1. Scope of application
1.1 All offers, sales, deliveries and services of BENNINGHOVEN Branch of Wirtgen Mineral Technologies GmbH (hereinafter collectively referred to as "Supplier") are solely based on these Terms and Conditions of Sale and Supply. Conflicting or deviating terms and conditions of Customers are not recognized, even if the Supplier unconditionally supplies the Customer in awareness of the Customer's conflicting or deviating terms and conditions. Deviations from these Terms and Conditions of Sale and Supply are valid only when confirmed by the Supplier in writing.
1.2 These Terms and Conditions of Sale and Supply also apply to all future transactions of the same kind with the same Customer, without specific further agreement being required.
1.3 Supplies involving installation on site are additionally subject to the Special Terms and Conditions for Supervisor Assemblies.
2. Offer and conclusion of contract
2.1 The Supplier's offers are always subject to confirmation, unless expressly otherwise stated. Cost estimates are non-binding. Unless otherwise agreed, concepts for equipment construction (also called “designed-to-order products” or “DTO Products”), first offers or cost estimates are provided free of charge. The Supplier reserves the right to charge a reasonable fee for further concepts, offers or cost estimates as well as draft works when no supply contract comes into existence.
2.2 A supply contract comes into existence only upon written confirmation of the Supplier. Any changes, amendments or side agreements also require written confirmation of the Supplier.
2.3 The documents relating to the offer, including but not limited to illustrations, drawings, details on weight and measurements, or prepared concepts are approximations only, unless being expressly marked as binding.
2.4 The Supplier reserves all ownership and copyrights to illustrations, drawings, concepts, cost estimates, calculations and other documents. These must not be made available to any third party without express prior written consent of the Supplier. They are to be returned to the Supplier without undue delay on demand
(i) if no contract comes into existence, or
(ii) as soon as the order has been fully executed.
3. Purchase Price and Payment
3.1 Unless otherwise agreed, the Supplier's prices apply without packaging and unloaded "ex works". The Customer bears additional costs particularly for the assembly and start-up as well as costs for obtaining of special, regular authorizations and regular requirements.
In addition, the statutory value added tax as applicable is charged.
3.2 Unless otherwise agreed, payments are due in full, free of costs for the Supplier, and have to be effected as follows:
DTO Products: as specified in a separately agreed payment scheme.
Components: Before delivery, net.
Machines: Before delivery, net.
Spare parts: Before delivery, net.
Other items: Within 14 days of the date of invoice, net.
3.3 Bills of exchange or cheques are always accepted only on account of performance. All discount and bill charges are to be borne by the Customer.
3.4 For payments by letter of credit, the regulations issued by the ICC on "Uniform Customs and Practice for Documentary Credits" shall apply in the applicable version as amended from time to time.
3.5 The Customer is not entitled to set-off, retention or reduction, unless its counterclaims are either not disputed by the Supplier or have been established by final and non-appealable judgment. The same applies also in the case of an assertion of claims based on liability for defects.
3.6 If the Customer defaults on payment, the Supplier shall be entitled to claim default interest. The default interest rate for the year amounts to eight (8) percentage points above the base rate. The base rate changes per each 1 January and 1 July of a year by the percentage points by which the reference base has increased or been reduced since the last change of the base rate. The reference base is the interest rate for the most recent principal refinancing transaction of the European Central Bank before the first calendar day of the relevant half year. The Supplier may assert higher default damage when providing proof. However, the Customer is entitled to prove that the damage incurred as a result of the default in payment was lower.
3.7 If the Supplier becomes aware of circumstances that call the Customer's creditworthiness into question, then all deferred claims shall immediately fall due and be payable. Furthermore, the Supplier may in such case request advance payment or provision of security.
4.1 Dates (readiness for delivery, delivery, start of assembling or commissioning, or readiness for operation and others) as well as deadlines based on those are in each case separately agreed. The commencement and compliance with agreed periods requires that a Customer fulfils its cooperation obligations, in particular the timely provision of all materials, documents, permits, releases and tests to be provided by the Customer, the compliance with the agreed terms of payment, in particular payment of any payments agreed (cf. 3.2) or opening of a letter of credit by the Customer. If these requirements are not timely and properly fulfilled, the periods shall be reasonably extended, at least however by the time of the delay; this does not apply if the Supplier is solely responsible for the delay.
