General terms and conditions of Hans Zimmer Maschinenbau GmbH

I. Quotation, scope, etc.

1. The documents associated with the quotation such as illustrations, drawings, weight and dimensional data are only approximately authoritative unless expressly designated as binding. The supplier reserves the proprietary rights and copyrights to quotations, drawings and other documents; they may not be made accessible to third parties. The supplier is obliged to only make plans that are designated as confidential accessible to third parties with the agreement of the customer.
2. The supplier’s written confirmation of order is binding for the scope of delivery in the case of a quotation by the supplier with a time limit and acceptance of that quotation within the period; unless a confirmation of order is made in time. Any subsidiary agreements and amendments require the written confirmation of the supplier.

II. II. Price and payment

1. Prices are ex works including loading in the works unless otherwise agreed, however excluding packaging. Prices do not include the respective legally applicable or specially agreed Value Added Tax.
2. The retention of payments or offsetting based on any counter-claims on the part of the customer disputed by the supplier is not permissible.

III. Delivery period

1. The delivery period is deemed as observed if, by the time it has lapsed, the goods to be delivered have left the works or readiness for shipment has been notified.
2. The delivery period is extended appropriately in the event any form of industrial action, in particular strikes or lock-outs, as well as on occurrence of any unforeseen obstacles that are outside the volition of the supplier insofar as such obstacles demonstrably impact the completion or delivery of the goods to be delivered. This also applies if such circumstances occur with subcontractors.
3. If the customer incurs damage due to a delay resulting from actual fault on the part of the supplier, then the customer is entitled to demand compensation for delayed completion excluding any further claims. This compensation is 0.5 % in all for each full week of delay however a maximum of 5% of the value of the part of the total delivery that could not be used in time or according to contract due to the delay.
4. If the dispatch is delayed at the request of the customer, then he is to be charged, commencing one month after notification of readiness for dispatch, with the costs arising from storage, in the case of storage at the supplier’s works at least however 0.5% of the invoice amount for each month.
5. Observance of the delivery period assumes that the customer’s contractual obligations have been fulfilled.

IV. Passing of risk and acceptance

1. Risk is transferred to the customer at the latest on the dispatch of the parts to be delivered, to wit if part deliveries are effected or the supplier has assumed other performances e.g. the shipping costs or carriage and assembly.
2. If dispatch is delayed due to circumstances for which the customer is responsible, then risk is transferred to the customer from the day of readiness for dispatch; however the supplier is obliged to effect the insurance demanded by the customer on request and at the expense of the customer.
3. Goods delivered are, even if they have insubstantial deficiencies, to be accepted by the customer regardless of the rights arising from Section IV.
4. Part deliveries are permissible.

V. Reservation of title

1. The supplier reserves title to the goods delivered until all payments arising from the supply contract have been received.
2. Processing or reshaping is always effected for the supplier as manufacturer; however without obligation on his part. If the (joint) ownership of the supplier lapses due to incorporation, then it is now agreed that the joint ownership of the customer of the common goods is transferred pro rata (invoice value) to the supplier. The customer keeps the (joint) ownership of the supplier free of charge. Goods to which the supplier is entitled to (joint) ownership are designated below as goods subject to retention of title.
3. The customer is entitled to process and sell the goods subject to retention of title in proper business operations as long as he is not in default. Pledging or assignment as security is not permissible. Any claims arising from resale or other legal basis (insurance, unauthorised actions) concerning the goods subject to retention of title (including all current account balance claims) are now assigned by the customer by way of security to the full extent to the supplier. The supplier authorises him revocably to collect those assigned to the seller in his own name and for his account. This collection authorisation may only be revoked if the customer does not meet his payment obligations properly.
4. In the case of seizure of the goods subject to retention of title by third parties, in particular distraints, the customer refers to the ownership of the supplier and notifies him immediately to enable the supplier to enforce his property rights. If the third party is not in a position to refund to the supplier the legal or out-of-court costs arising in this connection, then the customer is liable for these.
5. The supplier is entitled to insure the goods to be delivered against theft, breakage, fire, water and other damage at the customer’s expense unless the customer himself has concluded insurance verifiably.
6. In the event of action in breach of contract on the part of the customer, in particular in default of payment, the supplier is entitled to return after reminder and the customer is obliged to surrender the goods. The assertion of the retention of title as well as the distraint of the goods delivered by the supplier are not deemed as withdrawal from the contract.

