General Terms and Conditions of Business of INTERTEX
Maschinenbau Ingeborg Deiss GmbH & Co., D-73054 Eislingen
All our business dealings with businesspeople and legal entities with a legal capacity are based solely on the following terms and conditions. Deviating agreements will only be valid if expressly confirmed in writing by INTERTEX Maschinenbau (hereinafter “the Vendor”).
1. Quotation
Our quotations are subject to confirmation. Illustrations, dimensions and weights stated in advertising brochures and flyers are non-binding. The Vendor reserves the right to further develop, improve and alter products. Orders will only be deemed to have been accepted after they have been confirmed in writing by the Vendor, no matter whether they have been placed directly, by telephone, by fax or via a sales representative. Our quotations and proposals are subject to confirmation – the purchaser is responsible for checking them carefully. We do not accept any guarantee that the product ordered is fit for the intended purpose. Quotations made for specific projects/requirements are valid for 2 months. Quotation documents, drawings, descriptions, samples and cost estimates provided by the Vendor may not be passed on, published, reproduced or otherwise made available to third parties without the Vendor’s approval. Documents must be returned on request; copies may not be kept.
2. Order confirmation
Objections to any order confirmation must be made immediately, at the latest within 10 days of the issue date. Objections made after this date will not be considered. The purchaser may not withdraw from the purchase contract. This will not affect the right to conversion as defined by Section 10, Paragraph 3 below. The purchaser may only demand acceptance tests if these have been expressly agreed in the contract. We will not be subject to any obligations under the purchaser’s terms and conditions of business and purchase, even if we do not expressly object to such terms and conditions. Any information provided by the Vendor in quotations and/or order confirmations which is based on an obvious error, namely a typing or calculation error, will not result in any obligation on the part of the Vendor. Rathermore, the obviously intended declaration will apply.
3. Prices
The prices current on the day of delivery will be definitive. These prices are in euros. Prices are ex-works or -warehouse excluding value added tax, packaging, customs duty, shipping costs and insurance. Additional work or services will be charged separately. Insurance coverage against transport damages will be taken out at the purchaser’s expense and on his account and to the best of our judgement. Should there be any deviations from the shipping note or the invoice, then we must be notified of this in writing on the day the goods are received. The date on which the complaint was sent will be definitive in this regard. The information stated in the written order confirmation is definitive for the extent and within the scope of the contractual relationship. Side agreements and amendments to the contract are only effective if agreed in writing. Verbal, telefax and telegraphic supplementary agreements must also be confirmed by us in writing to be effective. Any retrospective amendments to the order which are agreed will entitle the Vendor to charge for the additional costs which are incurred respectively will oblige him to reimburse reduced costs. Quotation prices apply for all orders placed within the offer’s 2-month period of validity. In the case of call orders the prices on which the order is based will be binding for two months. We reserve the right to increase prices for shipments which are requested after this period should our own costs change. In the event of differences of opinion regarding prices, the prices valid on the day of delivery or of provision will apply in any case of doubt. The purchaser may be invoiced separately for any additional costs which are incurred due to any special requests he makes regarding the dispatch date or manufacturing on Sundays or public holidays (day and night shifts). This also applies in the case of fixed-price orders if the dispatch date or completion date is not specifically agreed but rather is notified at a later date. In the case of fixed-price orders including installation, additional costs may be incurred due to extra shifts; moving of day and night shifts; moving of normal working days to public holidays or due to other obstructions.
