General terms and conditions

Contract and delivery conditions

1. Scope

The following conditions of sale apply to all contracts concluded between the purchaser and Niebling GmbH (vendor) related to the delivery of goods. They also apply to all future business relationships, even if they are not expressly accepted again. Deviating purchaser terms and conditions that we do not expressly accept are not binding on us, even if we do not expressly reject them. The following conditions of sale also apply if we process the purchaser’s order without reservation, even though we have knowledge of contradicting or deviating purchaser terms and conditions.
All agreements that have been made between the purchaser and us related to the realisation of contracts of sale are recorded in writing. Our products are aimed only at business users. Deliveries are not made to consumers in the context of § 13 BGB (German civil code).

2. Conclusion of the contract

The contract is concluded with the purchaser’s written order in response to our quotation and acceptance by us in the form of an order confirmation. Both are valid also without a signature if prepared automatically. These conditions also apply to subsequent orders, in particular for additional items of equipment, for machines and tools.

3. Subject matter of the contract

The subject matter of the contract is defined by the quotation, the related technical description and the technical requirements defined by the parties to the contract, and the software necessary for the machine, including the related licenses for the software.

4. Form of payment

As far as not otherwise agreed in writing, the following payment conditions apply.

50% of the purchase price on conclusion of the contract,
40% of the purchase price on acceptance in the vendor’s works and prior to shipment
10% on handover and commissioning in the purchaser’s works

Payments are made to the vendor by the purchaser within 14 days of the date of the invoice, in euros, to the account stated.

As per the legal situation in Germany in accordance with § 286 para. 2 BGB (German civil code) the purchaser will enter in arrears 30 days after the due date and receipt of the invoice; in the case of arrears the purchaser has the obligation as per § 288 para. 2 BGB (German civil code) to pay interest on the arrears at 8 percentage points above the base rate of the European Central Bank.

The purchaser can only use undisputed and legally defined counter-claims to offset the vendor’s claims for payment.

5. Delivery time

The delivery period starts for the vendor after receipt of the written order and dispatch of the order confirmation by the vendor, and after receipt of the contractually agreed down-payment as per the quotation.

The delivery period is meet if, on the expiry of the delivery period, the vendor has notified the readiness of the machine for acceptance and hand-over in the vendor’s works and readiness for shipment.

Delivery delays and delays in the provision of services on the part of the vendor or the vendor’s suppliers due to circumstances beyond the vendor’s control, such as force majeure, unforeseeable events and other circumstances will result in an appropriate extension of the delivery time. These circumstances include industrial action, natural catastrophes, disasters, and similar. If the delivery delay due to circumstances beyond the vendor’s control is longer than three months, after setting an appropriate period of grace of 14 days the purchaser is entitled to withdraw from the purchase contract.

6. Delivery, transport

The prices apply ex works Penzberg, as far as not otherwise agreed in writing. Packaging costs, as far as not already included in the vendor’s quotation, are to be met by the purchaser, also the taxes, fees, customs duties and similar expenses due to the conclusion or the execution of the transaction.

Transport to the purchaser will be arranged by the purchaser, as far as not otherwise agreed. If the vendor arranges the transport, transport costs and costs for appropriate insurance of the machinery during transport are to be met by the purchaser and will be billed to the purchaser with a separate invoice.

The purchaser has the obligation during and immediately after delivery by the freight carrier to check the machine for visible damage to the packaging and to the machine itself. Transport damage that degrades the function of the machine will identified by the vendor’s staff during commissioning.

7. Hand-over and acceptance

Place of fulfilment for all deliveries is Penzberg.

The contractual acceptance and hand-over of the machinery and the equipment take place in the vendor’s works as per the usual procedures.

Forms, tools and films are to be made available in adequate quantity by the purchaser 4 weeks prior to acceptance for testing the correct function of the machines.
If the purchaser does not provide these forms and tools, the machine test runs will be undertaken without tools. A pure system function test will be undertaken.
A report will be prepared on the contractual acceptance and signed by both parties to the contract. Acceptance by the purchaser in the vendor’s works can, if the purchaser is not willing to accept the machinery and the equipment in the vendor’s works, be undertaken by an expert assessor organised by the vendor at the expense of the purchaser. This expert assessor issues a completion certificate on which the correct function and completion of the machine prior to shipment is verified to the purchaser. During this process the expert assessor must proceed as per the applicable German regulations as per § 641 a BGB (German civil code).

8. Erection / installation on site

The erection of the machinery and the related equipment in the purchaser’s works is not included in the sale price. The purchaser is responsible for moving the machine from the transport vehicle to the installation location and ensuring all the necessary connections are made available. As far as the purchaser requires specialist personnel from the vendor for this installation and erection work, these costs will be billed to the purchaser at the daily rates stated in the vendor’s price list.
Subsequent to commissioning, specific operator instruction will be provided by the vendor’s staff who placed the machine in operation in the purchaser’s works. This operator instruction is free of charge for the purchaser.

