I. Scope
1. The conditions of purchase below shall be exclusively applicable to orders. The Supplier's terms and conditions deviating from or supplementing our purchase conditions shall be non-binding on the Purchaser even if the Purchaser fails to object or if the Supplier states that it is only willing to supply under its terms and conditions. Even if supplies or services are accepted without express objection, this shall not be deemed acknowledgement of, or consent to, Supplier's terms and conditions. If the Supplier is not in agreement with the above handling, it must immediately point this out in a special letter. We reserve the right to rescind the contract in such case.
2. Deviations from these conditions shall require the express written consent of the Purchaser. Confirmation or execution of the order without any objections shall be deemed acknowledgement of these Terms and Conditions of Purchase.
3. These Terms and Conditions of Purchase shall apply to Erich NETZSCH GmbH & Co. Holding KG as well as its direct and indirect German subsidiaries, particularly NETZSCH Pumpen & Systeme GmbH, Selb/Waldkraiburg, NETZSCH-Feinmahltechnik GmbH, Selb, NETZSCH-Gerätebau GmbH, Selb, NETZSCH Trockenmahltechnik GmbH, Selb/Hanau, NETZSCH Werbe- und Service-GmbH, Selb, RPV Vermögensverwaltungs-GmbH, Selb, RPV Vermögensverwaltungs-GmbH II, Selb, RPV Vermögensverwaltungs-GmbH III, Selb, RPV Vermögensverwaltungs-GmbH IV, Selb, NETZSCH Lohnmahltechnik GmbH, Selb/Bobingen, NETZSCH Vakumix GmbH, Selb/Weyhe and
NETZSCH GABO Instruments GmbH, Selb/Ahlden.
II. Conclusion of Contract, Amendments
1. Enquiries and offers shall always be free of charge for and non-binding on the Purchaser, otherwise relevant notification must be made prior to preparation.
2. Orders shall require written form. Oral agreements shall only be binding if they are confirmed in writing by the Purchaser.
The order placed in writing shall be solely definitive relating to the scope and type of delivery. The Purchaser must be issued with an order confirmation without delay subsequent to receipt of such order.
3. If changes are necessary, notably in the manner of composing the processed material or in the execution of the design compared with former similar supplies and services or compared with the placed order, they must be notified to the Purchaser prior to commencement of fabrication or, in the case of amendments to be subsequently carried out, prior to their execution. They shall require written confirmation. The Purchaser shall not be obligated to examine supplies and services for similarity subsequent to receipt.
III. Delivery, Delivery Documentation and Passage of Risk
1. Deliveries shall be effected at the Supplier's costs, free of expenses, to the stipulated shipping address unless otherwise expressly agreed. Unless otherwise requested by the Purchaser, the Supplier must issue the forwarding advice, delivery note and the invoices in duplicate and – if this forms part of the delivery – submit any acceptance test certificates for materials and send them separately from the goods on the day of despatch. The forwarding advice, delivery note and invoice must contain our reference number, the departmental comment and the item code/material number. If this information is missing, the Purchaser shall not be responsible for delays in processing and settlement.
2. The risk shall only pass to the Purchaser at acceptance at the shipping address.
IV. Delivery Dates, Delay in Delivery
1. The agreed delivery dates shall be binding. Receipt of the goods at the stipulated shipping address shall be definitive for determining whether or not the delivery date has been observed.
Information on delivery times without a delivery date shall not be expedient for the Purchaser because they fail to constitute a scheduling basis. The Purchaser shall therefore request information on the exact delivery date.
2. The delivery period shall only be reasonably extended if the Supplier is obstructed in the performance of its obligations due to force majeure.
As soon as the Supplier can see that it will be unable to comply with the agreed delivery period or the agreed delivery date, it must inform the Purchaser in writing without delay of the grounds and the anticipated duration of the delay. If the Supplier is in breach of its duty to furnish information, it must compensate the Purchaser for the resulting losses incurred.
In all other respects, the Purchaser shall reserve all rights concerning the delay.
