General Terms and Conditions of Delivery

I. General Provisions

1. The scope of the deliveries or services (hereinafter: “Deliveries”) shall be determined by the mutual written statements of both parties. However, the purchaser’s general terms and conditions shall apply only to the extent that the supplier or service provider (hereinafter: “Supplier”) has expressly agreed to them in writing.

2. The Supplier reserves its rights of ownership and copyright to cost estimates, drawings, and other documents (hereinafter: “Documents”) without restriction. The Documents may only be made available to third parties with the Supplier’s prior consent and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 apply mutatis mutandis to the Purchaser’s Documents; however, these may be made available to third parties to whom the Supplier has lawfully subcontracted deliveries.

3. With respect to standard software, the Purchaser has the non-exclusive right to use it with the agreed-upon performance characteristics in unaltered form on the agreed-upon devices. The Purchaser may create a backup copy without an express agreement.

4. Partial deliveries are permitted to the extent that they are reasonable for the Purchaser.

 

II. Prices and Terms of Payment

1. Prices are ex works, excluding packaging and insurance, plus the applicable statutory value-added tax.


2. If the Supplier has undertaken installation or assembly and nothing else has been agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary incidental costs such as travel expenses, costs for the transport of tools and personal luggage, as well as per diems.

 
3. Payments shall be made free of charge to the Supplier’s designated payment office.


4. The Purchaser may only set off claims that are undisputed or have been legally established.

 

III. Retention of Title

1. The items delivered (goods subject to retention of title) remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been satisfied. To the extent that the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall, at the Purchaser’s request, release a corresponding portion of the security interests.

 
2. While the retention of title remains in effect, the purchaser is prohibited from pledging or transferring ownership by way of security, and resale is permitted only to resellers in the ordinary course of business and only on the condition that the reseller receives payment from

its customer or stipulates that ownership does not pass to the customer until the customer has fulfilled its payment obligations.

 
3. In the event of attachments, seizures, or other dispositions or interventions by third parties, the purchaser must notify the supplier immediately.

 
4. In the event of breaches of duty by the purchaser, in particular in the event of default in payment, the supplier shall be entitled to withdraw from the contract and demand return of the goods after the unsuccessful expiration of a reasonable period set for the purchaser to perform; the statutory provisions regarding the dispensability of setting a deadline remain unaffected. The purchaser is obligated to surrender the goods.

 

IV. Delivery Deadlines; Default

1. Compliance with delivery deadlines is contingent upon the timely receipt of all documents to be provided by the purchaser, necessary approvals and clearances, in particular drawings, as well as the purchaser’s compliance with the agreed payment terms and other obligations. If these conditions are not met in a timely manner, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.


2. If non-compliance with the deadlines is attributable to force majeure, e.g., mobilization, war, riots, or to similar events, e.g., strikes, lockouts, the deadlines shall be extended accordingly.

 
3. Upon the Supplier’s request, the Purchaser is obligated to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or insist on delivery.

 
4. If shipment or delivery is delayed by more than one month after notification of readiness for shipment at the purchaser’s request, the purchaser may be charged storage fees of 0.5% of the price of the delivered items for each month or portion thereof, up to a maximum total of 5%. The contracting parties remain free to prove higher or lower storage costs.

 

V. Transfer of Risk

 
1. The risk shall pass to the purchaser as follows, even in the case of carriage-paid delivery:

a) for deliveries without installation or assembly, when they have been shipped or picked up. At the request and expense of the purchaser, deliveries shall be insured by the supplier against the usual transport risks;

b) for deliveries involving installation or assembly, on the day of acceptance into the purchaser’s own premises or, if agreed, after successful trial operation.

 
2. If shipment, delivery, the start or performance of installation or assembly, acceptance at the purchaser’s premises, or trial operation is delayed for reasons attributable to the purchaser, or if the purchaser is in default of acceptance for other reasons, the risk shall pass to the purchaser.

