and, if we wish to withdraw, exercise our right of withdrawal immediately. In the event of withdrawal, we will immediately reimburse any consideration already provided by the customer.
§ 5 Due date – Interest – Consequences of default
5.1
If payment is made after the agreed payment deadline, default interest shall be paid to us at the rate provided for by law.
5.2
As long as the customer is in default of payment, we are not obliged to make any further deliveries, regardless of the legal basis for our delivery obligation.
5.3
If the customer's financial circumstances deteriorate significantly, in particular if insolvency proceedings are initiated, we may demand cash payment or other security before delivery of the delivery item for any outstanding deliveries, with the payment deadline being cancelled.
5.4
If we have agreed to installment payments and/or installment payments with the customer, the following also applies: If the customer is in arrears with the payment of an installment or installment, in whole or in part, for more than three days, the remaining outstanding amount shall become due immediately and in full at once.
5.5
If security for payment of the purchase price has been provided by a bank or another third party and delivery of the delivery item cannot be made due to circumstances beyond our control, we are also entitled to demand payment of the remaining purchase price from the bank or another third party upon presentation of proof that the delivery item has been stored. Such storage shall be at the customer's expense and risk. The date on which the delivery item is stored by us shall be deemed the delivery date. All delivery documents and other documents that must be submitted by us in order to receive payment from a bank or other third party must be submitted to us immediately by the issuer of these documents.
§ 6 Retention of title
6.1
We retain title to the delivered goods until all claims against the customer arising from the business relationship have been fulfilled. In the event of breach of contract by the customer, particularly in the event of late payment, we are entitled to withdraw from the contract after the expiration of a reasonable grace period. Following any withdrawal from the contract, we have the right to demand the return of the delivered goods, to sell them to another party, or to otherwise dispose of them.
6.2
The customer is obligated to treat the delivered item with care; in particular, the customer is obligated to adequately insure it against fire, water, and theft damage at its own expense, covering the replacement value. If maintenance and inspection work are required, the customer must carry out these in a timely manner at his own expense.
6.3
Despite the retention of title, the customer is entitled to resell the delivery item in the normal course of business. The customer hereby assigns to us the purchaser's claims from the resale of the delivery item in the amount of the final invoice amount agreed with us (including sales tax). This assignment applies regardless of whether the delivery item was resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment, and in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
6.4
In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the lawsuit pursuant to Section 771 of the ZPO is successful and enforcement proceedings against third parties to cover the legal and extrajudicial costs of such a lawsuit were unsuccessful, the customer is liable for the loss incurred by us.
6.5
Any processing or transformation of the delivery item by the customer is always carried out for us. If the delivery item is processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the delivery item (final invoice amount including sales tax) to the other processed items at the time of processing. In all other respects, the same applies to the item created through processing as to the delivery item delivered subject to retention of title.
6.6
If the delivery item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the delivery item (final invoice amount including sales tax) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer's item is considered the main item, it is agreed that the customer transfers proportionate co-ownership to us. The customer shall safeguard the resulting sole ownership or co-ownership for us.
6.7
The customer also assigns to us the claims against third parties arising from the connection of the delivery item with real estate in order to secure our claims against him.
6.8
We undertake to release the securities to which we are entitled at the customer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is at our discretion.
§ 7 Liability for defects
7.1
Claims for defects by the customer presuppose that the customer has properly fulfilled his obligations to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
7.2
We do not accept any liability for used machines.
7.3
Weights, dimensions, performance specifications, yields, and other data stated in sales brochures, advertisements, and similar documents are to be considered as guidelines only. The same applies to demonstrated or provided sample or demonstration machines.
7.4
If a defect in the delivery item exists for which we are responsible, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or delivering a new, defect-free item. In the event of remedying the defect, we are obligated to bear all expenses necessary for remedying the defect, in particular transport, travel, labor, and material costs, provided that these do not increase as a result of the delivery item being transported to a location other than the place of performance.
7.5
If subsequent performance fails, which can be assumed after the second attempt at repair or subsequent performance at the earliest, the customer is entitled, at his or her discretion, to withdraw from the contract or demand a reduction in price. Unless otherwise stated below (Sections 7.6, 7.7, and 7.8), further claims by the customer – regardless of the legal grounds – are excluded. We are therefore not liable for damages that did not occur on the delivered item itself; in particular, we are not liable for production downtime, business interruption, the costs of any recall campaign, lost profits, or other financial losses suffered by the customer. The following also applies to international transactions: In the event of disproportionate effort and costs that would result from our own repair, we may require the customer to carry out the necessary repairs themselves or have them carried out. We must then reimburse the customer for the costs incurred by the customer for carrying out the necessary repair work.
