General Conditions of Sale and Assembly
of Strautmann Umwelttechnik GmbH
§ 1 Scope of Application
Our terms and conditions of sale apply exclusively; we do not recognise any conditions of the customer to the contrary or those which deviate from our conditions of sale except when we have specifically agreed in writing to their validity. Our conditions of sale apply even if we carry out a delivery to the customer without any reservation when we are aware of contrary conditions of the customer or those which deviate from our conditions of sale.
Our terms and conditions of sale apply solely to entrepreneurs as defined in § 310 BGB (German Civil Code).
Our terms and conditions of sale shall also apply in their respective version for all future business transactions of a similar type with the customer, without any need for us to refer to the again in each individual case; we will inform the customer of any alterations at the latest upon conclusion of the respective contract.
§ 2 Offers – Prices – Conditions of Payment
Our offers are non-binding and subject to confirmation, unless exceptionally a specific legal intention to be bound has arisen from the offer. A contract is not concluded until we submit our order confirmation and only under the conditions confirmed by us in writing, or through deliveries.
Our prices Include additional statutory sales tax for delivery ex-works (“ex-works” Incoterms 2010) Auf dem Haarkamp, 49219, Federal Republic of Germany.
Unless otherwise agreed in the order confirmation, the date of payment is 30 days’ net. Any discount deduction which may be agreed on new invoices is inadmissible if older invoices due have not yet been settled. The date of payment is considered to be the date on which we can dispose of the value of the cash receipt. If down-payments or payments in advance have been agreed, the statutory sales tax is added to the down-payment or payment in advance.
It can be agreed between the contractual parties that the customer has to open a documentary credit via his bank (or another bank acceptable to us). In this case it is laid down that the opening of a documentary credit is carried out in accordance with the Uniform Customs and Practice for Documentary Credits, revision 2007, ICC-Publication No. 600 (“ERA”).
The customer has the right of offsetting and retention only if and when his counterclaims have been stated legally binding, undisputed or recognised by our company, or when a consideration is involved which results from the contractual relationship, especially a counterclaim arising from a refusal of performance. The customer is entitled to exercise the right of retention only in the event that his counterclaim involves the same contractual relationship.
Subsequent amendments of, or additions to, the contract or major results therefrom will be set out in writing and confirmed by both parties. In cases in which we perform services for which no fixed price has been agreed, we will calculate the price using the standard accounting rates valid at the time that the service was performed. Moreover, we can take into account all costs which arise including an appropriate surcharge. We will document the surcharge upon request.
§ 3 Delivery and Performance
Compliance with all our obligations of delivery and fulfilment assumes the prompt and proper fulfilment of the customer’s obligations and the prior clarification of all technical questions.
The despatch of our products and goods is carried out by the least expensive means and at the risk and cost of the customer. Should the customer so wish, we will cover the delivery with a transportation insurance policy. The resulting costs are to be borne by the customer
Partial deliveries are acceptable if:
the customer can use the partial delivery within the scope of the contractually intended purpose
delivery of the remainder of the goods ordered is ensured and
no major extra expense or additional costs result (unless we express our willingness to bear these).
Deviations of the delivery item from the order confirmation which are customary in the trade, offers/quotations, samples, brochures, data sheets, trial deliveries and pre-deliveries are permissible according to the relevant valid DIN-/EN norms or other applicable technical norms.
Goods forming part of properly executed deliveries can only be taken back if we agree to the return, in which case the customer has to meet the costs of the return.
Force majeure, official requirements and other conditions for which we are not responsible release us from our supply/service performance obligations for the duration of their effects. This applies especially to disruption of transport and business, labour disputes, shortage of materials, the effects of fire, war or state of emergency. We are authorised to withdraw from the contract if the fulfilment of the contract is no longer reasonable for the reasons quoted. An unreasonable situation does not exist if the performance inhibiting event caused by the reasons quoted exists but is foreseen as being of only a temporary nature. Claims for damages against us are excluded in these cases.
