General Terms and Conditions of Gustav Obermeyer GmbH & Co. KG
1. For all deliveries – including those arising from future business – the following conditions apply. Our sales and delivery conditions apply exclusively; any purchaser’s terms and conditions that conflict with or deviate from our sales conditions will not be recognized, unless their validity has been explicitly confirmed by us in writing.
2. Our sales and delivery conditions apply also if we carry out the delivery to the purchaser unreservedly and with knowledge of any purchaser’s terms and conditions that conflict with or deviate from our sales conditions. Only a written confirmation will make any transactions and agreements binding for us, also if they alter the content of the contract. Informal agreements which deviate from our business terms are only valid for such business for which they have been agreed upon expressly. They cannot be backdated nor are they valid for any future business unless they are confirmed again in writing.
1. Our offers are strictly non-binding unless expressly agreed otherwise. We are only bound by our offers if they have been expressly declared binding. Otherwise we understand them as an invitation to bid. In such cases the conclusion of a contract requires our written confirmation of the order.
2. As regards to the scope of the service as specified in the contract our order confirmation is exclusively authoritative.
3. We reserve the right to make modifications to the construction, the choice of materials, the specifications and the design even after sending an order confirmation provided that these modifications neither contradict the order confirmation nor the purchaser’s specifications.
4. Part-deliveries are permissible.
5. Unless we have assumed a liability explicitly, offer documents such as illustrations, drawings, plans, material, weight and measurement specifications are only rough approximations. We reserve the property and copy rights for all offer documents. Should drawings or sketches not contain the proprietary notice they are nevertheless copyrighted. The offer documents must neither be copied nor reproduced nor made accessible to third parties and rival firms and have to be returned without delay at our request.
In case the purchaser does not present a functional specifications document, our descriptions of the equipment apply as stated or presented. In this case our offers replace the functional specifications document.
Only our confirmation in writing of the order which is binding for the scope of the delivery will give rise to obligations. The purchaser cannot refuse any part-deliveries. If our delivery is based on the purchaser’s samples, drawings and models, the purchaser assumes the liability that no patent rights of third persons are infringed. In this case we have the right to withdraw from the contract. Any possible damage incurred has to be compensated by the purchaser. Any safety devices as defined by the accident prevention regulations are included in the delivery if this has been agreed upon.
For electronic equipment and other components bought in addition the general terms of the supplier of these products apply.
The purchaser guarantees that we receive samples of containers and filling material that are in accordance with the general engineering tolerances, of consistent quality, on time and in sufficient quantity for adjustment work on the delivery item.
PRICES AND PAYMENT TERMS
1. Our prices are ex works exclusive of packaging and other shipping expenses and transport charges. The packaging will be invoiced and is only taken back if the seller is obliged to do so pursuant to mandatory legislative provisions. The cost of air cargo insurance will always be at the buyer’s charge.
2. In the absence of a specific agreement the payment is due without any reduction to the supplier’s account as follows:
1/3 down payment on receipt of the order confirmation,
1/3 halfway through the agreed term of delivery,
1/3 as soon as the delivery has taken place, the goods are ready for delivery or the machine has been accepted, unless agreed otherwise. In case of delays caused by the purchaser, no later than 30 days after notification of our readiness to deliver.
3. Price changes are permissible if between the conclusion of the contract and the agreed delivery date the procurement prices for important raw materials (high-grade steel) have risen by more than 10%. If after that and before the completion of the delivery the wages, material cost or the cost prices in line with real market conditions have gone up we are entitled to adjust the price according to the cost increase. The purchaser is only entitled to withdraw from the contract if the price adjustments exceed the general cost of living between the order and the delivery considerably.
4. In the event of late payment – without a need for any separate agreement – while simultaneously reserving the right to assert further damage, interest will be charged at a rate of 5% points above the respective base interest rate.
DELIVERY TIME, DELAY IN DELIVERY
1. The delivery time arises from the agreements of the contracting parties. Our compliance with it presupposes that any commercial and technical questions between the contracting parties have been clarified and the purchaser has fulfilled any obligations incumbent on him, such as the submission of the required official certificates or licenses or the making of a down payment. Notably, the purchaser has to release the drawings (installation plan, machine layouts) within three working days. If that is not the case, the delivery time will be extended. This does not apply if the supplier is responsible for the delays.
2. The compliance with the delivery time is subject to the correct and timely delivery of our own supplies.
3. The delivery time is extended appropriately in case of wastage, strike and lock-outs or other unforeseen disruptions of operations on our premises or our suppliers’, even if they occur during a delay in delivery. The same applies if official or other licenses and documents from third parties that are necessary for the carrying out of the deliveries or specifications of the purchaser that are necessary for the carrying out of the deliveries do not arrive in time or if the order is modified subsequently.
