A) General
1. The following terms and conditions shall form an integral part of contracts governing our supplies and services of Günther Maschinenbau GmbH, Germany (following “Günther”) unless expressly agreed otherwise elsewhere. General terms and conditions of business of the Buyer which conflict with the following terms and conditions are expressly rejected.
2. Should a provision of these terms and conditions be invalid, this shall not mean that the other provisions are invalid.
B) Prices and currency
1. Unless expressly agreed otherwise, prices shall apply FCA Günther's works in accordance with Incoterms (2010); unless otherwise instructed by the Buyer, the forwarding agent may be chosen by Günther at the Buyer's expense. Value Added Tax, if applicable, shall be charged separately at the statutory rate.
2. In the event of delays by the Buyer, we shall be entitled to increase the agreed price to the extent of the additional costs resulting therefrom. Changes to the scope of supply and any additional costs incurred thereby require the mutual agreement of both parties.
C) Payment, default
1. Unless expressly agreed otherwise, payment of our invoices shall be in Euro and due immediately on receipt without cash discount. Payment shall be deemed to have been effected only when credited unconditionally to our account.
2. Payment shall be done i) 30% of the total purchase price due and payable immediately after this Agreement has been signed, ii) 60% € due and payable upon the notification of readiness for shipment and iii) 10% € due and payable 30 days after successful completion installation and 60 days at the latest after delivery. The withholding of payments or offsetting on the basis of any counterclaims of the Buyer disputed by us shall not be permissible.
3. In the event that the Buyer exceeds an agreed or set payment period by more than 3 weeks, we shall charge the Buyer interest as legally foreseen (8% in excess of the reference discount rate of the European Central Bank). We reserve the right to enforce a higher claim for damages caused by default.
4. If the Buyer is in default of payment, we shall, after a period of grace set by us has elapsed, be free to rescind the contract or claim damages for nonperformance in the amount of the loss incurred. In the event of a rescission for reasons for which the Buyer is responsible, we shall charge the Buyer with the costs incurred by us in connection with the rescission of the contract, including assembly, dismantling, freight and packaging, loss of value, restoration, compensation for the use of property, etc.).
5. If, on the basis of contractual agreement, the Buyer is entitled to pay in instalments and if an instalment is more than 4 weeks overdue, the entire remaining balance shall become due for immediate payment.
D) Retention of title
1. Our supplies shall remain our property until all amounts outstanding to us, for whatever reason under law, are paid completely.
2. In the event of breach of contract by the Buyer, especially default of payment, we shall be entitled after due notice, to repossess supplies, which the Buyer shall be obliged to surrender. The exercising of our right of retention of title and the execution of a levy by us shall not constitute rescission of contract.
E) Delivery/performance period, liability for delay in delivery/performance
1. An agreed delivery period shall be complied with if before its expiry the delivery has left our works, or - if collection was agreed upon - the Buyer has been informed that the delivery is ready for shipment. Partial deliveries are permitted.
2. The delivery/performance period shall be appropriately extended if a delay is caused by circumstances beyond our control. These shall include in particular force majeure, labor disputes, delays caused by the Buyer (e.g. by failure to furnish documents and/or approvals on time, by modifications of the Buyer to the agreed scope of supplies and services, etc.) and other impediments beyond our control, in so far as such impediments can be proven to influence the completion of delivery of our supply and/or service.
3. If the Buyer suffers damage as a result of a delay in delivery or performance for which we are solely responsible, the Buyer, after an additional grace period of 14 days, shall be entitled to claim liquidated damages which are our sole obligation and the Buyer´s exclusive remedy. Said liquidated damages shall amount to 0.3% for each full week of delay, but in total not more than 3% of the value of that part of our total supply or total service which as a result of the delay cannot be used on time or in accordance with the contract. If delivery or performance is delayed in accordance with this section and after the Buyer has twice granted us a reasonable period of grace with the express declaration that the Buyer will refuse to accept the supply or service after expiry of this period and if the period of grace is not complied with, the Buyer shall be entitled to rescind the contract. Any further claims of the Buyer for delays are excluded. The above exclusions of liability shall not apply if an act of wilful misconduct or gross negligence with regard to the delay can be imputed to a member of our management board or one of our senior executives.