3. In the event of a delay in delivery, the Purchaser may rescind the contract after fruitless lapse of an additional period. There shall be no requirement to set a deadline if the Supplier seriously and conclusively refuses performance, if compliance with the delivery period is material for the Purchaser (business to be settled on a fixed date) or if - weighing up mutual interests - other circumstances are shown to exist that justify immediate rescission. In addition, the Purchaser may request compensation if the Supplier fails to provide verification to the former that it is not responsible for overrun of the delivery period. The Purchaser may keep partial deliveries and in all other respects rescind the contract.
No waiver of possible compensation claims shall be deemed in the assumption of delayed delivery or performance.
V. Fixed Compensation
In the event of delay on the part of the Purchaser, for each week of too-late delivery, the Purchaser shall be entitled to lump-sum compensation in the amount of 1 per cent of the purchase price, at the maximum 5 per cent of the total price. The Supplier shall be free to prove that no losses were incurred or not incurred in that amount. Further-reaching claims of the Purchaser on grounds of the delay in delivery shall remain unaffected, in particular, the assertion of a compensation claim shall not be ruled out by the lump-sum compensation if the compensation claims exceeds the amount of the lump-sum compensation. The lump-sum compensation will be set off against a possible compensation claim.
The Purchaser may then also request the lump-sum compensation if it fails to expressly reserve the right to it when accepting the goods.
VI. Title
1. The Supplier shall be obligated to transfer title in the contractual goods to the Purchaser at handover, at the latest upon payment of the relevant delivery. Any extension or enlargement of possible reservation of title declared by the Supplier shall be contrary to the contract and shall obligate the Supplier to compensation.
2. The Purchaser shall always exclusively undertake to finish and process the delivered goods for itself, if applicable, also in the event of a reservation of title on the part of the Supplier.
VII. Prices and Terms of Payment
1. The prices shall be binding, delivered at our premises and shall include packaging, transport and insurance costs. Payment deadlines at the Purchaser's choice - within 30 days after receipt of invoice with 3 per cent cash discount, within 60 days after receipt of invoice with 2 per cent cash discount or net after 90 days.
2. Payments shall be effected at the Purchaser's choice by sending a crossed cheque or by transfer to Supplier's bank or postal account. The post office or bank outgoing stamp shall be definitive for timely payment.
3. As soon as and if a claim of Supplier's is juxtaposed against a due counterclaim of Purchaser's, the Purchaser may carry out set off, taking account of the cash discounts pursuant to Clause 1. Such set-off shall bring about termination of the mutual claims in the amount of the set-off and, if applicable, of the cash amount.
4. The Purchaser shall be entitled to rights of retention in the statutory amount.
VIII. Warranty
1. In accordance with the customary practice, the Purchaser shall examine the incoming goods for defects. If a defect is revealed during such examination or if the goods are not in accordance with the ordered goods, the Purchaser will notify thereof within two weeks of acceptance. To protect its rights, it shall suffice if the Purchaser has sent the notification of defects within this deadline.
If a defect is revealed later, e.g. during processing or usage, the Purchaser shall notify thereof within a period of two weeks from discovery. To protect its rights, it shall suffice if the Purchaser has sent the notification of defects to the Supplier within this deadline.
2. Claims due to defects shall become statute-barred three years after delivery unless a longer limitation period is applicable by virtue of law. If the goods have not been put in use by the Purchaser within the aforesaid warranty period, the Purchaser may still exercise its warranty rights within two months after having been put in use.
3. If the products supplied are defective, the Purchaser may demand subsequent performance or substitute delivery at its choice. If the Supplier fails to comply with the reasonable deadline he has been set or if subsequent remedy has failed or is unreasonable, the Purchaser shall be entitled to replace defective parts at Supplier's costs, remedy them, rescind the contract or reduce the purchase price. The Purchaser's claims for compensation and under the German Product Liability Act shall remain unaffected.
