» General Terms and Conditions of Delivery of Gröneweg Maschinenbau GmbH for Businesses and Legal Entities under Public Law within the Meaning of Section 310 of the German Civil Code (BGB)

General Terms and Conditions of Delivery of Gröneweg Maschinenbau GmbH for Businesses and Legal Entities under Public Law within the Meaning of Section 310 of the German Civil Code (BGB)

I. General Provisions

All deliveries and services shall be governed by these Terms and Conditions as well as by any separate contractual agreements. Any deviating terms and conditions of purchase of the Customer shall not become part of the contract, even upon acceptance of the order. Unless otherwise agreed, a contract shall be concluded upon the Supplier’s written order confirmation.
The Supplier reserves all proprietary rights and copyrights in samples, cost estimates, drawings and similar information, whether in tangible or intangible form, including electronic form. Such information may not be made available to third parties. The Supplier undertakes to disclose information and documents designated as confidential by the Customer to third parties only with the Customer’s consent.

II. Prices and Payment

Unless otherwise agreed, prices are ex works, including loading at the Supplier’s premises, but excluding packaging and unloading. Statutory value-added tax shall be added at the applicable rate.
Unless otherwise agreed, payments shall be made to the Supplier’s account without any deduction as follows:
1. 50% advance payment upon receipt of the order confirmation,
2. 40% at the halfway point of production,
3. 10% within 14 days following acceptance.
The Customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that such counterclaims are undisputed or have been finally determined by a court of law.

III. Delivery Period and Delay in Delivery

The delivery period shall be determined by the agreements between the contracting parties. Compliance with the delivery period by the Supplier is subject to all commercial and technical matters between the contracting parties having been clarified and the Customer having fulfilled all obligations incumbent upon it, such as obtaining the required official certificates or permits or making an agreed advance payment. If these requirements are not met, the delivery period shall be extended accordingly. This shall not apply insofar as the Supplier is responsible for the delay.
Compliance with the delivery period is subject to correct and timely delivery to the Supplier by its own suppliers. The Supplier shall notify the Customer of any foreseeable delays as soon as possible.
The delivery period shall be deemed to have been met if the delivery item has left the Supplier’s premises or the Customer has been notified that the item is ready for dispatch before expiry of the delivery period. Where acceptance is required, the agreed acceptance date shall be decisive, except in cases where the Customer is entitled to refuse acceptance; alternatively, notification that the item is ready for acceptance shall be decisive.
If dispatch or acceptance of the delivery item is delayed for reasons attributable to the Customer, the Customer shall be charged for the costs incurred as a result of the delay, commencing one month after notification that the item is ready for dispatch or acceptance.
If failure to comply with the delivery period is due to force majeure, industrial disputes or other events beyond the Supplier’s control, the delivery period shall be extended accordingly. The Supplier shall notify the Customer as soon as possible of the beginning and end of such circumstances.
The Customer may withdraw from the contract without setting an additional deadline if the Supplier becomes permanently unable to perform the entire contract before the transfer of risk. The Customer may also withdraw from the contract if the performance of part of the delivery becomes impossible and the Customer has a legitimate interest in rejecting the partial delivery. Otherwise, the Customer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of incapacity on the part of the Supplier. In all other respects, Section VII.2 shall apply. If impossibility or incapacity occurs while the Customer is in default of acceptance, or if the Customer is solely or predominantly responsible for such circumstances, the Customer shall remain obliged to provide the agreed consideration.
If the Supplier is in default and the Customer incurs damage as a result, the Customer shall be entitled to claim liquidated damages for delay. Such damages shall amount to 0.5% for each full week of delay, but shall in total not exceed 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used on time or in accordance with the contract.
If, after performance has become due and taking into account the statutory exceptions, the Customer grants the Supplier a reasonable additional period for performance and such period expires without performance, the Customer shall be entitled to withdraw from the contract in accordance with the statutory provisions. Any further claims arising from delay in delivery shall be governed exclusively by Section VII.2 of these Terms and Conditions.