7.6
We are liable in accordance with statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. However, unless we are accused of intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.
7.7
We are liable in accordance with statutory provisions if we culpably breach a material contractual obligation; material contractual obligations are those whose fulfillment characterizes the contract and upon which the customer may rely. In this case, however, liability for damages is limited to the foreseeable, typically occurring damage.
7.8
Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act and tort.
§ 8 Assembly, commissioning, maintenance and services
8.1
Unless otherwise agreed, the installation and assembly of the delivery items shall be carried out by the customer and at his risk.
8.2
In the event that we have contractually undertaken the installation and assembly, the following applies:
8.2.1
The Customer shall provide sufficient handling support and handling equipment, including cranes and forklifts, etc., for unloading and setting up the Deliverables. The Customer shall also ensure, in a timely manner and at its own expense, all tools, qualified personnel, oil, lubricants, water, steam, oxygen, electricity, air, drawings and data, raw materials, and other items, preparatory work, and services required for the installation and commissioning of the Deliverables. This includes, in particular:
an appropriate work and storage area as close as possible to the place where the commissioning work is to be carried out;
placing the equipment in the installation area, which is in a suitable condition to begin installation;
all necessary construction work, in particular concerning the substructure, cabling, pipes, anchor bolts, floor gutters, frames, gratings, cover plates, supports for pipes and cabling and for the installation of overhead conveyor belts and equipment on the roof structure;
Supply, installation and connection of all necessary cables, excluding those internal to the equipment, including power cables, data cables, control and signal cables, etc., from the main control panels and operations centres to and between the connection points on the individual parts of the equipment in accordance with our wiring diagrams, including shielded cable ducts or cable ties for power and data cables in accordance with our specifications;
Standard IT hardware and software as provided (if not included in the price quotation);
Placing the main servers (if any) in a dry, clean, air-conditioned room with adequate telephone and data line connections to our supervisory staff and online service;
Work permits and other authorizations required in the country where the equipment is to be installed.
8.2.2
The customer must prepare the space for installation at his own expense and in accordance with the contractual agreements and ensure that the necessary electrical connections and technical equipment are in place. The customer is solely responsible for structural engineering. Before the start of installation work, the customer must provide us with all necessary information regarding the location and availability of utility connections, e.g., electricity, gas, and water lines, and similar systems. This applies in particular to concealed systems. We are not liable for damages resulting from the customer's failure to fulfill this obligation.
8.2.3
The installation area for the machine must be freely accessible, a suitable overhead crane must be available, or the hall floor must be able to support a truck or mobile crane. The hall floor must be clear in the area where the machine is to be installed.
8.2.4
Before installation of a machine begins, the delivery components must be in place. Construction and other preparatory work must be completed to the extent that installation can begin immediately upon the arrival of the installer and can be carried out without interruption. New buildings must be dry, wall and ceiling plaster must be completed, and windows and doors must be installed. The customer is responsible for ensuring that the foundation required for the specific type of machine to be installed is of sufficient load-bearing capacity (concrete leveled with a spirit level). Any measures for structure-borne sound insulation must be arranged by the customer.
8.2.5
For our technicians' services, we charge the current hourly rates (including overtime, weekend, holiday, and night shift premiums, if applicable). Standard tariff surcharges apply for work on Sundays and public holidays. Accommodation costs, daily expenses, travel expenses, and out-of-town allowances are billed separately. For round-trip journeys, a mileage allowance and hourly rate are calculated at the current rate. The mileage allowance is calculated by Mannheim. Special trips by technicians, such as those required to procure spare parts, will be billed in the same manner if they are necessary for commissioning the machine and only become apparent during the installation process. The prices quoted are exclusive of statutory sales tax.
8.2.6
Any additional parts required during assembly that are not expressly listed and that are necessary for commissioning due to exceptional, unforeseeable local conditions or due to a special request from the customer or due to requirements of the local supervisory authority will be invoiced separately upon presentation of evidence.
8.2.7
Interruptions in installation due to missing connections, construction work, power outages, etc., for which we are not responsible, shall be borne by the customer, unless the customer was not responsible for this.
8.2.8
Additional work not included in the contractually agreed scope of delivery will be billed based on the time and effort involved. This must be agreed upon separately between us and the customer. Waiting times during our presence or during the presence of additional technicians to commission the machines are at the customer's expense, unless the waiting times are due to circumstances beyond the customer's control.