4. During subsequent performance carried out by the Supplier or during subsequent remedy carried out by the Purchaser pursuant to (3) second sentence, lapse of the warranty period shall be retarded.
IX. Substance Restrictions
The Supplier shall ensure that the goods delivered meet the requirements of Regulation (EC) No. 1907/2006 (REACH) and of all other national and EU-wide regulations with regard to prohibitions and restrictions on chemical substances. The Supplier shall also ensure that the goods delivered do not contain any substances included in the then-current version of the candidate list issued by the European Chemicals Agency (ECHA) – known as “substances of very high concern” (SVHC) – in concentrations of over 0.1 mass percent. Without being requested to do so the supplier shall provide the purchaser with safety data sheets by attaching them to the relevant quotations. The purchaser must be immediately informed on any transgressions of substance restrictions and delivery of prohibited substances. Additionally, the provisions of the EU Directive 2011/65/EC (RoHS Directive) relating to the restriction of certain hazardous substances in electrical and electronic products and components shall be observed.
X. Assignment
Claims of the Supplier against the Purchaser may only be assigned with the consent of the Purchaser.
XI. Liability
1. In cases of breach of contractual, statutory or regulatory provisions, the Supplier shall be responsible for intent and any kind of negligence, also in terms of its vicarious agents.
2. If the Supplier is responsible for product damage, it shall be obliged to release the Purchaser from compensation claims of third parties to the extent that the cause is in the Supplier's sphere of control and organisation and that it, itself, is liable vis-à-vis third parties.
XII. Industrial Property Rights
XIII. Delivery in Accordance with Information, Drawings and Models of the Purchaser
1. If the ordered goods are manufactured in accordance with information, drawings or models provided by the Purchaser, the following shall be applicable:
The goods ordered by the Purchaser and the special facilities, matrices and the like used for their manufacture may only be used for the processing of our order and may not be delivered to third parties. This shall also be applicable if the Supplier has procured the special facilities, matrices and the like at its own costs or if the Purchaser has refused acceptance of the goods due to delayed or defective delivery or if the Purchaser refrains from further orders despite proper delivery.
If improvements at the Supplier's originate in connection with execution of the orders, the Purchaser shall have a costless, non-exclusive right of use for commercial use of the object of improvement and any relevant property rights (Clause 1 shall also be applicable in this case). The right of disposition relating to contract-linked production facilities and tooling, notably concerning joint use, change or destruction, shall remain exclusively with the Purchaser.
Models, patterns, drawings or technical documentation of any kind shall remain the property of the Purchaser and must be kept secret. They may only be used for the processing of our order and by wish of the Purchaser must be returned together with any copies made.
2. Material provided by the Purchaser shall remain the property of the Purchaser.
XIV. Place of Performance, Place of Jurisdiction, Applicable Law
1. The place of performance for all deliveries and services shall be at our registered seat, unless a different place to which the goods are to be delivered is agreed.
2. The court at our registered seat shall be solely competent for all disputes arising from and in connection with this contract. However, we shall also be entitled to file claim at any other legal place of jurisdiction.
3. The law of the Federal Republic of Germany shall be applicable. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be ruled out.
XV. Miscellaneous
1. If one or more than one provision of these Terms and Conditions of Purchase should be or become invalid, this shall not affect the validity of the other provisions. The same shall also apply in the case of a regulatory gap.
2. These Terms and Conditions of Purchase in their German version shall be definitive unless a different language is the contractual language. This shall also be applicable if a translation of the Terms and Conditions of Purchase into a different language was used in addition to the German-language conditions.
3. Unless other terms have been set via specific contract, the
supplier’s goods and/or services – presuming an order has been placed – are subject to the regulations set forth in the most current version of the relevant legal stipulations, in particular those of the German “Kreislaufwirtschaftsgesetz (KrWG)” recycling
management and waste law, as well as its subordinate
regulations, such as regional and local waste disposal laws.