IV. Transfer of Risk and Acceptance

Risk shall pass to the Customer when the delivery item leaves the Supplier’s premises, even where partial deliveries are made or the Supplier has undertaken to provide additional services, such as bearing transport costs or arranging delivery and installation. Where acceptance is required, acceptance shall determine the transfer of risk. Acceptance must take place without delay on the agreed acceptance date or, alternatively, following notification by the Supplier that the item is ready for acceptance. The Customer may not refuse acceptance due to an immaterial defect.
If dispatch or acceptance is delayed or does not take place due to circumstances not attributable to the Supplier, risk shall pass to the Customer on the date on which the Customer is notified that the item is ready for dispatch or acceptance. At the Customer’s request and expense, the Supplier shall arrange any insurance requested by the Customer.
Partial deliveries shall be permitted insofar as they can reasonably be accepted by the Customer.

V. Retention of Title

The Supplier shall retain title to the delivery item until all payments arising from the supply contract have been received.
The Supplier shall be entitled to insure the delivery item against theft, breakage, fire, water damage and other risks at the Customer’s expense unless the Customer provides evidence that it has taken out appropriate insurance itself.
The Customer may neither sell nor pledge the delivery item nor transfer it by way of security. In the event of attachment, seizure or other disposal by third parties, the Customer shall notify the Supplier without delay.
In the event of conduct by the Customer in breach of contract, in particular default in payment, the Supplier shall, following a reminder, be entitled to repossess the delivery item, and the Customer shall be obliged to surrender it.
By virtue of the retention of title, the Supplier may demand surrender of the delivery item only if it has withdrawn from the contract.
The filing of an application for the opening of insolvency proceedings shall entitle the Supplier to withdraw from the contract and demand the immediate return of the delivery item.

VI. Claims for Defects

In respect of material defects and defects in title relating to the delivery, the Supplier shall provide the following warranty, to the exclusion of further claims and subject to Section VII:

Material Defects

At the Supplier’s discretion, all parts which prove to be defective due to circumstances existing prior to the transfer of risk shall be repaired free of charge or replaced with defect-free parts. The Supplier must be notified immediately in writing upon discovery of any such defects. Replaced parts shall become the property of the Supplier.
Following consultation with the Supplier, the Customer shall provide the Supplier with the necessary time and opportunity to carry out all repairs and replacement deliveries which the Supplier considers necessary. Otherwise, the Supplier shall be released from liability for any consequences resulting therefrom. Only in urgent cases involving a risk to operational safety or in order to prevent disproportionately extensive damage, in which case the Supplier must be notified immediately, shall the Customer be entitled to remedy the defect itself or have it remedied by third parties and claim reimbursement from the Supplier for the necessary expenses.
Of the direct costs incurred as a result of repair or replacement delivery, the Supplier shall, insofar as the complaint proves justified, bear the costs of the replacement part, including shipping. The Supplier shall also bear the costs of removal and installation as well as the costs of providing any necessary technicians and assistants, including travel expenses, provided that this does not result in a disproportionate burden on the Supplier.
In accordance with the statutory provisions, the Customer shall be entitled to withdraw from the contract if, taking into account the statutory exceptions, the Supplier fails to comply with a reasonable deadline set by the Customer for repair or replacement delivery due to a material defect. Where the defect is immaterial, the Customer shall only be entitled to reduce the contract price. Otherwise, the right to reduce the contract price shall be excluded. Any further claims shall be governed by Section VII.2 of these Terms and Conditions.
In particular, no warranty shall be provided in the following cases: unsuitable or improper use; incorrect installation or commissioning by the Customer or third parties; normal wear and tear; incorrect or negligent handling; improper maintenance; unsuitable operating materials; defective construction work; unsuitable foundations or ground conditions; or chemical, electrochemical or electrical influences, unless attributable to the Supplier.
If the Customer or a third party carries out improper repairs, the Supplier shall not be liable for any resulting consequences. The same shall apply to modifications to the delivery item carried out without the Supplier’s prior consent.

