| General Terms and Conditions of Sale and Delivery of the Kirschenhofer Maschinen GmbH |
| 1. Determining conditions |
| 1.1 All offers and agreements issued by the KIRSCHENHOFER MASCHINEN GMBH between the purchaser and the KIRSCHENHOFER MASCHINEN GmbH are subject to the following terms as well as other possible individual agreements. They shall also apply for future orders by the purchaser without explicitly referring to these terms and conditions. |
| 1.2 Purchaser’s general terms and conditions of sale and delivery or possible terms and conditions of purchase shall not become integral part of the agreement. This shall also apply where KIRSCHENHOFER MASCHINEN GMBH does not expressly object to the purchaser’s terms and conditions, or where these contradict or complement them |
| 2. Conclusion of an agreement |
| 2.1 The offers issued by KIRSCHENHOFER MASCHINEN GMBH are nonbinding. |
| 2.2 Specifications regarding measurements, weight and performance as well as images and drawings are only approximations. KIRSCHENHOFER MASCHINEN GMBH shall remain the owner and hold copyrights of cost estimates, offers, drawings and other documentation. Such documentation shall not be made available to third parties and shall immediately be returned to KIRSCHENHOFER MASCHINEN GMBH, without demand, particularly upon non-conclusion of the agreement with the assurance that no copies have been made. The purchaser shall not be entitled to any type of drawing. If purchaser is in possession of aforementioned drawings, he shall be prohibited from making any type of replica, also insofar as patent protection is insufficient, as well as from the passing on of the drawing to a third party or giving a third party the opportunity for inspecting such drawing. The purchaser shall be liable for any use of the drawings in his possession conflicting with the aforementioned terms. |
| 2.3 As far as KIRSCHENHOFER MASCHINEN GmbH has delivered items manufactured according to drawings, models, samples or other documentation submitted by purchaser, purchaser shall assume liability to ensure that third party property rights are not violated. In the event that a third party in particular prohibits the manufacture and delivery of such items with reference to property rights, KIRSCHENHOFER MASCHINEN GmbH shall be entitled – without being obligated to examine the legal situation – to stop any further activities and to claim damages if the purchaser is in default. In addition, the purchaser shall free KIRSCHENHOFER MASCHINEN GmbH from all associated third party claims. |
| 2.4 The purchaser is bound to his order until its acceptance or refusal by KIRSCHENHOFER MASCHINEN GmbH, however no longer than six weeks. In case of a special construction, the term of acceptance for KIRSCHENHOFER MASCHINEN GmbH shall be extended accordingly, however by at least six additional weeks. |
| 2.5 The contract shall only be valid with the written confirmation by KIRSCHENHOFER MASCHINEN GmbH. This shall also apply where the purchaser’s order refers to an offer submitted by KIRSCHENHOFER MASCHINEN GmbH. KIRSCHENHOFER MASCHINEN GmbH shall immediately inform the purchaser in case the order is refused. |
| 3.Prices |
| 3.1 The prices listed are net prices without the respective valid VAT. They are valid by delivery ex works from the facility determined by KIRSCHENHOFER MASCHINEN GmbH. |
| 3.2 The costs for packaging, loading, freight and potential insurance shall be borne by the purchaser. |
| 4. Terms of payment |
| 4.1 Invoices from KIRSCHENHOFER MASCHINEN GmbH are due for payment immediately and without discount. They are considered as payment notice pursuant to § 286 para. 3 BGB. Cheques, bills of exchange and other payment orders shall only be accepted after special agreement and only for the sake of payment. The transmission of cheques and bills of payment as well as the prolongation of bills of payment do not count as fulfilment. In case of international orders, payments in cash shall be made in Euro to the indicated paying agent. KIRSCHENHOFER MASCHINEN GmbH shall be entitled to request payments by letter of credit or cash against documents. If cash payments in a foreign currency are exceptionally agreed, the official exchange rate valid on the payment day (cash receipt, bank credit) shall be applicable for the exchange in Euro. Costs, which are debited to KIRSCHENHOFER MASCHINEN GmbH by the paying agent shall be reimbursed by the purchaser. |