Effective as of July 24, 2019
I. Validity
1. All offers, contracts, agreements and deliveries are exclusively subject to our Terms of Delivery and Payment printed below. Any deviating terms of the Purchaser that have not been expressly acknowledged by us shall not be terms of the contract, even if we have not expressly rejected them.
2. To the extent that individual provisions of the contract or of these Terms of Delivery and Payment should prove to be invalid, this shall not affect the remaining provisions. If no supplementary interpretation of the contract is the priority or possible, the contract shall be supplemented by a provision which comes closest to what the parties would have legally and commercially intended with the invalid provision.
II. Offer, Right to Alter, Non-Disclosure
1. Our offers are presented under the condition that no obstacles stemming from national or applicable international regulations based on foreign trade legislation nor any embargos (and/or other sanctions) stand in the way of their fulfillment.
2. Our order confirmation defines the scope of delivery. Verbal side agreements, conditions, alterations or additions, whether made in person or by telephone, shall be valid only if we expressly confirm them.
3. Changes to the technical execution of the Product ordered are permissible as long as the Purchaser can be expected to find them reasonable and no significant change in functionality hereby occurs.
4. Documents pertaining to the offers, such as illustrations, drawings, and weight and measurement specifications, are approximations only and shall be considered as such unless expressly declared by us to be binding.
5. We reserve full ownership rights and intellectual property rights on cost estimates, drawings and other documents or materials, including samples, models and electronic documents which we provide to the customer. These may not be made available to third parties either in their original form or in terms of their content. The Purchaser may use them only for the purposes set forth contractually. All drawings and other documents pertaining to offers which we provide to Purchasers shall be returned to us upon our request or, if the order is not placed with us, shall be returned to us immediately at the expense of the Purchaser; additionally, any existing (even electronic) copies are to be destroyed, as long as they are no longer needed by the Purchaser for the orderly course of business or per legal obligations to retain the information.
III. Price and Terms of Payment
1. All prices quoted are ex works and, with respect to domestic orders, are subject to value added tax at the applicable legal rate. For foreign transactions, we calculate value added tax as described in Clause VIII. The Purchaser shall be invoiced separately for insurance, packaging and customs duties. We may, at our option, invoice such amounts at actual cost or at a flat rate.
2. If, after acceptance of an order, there is a significant increase in the costs of production upon which our price quotation to the Purchaser was based at conclusion of the contract, we shall be entitled to a reasonable adjustment of our sales price. For the purposes of sentence 1 hereof, a significant increase in the costs of production shall include, but not be limited to, if our suppliers increase the price for the Products or their component parts, if customs duties or other costs of importation increase or, if there is a significant change in the exchange rate to our detriment as compared to that on the date of the order. A price adjustment hereunder shall be reasonable if it is within the scope of the actual increase in costs. Upon the Purchaser’s request, we will furnish proof of the increased costs. If a price adjustment results in a cost increase of more than twenty percent (20%) and we do not respond within two (2) weeks to the Purchaser’s written request to limit the price adjustment to a maximum of twenty percent (20%), then the Purchaser shall be entitled to rescind the contract (we have a right to withdraw from the contract as well, pursuant to Clause XI. 2.).
3. Unless a separate agreement has been expressly made to the contrary, all payments shall be made via transfer, without any deductions, as follows:
Checks shall be accepted as a valid form of payment only after they have been formally honored.
4. Overdue accounts shall be subject to interest charges at a rate of nine (9) percentage points above the base rate, but no less than twelve percent (12%) p.a. Interest shall be due and payable immediately. We reserve the right to claim additional damages.
5. The Purchaser shall have no right to withhold payment on the basis of a counterclaim, nor to deduct charges related to such counterclaim. The foregoing shall not apply to counterclaims that are uncontested, determined to be legally valid or awaiting judgment.
6. Should the financial circumstances of the Purchaser deteriorate to the extent that there appears to be a risk of non-payment, we may request immediate payment. For orders which have not yet been carried out, we are entitled to demand prepayment or provision of commensurate security, to withhold our goods and services until this is received and, following the expiration of an adequate term for payment or security provision with none resulting, to withdraw from the contract.
