General sales and installation conditions of Torres & Getrost GbR
§ 1 Scope
1.1 Our terms of sale apply exclusively; We do not recognize conflicting or deviating conditions of the customer unless we have expressly agreed to their validity in writing. Our terms of sale also apply if we make a delivery to the customer without reservation in the knowledge of conflicting or deviating terms of the customer.
1.2 Our terms of sale only apply to entrepreneurs within the meaning of Section 310 of the German Civil Code.
1.3 Our terms of sale apply in their current version as a framework agreement for all future transactions of the same type with the customer, without us having to refer to them again in each individual case; In this case, we will inform the customer about changes at the latest when the respective contract is concluded.
§ 2 Offer - Prices - Terms of Payment
2.1 Our offers are subject to change and non-binding, unless the offer expressly expresses a will to be legally binding as an exception. A contract is only concluded through our order confirmation and exclusively under the conditions confirmed by us in writing or through delivery.
2.2 Our prices do not include statutory sales tax 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, the term of payment is 14 days net. Any agreed discount deduction on new invoices is not permitted if older invoices that are due have not yet been settled. The day of payment is the day on which we can dispose of the receipt of the money in terms of value. If down payments or prepayments have been agreed, the statutory value-added tax shall also be added to the down payment or prepayment amount.
2.4 It may be agreed between the contracting parties that the customer has to open a documentary credit through his bank (or a [other] bank acceptable to us). In this case it is stipulated that the opening of the credit is carried out in accordance with the General Guidelines and Customs for Documentary Credits, Revision 2007, ICC Publication No. 600 ("ERA").
2.5 The customer is only entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or recognized by us or if a consideration resulting from the contractual relationship is affected, especially in the case of a counterclaim that arose from a claim for non-cash benefits that entitles him to refuse performance. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
2.6 Subsequent changes or additions to the order or the main results of the order must be recorded in writing and confirmed by both parties. In cases where we provide services for which no fixed price has been agreed, the price will be determined by us using our standard billing rates in effect at the time the services are provided. Furthermore, we can invoice all costs incurred, including a reasonable additional price. On request we will document the additional price.
§ 3 Delivery and Execution
3.1 Compliance with all of our delivery and execution obligations presupposes the timely and proper fulfillment of the customer's obligations and the clarification of all technical questions.
3.2 The item to be delivered will be shipped using the cheapest shipping route and at the risk and expense of the customer. If the customer so desires, we will cover the delivery with transport insurance. The customer bears the costs incurred in this respect.
3.3 Partial deliveries are permitted if:
the partial delivery can be used by the customer within the scope of the contractual purpose,
the delivery of the remaining ordered delivery item is ensured and
the customer does not incur any significant additional work or additional costs as a result (unless we declare ourselves willing to bear these costs). applicable DIN/EN standards or other relevant technical standards.
3.5 Delivery items from deliveries that have been made properly can only be returned if we authorize the return. In this case, the customer has to bear the costs of the return.
3.6 Force majeure, official requirements and other circumstances for which we are not responsible, in particular traffic and operational disruptions, labor disputes, material shortages, fire damage, war or state of emergency release us from the delivery and execution obligation for the duration of their effects. We are entitled to withdraw from the contract if we can no longer reasonably be expected to fulfill the contract for the above reasons. There is no unreasonableness if the impediment to performance, which exists for the above reasons, is foreseeably only of a temporary nature. Compensation for damages against us is excluded in these cases.
3.6.1
In the event of impossibility or delay in performance, we are liable in accordance with the statutory provisions insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In cases of gross negligence, however, our liability is limited to the foreseeable damage that is typical for the contract.
3.6.2
In the event of slight negligence, our liability for damages and reimbursement of wasted expenses due to impossibility is also limited to the foreseeable damage that is typical for the contract. Further claims of the customer due to impossibility of performance are excluded. The customer's right to withdraw from the contract remains unaffected.
3.6.3
In the case of slight negligence, our liability for delays in performance is limited to a total of 10% of the value of the service for damages in addition to the service and for damages in lieu of service to a total of 10%. Further claims of the customer due to delay in performance are excluded - even after the expiry of a deadline for performance set by us. These regulations also apply to the reimbursement of futile expenses.
