General Terms and Conditions of Sale and Assembly of Torres & Getrost GbR
§ 1 Scope
1.1 Our terms and conditions of sale apply exclusively; we do not recognize any conflicting or deviating terms and conditions of the customer 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, even if we are aware of conflicting or deviating terms and conditions of the customer.
1.2 Our terms and conditions of sale apply only to entrepreneurs within the meaning of § 310 BGB.
1.3 Our terms and conditions of sale, in their respective versions, shall also apply as a framework agreement to 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, in exceptional cases, the offer expressly states an intention to be legally bound. A contract is only concluded upon our order confirmation and exclusively under the conditions confirmed by us in writing, or upon delivery.
2.2Our prices are exclusive of statutory VAT for delivery ex works (“ex works”, Incoterm 2010) Sonnenschein 57, D-68305 Mannheim, Federal Republic of Germany.
2.3 Unless otherwise agreed in the order confirmation, payment is due within 14 days net. Any agreed discount on new invoices is invalid if older invoices remain unpaid. The payment date is the date on which we have received the funds. If down payments or advance payments are agreed, statutory VAT will be added to the down payment or advance payment amount.
2.4 It may be agreed between the contracting parties that the customer is to open a documentary letter of credit through their bank (or another bank acceptable to us). In this case, it is stipulated that the opening of the letter of credit will be carried out 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 set-off and retention rights if their counterclaims have been legally established, are undisputed, or have been acknowledged by us, or insofar as they concern consideration arising from the contractual relationship, in particular a counterclaim that has arisen from a claim for performance in kind that justifies refusal of performance. The customer is only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
2.6 Subsequent changes or additions to the order or the essential order results 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 goods will be shipped via the most economical shipping method at the customer's risk and expense. If the customer so desires, we will insure the shipment with transport insurance. The customer shall bear the associated costs.
3.3 Partial deliveries are permitted if:
the partial delivery is usable by the customer within the scope of the contractual purpose,
the delivery of the remaining ordered item is ensured and
The customer will not incur any significant additional effort or costs as a result (unless we agree to bear these costs). 3.4 Commercially acceptable deviations of the delivered 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 Goods delivered in accordance with the contract can only be returned if we approve the return. In this case, the customer shall bear the costs of the return shipment.
3.6 Force majeure, official regulations, and other circumstances beyond our control, in particular disruptions to traffic and operations, labor disputes, material shortages, fire damage, war, or states 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 aforementioned reasons, performance of the contract is no longer reasonable for us. Performance is not considered unreasonable if the impediment to performance arising from the aforementioned reasons is foreseeably only temporary. Claims for damages against us are excluded in these cases.
3.6.1
We are liable for impossibility of performance and for delays in performance insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of our representatives or agents, in accordance with statutory provisions. However, in cases of gross negligence, our liability is limited to the foreseeable damages typical for this type of contract.
3.6.2
In cases of slight negligence, our liability for impossibility of performance, including compensation for wasted expenses, is limited to the foreseeable damages typical for this type of contract. Any 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
Our liability for delays in performance is limited to a total of 10% of the value of the performance for damages in addition to performance and to a total of 10% of the value of the performance for damages in lieu of performance in cases of slight negligence. Further claims by the customer due to delays in performance are excluded – even after the expiry of a deadline set for us to perform. These provisions also apply to the reimbursement of wasted expenses.
3.6.4
The limitations in this section 3.6 do not apply if liability arises from injury to life, body, or health, or from the breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment is fundamental to the contract and on which the customer may rely. The aforementioned provisions do not entail any shift in the burden of proof to the detriment of the customer.
§ 4 Self-supply reservation
We do not assume the procurement risk. If, despite concluding a corresponding purchase agreement, 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 inform the customer immediately of the unavailability or delayed availability of the delivery item and, if we intend to withdraw, will exercise our right of withdrawal without delay. In the event of withdrawal, we will promptly refund any payments already made by the customer.
§ 5 Due Date – Interest – Consequences of Default
5.1
If payment is made after the agreed payment deadline, default interest at the rate stipulated by law is payable to us.
5.2
As long as the customer is in default of payment, we are not obliged to make further deliveries, regardless of the legal basis for our delivery obligation.
5.3
If there is a significant deterioration in the customer's financial circumstances, in particular if insolvency proceedings are initiated, we may demand cash payment or other security before delivery of the goods for any outstanding deliveries, without regard to the agreed payment terms.
5.4
If we have agreed on installment payments and/or partial payments with the customer, the following also applies: If the customer is in arrears with the payment of an installment or partial payment for more than three days, the remaining balance will become due immediately and in full.