4.2 The compliance with any period is subject to the condition that the Supplier itself receives cor-rect and timely delivery from its own suppliers provided the order was placed by the Supplier in a timely and correct manner.
4.3 Unless otherwise agreed, each delivery is "ex works" resp. the construction of the DTO product shall be deemed as finished at time that time the notice of readiness for operation is issued. In the internal relationship to the Supplier, the Customer assumes the Supplier's obligations under the Packaging Ordinance (VerpackV), and shall insofar indemnify the Supplier.
4.4 The delivery period has been complied with when the delivery item has left the Supplier's plant upon its expiry, or if readiness for delivery has been notified. For DTO products, the notification of readiness for delivery shall be substituted by the notification of readiness for operation. As far as acceptance is required, the date of acceptance shall be authoritative - except in case of justified refusal of acceptance -, alternatively the notice of readiness for delivery resp. the notice of readiness for operation for DTO products.
4.5 The Supplier may at any time make partial deliveries or render partial performance.
4.6 Delays based on force majeure and based on events that significantly obstruct delivery for the supplier or make delivery impossible, e.g. war, terrorist attacks, extensive disease outbreaks like epidemics and pandemics (e.g. Ebola, measles, SARS, MERS, Covid 19, or similar serious viral diseases, cholera, etc.), including the possible establishment of containment areas, import and export restrictions, strikes, lockouts, or official orders, even if they concern suppliers or sub-suppliers of the supplier (hereinafter referred to as “Force majeure cases”), extend the agreed delivery periods by the duration of the delay in delivery or performance plus a reasonable start-up period. If delivery in Force Majeure Cases is nevertheless carried out and this results in additional costs, such as higher freight costs or storage costs due to special security measures, the scarcity of means of transport, or the interruption of a delivery that has already commenced, these costs shall be borne by the customer. The supplier will inform the customer, if possible, of the start, end, and estimated duration of the aforementioned circumstances.
4.7 The Supplier is not in default if the Supplier provides the Customer with a replacement, in compliance with the contractual delivery dates for the time until the delivery of the actual delivery item, provided that such replacement meets the Customer's technical and functional requirements in all material aspects, and the Supplier bears all costs incurred for providing the replacement.
4.8 In case of a default on the part of the Supplier, the Customer shall grant the Supplier a reasonable additional period for performing the contract.
4.9 If the Supplier is in default, even after an appropriate grace period, and the Customer as a consequence suffers any damage, the Customer shall be entitled to request lump sum default compensation. Such compensation shall amount to 0.5% for each full week of delay, but in total to maximum 5% (3% in case of a DTO Product) of the value of that part of the entire performance on the base of the net price ex works without any transport, assembling or other additional costs, which cannot be used in time or according to contract due to the delay. Any additional claim for damages based on default shall be excluded.
If in consideration of the statutory exceptions the Customer twice grants the defaulting Supplier a reasonable period for performance, and if the last period granted is not complied with, then the Customer shall be entitled to withdraw from the contract within the scope of the statutory regulations.
5. Passing of risk, transport, default of acceptance, Readiness for Operation
5.1 The risk passes to the Customer when the delivery item has been provided for collection or, in case of a DTO product, the Supplier notifies the Customer about the readiness for operation (cf. clause 4.3), also in case that partial deliveries are made or the Supplier has additionally agreed to other performance, e.g. payment of the shipping costs, or delivery and installation. Insofar as acceptance is required, it shall be authoritative for the passing of risk. It must be performed without undue delay on the date of acceptance, alternatively after the Supplier has notified the readiness for acceptance. The Customer is not entitled to refuse acceptance in the event of a minor defect. If the Customer does not declare acceptance even though no defect is given or an only minor defect exists, then acceptance shall be deemed declared after the expiry of a period of one month after notification of the readiness for acceptance, but at the latest six months after the consignment has left the plant (“ex works”). In case of the delivery and assembly of a DTO product the acceptance shall be substituted by the notification of operation.
5.2 If dispatch is delayed or omitted due to circumstances not attributable to the Supplier, the risk shall pass to the Customer as from the day of notification of readiness for delivery or acceptance resp. for operation.