 

VI. Installation and Assembly

 Unless otherwise agreed in
writing, the following provisions apply to installation and assembly:


1. The purchaser shall provide at its own expense and in a timely manner:

a) all earthwork, construction work, and other ancillary work outside the scope of the industry, including the necessary skilled and unskilled labor, building materials, and tools;

b) the supplies and materials required for assembly and commissioning, such as scaffolding, lifting equipment, and other fixtures, fuels, and lubricants;

c) power and water at the point of use, including connections, heating, and lighting,

d) at the installation site, sufficiently large, suitable, dry, and lockable rooms for the storage of machine parts, equipment, materials, tools, etc., and appropriate work and rest areas for the installation personnel, including sanitary facilities

appropriate to the circumstances; Furthermore, the Purchaser shall take the measures on the construction site to protect the Supplier’s and the installation personnel’s property that it would take to protect its own property,

e) protective clothing and protective equipment required due to special circumstances at the installation site.

 

2. Prior to the commencement of installation work, the Customer shall, without being requested to do so, provide the necessary information regarding the location of concealed electrical, gas, and water lines or similar systems, as well as the required structural data.

 
3. Before the start of installation or assembly, the materials and items required for the commencement of work must be available at the installation or assembly site, and all preparatory work must be sufficiently advanced prior to the start of assembly so that installation or assembly can begin as agreed and be carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.

 
4. If installation, assembly, or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear, to a reasonable extent, the costs for waiting time and any additional travel required by the Supplier or the assembly personnel.

 
5. The purchaser must certify to the supplier on a weekly basis the duration of the installation personnel’s working hours as well as the completion of the installation, assembly, or commissioning without delay.


6. If the supplier requests acceptance of the delivery upon completion, the purchaser must carry out such acceptance within two weeks. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use—where applicable, following the completion of an agreed test phase.

VII. Acceptance

The purchaser may not refuse to accept deliveries due to minor defects.

VIII. Material Defects

The Supplier shall be liable for material defects as follows:


1. All parts or services that exhibit a material defect within the limitation period—regardless of the duration of use—shall, at the Supplier’s discretion, be repaired, replaced, or re-performed free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.

 
2. Claims for material defects are subject to a 12-month statute of limitations. This does not apply to the extent that the law prescribes longer periods pursuant to §§ 438(1) No. 2 (structures and items for structures), § 479(1) (right of recourse), and § 634a(1)(2) (construction defects) of the German Civil Code (BGB) prescribe longer periods, as well as in cases of injury to life, limb, or health, in the event of an intentional or grossly negligent breach of duty by the Supplier, and in the event of fraudulent concealment of a defect. The statutory provisions regarding the suspension, interruption, and recommencement of time limits remain unaffected.


3. The Purchaser must notify the Supplier of material defects in writing without delay.


4. In the event of a notice of defects, the Purchaser may withhold payments to an extent that is reasonably proportionate to the material defects that have occurred. The Purchaser may withhold payments only if a complaint is asserted whose validity is beyond doubt. If the complaint was unjustified, the Supplier is entitled to demand reimbursement from the Purchaser for the expenses incurred.

 
5. The Supplier must first be given the opportunity to remedy the defect within a reasonable period.


6. If the remedy fails, the Purchaser may—without prejudice to any claims for damages pursuant to Article XI—withdraw from the contract or reduce the payment.

 
7. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear, or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive

strain, unsuitable operating materials, defective construction work, unsuitable building ground, or arising from special external influences not provided for in the contract, as well as in the case of non-reproducible software errors. If the Customer or third parties carry out improper modifications or repair work, no claims for defects shall exist for such work or the resulting consequences.

 
8. Claims by the purchaser for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded to the extent that the expenses increase because the delivery item has subsequently been moved to a location other than the purchaser’s place of business, unless the movement corresponds to its intended use.

 
9. The purchaser’s claims for recourse against the supplier pursuant to § 478 BGB (recourse of the entrepreneur) exist only to the extent that the purchaser has not entered into any agreements with its customer that go beyond the statutory claims for defects. Furthermore, No. 8 applies mutatis mutandis to the scope of the purchaser’s right of recourse against the supplier pursuant to § 478(2) BGB.