We are liable in the event of impossibility or delay in performance, where this is due to intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents under statutory regulations. In cases of gross negligence our liability is however limited to typical and foreseeable damage.
In cases of slight negligence our liability because of impossibility of performance is limited to damages and compensation of wasted expenditure is similarly limited to typical and foreseeable damage. Further claims of the customer because of impossibility of performance are excluded. The customer’s right to withdraw from the contract remains unaffected.
Our liability because of delay in performing the service in cases of slight negligence is limited to a total of 10 % for compensation together with performing the service and for compensation instead of performing the service to a total of 10 % of the value of the service. Further claims of the customer because of delay in performing the service are excluded – even after the expiry of a deadline for performance. These rules also apply to the refund of wasted expenditure.
The limitations under the above Serial 3.6 do not apply where there is liability for wrongful death, personal injury or health impairment, or for the infringement of major contractual obligations. Under the term major contractual obligations are those, the fulfilment of which characterises the contract and on which the customer can rely. An amendment of the burden of proof to the disadvantage of the customer shall not be associated with this.
§ 4 Reservation of Self-supply
We do not accept responsibility for the procurement risk. Where, despite the conclusion of an appropriate contract of purchase, we do not receive the delivery item and/or from the view point of essential parts of the delivery item we do not fully receive the latter, we are entitled to withdraw from the contract with the customer. Our responsibility for intent and negligence remain unaffected. We will inform the customer without delay of the non-availability or the non-availability on time of the delivery item and, if we wish to withdraw, exercise the right to do so without delay. In the event of a withdrawal we will refund without delay any services already rendered by the customer.
§ 5 Due date – Interest – Consequences of Delay
In the event of payment after expiry of the term of payment of 30 days, interest is due to be paid to us at the rate laid down in legislation.
For as long as the customer is in default of payment, we are not obliged to make any further deliveries, irrespective of the legal basis on which our duty of delivery is based.
In the event that a major deterioration should occur in the customer’s financial circumstances, especially if insolvency proceedings are requested, we can demand, irrespective of the due payment date, cash or other security for deliveries still to be made before the goods are delivered,
Where payments by instalments and/or payments on account have been agreed between the customer and ourselves, the following also applies: in the event that the customer falls totally or partly or into arrears by one instalment or one payment on account for longer than three days, then the remaining sum still unpaid becomes immediately and totally payable in one instalment.
In the event that security for the payment of the purchase price is provided by a bank or another third party, and delivery of the goods cannot be made for reasons beyond our control, we are authorised to demand payment of the remaining due purchase price from the bank or another third party against presentation of proof that the goods have been put in storage. Such storage of the goods takes place at the customer’s risk and expense. The date on which the goods are placed in storage by us counts as the date of delivery. All delivery and other documents which have to be handed over by us in order to obtain payment from a bank or from another third party are to be passed to us without delay by the person(s) originating these documents.
§ 6 Retention of Title
We retain ownership of the items to be delivered until the fulfilment of all our claims against the customer resulting from the business relationship. In the event of behaviour contrary to the contract by the customer, in particular of default of payment, we are entitled to withdraw from the contract after the fruitless expiry of a reasonable period of grace. After such a withdrawal, we have the right to demand return of the goods, to sell them elsewhere or to dispose of them in any other way.
The customer is obliged to treat the delivery items in a careful manner: he is especially obliged to insure these adequately at replacement value at his own cost against fire, water and loss through theft. If maintenance and inspection work is necessary, the customer must carry this out at the correct time at his own cost.
Despite the retention of title, the customer is entitled to further sell the delivery item in the course of normal business activity. Any claims against the supplier made by the subsequent buyer from the customer’s disposal of the delivered goods are transferred to us in the sum of the final invoice amount agreed with us (including value added tax). This transfer is valid irrespective of whether the delivery item is sold on without processing or after processing. The customer remains authorised to collect the amount receivable even after the transfer. Our power to collect the receivables ourselves remains unaffected by this. We will, however, not collect the receivables as long as the customer meets his obligation to pay from the collected proceeds, if he is not in default of payment and especially if no petition for the opening of insolvency proceedings has been submitted or payments have been suspended.