7. Partial shipments shall be invoiced separately. The above terms shall be applicable thereto.
IV. Reservation of Title
1. We hereby reserve the right of ownership of all machines and articles delivered. Ownership shall be transferred to the Purchaser only after payment has been received in full. In the case of goods obtained from us by the Purchaser in the regular course of business, we retain ownership until all of our claims against the Purchaser arising from such business relationship have been paid in full. This shall also apply where one or all of our claims have been consolidated into one current account and the balance has been drawn and accepted.
2. The Purchaser is entitled to resell, within the scope of the regular course of business, the Products delivered. In the event of resale, the Purchaser now assigns to us all claims against the end-user or third parties and all associated ancillary rights, which arise as a result of the resale, regardless of whether the Products subject to this reservation of title are sold to such third parties in their original form or after further processing or finishing. The Purchaser shall be authorized to collect such claims even after the assignment. Our right to collect such claims directly shall remain unaffected by the foregoing. We shall not make use of such right so long as the Purchaser fulfills all payment obligations in accordance with the terms laid out herein. We may demand that the Purchaser provide us with details of the claims assigned hereunder, the names of the respective debtors, all information required for collection of such claims, as well as any related documentation and that the respective debtors be notified of such assignment. If the Products are resold along with goods not belonging to us, the claims of the Purchaser against the end-user or third-party purchaser shall be deemed to have been assigned to us in an amount equal to the delivery price agreed upon between the Purchaser and us.
3. All processing and finishing of Products subject to retention of title are always carried out for us as manufacturer as defined in § 950 of the German Civil Code (Bürgerliches Gesetzbuch), but without any resulting obligation on our part. The processed Products subject to this reservation of title are processed or inseparably combined with goods not belonging to us, we shall be deemed to have acquired co-ownership of the resulting goods in the ratio of the invoice value of the Products subject to this reservation of title to the invoice value of the other goods used at the time of processing and combination. The resulting rights of co-ownership shall be deemed to be Products subject to this reservation of title within the meaning of these terms.
4. Should our Products be attached to or inseparably combined with other movable goods to form a new unit and such unit becomes the principal article, then we shall be deemed to have acquired from the Purchaser proportionate ownership, to the extent that the principal article is the property of the Purchaser. For goods resulting from such processing, attachment or combination, the same provisions that govern the Products subject to this reservation of title apply.
5. The Purchaser may request that we, at our option, release a portion of the security, to the extent that the realizable value of such security exceeds the claims secured by more than ten percent (10%). The Purchaser shall be entitled to such release if the appraised value of the security is equal to one-hundred fifty percent (150%) of the claims secured therewith.
6. The Purchaser shall be obligated to properly maintain all machines and other articles still under our ownership, to care for them with businesslike diligence and to identify them as our property with clearly visible markings.
7. As long as our reservation of title remains in effect, the Purchaser shall be prohibited from making any disposition of the Products, which deviates from the above provisions, without our prior approval. Should the machines and other articles subject to this reservation of title be attached by third parties or otherwise become subject to third-party claims, the Purchaser shall be obligated to inform us accordingly in the fastest possible manner, if possible by telephone or telefax or e-mail, and to immediately notify the third party about our retention of title. The Purchaser shall be required to submit to us a certified copy of the attachment proceedings as well as an affidavit identifying the attached articles.
8. If the Purchaser is in breach of contract, in particular, in default of payment, we shall be entitled to withdraw from the contract and to repossess the Products. The costs of the repossession shall be borne by the Purchaser. We shall be entitled to dispose of any repossessed Products, with the proceeds from the disposition to be applied to the Purchaser’s debt after deduction of a reasonable amount for expenses related to such disposition.
9. For export sales in countries, in which the above-stated reservation of title is not legally binding, we reserve the right to secure our ownership in accordance with the applicable legal provisions of the receiving country. The Purchaser shall be required to assist us in this regard to the extent necessary.
