General Terms and Conditions of Sale and Delivery
1. Scope and general provisions
The following General Terms and Conditions of Sale and Delivery, hereinafter referred to as “GTCs” shall apply to all contracts concluded between the Buyer and Niebling GmbH (Seller) for the delivery of goods and services of any kind as well as under any separate written contracts/agreements. They shall also apply to all future business relations even if not again expressly so agreed. These GTCs shall also apply to follow-up orders, in particular to orders for additional equipment, machines and tools. We expressly object to and decline to acknowledge the validity of deviating or supplementary terms and conditions of the Buyer unless we expressly so agree in writing in individual cases. The following GTCs shall also apply where we execute the Buyer’s order without expressing reservations even where we have knowledge of conflicting or deviating terms and conditions of the Buyer. All agreements made between the Buyer and ourselves for the performance of sales contracts shall be recorded in writing in such contracts. Our offers are addressed only to commercial Buyers. We do not effect supplies to consumers within the meaning of sec. 13 of the German Civil Code [German acronym: BGB]. These GTCs shall apply to all of our business relations with our customers (“Buyers”). They shall only apply to entrepreneurs within the meaning of sec. 14 BGB, to legal entities under public law or special funds under public administrative law.
2. Formation of contract
Our offers are always subject to change and non-binding. The foregoing shall also apply if we have provided the Buyer with technical documentation, other product descriptions or documents, including in electronic form, as to which we reserve our proprietary rights and copyright. The Buyer’s order for the goods or service shall be deemed to constitute a binding offer to enter into a contract. Acceptance shall only become binding on us upon confirmation of the order in writing or in text form or upon delivery of the goods to the Buyer.
3. Substance of the contract
The substance of the contract is derived from the offer and corresponding technical description, the technical requirements specified by the parties and the software required for the equipment, including the corresponding licences to such software. All offer documents, plans, drawings, cost estimates, papers and records (including in electronic form) shall remain the property of the Seller. The Buyer may not retain, modify, copy or otherwise reproduce them or disclose them to third parties and they must be either handed over to the Seller or deleted immediately upon request by the Seller. All proprietary rights to such documents in favour of the Seller shall remain vested in the Seller even where such documents have been handed over to the Buyer. The Buyer is likewise not entitled to use or pass on sample copies, specimens and models.
4. Prices and payment
Unless otherwise agreed, our prices are quoted ex works Penzberg, Germany (EXW, Incoterms 2020), excluding packaging, freight, insurance and statutory VAT. In the absence of any agreement to the contrary our prices in force at the time of delivery or at the time we commence performance shall apply. Prices indicated in our offers are valid within the stated binding offer period. In the event that taxes, customs duties, or similar expenses or charges should arise as a result of deliveries and/or services, or should fees or charges, in particular customs duties or taxes, be introduced or increased after conclusion of the contract, these shall be borne by the Buyer. Unforeseen additional expenses in connection with the performance of the contract which are attributable to the fault of the Buyer shall be borne by the Buyer, for example in the event of delayed payments, lack of cooperation in performing the contract or increased freight charges due to changed transport conditions.
Unless otherwise agreed in writing, the following terms of payment shall apply:
- 50% of the purchase price upon conclusion of the contract,
- 40% of the purchase price upon acceptance at the Seller’s works in Penzberg or prior to despatch,
- 10% upon handover and commissioning at the Buyer’s works.
The Buyer shall make payment to the Seller in EUR, to the specified account, within 14 days of the invoice date. The deduction of a discount is not permitted.
In accordance with the statutory rules applicable in Germany, the Buyer shall be deemed in default 30 days after the due date for payment and receipt of the invoice pursuant to sec. 286 (3) BGB. In the event of default, the Buyer shall be obliged to pay interest on arrears at a rate of 9 percentage points over the base interest rate of the European Central Bank pursuant to sec. 288 (2) BGB.
The Buyer is only permitted to exercise a right of set-off of its claims against the Seller’s claims for receivables on the basis of counterclaims which are undisputed or have been established by res judicata judgment.