3.6.4
The restrictions of this clause 3.6 do not apply if liability is due to injury to life, limb or health or due to the violation of essential contractual obligations. Significant contractual obligations are those whose fulfillment characterizes the contract and on which the customer can rely. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
§ 4 Reservation of self-supply
We do not assume the procurement risk. If, despite the conclusion of a corresponding purchase contract on our part, we do not receive the delivery item or do not receive it in full with regard to essential parts of the delivery item, we are entitled to withdraw from the contract with the customer. Our responsibility for intent and negligence remains unaffected. We will inform the customer immediately about the unavailability or the untimely availability of the delivery item and, if we want to withdraw, we will immediately exercise our right of withdrawal. In the event of withdrawal, we will immediately refund any consideration already paid by the customer.
§ 5 Maturity – Interest – Consequences of Default
5.1
If payment is made after the agreed payment period has expired, interest on arrears must be paid to us in the amount stipulated by law.
5.2
As long as the customer is in default of payment, we are not obliged to make further deliveries, regardless of the legal reason on which our delivery obligation is based.
5.3
If the customer's financial circumstances deteriorate significantly, in particular if insolvency proceedings are opened, we can demand cash payment or other security before delivery of the delivery item for deliveries that are still outstanding and the payment period is no longer applicable.
5.4
If we have agreed payment by installments and/or payments on account with the customer, the following also applies: If the customer is in arrears with the payment of an installment or a payment in whole or in part for more than three days, the outstanding balance will be paid immediately and due in full at once.
5.5
If security for the payment of the purchase price has been provided by a bank or another third party and the delivery of the delivery item cannot take place due to circumstances for which we are not responsible, we are also entitled to demand the total outstanding purchase price from the bank or another party third party against submission of proof that the delivery item was stored. Such storage takes place at the expense and risk of the customer. The date on which the delivery item is stored by us is considered the delivery date. All delivery documents and other documents that must be provided by us in order to receive payment from a bank or other third party must be provided to us immediately by the issuer of these documents.
§ 6 Retention of title
6.1
We reserve ownership of the delivery item until all claims against the customer arising from the business relationship have been settled. If the customer behaves in breach of contract, in particular in the event of default in payment, we are entitled to withdraw from the contract after a reasonable period of grace has expired without success. After any withdrawal from the contract, we have the right to demand the return of the delivery item, to sell it elsewhere or to dispose of it in any other way.
6.2
The customer is obliged to treat the delivery item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
6.3
Despite the retention of title, the customer is already entitled to resell the delivery item in normal business transactions. The customer hereby assigns to us the claims of the customer from the resale of the delivery item in the amount of the final invoice amount agreed with us (including sales tax). This assignment applies regardless of whether the delivery item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his 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 inform us immediately in writing so that we can file a suit in accordance with § 771 ZPO. If the lawsuit was successful in accordance with § 771 ZPO and if enforcement at the third party to cover the judicial and extrajudicial costs of such a lawsuit was unsuccessful, the customer is liable for the loss incurred by us.
6.5
The processing or transformation of the delivery item by the customer is always carried out for us. If the delivery item is processed with other items that do not belong to us, we acquire co-ownership of the new item in relation to the value of the delivery item (final invoice amount including sales tax) to the other processed items at the time of processing. For the rest, the same applies to the item resulting from processing as to the delivery item delivered under reservation.
6.6
If the delivery item is inseparably mixed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including sales tax) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to us. The customer keeps the resulting sole ownership or co-ownership for us.
6.7
The customer also assigns to us the claims to secure our claims against him, which arise against a third party through the connection of the delivery item with a property.
6.8
We undertake to release the securities to which we are entitled at the customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%. We are responsible for selecting the securities to be released.
§ 7 Liability for Defects
7.1
The customer's claims for defects presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB.
7.2
We assume no liability for used machines.
7.3
Weights, dimensions, performance specifications, yields and other data mentioned in sales brochures, advertisements and comparable documents are to be regarded as guidelines only. The same applies to test machines or demonstration machines that have been demonstrated or made available.
7.4
If there is a defect in the delivery item for which we are responsible, we are entitled to choose whether to remedy the defect or to deliver a new item free of defects. If the defect is remedied, we are obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, provided these are not increased by the fact that the delivery item has been taken to a location other than the place of performance.