VI. Liability for deficiencies in the delivery

The supplier is liable for any deficiencies in the delivery, including the lack of properties expressly assured, excluding further claims as follows:
1. All the parts that prove to be unusable or significantly impaired in their usability within 6 months of commissioning due to a circumstance prior to the passing of risk – in particular due to defective construction, inferior materials or deficient execution - are to be repaired or delivered again free of charge at the reasonable discretion of the supplier. The establishment of such deficiencies is to be notified to the supplier immediately in writing. Replaced parts are the property of the supplier. If the dispatch, assembly or commissioning is delayed without culpability on the part of the supplier, then the liability lapses 12 months after the passing of risk at the latest. In the case of significant bought-in products, the supplier’s liability is restricted to the assignment of the claims he is entitled to against the supplier of the bought-in products.
2. The customer’s right to assert claims arising from deficiencies lapses in all cases from the time of the notification of the defects in 6 months; however on expiry of the warranty period at the earliest.
3. No warranty is assumed for damage arising from the following causes:
Unsuitable or incorrect use, defective assembly or commissioning by the customer or a third party, natural wear, defective or negligent treatment, unsuitable resources, alternative materials, unless they are due to culpability on the part of the supplier.
4. In order to perform all the repairs and substitute deliveries seeming necessary at the supplier’s reasonable discretion, the customer is to give the time and opportunity required after agreement with the supplier, otherwise the supplier is released from the liability for defects. The customer is only entitled to eliminate the deficiencies himself or have this performed by a third party and to demand compensation of the costs required in urgent cases of hazard to operational reliability and to avert disproportionately large damage whereby the supplier is to be notified immediately, or if the supplier is in default with the elimination of the deficiencies.
5. The supplier bears the direct costs arising from the repair or substitute delivery – to the extent that the complaint proves to be justified – the costs of substitute parts including dispatch as well as the appropriate costs of the dismantling and assembly; furthermore, if this can be justifiably demanded according to the situation in individual cases, the costs of provision of any fitter and his assistants required. Apart from that, the customer bears the costs.
6. The warranty period for the replacement and repair is three months; however it runs at least until the expiry of the original warranty obligation for the goods delivered. The period for the liability for defects of the goods delivered is extended by the duration of the interruption to operations caused by the repair work.
7. Liability for the consequences arising from any incorrect modification or repair work performed by the customer or a third party without the prior approval of the supplier is cancelled.
8. Further claims on the part of the customer, in particular claims for compensation for damage not arising on the goods delivered themselves are ruled out.

VII. Right of the customer to withdrawal, cancellation and other liability on the part of the supplier

1. The customer may withdraw from the contract if the total performance is impossible for the supplier prior to passing of risk. The same applies in the case of inability to perform on the part of the supplier. The customer may also withdraw from the contract if in the case of an order for similar goods, the execution of a part of the delivery is impossible according to number and he has a justified interest in rejecting a part delivery; if this is not the case, then the customer may reduce the consideration correspondingly.
2. If there is default of performance within the meaning of Section III. of the Terms of Delivery and if the customer grants the supplier in default a suitable period of grace with the express declaration that he will refuse acceptance on expiry of this period and if this period of grace is not observed then the customer is entitled to withdraw from the contract.
3. If the impossibility occurs during the default of acceptance or due to culpability on the part of the customer, then he remains obliged to pay a consideration.
4. All other further claims on the part of the customer are ruled out, in particular to notice of termination or reduction as well as to compensation for damage of any kind to wit also for such damage that has not occurred to the goods delivered themselves. This exclusion of liability does not apply to intent, in the case of gross negligence on the part of the proprietor or executive as well as in the case of culpable breach of substantial contractual obligations. In the case of culpable breach of substantial contractual obligations, the supplier is liable – except in cases of intent and gross negligence on the part of the proprietor or executive – only for the damage typical for the contract and reasonably foreseeable.

VIII. Venue

1. In the case of all disputes arising from the contractual relationship, if the customer is a registered merchant, a corporate body under public law or a special fund under public law, then legal proceedings are to be instituted at the court with jurisdiction for the headquarters; Ratingen District Court or Düsseldorf Regional Court.
2. The place of fulfilment is Lintorf.