5.5
If security for payment of the purchase price has been provided by a bank or other third party, and delivery of the goods cannot take place due to circumstances beyond our control, we are also entitled to demand the entire outstanding balance of the purchase price from the bank or other third party upon presentation of proof that the goods have been stored. Such storage is at the customer's expense and risk. The date on which the goods are stored by us is considered the delivery date. All delivery documents and other documents that we are required to provide in order to receive payment from a bank or other third party must be handed over 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 satisfied. In the event of a breach of contract by the customer, particularly in the case of late payment, we are entitled to withdraw from the contract after a reasonable grace period has expired without payment. Following any such withdrawal from the contract, we have the right to demand the return of the delivered goods, to sell them elsewhere, or to dispose of them in any other way.
6.2
The customer is obligated to handle the delivered item with care; in particular, they are obligated to insure it at their own expense against fire, water, and theft damage for its full replacement value. If maintenance and inspection work is required, the customer must carry it out promptly at their own expense.
6.3
Despite the retention of title, the customer is entitled to resell the delivered goods in the ordinary course of business. The customer hereby assigns to us all claims against its purchaser arising from the resale of the delivered goods up to the amount of the final invoice total agreed upon with us (including VAT). This assignment applies regardless of whether the delivered goods are resold before or after processing. The customer remains authorized to collect the receivables even after the assignment. Our right to collect the receivables ourselves remains unaffected. However, we will not collect the receivables as long as the customer fulfills 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 attachments 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 ZPO is successful and enforcement proceedings against the third party to cover the court and out-of-court costs of such a lawsuit are unsuccessful, the customer is liable for the resulting loss.
6.5
Any processing or transformation of the delivered goods by the customer is always carried out on our behalf. If the delivered goods are processed together with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the delivered goods (final invoice amount including VAT) relative to the other processed items at the time of processing. The same provisions apply to the item created through processing as to the delivered goods supplied under reservation of title.
6.6
If the delivered 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 delivered item (final invoice amount including VAT) relative to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer's item is to be regarded as the principal item, it is agreed that the customer transfers proportionate co-ownership to us. The customer holds the resulting sole or co-ownership in trust for us.
6.7
The customer also assigns to us, as security for our claims against him, any claims against a third party arising from the connection of the delivered item with a property.
6.8
We undertake to release the collateral held by us at the customer's request to the extent that the realizable value of our collateral exceeds the secured claims by more than 10%. The selection of the collateral to be released is at our discretion.
§ 7 Liability for Defects
7.1
The customer's warranty claims require that the customer has properly complied with 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 machinery.
7.3
Weights, dimensions, performance specifications, yields, and other data mentioned in sales brochures, advertisements, and similar documents are to be considered as guidelines only. The same applies to demonstrated or provided sample machines or demonstration machines.
7.4
If a defect in the delivered item is attributable to us, we are entitled, at our discretion, to remedy the defect by either repairing it or delivering a new, defect-free item. In the case of repair, we are obligated to bear all expenses necessary for remedying the defect, in particular transport, travel, labor, and material costs, unless these costs are increased because the delivered item was moved to a location other than the place of performance.
7.5
If subsequent performance fails, which is to be assumed no earlier than after the second attempt at repair or subsequent performance, the customer is entitled, at their discretion, to demand rescission of the contract or a reduction in price. Unless otherwise stipulated below (Sections 7.6, 7.7 and 7.8), any further claims by the customer – regardless of their legal basis – are excluded. We are therefore not liable for damages that did not occur to 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 of the customer. For international transactions, the following also applies: In the event of disproportionate effort and costs that would result from us carrying out the repairs ourselves, we may require the customer to carry out or have carried out the necessary repairs themselves. We will then reimburse the customer for the costs incurred in 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 agents. However, unless we are accused of intentional breach of contract, our liability for damages is limited to foreseeable, typically occurring damages.
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 is essential to the contract and on which the customer may rely. In this case, however, liability for damages is limited to foreseeable, typically occurring damages.
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 from tort.
§ 8 Assembly, commissioning, maintenance and services
8.1
Unless otherwise agreed, the installation and assembly of the delivered items shall be carried out by the customer and at his own 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 equipment, including cranes and forklifts, etc., for unloading and setting up the delivered items. 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 necessary for the installation and commissioning of the delivered item. This includes, in particular,
a suitable work and storage area as close as possible to the place where the commissioning work is to be carried out;
the placement of the equipment in the installation area, which is in a suitable condition to begin installation;
all necessary construction work, in particular concerning the subsoil, cabling, pipes, anchor bolts, floor channels, frames, grids, cover plates, supports for the pipes and cabling and for the installation of overhead conveyor belts and systems on the roof structure;
Supply, installation and connection of all necessary cables, except for internal equipment cables, including power cables, data cables, control and signal cables, etc., from the main operating consoles and control centers to and between the connection points on the individual parts of the systems according to our wiring diagrams, including shielded cable ducts or cable ties for power and data cables according to our specifications;
Standard IT hardware and software as specified (if not included in the price quote);
Placing the main servers (if any) in a dry, clean, air-conditioned room with sufficient telephone and data line connections to our supervisory staff and online service;
Work permits and other permits required in the country where the equipment is to be installed.