4. Payment
Our invoices are payable with 2% discount on the invoice sum within 10 days of the invoice date or net cash within 30 days of the invoice date. Should the payment deadline be exceeded, then we will be entitled to charge default interest of at least 3% above the relevant prime rate charged by the German Federal Bank. Costs for installation, freight and packaging are deemed to be cash expenses and must be paid in full immediately without discounts. The Vendor reserves the express right to refuse to accept cheques or bills of exchange. Acceptance of such payment methods will always be conditional. The purchaser will be liable for costs incurred for discounts and bills of exchange; such expenses are payable immediately. Shipments worth less than EUR 500 will be supplied against cash on delivery; there will be additional charges for freight and packaging. Should the Vendor become aware of circumstances which place the purchaser’s creditworthiness in doubt, in particular should the purchaser fail to honour a cheque or cease to make payments, then the Vendor will be entitled to declare the entire remaining sum payable, even if he has accepted cheques. In addition to this, the Vendor will, in such cases, be entitled to demand payment in advance or the provision of guarantees. In such cases, further deliveries will only be made against cash on delivery; there will be additional charges for freight and packaging. Should the purchaser cease to make payments permanently and/or should an application for insolvency proceedings be instituted against the purchaser’s assets, then the Vendor will also be entitled to withdraw from any part of the contract which has not yet be performed. The Vendor will, even if the purchaser has contradictory terms and conditions, be entitled to first offset payments against the purchaser’s older debts. The Vendor will inform the purchaser regarding any such offsetting which is carried out. Should costs and interest already have been incurred, then the Vendor will be entitled to first offset payment against the costs, then the interest and finally against the main claim. Should the purchaser fall into payment arrears, then the Vendor will be entitled to charge the corresponding legal rate of default interest. The Vendor reserves the right to assert any further claims exceeding the damages incurred as a result of the default in payment. The purchaser may not carry out any offsetting unless this offsetting concerns a counterclaim which has been legally established or which is not disputed by the Vendor.
5. Shipment
In all cases, also in the case of prepayment of shipping costs, the shipment risk will be transferred to the purchaser when the goods leave our factory or warehouse upon handing over to the individual carrying out the transport. If the goods are collected by the purchaser, then the shipment risk will be transferred to him when the goods leave the works. The purchaser must notify us immediately regarding any possible transport damages; this notification must be made in writing on the day he becomes aware of the damages; any claims for damages against the rail operator, postal company or freight forwarders must be asserted. The weights and numbers of items established when the goods were dispatched will be definitive for calculations. Where goods are delivered free to the purchaser’s place of use, the agreed price will always be free lorry on passable road to the place of use which is the destination. The purchaser is responsible for unloading of the goods and will bear the corresponding costs. Unless any specific instructions are on hand, the transport route and means will be chosen according to our best judgement without any liability (excluding gross negligence or intent) on our part for cheaper means of shipment or a shorter route. Should, on the purchaser’s instructions, dispatch be delayed or not carried out, then risk will be transferred to the purchaser upon notification of the goods’ readiness for dispatch. After one week has passed we will be entitled to issue an invoice for the entire shipment and to pass on the costs for storage of the goods to the purchaser. Shipments will, at the purchaser’s request, be insured in his name and on his account.
6. Packaging
The purchaser will receive a credit note to the sum of 2/3 of the calculated value for any cases and crates which are returned carriage free in a usable condition within 8 days of receipt of goods. Packaging will be charged at cost. No other packaging material will be taken back.
7. Delivery time
The right to agree the delivery time for each individual order or call delivery is reserved. The date stated in our final written order confirmation is definitive for the agreed binding and non-binding delivery time. The delivery times stated will always be deemed to be approximate and non-binding. Should the delivery time promised by us be exceeded by up to 1 month, then all claims to damages by the purchaser are excluded. After this period has expired, the Vendor will not be deemed to be in default until the purchaser has issued the Vendor with a written notification regarding a period of grace of 6 weeks (this period will commence upon our receipt of this notification) and we have exceeded this period of grace. Penalties for delays are excluded. The Vendor will only be responsible for delays in and/or the impossibility of supplying his shipment and service if he caused the obstacle to performance intentionally or due to gross negligence. Force majeure events; defaults on delivery deadlines by pre-suppliers; strikes; lock-outs; traffic disruptions or the lack of official or other permits required to carry out delivery and assembly will exempt the Vendor from his obligation to perform the service for the period of the disruption and to the extent of its effect. Any delay which already exists will be suspended for the duration of these disruptions. The contractor’s right to correct and timely self-delivery will remain correspondingly reserved. The provisions regarding delivery by a fixed date as per Sect. 376 German Commercial Code (HGB) and Sect. 361 German Civil Code (BGB) are excluded to their full extent. In the case of call orders, should no specific period of acceptance have been agreed, then the purchaser must notify the call date at the latest 6 weeks prior to the delivery date. In the case of single-unit construction of machines there will be no obligation to deliver the machine by a deadline set by the purchaser unless anything else has been agreed.