F) Delay in call for/taking of delivery
1. If delivery is postponed at the request of the Buyer, or if the Buyer fails to call for delivery within the agreed period, we may use the item and supply another item that complies with the contract without the Buyer thereby becoming entitled to rescind the contract. Any extra costs incurred by us due to this delay shall be borne by the Buyer.
2. If the Buyer fails to take delivery at the agreed date (delay in taking delivery), we, at the expense and risk of the Buyer, may store the supplies at a location of our choice. If storage takes place on our premises, we shall charge, in addition to our other costs, a monthly storage fee equal to 2.5 ‰ of the net order value plus applicable Value Added Tax starting from the day notification was given that the delivery was ready for shipment.
3. If the Buyer finally refuses to call for or take delivery, or if he fails, after a reasonable additional grace period of 3 weeks granted to him in writing has elapsed, to respond to a demand that the delivery be called for or taken, we may at our discretion claim damages to the amount of 25% of the net order value plus applicable Value Added Tax or claim damages, plus applicable Value Added Tax, to the amount of the damage actually proved by us. This shall not affect our statutory rights regarding specific performance or contract rescission.
G) Acceptance, delays in acceptance
1. After delivery and/or performance and after our notification of readiness for immediate acceptance, the Buyer shall, as agreed separately, be obliged to accept the supplies and/or services immediately and to countersign the acceptance protocol provided by us, unless there is a major deficiency (e.g. non-fulfilment of agreed performance, hazard stemming from supply/service). The Buyer´s warranty rights shall not be affected by this acceptance and shall remain valid.
2. Acceptance shall be deemed to have taken place if the Buyer has put our equipment into operation or if he makes use of products which have been produced on our equipment or if acceptance is delayed for reasons beyond our control (in this case acceptance is deemed to have taken place after 12 calendar days have passed since our notification of readiness for acceptance) or at the latest after 3 months after delivery.
H) Passing of risk
1. Unless otherwise agreed, risk shall pass to the Buyer in accordance with Incoterms (2010) FCA. This shall apply also to partial shipments, or if we have agreed to perform other services, e.g. bearing of shipment our insurance costs or transportation and installation or start-up.
2. If shipment is delayed for reasons for which the Buyer is responsible, risk shall pass to the Buyer from the day the supplies are ready for shipment. We shall, however, be obliged to take out the insurances the Buyer requires at the Buyer's request and expense.
I) Warranty
1. We shall accept the following liability for defects with respect to new supplies and/or services as our sole obligation and the Buyer´s exclusive remedy:
a) Within a reasonable period and during normal business hours, we shall at our own discretion rectify, replace free of charge all faulty parts of the supplies and/or services or repeat them on the basis of the INCOTERMS agreed for the original supply. Replaced parts shall become Günther's property.
b) This provision shall apply to all parts of the supply which, within 12 months after acceptance prove to be unserviceable or significantly impaired in their serviceability as a result of circumstances existing prior to the passing of risk - in particular as a result of defective design, poor materials or deficient
construction. We shall be informed in writing without delay if such defects are detected in order to avoid any exclusion of liability. Replaced parts shall become our property.
c) Wear and corrosion shall be excluded from our warranty. We shall not be liable for any damage, which occurs as a result of unsuitable or incorrect use, defective installation and/or start-up, inappropriate maintenance or inspection by the Buyer or third parties not appointed by us.
d) In order to prevent the exclusion of claims, the Buyer shall give us the necessary time and opportunity to effect all repairs and replacement supplies which seem necessary to us as well as to carry out the technical tests on the supplies before their start-up. We shall not be obliged to correct defects as long as the Buyer fails to fulfil his obligations to us unless to an insignificant extent.
e) In the event of impossibility, non-performance or failure of the repairs, the Buyer may rescind the contract or reduce the contract price if the Buyer has twice called upon us in vain to remedy the faults within an appropriate period.