Defects in Title

If the use of the delivery item infringes industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, generally procure for the Customer the right to continue using the delivery item or modify the delivery item in a manner reasonably acceptable to the Customer so that the infringement ceases to exist.

If this cannot be achieved on economically reasonable terms or within a reasonable period of time, the Customer shall be entitled to withdraw from the contract. Under the same conditions, the Supplier shall also be entitled to withdraw from the contract.

In addition, the Supplier shall indemnify the Customer against claims of the relevant holders of industrial property rights or copyrights which are undisputed or have been finally determined by a court of law.

1. Subject to Section VII.2, the Supplier’s obligations set out in Section VI.7 shall be exhaustive in the event of an infringement of industrial property rights or copyrights. Such obligations shall only apply if:
  - the Customer informs the Supplier without delay of any alleged infringement of industrial property rights or copyrights;
  - the Customer provides reasonable assistance to the Supplier in defending against the claims asserted and/or enables the Supplier to carry out the modification measures referred to in Section VI.7;
  - the Supplier retains control over all defensive measures, including out-of-court settlements;
  - the defect in title is not based on an instruction given by the Customer; and
    the infringement was not caused by the Customer modifying the delivery item without authorization or using it in a manner contrary to the contract.

VII. Liability

If, due to fault on the part of the Supplier arising from omitted or incorrect implementation of proposals or advice given before or after conclusion of the contract, or due to a breach of other contractual ancillary obligations — in particular instructions regarding the operation and maintenance of the delivery item — the Customer is unable to use the delivery item in accordance with the contract, the provisions of Sections VI and VII.2 shall apply accordingly, to the exclusion of any further claims by the Customer.
For damage not occurring to the delivery item itself, the Supplier shall be liable — irrespective of the legal basis — only:

a) in cases of intent;

b) in cases of gross negligence on the part of the proprietor, corporate bodies or executive employees;

c) in cases of culpable injury to life, body or health;

d) in the case of defects which the Supplier has fraudulently concealed or whose absence the Supplier has guaranteed;

e) in the case of defects in the delivery item insofar as liability exists under the German Product Liability Act (Produkthaftungsgesetz) for personal injury or damage to property used for private purposes.

In the event of a culpable breach of material contractual obligations, the Supplier shall also be liable in cases of gross negligence by non-executive employees and in cases of ordinary negligence; in the latter case, liability shall be limited to losses typical for the contract and reasonably foreseeable.

All further claims shall be excluded.

VIII. Limitation Period

All claims of the Customer, irrespective of their legal basis, shall become time-barred after 12 months, but in any event no later than after 4,000 operating hours.

The statutory limitation periods shall apply to claims for damages pursuant to Section VII.2 a)–e). They shall also apply to defects in a building or to delivery items which, in accordance with their customary use, have been incorporated into a building and have caused the building to be defective.

IX. Use of Software

Where software is included in the scope of delivery, the Customer shall be granted a non-exclusive right to use the supplied software, including its documentation. The software is provided for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited.

The Customer may reproduce, modify, translate or convert the software from object code into source code only to the extent permitted by law (Sections 69a et seq. of the German Copyright Act (UrhG)). The Customer undertakes not to remove any manufacturer information — in particular copyright notices — or alter such information without the Supplier’s prior express consent.

All other rights in the software and documentation, including copies thereof, shall remain with the Supplier and/or the software supplier. The granting of sublicences is not permitted.

X. Governing Law and Place of Jurisdiction

All legal relationships between the Supplier and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany applicable to legal relationships between domestic parties.
The place of jurisdiction shall be the court having jurisdiction at the Supplier’s registered office. However, the Supplier shall also be entitled to bring legal proceedings at the Customer’s principal place of business.

XI. Severability

Should one or more provisions of these General Terms and Conditions of Delivery be or become invalid, the validity of the remaining provisions shall not be affected thereby. The contract entered into between the parties shall otherwise remain valid.

The invalid provision shall be replaced by a valid provision which, in economic terms, most closely reflects the meaning and purpose of these General Terms and Conditions of Delivery.