TRANSFER OF RISK AND ACCEPTANCE
1. The risk is transferred onto the purchaser with the dispatch ex works, even if a carriage-free delivery has been agreed, unless agreed otherwise. If the shipping is delayed due to the purchaser’s fault, the risk is transferred onto the purchaser from the day of readiness for dispatch.
2. Cargo insurance will be taken out upon the purchaser’s request.
RESERVATION OF OWNERSHIP
1. We reserve the ownership on the delivery item until complete payment of all claims from the delivery contract.
2. Until payment of all claims from the business connection including refinancing or reverse bills of exchange we reserve the ownership of our deliveries of merchandise which may only be sold in regular business dealings.
3. We are entitled to insure the delivery item against theft, breakage, water and other damages at the purchaser’s cost, unless the purchaser has verifiably taken out the insurance himself.
4. The purchaser may neither pledge nor transfer the delivery item as collateral until full payment has been made. In case of seizure or confiscation or other third party enactments the purchaser must notify us immediately. In the event of a resale the purchaser assigns to us at this time already all claims resulting from the resale to the amount of the sum total of the invoice (including VAT). Otherwise, the conditions of the VDMA for the delivery of machines for domestic business apply, as of March 2002, V.4 – V.6.
5. A possible recovery of goods will only be carried out for security reasons; it does not constitute a withdrawal from the contract, even if part payments were subsequently granted.
LIABILITY FOR DEFECTS AND WARRANTY
1. We guarantee that the delivery item is free of material and manufacturing defects at the time of the transfer of risk. The purchaser’s right to make claims for defects reported in due time will lapse in all cases within six months from the time of the objection, at the earliest, however, with the expiry of the warranty which is 12 months after the transfer of risk. Should the delivery item be used in multi-shift operation, the warranty will be reduced to six months. The warranty becomes null and void if the purchaser buys from a third party or uses outside companies without express permission from the seller to repair or modify the equipment.
2. We can only guarantee the mentioned services of the delivery item, if completely flawless, dry, oil and burr-free, clean material in accordance with the drawings is being used and qualified operating personnel carries out the supervision, loading, servicing and maintenance.
3. Defects must be reported without delay. Purchased parts and components are subject to a comprehensive, certified quality control at our goods receipt. The possible installation of defective parts is only done in good faith. The warranty claims are limited to subsequent rectification of defects. For the carrying out of all modifications deemed necessary by us and for the delivery of spare parts and machines the purchaser has to grant us the necessary time and opportunity free of charge and provide us with assistants on request. If spare parts or other format parts by external manufacturers are used on the purchaser’s instigation and without the express approval by the seller, the warranty for the entire delivery item becomes null and void. If the exchange of any spare parts and carrying out of smaller repairs with instructions via the telephone is reasonable for the purchaser, we will charge for the travel costs for our service technicians if their presence is requested nevertheless. If the rectification of a defect or replacement delivery fails twice the purchaser is entitled to statutory warranty claims.
4. No liability is accepted for defects due to natural wear and tear. Furthermore, we are not liable if the repair or replacement has been carried out by the purchaser or third parties at the purchaser’s initiative..
5. We are not obliged to repair defects as long as the purchaser has not fulfilled his payment obligations.
6. No further claims by the purchaser are accepted, particularly not claims for the repair of defects which have not occurred on the delivery item itself. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss.
The liability limitation of the supplier does not apply
– in case of personal injury (body and life)
– in case of gross negligence
– with intentional action
All machines, machine parts, components and spare parts undergo quality control prior to delivery. The factory acceptance report finally documents the condition of the items purchased from us at the time of the transfer of risk.
Special regulation for material defects on used delivery items
By way of derogation from the above regulations the warranty for material defects on used delivery items is excluded. This does not apply to the fraudulent concealment of defects or the violation of a warranty. Otherwise the purchaser’s contractual rights remain unaffected, also for the delivery of used items.
USE OF SOFTWARE
To the extent that the scope of delivery includes software, the purchaser is granted a non-exclusive right to use the software and its accompanying documentation. It is supplied for the use on the delivery item delivered for this purpose. A use on more than one system is prohibited. Otherwise §§ 69a ff. UrhG. (German copyright act) apply.
measurement specifications are only rough approximations, unless they have been marked expressly as binding. We reserve the property and copy rights on all our quotations, project proposals, documentations and other data; they must not be made accessible to third parties.
2. Place of fulfillment for the delivery and payment are our premises in Plauen/Saxony. Exclusive jurisdiction is the district court Plauen for both parties
3. German law shall exclusively be applicable under exclusion of the application of the UN Sales Convention (CISG).
4. If any provisions in these terms and conditions are invalid as a whole or in part, this shall not affect the validity of the remainder of the contract.