5.3 Unless otherwise agreed, the delivery items are transported at the Customer's expense and risk.
5.4 At the Customer's request and expense, the Supplier will insure the consignment against risks of transport.
5.5 If the Customer is in default of acceptance or violates any other cooperation obligations, then the Supplier shall be entitled to request compensation for the damage incurred, including any additional expenses, in particular the costs incurred by the delayed acceptance of delivery resp. by the delayed start of assembling and commissioning or readiness for operation.
5.6 As far as any commercial clauses such as FOB, CFR, CIF, etc. are used, these shall be construed according to the applicable Incoterms of the ICC as amended from time to time.
6. Retention of title and other securities
6.1 The Supplier retains title to the delivery item until all of the Supplier's claims against the Customer under the business relationship, including any future claims, also from simultaneously or later concluded contracts, have been settled. This also applies if individual or all claims of the Supplier were taken into current account and the balance has been drawn up and acknowledged. In the event of any breach of contract on the part of the Customer, in particular in the event of default in payment, the Supplier shall after reminder be entitled to take back the delivery item with simultaneous declaration of withdrawal, and the Customer shall be obliged to surrender such item.
6.2 The Customer is entitled to dispose of the delivery items in the ordinary course of business if and for as long as the conditions on securing the Supplier's claims against the Customer as set forth in clauses 6.3, 6.4 and 6.5 have been fulfilled. Any breach of the obligation stipulated in the foregoing sentence entitles the Supplier to immediate termination of the entire business relationship with the Customer.
6.3 It is hereby agreed between the Supplier and the Customer that upon the conclusion of a supply contract all claims of the Customer under the future resale or letting of the delivered items to a third party or on any other legal ground (insurance, tort, etc.) shall pass to the Supplier for securing all claims of the Supplier under the business relationship with the Customer. Insofar, the Customer already here and now fully assigns to the Supplier all and any claims including ancillary rights to which the Customer is entitled under the resale or letting of the delivered items or under operation of the DTO product. The Supplier already here and now accepts such assignment. However, the Customer shall be entitled to collect the assigned claim until the Supplier requests disclosure of the assignment. The Customer is prohibited from again assigning the claims already assigned to the Supplier. The Customer is obliged to transfer title or any other right to any items, machinery parts, components and used machines of any kind accepted in lieu of payment within the scope of the resale to the Supplier at the very moment when the Customer acquires title or other rights thereto. The Customer shall without charge store, carefully treat and reasonably insure the aforementioned items on behalf of the Supplier (see 6.7).
6.4 If the securities specified in clauses 6.1, 6.2 and 6.3 are not recognized or not unrestrictedly enforceable under the laws of the country in which the delivery items are located, then the Customer already here and now undertakes to cooperate in all steps required (in particular in connection with any registration or notification obligations, etc.), especially to give the necessary declarations, to enable provision of the securities in compliance with applicable law. The Supplier is entitled to retain the delivery items or to delay assembling and commissioning until the required securities have been provided with legal effect. If in consideration of the statutory requirements the provision of the securities is not locally enforceable or cannot be realised for any other reasons, the Customer al-ready here and now undertakes to offer the Supplier equivalent securities. The Customer is obliged to inform the Supplier of any form requirements or other statutory requirements that conflict with the provision of the security according to clauses 6.1, 6.2 and 6.3, without request and without undue delay upon or after the conclusion of the contract.
6.5 The processing or alteration of retained items through the Customer shall always be carried out on behalf of the Supplier. If the retained item is processed together with other items which do not belong to the Supplier, the Supplier shall acquire co-ownership in the new item in proportion of the value of the retained item to the other processed items at the time of processing.
If goods are connected or inseparably mixed by the Customer with other movable items to one unitary item, and if the other item is to be seen as main constituent, then the Customer shall transfer to the Supplier the proportionate co-ownership to the extent that the main constituent belongs to it.
The Customer holds the ownership or co-ownership in custody for the Supplier, without charge. Besides, the item created by processing or alteration is subject to the same provisions as the retained goods.
6.6 If the value of the securities provided according to clauses 6.1 to 6.5 exceeds the Supplier's claims under the business relationship with the Customer by more than 10%, the Supplier shall upon request of the Customer release any exceeding securities, at its choice.