8.2.2
The customer is responsible for preparing the premises for installation at their own expense and in accordance with the contractual agreements, and for ensuring that the necessary electrical connections and technical equipment are available. The customer is solely responsible for the structural integrity of the building. Before the start of installation work, the customer must provide us with all necessary information regarding the location and availability of utility connections, such as electricity, gas, and water lines, etc. This applies particularly to concealed installations. We are not liable for damages resulting from the customer's failure to comply with the aforementioned obligations.
8.2.3
The machine's installation area must be freely accessible by vehicle, a suitable overhead crane must be available, or the hall floor must be able to support the weight of a truck or mobile crane. The hall floor must be clear in the area where the machine needs to be installed.
8.2.4
Before machine installation can begin, all delivered components must be on site. Construction work and other preparatory work must be completed to the point that installation can begin immediately upon the installer's arrival and proceed without interruption. New buildings must be dry, with wall and ceiling plastering finished and windows and doors installed. The customer is responsible for ensuring that the foundation required for the specific type of machine being installed has sufficient load-bearing capacity (concrete leveled with a spirit level). The customer is also responsible for any necessary measures for structure-borne noise insulation.
8.2.5
We charge our technicians' current hourly rates for their services (including, where applicable, overtime, weekend, holiday, and night shift surcharges). Standard surcharges apply to work performed on Sundays and public holidays. Accommodation costs, daily allowances, travel expenses, and off-site allowances are billed separately. A mileage allowance and hourly rate are charged for round trips, calculated from Mannheim. Special trips undertaken by our technicians, such as those required for machine commissioning and only becoming apparent during the installation process, will be billed accordingly. All prices quoted are subject to applicable VAT.
8.2.6
All additional parts required for assembly that are not explicitly listed and that are necessary for commissioning due to exceptional, unforeseeable local conditions, a special request from the customer, or requirements of the local supervisory authority, will be charged separately upon proof of purchase.
8.2.7
Installation interruptions due to missing connections, construction work, power outages, etc., for which we are not responsible, shall be at the customer's expense, unless the customer was not responsible for these interruptions.
8.2.8
Additional work not included in the contractually agreed scope of delivery will be billed according to the time and materials required. This must be agreed upon separately between us and the customer. Waiting times during our presence or that of other technicians for the commissioning of the machines will be charged to the customer, unless the waiting times are due to circumstances beyond the customer's control.
8.2.9
Any agreed-upon assembly fees do not include work on Sundays and public holidays; assembly fees only apply if all preparatory measures on the construction site have been completed.
8.2.10
The customer shall bear the costs for our technician's assistants (electricians, helpers, and suitable lifting equipment) during the execution of the commissioned work, insofar as these are necessary. The customer is entitled to prove to us that the assistants were not necessary for the execution of the order.
8.2.11
All machines come with the operating instructions provided by the respective manufacturer. The cost of personal training is not included in the purchase price and will be charged according to the time spent, based on 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 systems and/or our software on the one hand and elements provided by the customer or third parties on the other hand;
Compatibility with other customer software;
Coordination between our work and that of other suppliers.
8.3
Maintenance work will only be performed by us to the extent described in the contract or a separate service agreement. The provisions of the applicable service agreement apply to the services.
8.4
If the customer undertakes the service work, in particular the installation and commissioning, we are released from all liability. Specifically, we are not responsible for defective execution by the customer that does not comply with our recommendations, drawings, and specifications. Our employees also do not verify whether all their instructions have been properly followed by the customer.
§ 9 State regulations/Safety/Use
9.1
For certain parts of the systems, we have taken into account the Machinery Directive 2006/42/EC, provided that the customer installs safety devices, which are their responsibility as stipulated in the contract. However, we do not guarantee that the systems comply with all applicable local safety and occupational health regulations, as well as other local requirements, unless this has been expressly agreed upon in writing in the contract. If an inspection by the local (supervisory) authorities is required before commissioning the systems, this is also the customer's responsibility.
9.2
The customer ensures that our employees can perform their work safely without endangering their health.
9.3
The products are intended solely for the use expressly described in the contract and our manuals. We accept no liability 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 arising from personal injury or property damage caused directly or indirectly by the customer's, its employees, agents, or other third parties' failure to comply with our safety, operating, and/or maintenance instructions. This indemnification includes all costs incurred by us, including our legal fees and expenses.