| 4.2 If the purchaser orders a special machine or a series machine especially modified for him, 30 % of the purchase price shall be due at the moment of order confirmation unless otherwise agreed. |
| 4.3 If the purchaser is in arrears with an greed partial payment or other maturities, if he does not honour a bill of exchange when due or if the purchaser violates the agreement in any other way, all open claims of the KIRSCHENHOFER MASCHINEN GmbH arising from the business relationship shall be payable immediately. |
| 4.4 Partial payments are credited first towards costs, followed by interest and receivables for other services and finally towards the principal amount. |
| 4.5 From the due date on, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to request interest of 2% above the base rate. In case of default of payment on the part of the purchaser, this interest rate shall be increased to the statutory interest for delay. The assertion of further damages remains unaffected thereby. |
| 4.6 KIRSCHENHOFER MASCHINEN GmbH shall be entitled to offset claims against the purchaser with liabilities of KIRSCHENHOFER MASCHINEN GmbH toward the purchaser, irrespective of whether a cash payment, payment by cheque or bill of exchange or other payment methods have been agreed. If a current account relationship exists with the purchaser, this offsetting agreement extends to the account balance at the due date. |
| 4.7 The client shall only have offset or retention rights regarding legally binding claims or claims recognized by KIRSCHENHOFER MASCHINEN GmbH. A refusal to pay shall not be admissible in the case of minor differences in quantity or variation in quality determined or claimed by the purchaser. |
| 4.8 Securities from the purchaser granted to KIRSCHENHOFER MASCHINEN GmbH, shall be used for all claims of KIRSCHENHOFER MASCHINEN GmbH. Securities held by KIRSCHENHOFER MASCHINEN GmbH shall be released upon the purchaser’s request, as far as their value does not exceed the claim to be secured by more than 10% |
| 4.9 If, following the contract conclusion, the economic conditions of the purchaser change in such a way that the claims of KIRSCHENHOFER MASCHINEN GmbH do no longer seem to be sufficiently secured, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to request advance payments or security provision. If the purchaser refuses to do so, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to withdraw from the contract or to demand compensation after the expiry of a 14-day grace period. |
| 5. Delivery |
| 5.1 Delivery periods indicated by KIRSCHENHOFER MASCHINEN GmbH are generally non-binding. Delivery periods begin only upon complete clarification of all execution details. The compliance with binding delivery periods requires de fulfillment of all obligations by the purchaser. In case of subsequent changes of the delivered product the delivery period shall be extended accordingly. |
| 5.2 A default of delivery arises, when KIRSCHENHOFER MASCHINEN GmbH lets the deadline expire and does not deliver within a grace period of at least 4 weeks set by the purchaser in his reminder. |
| 5.3 Business interruptions of all kind of KIRSCHENHOFER MASCHINEN GmbH or their suppliers (due to force majeure, strike etc.) shall release KIRSCHENHOFER MASCHINEN GmbH of all obligations for the duration of such interruption and the elimination of all operational consequential effects. If such interruptions make a delivery impossible, all party obligations to perform shall be omitted. KIRSCHENHOFER MASCHINEN GmbH reserves the right to construction and form changes in the execution of the order, as far as the delivered product or its appearance are not altered significantly. KIRSCHENHOFER MASCHINEN GmbH reserves the right to deliver an equivalent product to the same contractual conditions in place of the ordered product. |
| 6. Takeover / Transfer of risk |
| 6.1 The sending of the invoice counts as notification of readiness for delivery. The purchaser is entitled to inspect and check the delivery item at its location at the KIRSCHENHOFER MASCHINEN GmbH within one week after receipt of the invoice. The purchaser’s takeover obligation comes into effect upon expiration of this inspection period. If the takeover or payment of the purchase price does not occur within 10 days after expiration of the inspection period, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to withdraw from the contract or request compensation after the expiration of an additional grace period of 2 weeks. In addition, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to request a demurrage charge of € 5,- per calendar one week after expiration of the inspection period. |