5. Delivery period
The delivery period is stated in the agreements of the parties.
Agreed delivery and/or performance periods shall commence upon receipt of the down payment or, if no such down payment is requested by the Seller, on the date the order is confirmed. They shall only apply upon condition that all of the details of the contract (of a commercial and technical nature) are resolved in good time and that the Buyer performs all of its obligations in good time, including the provision of documents, releases, the provision of materials, submission of official certificates and approvals, furnishing of security, making of payments etc.
Our compliance with the delivery period is subject to the proviso that we must first receive correct and timely delivery of goods to us.
With regard to compliance with delivery periods, the date of despatch ex works shall control. If items are not despatched on time through no fault of the Seller, the delivery period shall be deemed to have been met upon notification of readiness for despatch.
If the despatch of items is delayed at the request of or through the fault of the Buyer, we shall be entitled to charge the Buyer for the additional costs incurred by us.
If a specific performance period has been agreed as binding regarding the provision of services (e.g. repairs, assembly, commissioning), then the following shall apply: If performance is delayed due to unavoidable events or circumstances beyond our control, such as labour disputes, natural disasters, accidents etc., then the performance period shall be extended by a reasonable time. This shall also apply if such events and circumstances occur after a default on our part has arisen. If the Buyer is responsible for the delay, then the Buyer shall bear all costs arising therefrom. In such cases, the Buyer shall have no right to assert any claims for damages.
The delivery and/or performance period shall be extended by a reasonable time in the event of change requests by the Buyer and where a force majeure event occurs.
Partial deliveries and partial performance are permissible.
The delivery period shall also be deemed to have been complied if, by the expiry of the delivery period, the Seller has notified the Buyer that the machines are ready for acceptance and handover at the Seller’s works and has notified the Buyer that the machines are ready for despatch. If we fail to achieve performance values agreed in individual contracts, we shall have the right to take back the item delivered.
6. Delivery, transport
Unless otherwise agreed, the Buyer shall arrange for transport to it. If the Seller arranges transport, the Buyer shall bear the costs of transport and appropriate insurance for the machines during transport and the Seller shall invoice these separately to the Buyer. We also refer at this point to section 4 of these GTCs.
The risk of loss and of deterioration of items, including those required for the manufacture and/or assembly of a production unit, shall pass to the Buyer upon despatch unless otherwise agreed. The foregoing shall also apply if we have assumed responsibility for other costs/services, such as the costs of shipment, delivery, installation, commissioning etc. If despatch is delayed as a result of circumstances for which we are not responsible, the risk shall pass to the Buyer as from the date of notification of readiness for despatch or acceptance.
The Buyer shall accept items delivered to it, even if they have defects, without prejudice to its agreed warranty rights. Upon delivery of the items by the carrier, the Buyer is obliged to check and document visible transport damage and losses to the packaging or the item itself, for example by taking photographs or making videos, and must notify the carrier of such damage and losses no later than at the time of delivery and inform the Seller thereof in writing without delay. Employees of the Seller must note transport damage that impairs the functionality of the machine which is ascertained during commissioning.
7. Responsibility, handover and acceptance
When ordering machines and/or tools for the production of items in accordance with the Buyer’s wishes and specifications, the Buyer shall be responsible for the following factors or specifications: size, material and any possible modifications, production conditions at the Buyer’s plant, energy sources (electricity, water etc.), compressed air and similar factors.
The place of performance for all deliveries is Penzberg.
Acceptance and handover of the machines and equipment in accordance with the contract shall be deemed to occur at the Seller’s plant, in line with the usual modalities.
Moulds, tools and foils shall be provided by the Buyer at least four weeks prior to acceptance in sufficient numbers to test the functionality of the machines. If the Buyer does not provide these moulds and tools, then the test runs of the machine shall be carried out without tools. A purely functional test of the machine is then carried out. An acceptance record shall be prepared in accordance with the contract, which both parties shall sign.