6.7 For the event that
the Customer undertakes to take out an insurance, ex works, at replacement value, including all ancillary costs, covering all risks including fire, damage by the elements, vandalism, theft, transport, improper handling, user errors, accident, etc., and to maintain such insurance, depending on the individual case, until full transfer of title, until full payment, until return of or final takeover of the delivery item and the replacement device to the Supplier and the Customer, respectively (machinery insurance). The Customer furthermore undertakes to insure the operational risk involved in the delivered item for the same period, at its own expense (liability insurance). The Customer undertakes to submit corresponding proof to the Supplier before the provision of the delivery item, i.e. upon delivery ex works (clause 4.3). The Supplier is entitled to refuse to deliver the goods until corresponding proof has been submitted. The Supplier is furthermore entitled to insure the delivery item itself and to charge any costs on the Customer. The Customer already here and now assigns its current and future rights and claims against its insurer under the insurance relationship to the Supplier. The Supplier hereby accepts such assignment. The rights become extinct at the point of time when the goods ultimately pass into the ownership of the Customer, and the purchase price has been fully paid.
6.8 In case of attachments, seizures or other access by third parties to items or claims to which the Supplier has security rights, the Customer shall without undue delay notify the Supplier and provide support in the assertion of the Supplier's rights. The costs of any judicial or extrajudicial interventions are to be borne by the Customer, as far as no reimbursement can be obtained from the third party.
6.9 The petition for the opening of insolvency proceedings against the Customer's assets entitles the Supplier to withdraw from the contract with immediate effect and to request immediate return of the delivery item.
6.10 Clauses 6.1 sentence 3 and 6.9 apply analogously for the items, machinery parts, components and used machines of any kind which the Customer may have accepted in lieu of payment according to clause 6.3.
7. Liability for Defects
7.1 Upon existence of a defect in quality within the limitation period, which was caused already at the time risk passed, the Supplier may at its choice either remove the defect as subsequent performance or deliver a faultless item. The defect is removed either by replacement or repair of the defective item at the Supplier, unless the Parties expressly or implicitly (e.g. by uncontradicted performance on site) agree otherwise. Replaced parts pass to the ownership of the Supplier; the provisions set forth in clause 6 apply analogously.
7.2 Any assertion of claims based on liability for defects by the Customer requires that the Customer examines the delivery items for defects without undue delay, at the latest within one week of delivery and notifies the Supplier without undue delay in writing if any defect is discovered. Defects which cannot be discovered within this period even upon careful inspection have to be notified to the Supplier without undue delay after discovery. Delivery within the meaning of sentence 1 of this provision is the point in time when the Customer gains actual control over the delivery item or could have gained such control without the Customer's fault.
7.3 Changes to the construction or design made before the delivery of an ordered item within the scope of a general change in construction or production at the Supplier are not considered as defect of the delivery item as far as they do not render the delivery item unusable for the purpose intended by the Customer.
7.4 If the removal of the defect fails, the Customer will have to grant the Supplier a reasonable additional period for further subsequent improvement or replacement. If the subsequent improvement again fails, the Customer may request reduction of the purchase price by the amount by which the value of the delivery item is reduced due to the defect, or may at its choice withdraw from the contract. If only a minor defect exists, the Customer will only be entitled to reduce the contract price.
7.5 The Customer has to grant the Supplier or any third party commissioned by the Supplier the time and opportunity required for carrying out the works under its liability for defects (subsequent improvement or replacement), upon prior consultation. As far as the Supplier is obliged to remove a defect, the Customer may itself remove such defect, or have such defect removed by a third party, only if this is necessary to avert imminent dangers to operational safety or to prevent disproportion-ately high damage and if the Customer has obtained the Supplier's prior consent.
7.6 The Supplier's warranty does not extend to any consequential costs arising from the removal of the defect.
As far as a defect has been caused by a part which the Supplier purchased from a third party as sup-plier for its products, the Supplier already here and now assigns its claims under the delivery of such purchased part or under corresponding third party performance contracts to the Customer. The liability for defects is insofar limited. If the Customer does not receive any adequate compensation under the assigned right, the Supplier shall be subsidiarily liable until the expiry of the warranty period according to the regulations of these General Terms and Conditions.