V. Delivery and Delivery Time
1. Domestic shipments shall be made ex works. This shall also apply to foreign shipments, to the extent not otherwise agreed.
2. The Purchaser shall be required to provide us in a timely manner with the official name and address of the place of delivery; we assume no responsibility for any incorrect delivery information or for any resulting delays. Scheduled delivery periods and delivery dates are subject to our receipt of complete and punctual deliveries from our suppliers.
3. Unless otherwise agreed, any stated information on determined delivery periods shall be non-binding. Binding and non-binding delivery periods and delivery dates shall be subject to our being correctly and punctually supplied.
4. Unless otherwise agreed, the delivery period shall commence either on the date of final technical clarification of the contract or the date on which all documents required for processing the order have been received and the deposit paid; the latter of these two dates shall be determinative.
5. Delivery periods shall be extended by such time period as the Purchaser may be in default with respect to essential contractual obligations, in particular, fulfillment of its payment obligations.
6. The delivery period shall be reasonably extended – even in the case of default – in the event of force majeure and all unforeseeable events, over which we have no control, occurring after entering into the contract; such extension effective for the duration of the period that performance is hindered. This shall also apply if such circumstances affect our suppliers or their suppliers. The above-circumstances shall include, but not be limited to, governmental action relating to currency and trade policy, strikes and lockouts, administrative orders or market related problems with acquisition of materials and goods. We shall inform the Purchaser as quickly as possible of commencement and cessation of such events. The Purchaser shall have the right to demand our declaration as to whether we choose to withdraw from the contract pursuant to Clause XI. 1. or to deliver within a reasonable period of time. If we do not provide such declaration promptly, the Purchaser shall have the right to withdraw from the contract.
7. The delivery period shall be deemed to have been met if, at the end of the delivery period, the products ordered have been shipped from the factory or notification has been given that they are ready for shipment.
8. To a reasonable extent, we shall be entitled to make partial shipments and, when necessary, supplemental shipments.
VI. Transfer of Risk
1. Risk of loss is transferred to the Purchaser with clearance of the shipment for delivery and notification to the Purchaser of its readiness for shipment. This shall also apply if the shipment is delayed due to circumstances beyond our control. If notification of readiness for shipment is not received by the Purchaser, risk of loss is transferred when the Products are handed over to the postal authorities, the transport agent or carrier, but no later than such time as the goods leave the factory grounds.
2. Only upon special request of the Purchaser and at its expense shall the shipment be insured against breakage, transport and fire damage.
3. The Purchaser shall be responsible for insuring each shipment and shall notify the insurer of our reservation of title, because in the event that we enforce such reservation, we shall claim the full value of the shipment and any damage to the Product during shipment shall be repaired at the expense of the Purchaser.
4. Any returns of Product shall always be carried out at the expense and risk of the Purchaser unless we are obligated to take back the Product pursuant to Clause X below.
VII. Delay in Acceptance of Delivery
1. For the duration of the delay in acceptance of delivery, we shall be entitled to store the shipped Products at the expense of the Purchaser. Further, we shall be entitled to have the Products stored with a transport agent. The Purchaser shall be responsible for all costs related to such storage over the entire duration of the delay in acceptance of delivery.
2. If, at the end of a reasonable extension of time granted the Purchaser, acceptance is refused or the Purchaser declares in advance that it absolutely will not accept delivery of the goods, we shall be entitled to rescind the contract and to demand compensation. As compensation, we shall be entitled to demand a fixed amount of twenty-five percent (25%) of the agreed purchase price. We also reserve the right to claim higher damages, just as the Purchaser is entitled to prove that no damages were actually incurred or that the damages incurred were substantially less than the fixed amount claimed.