If the Buyer is not prepared to accept the machinery and equipment at the Seller’s works, then the handover and acceptance by the Buyer at the Seller’s works may be performed by an expert appointed by the Seller at the Buyer’s expense. This expert shall issue a certificate of completion showing that the machinery is fully functioning and that the machine was completed prior to despatch to the Buyer.
The Buyer may waive handover and acceptance by the Buyer at the Seller’s works. The Seller shall carry out a functional test of the machine and/or the equipment and shall draw up a record which it shall sign and provide to the Buyer. The machine and/or equipment shall then be deemed to have been accepted.
8. Assembly / installation on site and operator training
Unless otherwise agreed, the assembly of the machine and equipment at the Buyer’s plant is not included in the sales price. Rather, the Buyer shall be responsible for ensuring that the machine is transported professionally from the transport vehicle to the installation site and that all necessary connections are provided. At this point we also refer to section 7 of the GTCs. Insofar as the Buyer requires specialist personnel from the Seller for this set-up and assembly, these costs shall be invoiced to the Buyer at the prices stated in the Seller’s price list (General Terms and Conditions of Service).
The Buyer warrants that the Seller’s employees will not have to carry out their work at site under conditions that are harmful to health or dangerous and the Buyer shall take all necessary measures to protect against such risks and shall ensure that the employees are informed regarding the safety rules at site. This also applies to legal, official or other rules relating to the execution of the works.
Following commissioning, the Seller’s employee who commissioned the machine at the Buyer’s factory shall provide separate instruction to operators. This instruction of the Buyer’s operators shall be free of charge to the Buyer.
9. Training measures
Separate training measures on the use of the machine will be carried out after the machine is accepted by the Buyer as being in conformity with the contract. The costs of these on-site training measures at the Buyer’s premises or at the premises of Niebling GmbH, which are not related to commissioning and which must be ordered separately by the Buyer, shall be borne by the Buyer in accordance with the Seller’s price list (General Terms and Conditions of Service). Travel expenses and travel costs, per diems and costs of accommodation shall also be borne by the Buyer upon production of invoices/receipts.
10. Non-acceptance by the Buyer and cancellation
If the Buyer has not confirmed its acceptance of the machine or the tools within 4 weeks after notification of readiness for acceptance, the machine or tools shall be deemed to have been accepted.
If the Buyer does not discharge its payment obligations under the contract and if the Seller is thereupon entitled under applicable law to claim damages for breach, the Seller may claim damages from the Buyer in the amount of 50% of the agreed purchase price prior to formal acceptance and 100% after formal acceptance in the case of machines, and in the case of tools, shall be entitled to claim 75% of the agreed purchase price before formal acceptance and 100% of the agreed purchase price after formal acceptance.
In the event of cancellation of the order, the following cancellation charges apply:
Machinery and equipment:
- up to 4 weeks prior to formal acceptance – 30% of the purchase price
- up to 2 weeks prior to formal acceptance – 50% of the purchase price
- 100% of the purchase price in the event of notification of readiness for formal acceptance
- up to 4 weeks prior to formal acceptance – 50% of the purchase price
- up to 3 weeks prior to formal acceptance – 75% of the purchase price
- as from 2 weeks prior to formal acceptance or upon notification of readiness for acceptance – 100% of the purchase price.
The Seller may claim a higher amount of damages if it is able to prove that it has incurred greater losses. The Buyer shall be entitled to prove that the Seller has suffered no losses at all or only a significantly lower amount of losses.
11. Reservation of title
Delivered goods shall remain the property of the Seller until all receivables arising out of the delivery relationship in question with the Buyer have been settled in full.
The Seller shall be entitled to insure the delivered goods for theft, breakage, fire, water and other damage at the Buyer’s expense, unless the Buyer can prove that it has taken out such insurance itself.
In the event of processing, comingling and mixing of the reservation of title delivered goods together with other items belonging to the Buyer, the Seller shall be entitled to co-ownership of the new item on a pro rata basis in the same ratio as the invoiced value of the reservation-of-title delivered goods bears to the invoice value of the other items used. If the Seller’s ownership title lapses as a result of the comingling or mixing, the Buyer transfers to the Seller, already now and in advance, the ownership rights to which it is entitled in the new inventory item or item of property to the extent of the invoiced value of the retention-of-title goods the Seller has delivered, and shall hold them in safekeeping for the Seller free-of-charge.