8.2.9
Any agreed flat-rate assembly fees do not include work on Sundays and public holidays; flat-rate assembly fees only apply when all preparatory measures on site have been completed.
8.2.10
The customer shall bear the costs for our technicians' assistants (electricians, auxiliary staff, and suitable lifting equipment) during the execution of the commissioned work, to the extent that these assistants are necessary. The customer is entitled to provide us with evidence that these assistants were not required for the execution of the contract.
8.2.11
All machines come with the operating instructions provided by the respective manufacturer. The cost of personal instruction is not included in the purchase price and will be billed based on the time spent according to our installation rates.
8.2.12
The customer must confirm the proper execution of the commissioned work on the installation report. The customer will receive a copy for their records.
8.2.13
Unless otherwise agreed in the contract, we are not liable for:
Interfaces between our equipment and/or software on the one hand and elements provided by the customer or third parties on the other;
Compatibility with other customer software;
Coordination between our work and that of other suppliers.
8.3
We will only provide maintenance services to the extent described in the contract or a specific service agreement. The terms of the applicable service agreement apply to the services.
8.4
If the customer undertakes the service work, especially installation and commissioning, we are exempt from any liability. In particular, we are not responsible for any defective execution by the customer that does not comply with our recommendations, drawings, and specifications. Our employees also do not check whether all their instructions have been properly followed by the customer.
§ 9 State regulations/safety/use
9.1
For individual parts of the systems, we have taken into account the Machinery Directive 2006/42/EC, provided that the customer installs safety devices for which they are contractually responsible. However, we do not guarantee that the systems comply with all applicable local safety and occupational health and safety regulations or other local regulations unless expressly agreed in writing in the contract. If an inspection by the local (supervisory) authorities is required before the systems are put into operation, this is also the customer's responsibility.
9.2
The customer ensures that our employees can carry out their work safely without endangering their health.
9.3
The products are intended only for the use expressly described in the contract and our manuals. We are not liable for any other use of the products, even if we are aware of it.
9.5
The customer shall indemnify us against all claims by its employees, agents, or third parties for personal injury or property damage caused directly or indirectly by the customer, its employees, agents, or other third parties' failure to comply with our safety, operating, and/or maintenance instructions. This indemnity shall include all costs incurred by us, including our legal fees and expenses.
§ 10 Supplementary Terms and Conditions for Software
10.1
We grant the customer the rights of use to the software to be transferred and other copyrighted work results within the scope of the contractually agreed purpose. Unless otherwise agreed, we hereby grant the customer a non-transferable, non-exclusive right of use, limited to the term of use or the contract or otherwise, to install this software on a database and to use this software as embedded software or application software, as applicable, in the manner described in the contract. The customer is not entitled to transfer the granted rights of use in whole or in part to third parties or to grant corresponding rights of use to third parties. We reserve the right to terminate this license if the terms of the license are violated or the customer otherwise violates the terms of the underlying contract.
10.2
If the rights of use were only transferred for a limited period of time or if the transfer of the license ends for other reasons, all transferred rights revert to us upon expiration of the license without further legal action. The customer is obligated to delete all licensed products in its possession and to return the documentation.
10.3
The transfer of the source code to the customer is excluded unless expressly agreed otherwise.
10.4
To the extent that we utilize the services and work results, in particular third-party usage rights, to perform the order, we will acquire the usage rights to the extent necessary for the execution of the order and transfer them to the customer. If we are unable to acquire the usage rights to this extent, or if restrictions on the usage rights or other rights of third parties exist, we will inform the customer. The customer must observe these restrictions. We are not obligated to secure the usage rights for services and works provided by the customer.
10.5
The customer is entitled to make one copy of the software solely for backup purposes, which must be labelled as a copy and bear a reference to us as the copyright holder.
10.6
The customer may not remove any copyright notices.
10.7
The Customer hereby agrees not to modify, decompile, reverse engineer, or copy the Software except as expressly permitted in these General Terms and Conditions of Sale.
10.8
Maintenance and service measures on transferred software require a separate maintenance and/or service and support agreement.
10.9
We will only transfer the rights of use required for the use of our products and services to the customer to the extent described above once all claims for remuneration, fees and reimbursement of costs relating to the order have been settled.
10.10
In the event of data loss, we are only liable for the effort required to restore the data if the customer has properly backed up the data. In the event of slight negligence, we are only liable if the customer has properly backed up the data immediately prior to the event leading to the data loss.