10. In all other respects, Art. XI (Other Claims for Damages) applies to claims for damages. Any further claims or claims other than those regulated in this Art. VIII by the Purchaser against the Supplier and its vicarious agents due to a material defect are excluded.

 

IX. Industrial Property Rights and Copyrights; Legal Defects

 
1. Unless otherwise agreed, the Supplier is obligated to deliver the goods free of third-party industrial property rights and copyrights (hereinafter: “Intellectual Property Rights”) solely within the country of the place of delivery. If a third party asserts justified claims against the Purchaser due to the infringement of intellectual property rights by deliveries provided by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Article VIII No. 2 as follows:


a) The Supplier shall, at its discretion and at its own expense, either obtain a right of use for the relevant deliveries, modify them so that the intellectual property right is not infringed, or replace them. If this is not possible for the Supplier under reasonable terms, the Purchaser shall be entitled to the statutory rights of rescission or reduction.

 
b) The Supplier’s obligation to pay damages is governed by Art. XI.

c) The Supplier’s obligations set forth above shall apply only to the extent that the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge any infringement, and the Supplier retains the right to take all defensive measures and conduct settlement negotiations. If the Purchaser ceases use of the delivery for the purpose of mitigating damages or for other important reasons, the Purchaser is obligated to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of intellectual property rights.

 
2. Claims by the Purchaser are excluded to the extent that the Purchaser is responsible for the infringement of intellectual property rights.


3. Claims by the Purchaser are further excluded to the extent that the infringement of intellectual property rights is caused by specific requirements of the Purchaser, by an application unforeseeable by the Supplier, or by the fact that the delivery has been modified by the Purchaser or used in conjunction with products not supplied by the Supplier.

 
4. In the event of intellectual property rights infringements, the provisions of Art. VIII, Nos. 4, 5, and 9 shall apply mutatis mutandis to the purchaser’s claims set forth in No. 1 a).


5. In the event of other legal defects, the provisions of Article VIII shall apply mutatis mutandis.

6. Any claims of the Purchaser against the Supplier and its vicarious agents arising from a legal defect that go beyond or differ from those regulated in this Article IX are excluded.

 

X. Impossibility; Contract Adjustment

 
1. If delivery is impossible, the Purchaser is entitled to claim damages unless the Supplier is not responsible for the impossibility. However, the Purchaser’s claim for damages is limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This limitation does not apply in cases where liability is mandatory due to intent, gross negligence, or injury to life, limb, or health; this does not entail a shift in the burden of proof to the detriment of the purchaser. The purchaser’s right to withdraw from the contract remains unaffected.

2. If unforeseeable events within the meaning of Art. IV No. 2 significantly alter the economic significance or content of the delivery or significantly affect the supplier’s operations, the contract shall be reasonably adjusted in accordance with the principles of good faith. To the extent that this is not economically justifiable, the Supplier shall be entitled to withdraw from the contract. If the Supplier intends to exercise this right of withdrawal, it must notify the Purchaser thereof immediately upon becoming aware of the significance of the event, even if an extension of the delivery period had initially been agreed upon with the Purchaser.

 

XI. Other Claims for Damages

 
1. Claims for damages and reimbursement of expenses by the Purchaser (hereinafter: claims for damages), regardless of the legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.

 
2. This does not apply in cases of mandatory liability, e.g., under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb, or health, or breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, unless there is intent or gross negligence or liability arises from injury to life, limb, or health. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the Purchaser.


3. To the extent that the Purchaser is entitled to claims for damages under this Art. XI, such claims shall become time-barred upon the expiration of the limitation period applicable to claims for material defects pursuant to Art. VIII No. 2. For claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.

 

XII. Jurisdiction and Applicable Law

 
1. If the purchaser is a merchant, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier’s place of business. However, the Supplier is also entitled to bring an action at the Purchaser’s place of business.


2. German substantive law applies to the legal relationships in connection with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

XIII. Binding Nature of the Contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would constitute an unreasonable hardship for one of the parties.



HSGM Heissschneide-Geräte und –Maschinen GmbH
Industriestraße 30
D-65366 Geisenheim