7.7 Defects are not classified as defects in quality in case of
7.8 As far as the scope of delivery includes software, the liability for defects does not include the removal of software errors and errors caused by improper use, user error, natural wear and tear, inadequate system environment, operational conditions other than those listed in the specifications, and insufficient maintenance.
7.9 The Customer shall without undue delay notify the Supplier of any software defects in writing and in a comprehensible and detailed form, stating all information expedient for identifying and analysing the defects. In particular, the manifestation and the consequences of the software defect need to be stated.
7.10 Claims for defects in quality and defects in title become statute-barred in 12 months. The limitation period commences upon the passing of risk according to clause 5.
7.11 The provisions contained in this clause 7 conclusively regulate the liability for defects for the items delivered by the Supplier. Any further claims of the Customer, in particular for any damage not affecting the delivery item itself, are exclusively subject to clause 8.
7.12 With regard to used machines, any liability for defects in quality is expressly excluded.
8.1 The Supplier is liable in case of wilful conduct and gross negligence, culpable injury to body, life and health, defects fraudulently undisclosed by the Supplier or defects for which the Supplier gave a quality guarantee. The Supplier has unlimited liability within the scope of product liability and based on other mandatory statutory regulations.
In the event of culpable breach of any material contractual obligations, the Supplier will also be liable in the case of simple negligence, but liability is limited to 10% of the respective order value. If this limitation is not permissible on legal grounds, liability will in the case of simple negligence be limited to damage typical for the contract and reasonably foreseeable upon conclusion of the contract. Material contractual obligations in this sense shall either mean concretely described material obligations the violation of which jeopardises the achievement of the contractual purpose, or abstractly the obligations which constitute conditions sine qua non for proper performance of the contract, and on the fulfilment of which the Customer may regularly rely.
8.2 It is pointed out to the Customer that data backup is required before the installation and continuously during the use of a software. In case of any loss of data, the Supplier will be liable only for the expense and effort required for recovery of the data when these were properly secured by the Customer.
8.3 Further liability for damages, in particular financial damage, is excluded.
Any and all liability for consequential damage, in particular lost profit, is excluded.
8.4 The foregoing limitations of liability apply in terms of cause and amount also in case of any claims for damages of the Customer against the Supplier's legal representatives, employees or vicarious agents.
8.5 The main liability limitations apply after reason and height also for the violation of contractual secondary obligations, particularly for the violation of consulting and clarification obligations before and after contract closing.
9. Rights to software / data protection
9.1 As far as the scope of delivery includes software, the Customer is granted a non-exclusive right to use the delivered software, including its documentation, for application on the relevant delivery item. Using the software in more than one system is prohibited.
9.2 The Customer must not reproduce, revise or translate the software or convert the object code into the source code, except in cases, where these measurements are exceptionally granted contractually or permitted by law. The Customer undertakes not to remove or change any manufacturer information, in particular copyright notes, without the Supplier's express prior approval.
9.3 All other rights to the software and the documentations, including copies thereof, remain with the Supplier or software provider. The granting of sub-licences or any passing on to third parties in any other form is prohibited.
9.4 The Supplier is not liable for software already installed or installed in the future (including as an upgrade or update) if the Customer uses the software improperly. Any improper handling or use is in particular given if the Customer or a third party
9.5 In addition, the limitations of liability set forth in clauses 7 and 8 apply. If a software is let only for a limited period of time, then liability shall be limited to the removal of defects according to clause 7 during the time of letting. As far as such removal fails, the Customer will in case of a fixed-time letting of a software - as far as a separate rent was charged on the software - be entitled to termination for good cause and - as far as the defect impairs the suitability of the software or the product not only insubstantially - have the right to reduce the agreed rent.
9.6 As far as the Customer has acquired a particular software within the scope of buying a machine, DTO product or components or separately (e.g. in connection with a web-based fleet management system like WITOS, etc.), the performance is subject to accessible network technologies and technical and geographical circumstances at place of operation. The Supplier does not take over any guarantee or liability for any interruptions caused by the network provider (e.g. in case of regularly required maintenance) or other limitation of telecommunication services or even shutdown of an outdated network technology (e.g. G2). In case of doubt, clauses 7.6 and 8.3 apply accordingly. In case, machine data (e.g. on ongoing operations, standby times, etc.) are stored and transmitted to the Supplier, the Supplier shall be entitled to analyse, process and without restriction use such data without charge for internal purposes, unless the Customer expressly objects. Any disclosure to third parties, e.g. for purposes of reference and comparison, shall be permissible if done in anonymous form, or if the Customer upon request expressly consents to the disclosure.