f) Additional claims of the Buyer, including but not limited to claims for damages not occurring in the supplies and/or services themselves, are excluded. This exclusion from liability shall not apply in cases of wilful misconduct or gross negligence on the part of a member of our management board or one of our senior executives and in cases when as a result of a defective supply liability for personal injury and property damage to privately used items has been incurred under the product liability act. Nor shall it apply in the case of failure to comply with guaranteed properties if the object of such guarantee was to safeguard the Buyer against damages not occurring in the supplies and/or services themselves.
g) The right of the Buyer to make claims arising from defects shall expire in relation to supplies at the latest 15 months after the final main delivery under the relevant contract and in relation to services 12 months after their performance.
h) There shall be no special warranty period with respect to replacement parts and the remedying of defective supplies and/or services. In the case of used items being supplied any warranty claims shall be excluded. Warranty claims shall also end in the case of unauthorized repair performed or contracted by the Buyer.
J) Liability for items furnished by the Buyer
We shall accept no liability for items, services, drawings or documentation furnished by the Buyer, irrespective of whether these have been given our approval and/or are connected with our supplies/services or are used for them, nor for personal, material or property damage resulting from said items, services, drawings or documentation. If claims are made against us or if we incur damages relating to items, services, drawings or documentation furnished by the Buyer, the Buyer shall hold us free from all claims in this connection and compensate us for all damages and expenditures incurred. The above exclusion from liability shall not apply to specifications made by us for supplies and services to be furnished by the Buyer, in particular not to planning and design work. For these specifications, the above-mentioned provisions shall apply.
K) Provision of software
For the provision of software the here shown General Terms and Conditions of Supplies and Services shall apply accordingly.
L) Additional conditions of services
1. If, as a result of circumstances beyond our control, it is not possible before acceptance to perform work, in particular assembly, construction management, supervision, start-up, re-pairs, overhauls or conversions, we shall still be entitled to the portion of the payment commensurate with the work which has been performed.
2. We shall make our field assembly personnel available in accordance with the terms and conditions for field assignments applying on the date of performance.
3. The Buyer shall provide in due time the necessary physically and legally required conditions for our personnel to perform the work and shall ensure reasonable working conditions. The skilled workers as well as the laborers to be provided by the Buyer shall be made available to us free of charge and must be capable of doing the tasks required. We shall be entitled to reject unsuitable personnel and/or demand replacement thereof at the Buyer´s expense. The Buyer shall provide free of charge production materials and utilities such as gas, water, electricity, etc., as well as lifting gear and transport equipment needed for performing the services. Any material purchased on site by our personnel for performance of the services will be charged at cost.
4. We shall accept no liability for work performed by personnel provided by the Buyer.
5. If the work is interrupted or delayed for a reason beyond our control, the Buyer shall pay for the time involved at our rates of payment applying at the time and also cover any other costs incurred.
6. Connections for electricity, gas, oil, and water may not be installed by our personnel, but, in accordance with regulations, only by licensed tradesmen.