In the event of seizures or other actions by third parties, the customer must inform us immediately and in writing so as to enable us to file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). If the suit in accordance with § 771 ZPO is successful and if the legal enforcement concerning third parties to cover the legal and non-legal costs of such a suit be conducted unsuccessfully, the customer is liable to us for the resulting default.
The processing or conversion of the delivery item by the customer is always undertaken for us. In the event that the delivery item is processed together with items which do not belong to us, then we acquire co-ownership of the new item in proportion to the value of the of the delivery item (final invoice amount including value-added tax) to the other processed items at the moment the processing took place. In the event that the processing occurs in such a way that the customer’s item is to be seen as the main item, then it is deemed to have been agreed that the customer transfers to us co-ownership pro-rata. The customer preserves for us the sole ownership or co-ownership so created.
The customer also assigns to us the claims to safeguard our claims against him, which are due to the customer against a third party by joining the delivery item to a real estate property.
We undertake to release at the request of the customer the securities due to us insofar as 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 subject to our discretion.
§ 7 Liability for Defects
Claims for faults by the customer assume that the latter has properly carried out his obligations of inspection and complaint in accordance with § 377 HGB (German Commercial Code).
We accept no liability for used machines.
Details of weight, dimensions, performance details, revenues, and other data which is given in sales brochures, publicity and similar documentation are solely to be seen as a guide. The same applies to machines which have been provided as trial or demonstration machines.
Where there is a fault in the delivery item for which we are responsible, we have the choice of rectification by either repairing the fault or by providing a new, fault-free item. In the case of the rectification of a fault, we are obliged to bear the costs of all expenses necessary for the rectification, especially transport, travel, labour and material costs as long as these have not been increased by the requirement to take the item to be delivered to a location other than the place of performance. In the case of companies abroad, the following shall also apply: in the case of disproportionate effort and costs which would result from a rectification carried out by ourselves, we can ask the customer to carry out, or have carried out, the necessary repairs. We then have to refund to the customer the costs which occur to the customer in carrying out the necessary repairs.
If the rectification is unsuccessful, which is not to be assumed until, at the earliest, the second attempt at repair or rectification, then the customer has the right to choose either cancellation or a reduction in price. Unless there is something to the contrary in the following (Serials 7.6, 7.7, and 7.8), any further claims by the customer are excluded – irrespective of the legal basis. Therefore, we are not liable for damage that does not occur to the delivery item itself; in particular, we are not liable for production downtime, business interruption, the costs of any recall action, missed earnings or other financial losses to the customer.
We are liable under statutory provisions if the customer asserts a claim based on intention or gross negligence, including the intention or gross negligence of our employees or our vicarious agents. Where we are not charged with any further contract infringement, the compensation is, however, limited to foreseeable, typically occurring damage.
We are liable under statutory provisions if we culpably infringe a major contractual duty; major contractual duties are those, the fulfilment of which shapes the contract and upon which the customer can depend. In such cases however, liability for compensation is limited to foreseeable and typically-occurring damage.
Liability on account of culpable injury to life, limb or health remains unaffected: this also applies to statutory liability under German Product Liability Law and from inadmissible acts.
§ 8 Assembly, Commissioning, Maintenance and Services
Subject to there being any other agreement, the assembly and installation of the delivery items is carried out by the customer and at his own risk.
In the event that we have contractually taken over assembly and installation, the following applies:
The customer has to provide sufficient administrative support and handling equipment, including cranes and fork-lifts etc. for the unloading and assembly of the delivery items. In addition, the customer provides in good time and at his own costs all tools, qualified staff, oil, lubricants, water, steam, oxygen, electricity, air, drawings and data, raw materials and other items, preparatory work and services which are necessary for the installation and commissioning of the delivery items. This includes particularly:
A suitable work and storage area as close as possible to the site at which the work for taking into operation will be carried out
Placing the equipment in the area of installation which is in a suitable condition to allow a start on installation.