VIII. Tax Exemption Certificate
In cases where transport responsibility lies with the Purchaser for deliveries of Product to EU countries outside of Germany, the Purchaser is obligated to promptly provide us with all documentation required by current German legislation (e.g., confirmation of arrival, carrier’s receipt for VAT purchases, or CMR bills of lading) in properly completed form. If the Purchaser does not fulfill this obligation on time, we reserve the right to subsequently invoice the Purchaser for German sales tax as per the applicable tax rate. The same is true for tax-free intra-Community deliveries to which German law does not apply, insofar as local legislation mandates such documentation, as well as for deliveries to third-party countries for which the Purchaser is responsible for the export documentation.
IX. Installation, Assembly
1. We recommend that the machines and instruments be installed by our experienced service engineers. For such installations, in addition to travel expenses and freight charges for tools, we calculate costs at the rates set out in our “Brochure Concerning Services Performed by our Engineers and Assembly Personnel”.
2. Should there be a delay in installation or commissioning on-site, through no fault of ours, the Purchaser shall bear all costs of the delay and the costs of any future travel required as a result of the delay.
3. Installation and commissioning shall otherwise be governed by the terms agreed upon in accordance with our “Brochure Concerning Services Performed by our Engineers and Assembly Personnel”.
4. The Purchaser shall, in all cases, follow the instructions for installation and operation found in the NETZSCH Operating Instructions.
X. Claims Due to Defects
1. The Purchaser shall inspect the Products for completeness, defects and qualities immediately upon receipt. The Purchaser shall provide us with written notice of errors in quantity shipped and obvious defects immediately, or within seven (7) business days after receipt of the Products at the latest. Concealed defects shall be reported to us in writing within the same notice period, commencing on the date of discovery. The warranty shall not apply to defects not reported within this notice period.
2. On the basis of public statements made through us, the manufacturer or its agents, we shall accept no liability, if we were not aware of the statements and had no reason to be aware of them, if the statements had already been rectified at the time of the decision to purchase or to the extent that the Purchaser is unable to prove that the statements influenced its decision to purchase.
3. No liability shall be accepted for unsuitable or improper use or use not in compliance with instructions, incorrect installation or commissioning by the Purchaser or third parties, ordinary wear and tear, incorrect or negligent handling, improper means of operation, substituted materials, wear and tear, shortcomings in the construction work arranged by the Purchaser, unsuitable building site, chemical, electrochemical or electrical effects. The first sentence shall also apply in so far as the NETZSCH Operating Instructions were not followed during installation or operation. We shall also accept no liability for defects, which only insignificantly reduce the value or suitability of the product. An insignificant defect shall be deemed to exist in particular, if the defect soon disappears or corrects itself or if it can be corrected by the Purchaser with minimal effort.
4. Should the Purchaser demand a remedy due to a defect, we shall have the option to replace the Product or to repair the defect. If the remedy fails, the Purchaser’s right to reduce the purchase price or to rescind the contract remains unaffected.
5. For commercial purchasers the assembly and disassembly costs
will not be borne by us under any circumstances.
6. The Purchaser shall, after communication with us, allow the required time and opportunity to under-take all repairs and replace any parts which we, in our reasonable discretion, consider necessary: otherwise we shall be released from liability for defects. The Purchaser shall have no right to have possible defects repaired by third parties at our expense without our approval or to claim any price reduction in respect thereof.
7. We shall have title to all parts replaced pursuant to our warranty obligations. The warranty provisions set forth herein shall apply to all replaced parts.
8. All claims due to defects come under the statute of limitations within one year of delivery of the Product. If and to the extent that we are required to perform assembly or installation, the warranty period shall commence on the date the Product is put into operation. However, if installation or start-up does not occur, through no fault of our own, the warranty period shall remain as set forth in sentence 1 hereof. The warranty period shall be extended by the duration of any repair work that should be required.
9. All claims for compensation and reimbursement of expenses remain unaffected by the foregoing, to the extent they are not excluded by Clause XII.