8. Retention of title
The Vendor will retain ownership of the goods delivered until claims against the purchaser to which the Vendor is entitled on any legal grounds have been met (conditional items). The purchaser is obliged to inform the Vendor without delay regarding any attachment of conditional items and to inform the pledgee regarding the retentions of title. With the exception of the following, the purchaser is not entitled to sell, give away, pledge or assign as security goods which are supplied to him under retention of title. Should delivery be made to a business operation maintained by the purchaser, then the goods may be sold on within the scope of orderly business management, however not for a price which is below the purchase price. In such cases the purchaser will herewith assign to the Vendor any claims resulting from the sale which he has against his buyer. In the case of selling on of goods on credit, the purchaser must retain title to his property against his buyer. The purchaser herewith assigns to the Vendor any rights and claims arising from this retention of title. Any further processing of goods subject to retention of title by the purchaser will be undertaken free of charge to the Vendor. In the case of further processing of goods subject to retention of title in combination with other goods which do not belong to the entrepreneur, the Vendor will be entitled to the corresponding share of ownership in the new object in proportion to the factor value of the goods which are subject to retention of title to the other goods which have been further processed at the time of further processing and amalgamation. Should the purchaser acquire sole ownership of a new object, then the contracting parties agree that the purchaser will grant the Vendor co-ownership of the new object in proportion to the factor value of the goods which are subject to retention of title and have been processed or amalgamated into the new object and that the purchaser will store this object free of charge for the supplier. Should goods which are subject to retention of title be sold on together with other goods, no matter whether with or without processing or amalgamation, then the above-agreed advance assignment will only apply to the amount of the factor value of the goods which are subject to retention of title and have been sold on together with other goods. Should the purchaser or contractors working for him install goods which are subject to retention of title as integral elements on a third party’s premises, then the purchaser herewith assigns to the Vendor any claims to remuneration against the third party or the party concerned, together with all supplementary rights including granting of a security mortgage. Should goods which are subject to retention of title be installed as integral elements on the purchaser’s premises, then the purchaser will herewith assign to the Vendor any claims resulting from the sale of the real estate or real estate rights, together with all supplementary rights. Should the purchaser fail to fulfil his obligations to the Vendor or fail to fulfil them punctually and/or should he exercise impermissible influence on the goods which have been delivered subject to retention of title, then the Vendor may, irrespective of his rightful claim to performance of the contract, demand the return of the goods insofar as the purchaser has failed to comply with a reasonable deadline which he has been set to perform his obligations. Should the purchaser fulfil the contract, then the Vendor must return the goods. This provision does not apply to hire purchase transactions, which are subject to the German Consumer Credit Act (Verbraucherkreditgesetz).
9. Taking back of goods
As a matter of principle, goods which have been ordered and delivered in an orderly manner will not be taken back. Warehousing, transport and other costs incurred due to taking back of the goods delivered will be borne by the purchaser; the amount shall, however, be equivalent to at least 15% of the purchase sum.