7.5
If the supplementary performance fails, which is to be assumed at the earliest after the 2nd attempt at rectification or supplementary performance, the customer is entitled to choose to withdraw from the contract or demand a price reduction. Unless otherwise stated below (Sections 7.6, 7.7 and 7.8), further claims by the customer - regardless of the legal grounds - are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself; in particular, we are not liable for loss of production, business interruption, the costs of any product recalls, lost profits or other financial losses of the customer. The following also applies to foreign transactions: In the event of disproportionate effort and disproportionate costs, which would entail rectification by us ourselves, we can in such cases require the customer to carry out the necessary repairs themselves or have them carried out. We shall then reimburse the customer for the costs incurred for carrying out the necessary rectification work.
7.6
We are liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage
7.7
We are liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; Essential contractual obligations are those whose fulfillment characterizes the contract and on which the customer can rely. In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
7.8
Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act and tort.
§ 8 Installation, commissioning, maintenance and services
8.1
Unless otherwise agreed, the installation and assembly of the delivery items is carried out by the customer and at his risk.
8.2
In the event that we have contractually taken over the installation and assembly, the following applies:
8.2.1
The Customer shall provide sufficient handling support and handling equipment, including cranes and forklifts, etc., for unloading and setting up the Deliverables. In addition, the customer shall ensure, in good time and at his own expense, all tools, qualified employees, oil, lubricants, water, steam, oxygen, electricity, air, drawings and data, raw materials and other items, preparatory work and services required for the installation and commissioning of the delivery item required are. This includes in particular
an appropriate work and storage area as close as possible to the place where the commissioning work is to be carried out;
placing the Equipment in the installation area in a reasonable condition to begin installation;
all necessary civil works, in particular relating to the foundation, wiring, pipes, anchor bolts, floor gutters, frames, grilles, cover plates, supports for supporting the pipes and wiring and for the installation of overhead conveyor belts and equipment on the roof structure;
Supply, installation and connection of all necessary cabling, except internal cabling, including mains cables, data cables, control and signal cables, etc. from the main control panels and operations centers to and between the connection points on the individual parts of the installations 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 provided (if not included in the price offer);
Placing the main servers (if any) in a dry, clean, air-conditioned room with adequate telephone and data line connections to our supervisory staff and online service;
Work permits and other permits required in the country where the equipment is to be installed.
8.2.2
The customer must prepare the premises for assembly at his own expense and in accordance with the contractual agreements and ensure that the necessary power connections and technical facilities are available. The customer is solely responsible for the structural analysis. Before starting the assembly work, the customer has given us all the necessary information about the location and availability of supply connections, e.g. B. electricity, gas and water lines and similar systems to make available. This applies in particular to concealed systems. We are not liable for damages that arise because the customer has not fulfilled his above obligation.
8.2.3
The installation site for the machine must be freely accessible, an appropriate indoor crane must be available or the hall floor must be loadable with a truck or mobile crane. The hall floor must be cleared in the area where the machine needs to be set up.
8.2.4
Before starting the installation of a machine, the delivery parts must be in place. Construction work and other preparatory work must be completed to the extent that installation can begin immediately after the fitter's arrival and can be carried out without interruption. New buildings must be dry, the walls and ceiling plastered and windows and doors installed. The customer ensures that the foundation required for the specific nature of the machine to be set up has sufficient load-bearing capacity (concrete leveled with a spirit level). The customer initiates any measures to isolate structure-borne noise.
8.2.5
For the services of our fitters, we calculate the current hourly rates (possibly with overtime, weekend, public holiday and night surcharges). The standard tariff surcharges apply to work on Sundays and public holidays. Accommodation costs, per diem allowances, travel expenses and away allowances will be charged separately. For outward and return journeys, a kilometer allowance and hourly rate will be charged according to the current rate. The kilometer allowance is calculated by Mannheim. Extra trips by the fitters, for example to procure spare parts, etc., will be charged in the same way, insofar as these are necessary for the commissioning of the machine and only became apparent when the assembly was carried out. The prices quoted do not include statutory sales tax.
8.2.6
All parts required during assembly that are not expressly listed and that are required for commissioning due to extraordinary, unforeseeable local conditions or due to a special request of the customer or due to requirements of the local supervisory authority will be charged separately on proof.
8.2.7
Interruptions in assembly due to missing connections, construction work, power failures, etc., for which we are not responsible, are at the expense of the customer, unless the customer is not responsible for this.