| 6.2 The KIRSCHENHOFER MASCHINEN GmbH is entitled to partial deliveries to a reasonable extent. In the case of call orders, KIRSCHENHOFER MASCHINEN GmbH has the right to manufacture the entire quantity ordered or to have it manufactured in one batch. Possible change requests after the order placement can therefore not be fulfilled or only with additional expenditures to be borne by the purchaser. |
| 6.3 The acceptance for deliveries of machines, appliances, mechanical plants and similar objects is deemed as completed after 14 days of operation, if the purchaser does not expressly declare the acceptance earlier. |
| 6.4 The purchaser is liable for damages if the delivery item did not reach production due to behavior under his responsibility. |
| 6.5 KIRSCHENHOFER MASCHINEN GmbH can request the replacement of parts especially acquired for the order and further damages as compounded compensation. The purchaser is entitled to request handover of these parts after full payment of compensation. |
| 6.6 Delivery is made ex works for the account on at the risk of the purchaser. The risk of complete or partial destruction as well as the risk of loss, confiscation or requisition is transferred to the purchaser upon delivery or at the latest upon expiration of the inspection periods under 6.1 sentence 2 or upon leaving the factory – irrespective of whether the purchaser, KIRSCHENHOFER MASCHINEN GmbH or a third party executes the transport. KIRSCHENHOFER MASCHINEN GmbH will take out transport insurance at the expense of purchaser upon his request. |
| 7. Software license |
| 7.1 The KIRSCHENHOFER MASCHINEN GmbH holds all rights of use for the software used for the machines. The purchaser is not entitled to claim a disclosure of the source code. |
| 7.2 The purchaser is entitled to a simple, non-exclusive, non-transferable and indefinite right of use upon payment of the purchase price in full. |
| 7.3 Before full payment the purchaser receives a simple, non-exclusive, nontransferable right of use limited until delay. |
| 7.4 If the purchaser is able to use the software fully or limited after delay, he will not receive any right to use therewith but only upon full payment of the purchase price. |
| 8. Retention of title |
| 8.1 The delivery item remains the property of KIRSCHENHOFER MASCHINEN GmbH until full settlement of all claims by the purchaser. This includes claims arising from other business relationships, as far as additional business has been concluded with the purchaser prior to the expiration of the retention of title |
| 8.2 As long as the retention of title exists, the purchaser shall treat the delivery item with due care and to order KIRSCHENHOFER MASCHINEN GmbH or a specialized firm authorized by KIRSCHENHOFER MASCHINEN GmbH with necessary repairs. Furthermore, the purchaser shall keep the delivery item insured during this time as well as submit proof of having taken out such insurance upon request. If he fails to comply with the insurance obligation within 2 weeks after dispatch, KIRSCHENHOFER MASCHINEN GmbH shall be entitled to take out an appropriate insurance at the expense of purchaser. The rights from such insurance shall be transferred to KIRSCHENHOFER MASCHINEN GmbH. If the insurance payout exceeds the damage suffered by KIRSCHENHOFER MASCHINEN GmbH in the event of damage, the purchaser is entitled to the surplus. |
| 8.3 During this time the purchaser may not dispose of the delivery item or contractually grant use of the item to a third party. A general export ban in particular applies for the delivery item during this period. In the event of a violation, the purchaser’s claims against thirds from the unlawful disposition are considered to be transferred to KIRSCHENHOFER MASCHINEN GmbH. |