The Buyer may resell the retention-of-title goods delivered only in the ordinary course of business, subject to its normal terms and conditions and only so long as it continues to fulfil all of its payment obligations as the same fall due. The Buyer is not entitled to dispose of the retention-of-title goods delivered in any other way. The Buyer’s claims for receivables from the resale of the retention-of-title goods delivered are deemed already assigned to the Seller upon conclusion of this contract. They shall serve as collateral to the same extent as the retention-of-title goods delivered.
The Buyer is entitled to collect receivables from the resale of the goods. Upon the request of the Seller, the Buyer shall have a duty to inform its customers immediately of the assignment and to provide such information and documents to the Seller as are required for collection.
The Buyer shall under no circumstances be entitled to any further assignment of claims/receivables. The Buyer must notify the Seller immediately of any attachment or other impairment by third parties of the retention-of-title goods delivered. An application for the opening of insolvency proceedings shall entitle the Seller to resile from the contract and demand the immediate return of the goods delivered.
In the event of a breach by the Buyer, in particular in the event of a default in payment, the Seller shall be entitled to recover the retention-of-title goods delivered and the Buyer shall be obliged to surrender them. In the case of any doubt, the assertion of claims for replevin, referring to the retention of title, shall not be deemed to constitute a rescission of the contract.
Any claims of the Buyer against the transport insurance provider, to the extent that the Seller’s invoices are not yet fully settled, are hereby, now and in advance, assigned to the Seller, up to the amount of the sum outstanding. The Seller hereby accepts the assignment.
The Seller shall provide a warranty for defects of the goods delivered, to the exclusion of further claims, as follows:
All such parts shall be repaired or replaced free-of-charge at the Seller’s discretion, provided that the defect was demonstrably already present at the time of passage of the risk. The Buyer shall immediately notify the Seller in writing of its discovery of a defect. Replaced parts shall become our property. In addition, sec. 377 of the German Commercial Code [German acronym: HGB] shall apply.
Following consultation with the Seller, the Buyer shall give the Seller the necessary time and opportunity to carry out all repairs and deliver all replacement goods which the Seller deems necessary. Otherwise, the Seller shall be released from liability for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large amounts of losses (in which case the Buyer must notify the Seller immediately) shall the Buyer have the right to remediate the defect itself or to cause it to be remediated by third parties and demand reimbursement of the necessary expenses from the Seller.
With respect to costs arising from the repair of defects or delivery of replacement goods, the Seller shall, to the extent that the complaint proves justified, bear the costs of the replacement part including despatch thereof as well as the reasonable costs of dismantling and installing the same, and in addition, if this can be reasonably demanded in the circumstances of the individual case, the costs of any necessary delegation of the Seller’s service technician.
The Seller assumes no warranty, in particular, in the following cases: Unsuitable or improper use, operation without complying with the operating instructions, faulty assembly (disassembly) or commissioning by the Buyer or third parties, natural wear and tear, continuing overloading, faulty or negligent handling, improper servicing or maintenance, unsuitable operating materials or processing materials, technical modifications by the Buyer, including software modifications, unsuitable tools, faulty construction work, unsuitable sub-soil, impacts from chemical, electrochemical or electrical sources, unless the Seller is responsible for them.
If the Buyer or a third party carries out improper repairs, the Seller shall not be liable for the resulting consequences. The same shall apply to any modification of the goods delivered which is carried out without the Seller’s prior consent.
The Buyer shall fully take note of the operating and maintenance instructions which are included in the scope of the Seller’s deliverables in order to ensure operational safety prior to commissioning and shall comply with them during operations.