All necessary construction work, especially where this concerns the subsurface, cabling, pipes and lines, anchor bolts, floor channels, frames, meshes, grilles, cover plates, carriers to support lines, pipes and cables and to hang overhead conveyors and installations onto the roof structure.
Delivery, installation and connection of all necessary cables – except those cables internal to the equipment – including network cables, data cables, control and signal cables, etc., from the main control consoles and service centres to and between the connection points to the individual parts of the installation in accordance with our circuit diagrams, including shielded cable channels or cable ties for network and data cables in accordance with our specifications.
Standard IT hardware and software as planned (if not included in the quotation).
Positioning of the main server (if available) in a dry, clean and air-conditioned room with sufficient telephone and data cables to our supervisory personnel and online service.
Work permits and other permits which are necessary in the country in which the installation is being installed.
The customer has to prepare at his own costs and in accordance with the contractual agreement the rooms in which assembly is to take place and to ensure that the necessary power connections and technical installations are present. The customer has sole responsibility for the structure. Before the start of the assembly work, the customer has to provide us with all necessary information concerning the position and the availability of the utility connections such as power cables, gas and water pipes, and other similar installations. This is especially applicable to concealed installations. We are not liable for damage which occurs because the customer failed to carry out his obligations.
The installation site for the machine must be freely accessible by vehicle, a suitable indoor crane must be provided or the floor of the hall must take the weight of a truck or a mobile crane. The floor of the hall must be clear of obstruction in the area of the assembly of the machine.
Before the assembly of the machine is started, the delivery parts must be on the spot. Construction and other work must be completed to the point where work can commence immediately after the arrival of the assembly fitter and can be completed without interruption. New builds must be dry, wall and ceiling plastering finished, and doors and windows installed. The customer is to ensure that a base suitable for the machine to be installed and of a suitable load-bearing capability is available (concrete levelled with spirit levels). The customer arranges any sound-insulation measures necessary.
We charge for the services of our assembly fitters at the respective, current hourly rate (where necessary with surcharges for overtime, weekends, legal holidays and night work) the usual surcharges laid down in the tariff apply to work on Sundays and legal holidays. Accommodation expenses, daily expense allowance, travel expenses and away-from-home allowance are charged separately. A kilometre fee for return journeys is charged at current rates, and is calculated from Glandorf. Special journeys made by the fitters are similarly charged – for example, to acquire replacement parts where these are necessary for the commissioning of the machine and where this was not apparent until the assembly was in progress. The prices given are subject to statutory value added tax
All parts which become additionally necessary during assembly which are not specifically listed and which are required because of unusual, unforeseeable circumstances on site or because of a special wish of the customer or due to requirements of the local supervisory board are charged separately. Proof of purchase can be provided.
Interruptions to assembly work due to missing connections, construction work, power cuts etc., for which we are not responsible will be charged to the customer unless the latter is in turn not responsible for such interruptions.
Additional work, which is not part of the contractually agreed scope of delivery, is charged at cost. This is to be agreed separately between us and the customer. Waiting time while we additional fitters are present for the commissioning of the machines are at the customer’s expense unless the waiting time is due to circumstances which the customer is not responsible for.
Any agreed inclusive assembly terms do not include work on Sundays or public holidays; inclusive terms only apply if all preparatory measures on the construction site and concerning the construction have been completed.
The costs for any assistants for our technician (electricians, assistants and appropriate lifting tools) during the duration of the execution of the contracted work are borne, provided that they are necessary, by the customer. The latter is entitled to prove to us that the assistants were not necessary for the fulfilment of the contract.
All machines are handed over with the operating instructions provided by the relevant manufacturer. The costs of any individual instruction are not included in the purchase price and will be charged according to the time used at our rate for fitting.
The correct completion of the work detailed in the contract is to be confirmed to us by the customers on the assembly report. The customer receives a copy for his records.
Unless provided for otherwise in the contract, we are not responsible for:
Interfaces between our installation and/or our software on one hand and elements provided by the customer or a third party on the other
Compatibility with other customer software
Coordination between our work and that of other suppliers
Maintenance work will be carried out by us only to the extent described in the contract or in a special service contract. The conditions of the relevant service contract apply to the services rendered.