10. Warranty
We will provide a 12-month guarantee covering the faultless material characteristics and fitness for purpose of the machines and equipment which we deliver (as per the VDMA), calculated from the day on which the goods are dispatched. We are only responsible for third-party products and components to the extent that the pre-suppliers provide a guarantee or to the extent that we fail to recognize defects in the goods delivered by our pre-supplier due to gross negligence or with intent. The precondition for the warranty is that the machines and equipment which we supply are operated and maintained in an orderly manner as described in the operating manual and that the no unauthorized modifications are made to the disputed parts or to the equipment itself – i.e. the use of original parts and expendable materials which correspond to the original specifications is mandatory. The warranty will expire if the purchaser is unable to disprove a correspondingly substantiated claim that one of these circumstances caused the defect. Liability for normal wear and tear is excluded. All obligations to make payment which arise from the delivery and installation of our goods or obligations to make payment to the bank or leasing company financing the goods must be fulfilled. Any errors which occur will be remedied, at our discretion, by means of repair or a replacement delivery within a reasonable period of time. The purchaser will only be entitled to conversion or reduction after the repair or replacement delivery has failed conclusively. There will be no liability for direct or indirect damages exceeding the above-mentioned warranty unless we or our vicarious agents have acted with gross negligence or intent. We will only be liable for consequential damages in cases of intent, however not in cases of negligent or grossly negligent blame on our part, since the taking out of machine and business liability insurance is cheaper for the purchaser than the taking out of consequential damages liability insurance is for us. The purchaser will only have a withholding right regarding his obligation to pay the purchase price insofar as, and to the sum of, any costs which are incurred to remedy the disputed defect. Obvious defects relating to works services can no longer be asserted after an acceptance test has been carried out. For the rest, to maintain any warranty claims the purchaser must notify the Vendor in writing without delay and at the latest within two weeks of delivery regarding such defects. The purchaser must keep the defective items available for inspection in the condition in which they were at the time of the defect. Immaterial, reasonable deviations in dimensions and execution – in particular in the case of repeat orders – do not represent any entitlement to make a complaint unless absolute compliance has been expressly agreed. Technical improvements and necessary technical modifications will also be considered to be in line with the contract insofar as they do not represent any deterioration in fitness for purpose. The provisions included in this section do not apply to the sale of used objects which we only view as a third-party transaction. Where machines have been overhauled, the guarantee will only apply to the parts which we have replaced. Should the Vendor be at the purchaser’s disposal to provide information regarding the use of his warehousing system which goes beyond his legal obligations, then the Vendor will, in accordance with XX, only be liable if special remuneration has been agreed for this service.
11. Limitation of liability
Claims for damages arising from affirmative breach of claims; negligence when entering into the contract or unauthorized actions which are not simultaneously due to the Vendor’s breaching of a major contractual obligation against both the Vendor and his vicarious agents or assistants are excluded insofar as damages are not caused intentionally or due to gross negligence. This does not apply to claims for damages arising from assurances of characteristics which are intended to protect the purchaser against the risk of consequential damages. Claims for damages based on the German Act on Liability for Defective Products (PrdHG) will remain unaffected by this, as will liability for damages to life, body or health.
12. Notification of defects
Notifications of defect must be made in writing to the supplier at the latest 2 weeks after receipt of the goods. Withholding of payments on the grounds of assertion of a warranty claim is not permitted.
13. Installation
Installation services must be charged for separately, unless otherwise agreed. Installation costs will include in particular technicians’ travel expenses, daily expenses and working time, including surcharges for overtime (25%), night work (50%) and work on Sundays and public holidays (100%). Should the installation or start-up be delayed through no fault of the Vendor, then the purchaser must bear all the costs for the waiting time and for any further travel which is required. Fixed prices which are agreed for installation will not include surcharges for overtime, night work or work on Sundays and public holidays. These surcharges may be charged in addition to the fixed price. Installation work relating to installation of the system will be deemed to have been completed upon trial start-up. Should the installation be carried out by the purchaser or a third party commissioned by him, then the supplier’s corresponding relevant operation and installation regulations must be complied with.
14. Applicable law
Any and all contracts concluded by us will be subject to the laws of the Federal Republic of Germany, irrespective of any international laws which may apply. Should one or more provisions of the general terms and conditions of sale and delivery be or become invalid, then this will not affect the validity of the remaining provisions and agreements. The parties undertake to replace the invalid provisions with new, valid ones which correspond to the purpose and intent of the regulation.
15. Place of fulfilment and jurisdiction
Insofar as the purchaser is a merchant as defined by the German Commercial Code (Handelsgesetzbuch); a legal entity under public law or a special public fund, then the place of fulfilment will be Eislingen and the place of jurisdiction will be Göppingen District Court (Amtsgericht) respectively the superior court of Ulm/Donau County Court (Landgericht).