9.7 For the case that personal data are stored within the scope of installation, upgrade or update, the following shall apply:
The Supplier represents compliance with the statutory data protection regulations. In particular, as far as this is required for installing software, any provided personal data will not be disclosed to any third party; rather, such personal data will be storage, processed and used exclusively internally for performing the contract. They are deleted when no longer needed. If any statutory retention periods conflict with deletion the data shall be blocked instead of deleted in accordance with the applicable statutory regulations.
If statutory data protection regulations so require, the Customer shall prior to the conclusion of the respective contract obtain the necessary written consent of the person whose personal data are required for performing the contract.
10. Proprietary rights of third parties
10.1 The Supplier shall be liable for any infringement of third party rights by its product/service only as far as such product/service is used according to the contract. The Supplier shall be liable for infringements of third party rights only at the place of contractual use of the product/service (place of delivery). Claims for defects in title do not exist as far as only an insignificant deviation of the Supplier's product/service from the contractual quality is concerned.
10.2 If any third party asserts claims against the Customer for infringement of its rights by the Supplier's product/service, the Customer shall notify the Supplier without undue delay. The Supplier is entitled, without being obliged, to contest the asserted claims at its own expense, as far as permissible. The Customer is not entitled to acknowledge any third party claims before having given the Supplier reasonable opportunity to avert the rights of third parties otherwise.
10.3 If such claims have been asserted, the Supplier may at its own expense acquire a right of use or change the software (licence programs) or exchange it for an equivalent product or - if the Supplier cannot achieve any remedy at reasonable expense and effort - take back the product/service and reimburse the purchase price or fee paid by the Customer, with deduction of a reasonable compen-sation for use. The Customer's interests shall in this respect be adequately considered.
10.4 With regard to any claims for damages and reimbursement of expenses, clause 8 shall additionally apply.
11. Export control
11.1 Any delivery under this contract is subject to the proviso that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Customer undertakes to provide all information and documents required for the export or transfer.
Delays due to export examinations or permission procedures shall set aside any time limits and delivery periods. If necessary permissions are not granted, or if the delivery and service is not capable of being permitted, the contract shall be deemed as not concluded with regard to the parts of it that are concerned.
11.2 The Supplier is entitled to terminate the contract without notice if termination on the part of the Supplier is required for compliance with national or international legal regulations.
11.3 In the event of a termination according to clause 11.2, the assertion of any claim for damages or the assertion of other rights by the Customer based on the termination shall be excluded.
11.4 The Customer must upon passing on any goods delivered by the Supplier to third parties at home and abroad comply with the relevant applicable regulations of national and international export control law.
12. Applicable law, place of jurisdiction, severability clause
12.1 The contractual relationship between the Supplier and the Customer is exclusively subject to the laws of the country in which the Supplier has its registered office. The provisions of the UN Convention on the International Sale of Goods (CISG) shall not apply.
12.2 Exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Supplier and the Customer, including claims arising from bills of exchange and cheques, shall be the court competent for the Supplier's principal place of business. However, the Supplier shall at its choice also be entitled to bring legal action against the Customer at the latter's general place of jurisdiction.
12.3 Solely the German text of these Terms and Conditions of Sale and Supply shall be legally binding.
12.4 If one or several provisions or parts of any provision of these Terms and Conditions of Sale and Supply are or become invalid for any reason whatsoever, this shall not affect the validity of the remaining provisions. The Customer and the Supplier undertake to replace the invalid provisions or partial provisions by such regulations which are legally permissible and which in economic terms correspond most closely to the original regulation. This analogously applies in the event of any unintended gap.