If the customer takes over service work, especially installation and commissioning, we are exempt from any liability. In particular, we are not liable for any faulty execution by the customer who failed to conform to our recommendations, drawings and specifications. In addition, our employees do not check whether all their instructions have been correctly carried out by the customer.
§ 9 State Provisions/Safety/Use
For individual parts of the machine we have taken into account machinery directive 2006/42/EC on the condition that the customer installs safety devices which are part of his contractual responsibility. We do not, however, warrant that the installations in each case conform with all locally applicable safety and safety at work provisions or other local provisions unless this is specifically agreed in writing in the contract. In the event that an assessment by the local (supervisory) authorities is necessary before plants are commissioned, this is also the responsibility of the customer.
The customer ensures that our employees can carry out their work safely and free of any danger to their health.
The products are intended only for the purpose which is specifically described in the contract and in our manuals. We are not responsible for any other use of the products, even if we are aware thereof.
The customer indemnifies us from all claims by the customer’s employees, representatives, or third parties due to personal injury or damage to property caused directly or indirectly by failure on the part of the customer, his employees, representatives or third parties to observe our safety, operating and/or maintenance instructions. This indemnification includes all costs arising to us including all legal fees and expenses incurred.
§ 10 Additional Conditions for Software
We cede to the customer the right of use of the software to be transferred and other work products protected by copyright to the extent of the purpose foreseen in the contract. Unless agreed to the contrary, we also grant to the customer a non-transferable, non-exclusive right of use for the installation of this software onto a data bank and for the use of this software for the period of use or of contract, or in other way limited in time, as embedded software or application software as the case may be in the manner detailed in the contract. The customer is not permitted to totally or partly transfer to third parties the right of use granted to him to grant third parties equivalent right of use. We reserve the right to terminate this licence if the conditions thereof are infringed or if the customer in some other way violates the provisions of the underlying contract.
Where the right of use is transferred for a limited time only or if the transfer of the licence ends for other reason(s), all the rights transferred revert to us on expiry of the licence without any further recourse to legal proceedings. The customer is obliged to delete all licence products which he holds and to return all documentation.
Transfer of the source codes to the customer is excluded unless anything to the contrary is specifically agreed.
Insofar as we use services and work products, especially the right of use of third parties, for carrying out the contract, we will obtain the right of use of these to the extent needed to execute the contract and transfer them to the customer. If it is not possible for us to obtain right of use to this extent or if there are limitations of the right of use or of other rights of third parties, we will inform the customer accordingly. The customer has to conform with this limitation. We are not obliged to secure the right of use for services and works which are provided by the customer.
The customer is allowed to produce a copy of the software exclusively for back-up purposes, which must be labelled as a copy and bear a label showing us as owner of the copyright.
The customer is not to remove any copyright notice.
The customer hereby undertakes not to alter the software or to decompile it, not to reengineer or copy it, except where this is expressly permitted in these general terms and conditions of sale.
A pre-requirement for maintenance and service measures on transferred software is a separate maintenance and/or service and support agreement.
We will not transfer to the customer the rights of use necessary for the use of our products and services to the extent described above until all the claims for payment, fees and repayment of costs have been met.
In the event of loss of data we are liable only for the costs which are necessary for the recreation of the data by the customer when proper data back-up exists. In the case of slight negligence, we are liable only if the customer has carried out proper data back-up immediately prior to the act which resulted in the loss of data.
Our liability and warranty are excluded when damage and/or disruption was caused by an act of the customer which culpably infringes the conditions of this contract, alters the software supplied by us against the provisions of the contract or our instructions, or uses the software supplied by us into a system environment other than that agreed in the contract.
If we are committed to supply and transfer items or software or to produce other work such as expert reports or analyses, the conditions of § 7 apply accordingly in the case of faulty delivery and services.
The above limitations of liability apply correspondingly for personal recourse to our employees, representatives and vicarious agents.