8.2.8
Additional work that is not part of the contractually agreed scope of delivery will be charged at cost. This is to be agreed separately between us and the customer. Waiting times during our presence or other traveling technicians to commission the machines shall be borne by the customer, unless the waiting times are due to circumstances for which the customer is not responsible.
8.2.9
Any assembly flat rates that have been agreed do not include work on Sundays and public holidays; Assembly flat rates only apply if all preparatory measures have been completed on site.
8.2.10
The customer bears the costs for our technician's assistants (electricians, assistants and suitable lifting tools) during the period of performance 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 are supplied with the operating instructions provided by the respective manufacturer. Costs for a personal instruction are not included in the purchase price and are calculated according to the time spent according to our assembly rates.
8.2.12
The proper execution of the commissioned work is to be confirmed to us by the customer on the assembly report. The customer receives a copy for his records.
8.2.13
Unless otherwise agreed in the contract, we will not be 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;
compatibility with other customer software;
Coordination between our work and that of other suppliers.
8.3
Maintenance work is only performed by us to the extent described in the contract or a special service contract. The Services are governed by the terms of the applicable Service Agreement.
8.4
If the customer takes over the service work, in particular the installation and commissioning, we are released from any liability. In particular, we are not responsible for defective execution by the customer that did not correspond to our recommendations, drawings and specifications. Our employees also do not check whether all of their instructions have been properly carried out by the customer.
Section 9 Government Regulations/Safety/Use
9.1
For individual parts of the systems, we have taken into account the Machinery Directive 2006/42/EC, provided that the customer installs safety devices that are his responsibility according to the contract. However, we do not guarantee that the Equipment will comply with all local safety and health regulations and other local regulations unless expressly agreed in writing in the Contract. If an inspection by the local (regulatory) authorities is required prior to the commissioning of the systems, this is also the responsibility of the customer.
9.2
The customer ensures that our employees can carry out their work safely without any risk to their health.
9.3
The products are only intended for the use expressly described in the contract and in our manuals. We are not liable for any other use of the products, even if this is known to us.
9.5
In this respect, the customer shall indemnify us against all claims by its employees, representatives or third parties due to personal injury or damage to property, which are directly or indirectly caused by the non-compliance with our safety, operating and/or maintenance instructions by the customer, its employees, representatives or other third parties are caused. This indemnification includes all costs incurred by us, including attorneys' fees and expenses incurred by us.
§ 10 Supplementary Conditions for Software
10.1
We grant the customer the rights to use the software to be transferred and other work results protected by copyright within the scope of the contractually intended purpose. Unless otherwise agreed, we grant the customer a non-transferrable, non-exclusive right of use for the installation of this software on a database and for the use of this software as embedded software or application software for the period of use or contract period or in any other way , as the case may be, in the manner described in the contract. The customer is not entitled to transfer the rights of use granted to him in whole or in part to third parties or to grant third parties corresponding rights of use. We reserve the right to terminate this license if the terms of the license are violated or the customer otherwise violates the terms of the underlying contract.
10.2
If the rights of use were only transferred for a limited period of time or the transfer of the license ends for other reasons, all transferred rights revert to us after the license expires without any further legal action. The customer is obligated to delete all licensed products and to return the documentation.
10.3
The transfer of the source code to the customer is excluded unless expressly agreed otherwise.
10.4
Insofar as we use the services and work results, in particular rights of use, of third parties for the execution of the order, we will acquire their rights of use to the extent necessary for the execution of the order and transfer them to the customer. If it is not possible for us to acquire the rights of use to this extent or if there are restrictions on the rights of use or other rights of third parties, we will inform the customer of this. The customer must observe these restrictions. We are not obliged to ensure the rights of use for services and works provided by the customer.
10.5
The customer is entitled to make one copy of the software for backup purposes only, which copy must be labeled as a copy and with a reference to us as the copyright holder.
10.6
The customer may not remove any copyright notices.
10.7
Customer hereby agrees not to modify, decompile, reverse engineer (reengineer) or copy the Software except as expressly permitted in these General Conditions of Sale.
10.8
A separate maintenance and/or service and support agreement is required for maintenance and service measures on the transferred software.
10.9
We will only transfer the rights of use required to use our products and services to the extent described above to the customer once all claims to remuneration, fees and reimbursement of costs relating to the order have been settled.