§ 10 Supplementary Conditions for Software
10.1
We grant the customer the rights to use the software and other copyrighted work results to be transferred, to the extent of the contractually agreed purpose. Unless otherwise agreed, we hereby grant the customer a non-transferable, non-exclusive right of use, limited for the duration of the usage or contract period or otherwise, for the installation of this software on a database and for the use of 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 if the customer otherwise breaches the provisions of the underlying contract.
10.2
If the usage rights were only transferred for a limited time or the license transfer ends for other reasons, all transferred rights revert to us upon expiration of the license without any further legal action. The customer is obligated to delete all licensed products in their possession and 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 of third parties, in particular their usage rights, for the execution of the order, we will acquire these usage rights to the extent necessary for the execution of the order and transfer them to the customer. If acquiring the usage rights to this extent is not possible for us, or if there are restrictions on the usage rights or other rights of third parties, we will inform the customer accordingly. 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 include a reference to us as the copyright holder.
10.6
The customer is not allowed to 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 for transferred software require a separate maintenance and/or service and support agreement.
10.9
We will only transfer the usage rights required for the use of our products and services to the customer to the extent described above once all claims relating to the order for remuneration, fees and reimbursement of costs have been settled.
10.10
In the event of data loss, we are only liable for the expenses necessary to restore the data, provided the customer has performed proper data backups. In cases of slight negligence, we are only liable if the customer performed a proper data backup immediately prior to the action that led to the data loss.
10.11
Our liability and warranty are excluded to the extent that damages and/or malfunctions 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 goods or software or to produce other works, such as expert opinions or analyses, the provisions of Section 7 shall apply accordingly to defective delivery and performance.
10.13
The limitations of liability apply accordingly to personal claims against our employees, representatives and 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, registered designs, copyrights, and trademark rights, remain with us. The customer agrees not to assert any intellectual property rights or industrial property rights to the products or to any modifications of the products.
11.2
Any further liability of our company arising from the infringement of third-party rights listed in Section 11.1 is excluded, except in cases of gross negligence or intent. In no event shall we be liable to third parties for claims arising from the infringement of rights listed in Section 11.1 if the claims are related to illustrations, drawings, catalogs, specifications, or other materials supplied to us by the customer or on the customer's behalf.
11.3
Subject to the aforementioned limitations of liability, we will defend the customer against any claims arising from an infringement of the rights listed in Section 11.1 through the contractual use of our products and will bear 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 all defense measures and settlement negotiations remain reserved to us.
11.4
All information and documents supplied by us to the customer remain our property, may not be copied by the customer, may not be disclosed to third parties, and may only be used for the agreed purposes. Drawings and other documents belonging to quotations must be returned to us upon request.
11.5
If we have supplied goods according to drawings, models, samples, or other documents provided by the customer, the customer warrants that no third-party intellectual property rights are infringed. If third parties, citing intellectual property rights, prohibit us from manufacturing and supplying such goods, we are entitled – without being obligated to examine the legal situation – to cease all further activity in this regard and, if the customer is at fault, to claim damages. The customer also undertakes to indemnify us immediately against all related third-party claims.
§ 12 Exclusion of further liability
12.1
Any further liability for damages beyond that specifically provided for in the foregoing terms and conditions is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo (fault in contract formation), 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 culpa in contrahendo (fault in contract formation), the aforementioned exclusion of liability is equivalent to a subsequent waiver of liability due to the claim already existing at the time of contract formation. Furthermore, we are not liable if the customer is held liable under the provisions of intellectual property law.
12.2
The limitation according to clause 12.1 also applies if the customer, instead of claiming damages for non-performance, demands compensation for wasted expenses.
12.3
To the extent that our liability for damages is excluded or limited, this also applies to the personal liability for damages of our employees, workers, employee representatives and vicarious agents.
§ 13 Statute of Limitations
Claims by the customer against us – regardless of their legal basis – become statute-barred one year after they arise. This does not apply in the cases specified in Sections 438 Paragraph 1 No. 2 and 634a Paragraph 1 No. 2 of the German Civil Code (BGB). This also does not apply in cases of intent or fraudulent concealment of a defect, or where we have assumed a guarantee. Furthermore, this limitation period does not apply to claims for damages in cases of injury to life, body, health, or freedom, claims under the Product Liability Act, or in cases of gross negligence or breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment is fundamental to the contract and on which the customer may rely. The aforementioned provisions do not entail any shift 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 reserve the right to bring legal action at the court with jurisdiction over the customer or at 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 warranty and guarantee rights and 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 the products to third parties or exports them, he undertakes to comply at all times with the import and export laws applicable to sales of this kind.
14.6
The law of the Federal Republic of Germany applies, excluding the conflict-of-laws rules of German private international law and the UN Convention on Contracts for the International Sale of Goods.
Torres & Getrost GbR
Stand: 17.05.2021