XI. Right to Rescind the Contract
1. In the event of force majeure or other unforeseen events beyond our control (Clause V.6), we are entitled to rescind the contract, insofar as these events considerably change the economic significance or substance of the respective contractual obligations or have a significant effect on our business and make it subsequently impossible to perform the contract as agreed or delay the execution by more than eight weeks. Should we make use of this right of rescission, the Purchaser shall be notified without delay as soon as the consequences of the event have been determined. The right of rescission shall not be affected by an initial decision to notify the Purchaser of an extension of the delivery period or by an agreement between the parties to extend the delivery period.
2. We shall also have the right to rescind the contract if production costs increase by twenty percent (20%) or more after entering into the contract and the Purchaser has not agreed to accept a twenty percent (20%) price adjustment (Clause III.2) within two (2) weeks of notification. The same applies if, for reasons beyond our control, we are not supplied by our contractors (Clause V.3).
3. We shall also have the right to rescind the contract if the Purchaser is in default of payment and the Purchaser has misrepresented his credit-worthiness, has ceased payments or has provided an affidavit disclosing its assets and liabilities; or if a considerable financial deterioration has occurred which endangers the execution of the contract; or if a petition for insolvency has been filed. Our legal rights remain unaffected should the Purchaser default in payment.
4. In the event the contract is rescinded or the delivered Products are repossessed, we are entitled to compensation for expenditures, use of Products delivered and reduction in value of the Products. At our option, the claim for compensation may be calculated according to actual costs or set at a fixed rate of fifteen percent (15%) of the purchase price. In the case of fixed-rate compensation, the Purchaser retains the right to prove that we are entitled to no compensation or to compensation only in a lesser amount.
5. Our statutory rights to rescind the contract shall remain unaffected.
XII. General Limitation of Liability
Claims for damages, irrespective of legal justification, are excluded unless the claim is established on the basis of intentional conduct or gross negligence on our part or the part of our agents or the claim for damages results from a breach of obligations fundamental to the contract. If obligations fundamental to the contract are breach on the basis of slight negligence, the liability is limited to typical foreseeable damages. Nothing in the foregoing shall affect liability for damages resulting from injury to life, body or health, or liability pursuant to the relevant product liability legislation.
XIII. Export Checks
XIV. Place of Performance, Place of Jurisdiction
1. The place of performance for all goods supplied and services rendered shall be our registered seat.
2. The court having jurisdiction at our seat shall have sole jurisdiction for all disputes arising from and in connection with this contract. We shall also be entitled to file claims with with any other legal place of jurisdiction.
XV. Applicable Law
All contractual provisions shall be governed exclusively by the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
XVI. General Terms
1. These General Terms of Delivery and Payment shall apply to Erich NETZSCH GmbH & Co. Holding KG as well as its direct and indirect German subsidiaries, particularly NETZSCH Pumpen & Systeme GmbH, Selb/Waldkraiburg, NETZSCH-Feinmahltechnik GmbH, Selb, NETZSCH-Gerätebau GmbH, Selb, NETZSCH Trockenmahltechnik GmbH, Selb/Hanau, NETZSCH Werbe- und Service-GmbH, Selb, RPV Vermögensverwaltungs-GmbH, Selb, RPV Vermögensverwaltungs-GmbH II, Selb, RPV Vermögensverwaltungs-GmbH III, Selb, RPV Vermögensverwaltungs-GmbH IV, Selb, NETZSCH Lohnmahltechnik GmbH, Selb/Bobingen, NETZSCH Vakumix GmbH, Selb/Weyhe and NETZSCH GABO Instruments GmbH, Selb/Ahlden.
2. Side agreements, conditions, alterations or supplements shall be valid only if agreed upon in writing.
3. To the extent not otherwise provided for in these Terms of Delivery and Payment or the contract, the Purchaser shall not be entitled to assign to third parties any rights granted under the contract or these Terms of Delivery and Payment without our prior approval.
4. The German version of these Terms of Delivery and Payment are binding for the contract, unless a different language is the language of the contract. The foregoing shall apply regardless of whether a translation of the Terms of Delivery and Payment into a different language was used in addition to the German language version.
Effective as of January 24, 2018