The warranty shall commence upon the successful conclusion of the function test and commissioning after construction/delivery/assembly of the machine/system/parts-related equipment or upon commencement of commercial production, whichever is earlier, and shall run for a period of 12 months. In the event that installation and commissioning cannot take place for reasons beyond the Seller’s control, the warranty period shall end no later than 15 months after the functional test at the Seller’s plant.
In the event of a sale of accessories and/or spare parts, the warranty period shall be 12 months and shall commence upon delivery.
The Buyer’s rights enumerated under the warranty are exhaustively defined herein. The parties hereby exclude any further rights on the part of the Buyer.
Notwithstanding the provisions set out above, the Seller disclaims any warranty for material defects of used goods delivered. In all further and other respects, the Buyer’s claims under the contract shall remain unaffected even in cases involving delivery of used goods. Warranted characteristics shall require a special written agreement.
13. Intellectual property rights and defects of title
Unless otherwise agreed under the parties’ contract, the goods delivered must be free of intellectual property rights or third-party copyrights only within the Federal Republic of Germany. If such intellectual property rights or copyrights are infringed, the Seller shall, at its own expense, procure for the Buyer the right to continue to use the goods or to modify the delivered goods in a manner which is reasonable to the Buyer, in such a way that there is no longer any infringement of intellectual property rights. If it is not possible to do so under commercially reasonable conditions or within a reasonable period of time, the Buyer shall be entitled to resile from the contract. Under the above-referenced conditions, the Seller shall also be entitled to resile from the contract. In addition, the Seller shall indemnify and hold the Buyer harmless against claims of the holders of intellectual property rights in question which are undisputed or established by res judicata judgment. Subject to section 14 of these GTCs, the Seller’s obligations enumerated in this section in the event of an infringement of intellectual property rights or copyright are exhaustive, and they shall only arise if:
- the Buyer promptly notifies the Seller in writing of any claims for infringement of any intellectual property right or copyright
- the Buyer supports the Seller to a reasonable extent in defending against the asserted claims or enables the modification measures to be carried out
- the Seller reserves the right to take all defensive measures including out-of-court settlements
- the defective title is not based on an instruction of the customer
- the infringement was not caused by the fact that the Buyer modified the item of goods on its own authority or used the item of goods in a manner not in accordance with the contract
The Seller shall only be liable for damages, on whatever legal basis, in the event of:
- intentional acts or gross negligence on the part of its legal representatives or vicarious agents
- culpable breach of essential contract obligations
- culpable injury to life, limb or health
- defects which were fraudulently concealed
- defects in the delivered goods, insofar as liability applies under the German Products Liability Act for personal injury or property damage to privately used products
In the event of slight negligence in respect of material contract obligations, the Seller’s liability shall be limited to such damages as are reasonably foreseeable and typical for the contract. In this case, these damages should be valued at the level of the value of the goods or service rendered under the contract.
The Seller hereby disclaims liability for any and all further claims for damages.
15. Procedure to be followed in reporting defects or malfunctions or submitting support requests
If defects and malfunctions occur, the Buyer must report them immediately in writing and in detail, describing the impacts of the defect, and in the case of software reports, referencing the error number, and notifying the Seller at email@example.com. The Buyer may only carry out its own attempts to remediate the defect after notifying and consulting with the Seller. The Seller must be given the opportunity to examine the software and settings of the machine online. To this end, the Buyer shall ensure that a suitable Internet connection with the machine is in place and it shall provide the Seller with any necessary access data. During such remote maintenance, the Buyer shall remain responsible for the operation of the machine. It must verify that the operation requested by the Seller is not in conflict with the situation at the machine in question.
If the Seller is no longer legally obliged to provide a warranty or if the warranty period has already expired, these costs shall be charged to the Buyer at the prices stated in the Seller’s price list (General Terms and Conditions of Service).
The Seller can only process support service queries during normal business hours from Monday to Thursday 7.30 am to 4.00 pm and Friday from 7.30 am to 1.00 pm.