M) Liability
BEYOND THE CONTRACTUAL GUARANTEE AND WARRANTY WE SHALL BE LIABLE FOR DAMAGES NOT CAUSED TO THE SCOPE OF SUPPLY ITSELF, FOR WHATEVER LEGAL REASONS, ONLY IN THE CASE OF MALICE AFORETHOUGHT, IN THE CASE OF GROSS NEGLIGENCE OF OUR OWNER, EXECUTIVE BODIES OF THE COMPANY OR EXECUTIVE MANAGERS, IN THE CASE OF CULPABLE FATAL OR BODILY INJURY OR IMPAIRED HEALTH, IN THE CASE OF FAULTS WHICH WE HAVE FRAUDULENTLY CONCEALED OR WHOSE ABSENCE WE HAVE GUARANTEED AND IN THE CASE OF FAULTS OF THE ITEM OF DELIVERY IN SO FAR AS THERE IS LIABILITY FOR DAMAGES TO PERSONS OR PRIVATELY USED OBJECTS UNDER THE PRODUCT LIABILITY LEGISLATION. IN THE CASE OF CULPABLE INFRINGEMENT OF ESSENTIAL CONTRACTUAL OBLIGATIONS WE SHALL ALSO BE LIABLE FOR GROSS NEGLIGENCE BY NON-EXECUTIVE EMPLOYEES AND MINOR NEGLIGENCE, IN THE LATTER CASE LIMITED TO DAMAGES TYPICAL FOR THE CONTRACT AND NOT REASONABLY PREDICTABLE. ANY FURTHER CLAIMS ARE EXCLUDED. WE SHALL, IN PARTICULAR, ASSUME NO LIABILITY FOR INDIRECT DAMAGES SUCH AS ECONOMIC LOSS, DAMAGE TO OBJECTS OTHER THAN THE SCOPE OF SUPPLY, LOSS OF PROFIT, LOSS OF EARNINGS AND OTHER CONSEQUENTIAL DAMAGES, FOR WHATEVER LEGAL REASONS.
N) Patent Infringement
Günther assumes the following obligations as to all new Equipment delivered by Günther to the Buyer, to the exclusion and in lieu of any and all other liabilities and obligations of Günther and Günther’s affiliates, express or implied, with respect to patent infringement. If in any legal proceeding a claim is made against the Buyer that any such Equipment manufactured by Günther or one of its affiliates infringes any patent granted on the date of Günther’s Order Confirmation, Günther will, at its option, either:
(i) settle or compromise such claim through such means as Günther, in its sole Judgement and discretion, deems appropriate, including, without limitation, modification of the design of the Equipment or obtaining an appropriate license on the Buyer’s behalf; or
(ii) defend such proceeding on the Buyer’s behalf and hold the Buyer harmless of any judgment in such proceeding on the Buyer’s behalf and hold the Buyer harmless of any judgment in such proceeding in favor of the claimant; provided, in either case, that Günther is given prompt notice in writing by the Buyer of such claim and proceeding, is accorded full control of the settlement, compromise or defense of such claim and proceeding, and the Buyer furnishes to Günther, on request, all information, assistance and authority which Günther deems necessary or desirable to enable Günther to settle, compromise or defend such claim and proceeding. With respect to any new equipment delivered by Günther to the Buyer that has not been manufactured by Günther or one of its affiliates, Günther will, upon the written request of the Buyer, assign to the Buyer such rights, if any, as Günther may have against the supplier or manufacturer relating to patent infringements. The obligations of Günther pursuant to this paragraph 11 shall not apply to any claim of infringement based upon any combination of the Equipment with any apparatus not furnished by Günther, or if the Equipment is used other than in accordance with Günther’s instructions, or if the Equipment is modified without Günther’s prior written authorization.
O) Taxes for cross-border supplies and/or services
All taxes, customs duties, fees and other charges including statutory social contributions in the Buyer´s country and/or the country of supplies/installation which are levied from us and/or our personnel and/or subcontractors as a result of or in connection with the conclusion and/or performance of the contract shall be paid by the Buyer.
P) Miscellaneous
1. Drawings, models, samples, software and other documents made available to the Buyer or produced by us on the basis of information provided by the Buyer may only be used for processing our offer or for use of the supplies and services ordered and shall not be disclosed to third parties without our prior written consent. Furthermore, the Buyer shall, also after submission of our offers and/or performance of the order, not disclose to third parties any and all of our company´s operations, facilities, plants, etc., as well as those of our subcontractors, which become known to the Buyer in connection with our supplies and services.
2. The obligations of both parties shall be fulfilled at our domicile in Germany.
3. Any disputes arising from or in connection with this Agreement shall be finally resolved in decision by three arbitrators in accordance with the Rules of Arbitration of the International Chamber of Commerce in Paris. All legal relationships between the Parties shall be governed by German law, with the exclusion of the Convention on Contracts for the International Sale of Goods (CISG) and the German International Private Law. Arbitration shall be conducted in English language. Place of arbitration shall be at Darmstadt, Germany.