10.11
Our liability and warranty are excluded to the extent that damages and/or disruptions are caused by the customer culpably violating the provisions of this contract, modifying the software supplied by us contrary to the contractual provisions or our instructions, or not using the software supplied by us in the system environment agreed in the contract.
10.12
If we are obliged to deliver and transfer items or software or to produce other works, such as expert opinions or analyses, the provisions of Section 7 shall apply accordingly to the defective delivery and service.
10.13
The limitations of liability apply accordingly to the personal claims made by our employees, representatives and vicarious agents.
§ 11 Intellectual property rights and industrial property rights, confidentiality
11.1
All intellectual property rights and industrial property rights relating to the products, cost estimates, designs, drawings, and other documents, such as patents, utility models, designs, copyrights, and trademark rights, remain with us. The customer undertakes not to assert any intellectual property rights and industrial property rights in the products or any modifications to the products.
11.2
Any further liability of our company due to the infringement of third-party rights listed in Section 11.1 is excluded, except in cases of gross negligence or willful misconduct. Under no circumstances shall we be liable to third parties for claims based on the infringement of rights listed in Section 11.1 if the claims are related to illustrations, drawings, catalogs, specifications, or other materials provided to us by the customer or on their behalf.
11.3
We will defend the customer – subject to the above limitations of liability – against any claims arising from a violation of the rights listed in Section 11.1 through the contractual use of our products and will assume any costs and damages imposed on the customer, provided that the customer has notified us of such claims in writing and without undue delay and that we reserve the right to take all defensive measures and negotiate settlements.
11.4
All information and documents provided by us to the customer remain our property. They may not be copied by the customer, disclosed to third parties, and used only for the agreed purposes. Drawings and other documents related to offers must be returned to us upon request.
11.5
If we have delivered items based on drawings, models, samples, or other documents provided by the customer, the customer guarantees that third-party intellectual property rights are not infringed. If third parties prohibit us, in particular, from manufacturing and delivering such items, citing intellectual property rights, we are entitled – without being obliged to examine the legal situation – to cease all further activities in this regard and, if the customer is at fault, to demand compensation. The customer also undertakes to immediately indemnify us against all related third-party claims.
§ 12 Exclusion of further liability
12.1
Any liability for damages beyond that specifically provided for in the above terms and conditions is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence upon conclusion of the contract, other breaches of duty, or tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB). In the case of a claim for damages arising from negligence upon conclusion of the contract, the aforementioned exclusion of liability is equivalent to a subsequent waiver of liability due to the claim already arising at the time of conclusion of the contract. Furthermore, we are not liable if the customer is sued under the provisions of intellectual property law.
12.2
The limitation under clause 12.1 shall also apply if the customer requests compensation for wasted expenses instead of a claim for compensation for damages instead of performance.
12.3
To the extent that liability for damages is excluded or limited towards us, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 13 Limitation Period
Customer claims against us – regardless of the legal basis – shall expire one year after they arise. This does not apply in the cases of Sections 438 Paragraph 1 No. 2 and 634a Paragraph 1 No. 2 of the German Civil Code (BGB). This also does not apply in the case of intent or fraudulent concealment of a defect, or insofar as we have provided a guarantee. Furthermore, this limitation period does not apply to claims for damages in cases of injury to life, limb, health, or freedom, claims under the Product Liability Act, or in the case of grossly negligent breach of duty or the breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and upon which the customer may rely. The above provisions do not involve a change in the burden of proof to the detriment of the customer.
§ 14 Other provisions
14.1
The place of jurisdiction is Mannheim, Federal Republic of Germany. We also reserve the right to sue in the court with jurisdiction over the customer or in any other court that may have jurisdiction under national or international law.
14.2
The place of performance is also Mannheim, Federal Republic of Germany.
14.3
The customer agrees that we may store data in accordance with the Federal Data Protection Act.
14.4
The customer is not permitted to transfer any guarantee and warranty rights or other rights granted to him within the framework of the contractual relationship with us unless we have agreed to the transfer in writing.
14.5
If the Customer sells or exports the Products to third parties, the Customer undertakes to comply at all times with the import and export laws applicable to such sales.
14.6
The law of the Federal Republic of Germany shall apply, excluding the conflict of law provisions of German private international law and the UN Convention on Contracts for the International Sale of Goods.
Torres & Getrost GbR
Stand: 17.05.2021