10.10
If data is lost, we are only liable for the effort required to restore the data if the customer backed up the data properly. In the case of slight negligence, we are only liable if the customer has carried out a proper data backup immediately before the measure leading to the data loss.
10.11
Our liability and warranty is excluded insofar as damage and/or disruptions are caused by the customer culpably violating provisions of this contract, changing the software supplied by us contrary to the contractual provisions or our instructions, or the software supplied by us not being in the contractually agreed system environment.
10.12
If we are obliged to deliver and transfer items or software or to produce other works, such as expert opinions, analyses, the provisions of Section 7 shall apply accordingly to the defective delivery and service.
10.13
The limitations of liability apply accordingly to the personal claims of our employees, representatives and vicarious agents.
§ 11 Intellectual Property Rights and Industrial Property Rights, Confidentiality
11.1
All intellectual property rights and industrial property rights relating to the products, estimates, designs, drawings and other documents such as B. Patents, utility models, design patents, copyrights and trademark rights remain with us. The customer undertakes not to assert any rights to intellectual property and industrial property rights to the products and to modifications of the products.
11.2
Any further liability of our company due to the infringement of the rights of third parties listed in Section 11.1 is excluded, except in the case of gross negligence or intent. In no event shall we be liable to any third party for any breach of right listed in Clause 11.1 if the claim relates to any illustration, drawing, catalogue, specification or other material supplied to us by or on behalf of the Customer.
11.3
Subject to the above limitations of liability, we will defend the customer against any claims that are derived from an infringement of the rights listed in Section 11.1 through the contractual use of our products and will assume the costs and compensation contributions imposed on the customer, provided that we are informed of such claims in writing and has informed us immediately and we reserve the right to take any defensive measures and negotiate settlements.
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. On request, drawings and other documents belonging to offers are to be returned to us.
11.5
If we have delivered items according to drawings, models, samples or other documents provided by the customer, the latter shall guarantee that third-party property rights are not violated. If third parties prohibit us from manufacturing and delivering such items in particular with reference to industrial property rights, we are entitled – without being obliged to check the legal situation – to stop any further activity in this respect and to demand damages if the customer is at fault. The customer also undertakes to indemnify us immediately from all related third-party claims.
§ 12 Exclusion of further liability
12.1
Any further liability for damages than that provided for in the above conditions is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages resulting from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB. In the event of a claim for damages due to culpa in contrahendo, the above-mentioned exclusion of liability as a result of the claim that has already arisen at the time of conclusion of the contract is equivalent to a subsequent waiver of liability. In addition, we are not liable if claims are made against the customer based on the provisions of commercial legal protection.
12.2
The limitation according to Section 12.1 also applies if the customer demands reimbursement of useless expenses instead of a claim for compensation for the damage instead of the service.
12.3
Insofar as liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, employee representatives and vicarious agents.
§ 13 Statute of limitations
Claims by the customer against us – for whatever legal reason – expire one year after they arise. This does not apply in the cases of §§ 438 Paragraph 1 No. 2 and 634a Paragraph 1 No. 2 BGB. This also does not apply in the event of intent or fraudulent concealment of a defect or if we have assumed a guarantee. This limitation period does not apply to claims for damages in cases of injury to life, limb or health or freedom, claims under the Product Liability Act, grossly negligent breach of duty or breach of essential contractual obligations. Significant contractual obligations are those whose fulfillment characterizes the contract and on which the customer can rely. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
§ 14 Other Provisions
14.1
Place of jurisdiction is Mannheim, Federal Republic of Germany. We also have the right to sue at the court responsible for the customer or at any other court that may have jurisdiction under national or international law.
14.2
Place of performance is also Mannheim, Federal Republic of Germany.
14.3
The customer agrees that we store data in accordance with the Federal Data Protection Act.
14.4
The customer is not permitted to transfer any guarantee and warranty rights or other rights that are granted to him within the framework of the contractual relationship with us, unless we have agreed to the transfer in writing.
14.5
If the customer sells or exports the products to third parties, he undertakes to comply at all times with the import and export laws applicable to sales of this type.
14.6
The law of the Federal Republic of Germany applies, excluding the reference standards of German international private law and the UN sales law.
Torres & Gerost GbR
Stand: 17.05.2021