| 8.4 The processing or conversion of the delivery item by the purchaser is always made for the KIRSCHENHOFER MASCHINEN GmbH. If the purchased item is processed together with other items which are not owned by KIRSCHENHOFER MASCHINEN GmbH, KIRSCHENHOFER acquires coownership of the new item in proportion of the value of the delivery item (amount of invoice including VAT) with the other processed items at the moment of processing. The provisions applicable to the items delivered with a reservation shall also apply to the thing resulting from the processing. If the delivery item is inseparably mixed with other items which are not owned by KIRSCHENHOFER MASCHINEN GmbH, KIRSCHENHOFER acquires coownership of the new item in proportion of the value of the delivery item (amount of invoice including VAT) with the other mixed items at the moment of mixing. If the mixing is done in such a way that the purchaser’s item is regarded as the main item, it is agreed upon that the purchaser transfers to KIRSCHENHOFER MASCHINEN GmbH proportional coownership. The purchaser shall hold the sole title or joint title so resulting in safe custody for KIRSCHENHOFER MASCHINEN GmbH. The purchaser shall also transfer to KIRSCHENHOFER MASCHINEN GmbH those claims which support the protection of our claims against him arising from third parties due to the connection of the delivery item with real estate. |
| 8.5 In the event of a violation of essential contractual obligations, KIRSCHENHOFER MASCHINEN GmbH is entitled to take the delivery item or to reclaim it from a third party also without a declared withdrawal and judicial interference at the expense of purchaser. In such case, the purchaser may not invoke a right to ownership. |
| 9. Claims for defects |
| 9.1 Claims by purchaser for material defects lapse 12 months after delivery. KIRSCHENHOFER MASCHINEN GmbH shall be liable for defects recognized but not remedied by KIRSCHENHOFER MASCHINEN GmbH within that period; the deadline for this defect is regarded as being suspended. |
| 9.2 Further statements and details on characteristics of the delivered item shall only be binding for KIRSCHENHOFER MASCHINEN GmbH if these are expressly identified in writing as warranted characteristics. |
| 9.3 The prerequisite for defect claims is that the specifications of the manufacturer for the operation and maintenance were complied with according to the maintenance booklet and that maintenance works were executed as instructed by KIRSCHENHOFER MASCHINEN GmbH. A claim shall be excluded if the defect or damage is due to purchaser or third party violations of instructions for the operation and maintenance of the delivery item or violations of statutory provisions. A claim shall also be excluded if the delivery item was modified by the purchaser or a third party and this modification can be directly linked to the defect. |
| 9.4 The purchaser shall respect his commercial duty to examine and give notice of defects. Any defect, if obviously recognizable, shall be immediately, or at the latest 10 days after receipt of the delivery item, reprimanded in writing via registered mail. Hidden defects shall be reprimanded immediately after detection in writing via registered mail; the claim for rectification of defects shall otherwise be excluded. |
| 9.5 For a possible mitigation, the purchaser shall receive a complete documentation indicating the composition of the parts. In addition, he shall receive a list of spare parts upon delivery, which gives a priority overview of those spare parts he should have available on site in order to enable a quick repair. |
| 9.6 If a defect has occurred, KIRSCHENHOFER MASCHINEN GmbH is entitled at its discretion to a subsequent performance by remedying the defect or a replacement delivery. In case of a replacement, KIRSCHENHOFER MASCHINEN GmbH shall have the right to deliver at the most cost-effective dispatch route. In case the subsequent performance fails, the purchaser shall be entitled, at its own discretion, to withdraw or request a reduction. |
| 9.7 Replaced parts shall become the property of KIRSCHENHOFER MASCHINEN GmbH. The purchaser can claim material defects for the parts used for the remedial action until expiration of the limitation period under 8.1. |
| 9.8 KIRSCHENHOFER MASCHINEN GmbH is only obligated to take remedial action once the purchaser has fulfilled his contractual obligations, particularly his payment pbligation. |
| 10. Liability |