9. Introduction and training

The training on the placing in operation and usage of the machine takes place after the machine has been accepted by the purchaser as fulfilling the contract during acceptance.
The costs for the training measures on site at the purchaser that are not related to commissioning and that are ordered separately by the purchaser are to be met by the purchaser at vendor’s applicable hourly rate as per the price list made known to the purchaser in the quotation.
Related travel costs, expenses and costs for accommodation will be met by the purchaser against the submission of invoices.

10. Failure by purchaser to accept

If the machine or tools is/are not accepted by purchaser within 4 weeks of notification of readiness for acceptance, the machine or the tools are considered accepted.
If the purchaser fails to meet his/her contractual payment obligations and the vendor is, as a result, entitled in accordance with statutory regulations to make claims for damages due to failure to fulfil; the vendor can claim from the purchaser damages of 50% of the agreed purchase price prior to acceptance, 100% of the agreed purchase prices after acceptance.

If the order is cancelled, the following cancellation costs are due: – Up to 4 weeks before acceptance 30% of the purchase price – up to 2 weeks before acceptance 50% of the purchase price – on notification of readiness for acceptance 100% of the purchase price.
The damages can be set higher by the vendor if the vendor can provide evidence of higher damages.

11. Retention of title

The machine and any tools remain the property of the vendor up until complete payment of the agreed purchase price.
Any claims made by the purchaser on the transport insurance are, as far as the vendor’s invoices have not been settled in full, already now assigned to the vendor for the value of the open amount. The vendor accepts this assignment.

12. Warranty

We warrant that our products are free of defects, are state-of-the-art and are manufactured in accordance with the applicable valid German industrial standards (DIN). The warranty period for our products is 12 months from the transfer of risk. If shipment or acceptance is delayed for reasons for which the vendor is not responsible, all warranty claims are rendered void at the latest 15 months after notification of readiness to ship.

The purchaser has the right to rectification (improvement) or replacement delivery at the sole discretion of the vendor. Only after repeated failure to improve is the purchaser entitled to make claims against the vendor under the statutory warranty. The vendor will meet, as far as improvement is selected, the expenses necessary for the improvement, in particular transport, travel, labour and material costs. If, exceptionally, the machines sold are second-hand items, any warranty is excluded. Assured properties require a specific written agreement.

13. Exclusions from the warranty

The following examples will exclude claims under the warranty:
a) Inappropriate or unsuitable operation;
b) Operation without following the operating instructions
c) Disassembly or modification of the equipment delivered without the prior agreement of the vendor; unauthorised replacement of parts;
d) Incorrect installation;
e) Normal wear and tear;
f) Unsuitable processing material;
g) Unsuitable maintenance and service;
h) Overloading due to contact pressure set above the limit
i) Unauthorised technical modifications by the purchaser;
j) Usage of unsuitable tools by the purchaser;
k) Modification and deletion of the machine software;

14. Exclusion of claims for damages

Claims for damages by the purchaser due to defects that did not arise actually in the item supplied, for instance damages due to loss of production, other indirect damages and all atypical consequential damages are excluded, as far as permitted by law.
Claims for damages due to minor negligence on the part of the vendor’s staff during the erection of the machine are also excluded.

15. Procedure to be followed on the notification of defects and malfunctions

Defects and notifications, if they occur, are to be notified to the vendor without delay in writing with a detailed description of the effects of the defect, in the case of software messages with information on the error number. The purchaser is only to attempt to rectify the defect after notification to the vendor and with the agreement of the vendor.
In this case the vendor will be given the opportunity to check the software and the machine settings via modem. For this purpose the purchaser will be provide a suitable, direct analogue telephone line (not a private exchange, no switchboard) to the connection on the machine modem and will provide the direct dial number to the vendor. Notifications of malfunctions can only be processed by the vendor during normal business hours from Monday to Thursday from 8.00 hours to 16.15 hours and on Friday from 8.00 hours to 13.00 hours.

16. Software update

In case of improvements / changes to the functionality of the system, software updates are to be ordered in writing by the purchaser as per the related quotation from the vendor. As a rule the update is installed via a modem connection.

17. Trial parts, forms, tools

The manufacture of trial parts, including the costs for forms and tools, is at the expense of the purchaser.

18. Copyright

Design drawings, drawings, diagrams, sketches, technical information or proposals, software, samples and the like prepared by us are our intellectual property. Any distribution to third parties, copying, reproduction of data carriers or other usage beyond private usage is not allowed without express, written agreement from us.

With the conclusion of the contract the purchaser only procures the component, tool or machine, expressly not the related intellectual property. For this reason no design drawings are provided.

19. Data protection

The vendor has the right to protect the transaction with credit insurance and to provide the insurance provider with the necessary data on the purchaser.

20. Court of jurisdiction and applicable law

1.) The legal system in the Federal Republic of Germany is agreed as the applicable law for all our sales transactions, also for international business transactions. Only German law applies. The application of the Uniform Law for the International Sale of Goods, the UN Convention (CISG) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (IAG) is excluded between the parties.
2.) Court of jurisdiction for all legal disputes between the parties is Landgericht München I (District court Munich I) (Germany).
3.) If individual contractual provisions become ineffective, the other provisions remain effective.

Date 12.06.2009