§ 11 Rights Regarding Intellectual and Industrial Property, Confidentiality
All rights to intellectual property and industrial property rights regarding products, cost estimates, drawings and other documents such as patents, utility models, registered designs, copyrights and trademark rights, remain with us. The customer undertakes not to assert any intellectual and industrial property rights in respect of the products and modifications to the products.
Any further liability of our company as a result of the breach of the rights of third parties listed in Serial 11.1 is excluded except in the case of gross negligence or of intent. In no case are we liable to third parties for claims in respect of the infringements of the rights listed in Serial 11.1 if the claims are in connection with illustrations, drawings, catalogues, specifications or other material which was delivered to us by the customer or on his behalf.
We will defend the customer – subject to the above limitations of liability – against any claims which originate from an infringement of the rights listed in Serial 11.1 resulting from the contractually-approved use of our products and take over from the customer any imposed costs and damages contributions as long as he has informed us of such claims in writing and without delay and as long as we reserve all defensive measures and settlement actions.
All information and documents which we supply to the customer remain our property, are not to be copied by the customer, nor revealed to third parties and are to be used only for the agreed purpose. Drawings and other documents forming part of offers/quotations are to be returned to us on request.
Where we have supplied items from drawings, models, samples or other documents, the customer warrants that the property rights of third parties are not infringed. If third parties, with reference to property rights prohibit us especially from the production and supply of such items then we are entitled – without being obliged to examine the legal situation – to cease all further activity and to demand compensation in the event of the customer being at fault The customer also commits himself to immediately exempt us from all claims of third parties connected with this matter.
§ 12 Exclusion of Further Liability
Any additional liability for compensation of damages other than that detailed in the preceding conditions is excluded, irrespective of the legal nature of the claims lodged. This applies in particular to claims for damages for fault arising upon the conclusion of the contract, because of other breaches of duty or because of claims in tort for indemnification of damage to property as defined by § 823 BGB (German Civil Code). In the case of a claim for compensation pursuant to culpa in contrahendo, the exclusion of liability mentioned above is equal to a subsequent waiver of liability due to the claim which had already existed on conclusion of the contract. Moreover, we are not liable if claims against the customer due to a breach of industrial property rights as a result of any penalties already arisen.
The limitation in accordance with Serial 12.1 shall also apply where the customer, in lieu of a claim to compensation for damages, demands compensation of unnecessary expenditures in lieu of performance.
Where liability for damages against us is excluded or limited, then the same applies with regard to personal liability for damages of our executives and employees, staff representatives and vicarious agents.
§ 13 Period of Limitation
Customer claims against us – irrespective of the legal basis thereof – expire at the end of one year after they arise. This does not apply to §§ 438 sec. 1 No. 2 and 634a sec. 1 No.2 BGB. This equally does not apply of intention or in the event of malicious concealment of a fault or where we have taken over a guarantee. For claims for compensation this period of limitation is not valid in cases of loss of life, personal injury or damage to health or violation of liberty, with claims under the Product Liability Laws or grossly negligent breach of duty or breach of major contractual duty. Major contractual duties are those, the fulfilment of which shapes the contract and upon which the customer can depend. No change in the onus of proof to the disadvantage of the customer is associated with the preceding regulations.
§ 14 Other Provisions
The place of jurisdiction is 49219 Glandorf, Federal Republic of Germany. We also have the right to file complaints at the court responsible for the customer or at any other court which is entitled to be competent under national or international law.
The place of performance is also49219 Glandorf, Federal Republic of Germany.
The customer declares himself to be in agreement with our storing data in accordance with the German Data Protection Law.
The customer is not permitted to transfer any rights of guarantee and ¨warranty or any other rights granted to him within the scope of the contract unless we have agreed in writing to the transfer.
If the customer sells the products to third parties or exports them, he undertakes to observe at all times the import and export regulations for this type of sale.
The law of the Federal Republic of Germany applies with the exception of the reference provisions of German International Private Law and the UN Sales Convention.
Strautmann Umwelttechnik GmbH