| 10.1 According to statutory provisions, KIRSCHENHOFER MASCHINEN GmbH shall be liable for intent or gross negligence or injury to the life, limb or health. As far as KIRSCHENHOFER MASCHINEN GmbH has not intentionally caused any contractual infringements, the liability shall be limited to typical damages foreseeable at the moment of the contract’s conclusion. The same applies for claims due to the violation of an essential contractual duty or with compensation for damages instead of performance. KIRSCHENHOFER MASCHINEN GmbH shall in particular not be liable for lost profits or other pecuniary losses of the purchaser. They shall to the same extent not be liable for such damages with the purchaser’s clients. |
| 10.2 The liability arising from product liability law, fraudulent non-disclosure or due to the assumption of a guarantee remains unaffected. |
| 10.3 It is urgently required that KIRSCHENHOFER MASCHINEN GmbH shall be immediately notified if external companies modify or change Kirschenhofer equipment or plan to do so. KIRSCHENHOFER MASCHINEN GmbH shall not be liable for defects/damages of the equipment resulting from such actions. Third party modifications require KIRSCHENHOFER MASCHINEN GmbH’s approval. Costs resulting from the non-compliance with these provisions shall be borne in full by the machine operator or customer of the external company. 10 |
| 10.4 For all other purposes, liability is excluded. |
| 10.5 The above-mentioned limitations of liability shall apply analogously to actions or liability cases of employees or other agents of KIRSCHENHOFER MASCHINEN GmbH. |
| 11. Test components, forms, tools |
| 11.1 If the purchaser is required to provide parts to complete the order, they must be provided delivered free to the place of production the order, in the required quantity, or with an additional quantity to cover any scrap, on time, without costs and free of any defects. If this does not occur, any resulting costs and other consequences will be for his account. |
| 11.2 The assembly of the provided parts and test parts are decisive for the future machinery use of the delivered item. As far as a later change of the used material has a negative impact on the product of the machinery use, KIRSCHENHOFER MASCHINEN GmbH shall be exempted from the liability for any resulting damages. |
| 11.3 The manufacture of test parts including the costs for moulds and tools shall be borne by the purchaser. |
| 11.4 Regarding tools, moulds, and other manufacturing devices provided to the purchaser, KIRSCHENHOFER MASCHINEN GmbH’s liability shall be limited to the diligence of its own matters. The costs for maintenance and care shall be borne by the purchaser. |
| 12. Place of performance / Place of jurisdiction / Governing law |
| 12.1 Place of performance for both parties and for all present and future claims arising from the contractual relationship shall be Ulm/Donau. |
| 12.2 Place of jursidiction for all disputes arising from the contractual relationship shall be Ulm/Donau. KIRSCHENHOFER MASCHINEN GmbH shall have the right to pursue legal claims against the purchaser at their official place of business. |
| 12.3 The laws of the Federal Republic of Germany shall apply exclusively. The application of the conflict-of-laws provisions as well as the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. In cases of doubt the German version of these General Terms and Conditions shall prevail. |
| 13. Contractual Changes, Other Provisions |
| 13.1 Changes and additions of binding agreements of the contractual parties ad of its annexes require the written form. This shall also apply to the waiver of the written form requirement. |
| 13.2 Legally binding declarations by and towards KIRSCHENHOFER MASCHINEN GmbH are only applicable if made or received by authorized persons. Sales offices, factory commissioners, authorized dealers as well as general agents do not have any legal authority. |
| 13.3 Neither party may rely on any actual exercise deviating from the Agreement, until such time as such deviation has been confirmed in writing. |
| 13.4 Contractual rights against us shall not be nontransferable without our prior written consent. |
| 13.5 If any provision in this Agreement should be or become invalid, such invalidity shall not affect the legality or validity of the remaining provisions hereof, which remaining provisions shall remain in full force and effect. In such a case, the parties shall replace the respective provision by a provision that is valid and reflects to the extent possible the spirit and economic purpose of the invalid provision. The same applies in case of a gap |