16. Software use and software updates
To the extent that the Seller’s scope of delivery includes software, the Buyer is hereby granted a non-exclusive right to use the delivered software including the documentation thereof. The software is provided for use with the goods delivered intended for this purpose. The use of the software on more than one system is prohibited. The Buyer may only reproduce, revise, translate or convert the software from object code to source code to the extent permitted by law (secs. 69 a et seq. German Copyright Act [German acronym: UrhG]). The Buyer hereby undertakes not to remove manufacturer’s details or copyright notices or to change them without the prior express consent of the Seller. All other rights to the software and the documentation, including any copies, shall remain with the Seller or the software supplier. The granting of sub-licences is not permitted.
In the event of improvements/changes to the functionality of the system, the Buyer shall order software updates in writing in accordance with the Seller’s offer to such effect. The update is usually carried out via Internet connection to the machine. Here, again, the Buyer bears all responsibility for the operation of the machine.
17. Test parts, moulds, tools
The production of test parts, including the costs of moulds and tools, shall be borne by the Buyer.
Any construction drawings, plans, sketches, technical elaborations or proposals, software, samples and the like prepared or processed by us are the intellectual property of Niebling GmbH and are strictly confidential. The Buyer has no entitlement to the delivery of these. In the event that such material is nevertheless handed over to the Buyer, it may not be passed on to third parties, copied, duplicated on data carriers or used in any other way beyond personal use without our express, written consent.
The Buyer must not make use of the documents handed over to it for any purpose other than the purposes provided for under the contract. In particular, the use of these documents for other purposes in whole or in part, in particular for the reproduction of machines/machine parts/plant/tools/parts-related equipment, shall require our express written approval. The Buyer shall be liable for any misuse or illegal use and shall also assume liability for its employees, staff, sub-contractors or customers.
Upon conclusion of the contract, the Buyer is deemed to acquire only the component, tool or machine but expressly does not acquire the intellectual property related thereto. Thus, no construction drawings will be disclosed to the Buyer. The Buyer likewise has no claim for delivery of such drawings to it.
For the avoidance of any misunderstanding, it is hereby expressly stipulated that the removal of safety devices on machines/machine parts/systems/tools/parts-related equipment supplied or specified by the Seller is strictly prohibited. The Seller shall not be liable to the Buyer, its sub-contractors, employees, agents or other third parties for any damage or losses caused by any modification or removal of safety devices. Removal of safety equipment shall constitute a wilful breach of contract. Liability and similar obligations with respect to equipment which is not part of the Seller’s scope of performance and supply under a contract shall only apply if agreed in writing by the parties under the contract in question. All deliveries of goods under a contract shall comply with the laws, standards and relevant safety regulations applicable in the Federal Republic of Germany. Any possible additional or deviating rules, safety regulations and safety measures shall be the responsibility of the Buyer and form part of the Buyer’s scope of delivery to the Seller. The documentation provided to the Buyer is provided in German or English (within the EU: in the respective national language). If an employee of the Buyer does not have sufficient knowledge of the language in question, it shall be the Buyer’s responsibility to have the documentation translated into a language that the employee is able to understand. This shall also apply with regard to third parties acting on behalf of the Buyer.
20. Data protection
We point out that data regarding business transactions are processed within our company and we reserve the right to transmit to our insurance provider such data as is required to obtain credit protection.
All claims of the Buyer, on whatever legal basis, shall be subject to a prescription period of 12 months.
22. Jurisdiction and venue and applicable law
For all sales transactions of Niebling GmbH, including international business transactions, the Parties agree that the legal system of the Federal Republic of Germany shall constitute the applicable law. German law shall apply exclusively (in particular: the German Civil Code (BGG) and the German Commercial Code (HGB)). The parties hereby exclude any application of the Uniform Law on the International Sale of Goods, the UN Convention on Contracts for the International Sale of Goods (CISG) or the Uniform Law on the Formation of Contracts for the International Sale of Goods (IAG). Jurisdiction and venue shall be vested in the court with jurisdiction over the Seller’s registered office, even if the Buyer has no general forum within Germany. However, the Seller shall be entitled to bring an action in the courts at the Buyer’s headquarters.
(Status: March 2021)