I. Applicable General Terms and Conditions
Contracts between BENNINGHOVEN, Branch of Wirtgen Mineral Technologies GmbH (Purchaser) and its suppliers shall be entered into exclusively on the basis of the following General Terms and Conditions of BENNINGHOVEN, Branch of Wirtgen Mineral Technologies GmbH. All agreements, changes and ancillary agreements must be in writing in order to be valid. BENNINGHOVEN, Branch of Wirtgen Mineral Technologies GmbH hereby expressly objects to any reference made by the supplier to the supplier's own General Terms and Conditions. Our Terms and Conditions of Purchase shall also apply if we accept or pay for deliveries of the supplier's products and services in full knowledge of the supplier's conflicting or differing terms and conditions. Our Terms and Conditions of Purchase shall also apply to all future deliveries and services by the supplier until our new Terms and Conditions of Purchase take effect.
1. Supply contracts (purchase orders and acceptance) and call-offs, as well as any changes and additions to them, must be in writing. Purchase orders and call-offs may also be made by data transmission.
2. If the supplier does not accept the purchase order within three weeks of receipt, the Purchaser shall be entitled to withdraw it. Call-offs shall become binding at the latest two weeks after receipt if the supplier has not objected to them by then.
3. The Purchaser may request changes to the structure and design of the goods to be delivered where reasonable for the supplier. The effects of this, particularly additional or reduced costs or effects on delivery dates, must be adequately governed by mutual agreement.
4. Cost estimates or offers of any kind shall be binding and free of charge.
1. If deliveries are accepted early, payment shall be due after the agreed delivery date.
2. If delivery is deficient, the Purchaser shall be entitled to withhold payment proportionately until delivery has been properly performed.
3. The supplier is not entitled to assign its claims against the Purchaser or have such claims collected by a third party without the prior written consent of the Purchaser, which must not be unreasonably refused. In the event of prolonged retention of ownership, this consent shall be assumed.
4. Price changes shall require the Purchaser's approval.
5. Unless otherwise agreed, the Purchaser's payments shall be made 14 days after receipt of the goods and invoice with an early-payment discount of 3% or in full 30 days net after receipt of the goods and invoice.
6. Unless specially agreed, the prices shall be assumed to be DDP (in accordance with Incoterms 2000) including packaging. VAT is not included. The supplier shall bear the risk of damage to or loss of the goods until the goods are accepted by us or our agents at the location to which the goods are to be delivered as agreed in the order.
IV. Notifications of defects
The Purchaser must notify the supplier of any defects in the delivery in writing without undue delay as soon as such defects are identified in the ordinary course of business. The supplier shall in this respect waive the right to object to delayed notification of defects.
1. All business or technical information (including features deduced from objects, documentation or software provided, and other knowledge and experience) made available by us must be kept confidential from third parties for as long as and to the extent that it is demonstrably not public knowledge and must only be made available to persons within the supplier's company who must use it for the purpose of the delivery to us and who are also committed to confidentiality; we shall remain the sole owner of such information. Such information must not be reproduced or used commercially – except for deliveries to us – without our prior written permission. All information originating from us (including any copies and recordings) and any items loaned must be returned to us or destroyed completely at our request without undue delay. We shall retain all rights to such information (including copyrights and the right to register industrial property rights such as patents, utility models, etc.). If it was made available to us by third parties, this reservation of rights shall also apply in said third parties' favour.
2. Products made on the basis of documents created by us such as drawings, models, forms, dies or the like or based on our confidential information or using our tools or reproductions thereof must not be used by the supplier itself nor offered or delivered to third parties. This shall apply, with the necessary modifications, to our print orders.
3. Subcontractors must be bound by the same obligations.
4. The contracting parties may only use their business relationship for advertising purposes with prior written consent.
VI. Delivery dates and deadlines
Agreed dates and deadlines are binding. The date of the goods' receipt, including all required documents, by the Purchaser shall be the decisive factor in determining whether the delivery date or deadline has been met. If delivery DDU/DDP is not agreed, the supplier must provide the goods on time taking into account the usual shipping time.
Where necessary the supplier shall provide evidence that delivery has been effected.
The Purchaser reserves the right to return goods delivered early. Any additional costs incurred by this shall be borne by the supplier.
VII. Delivery delay
1. The supplier shall compensate the Purchaser for damage caused by delays.
2. The amount of compensation shall be based on the extent of the delivery delay. For every week or part thereof, the compensation shall be 1% of the order value unless otherwise agreed.
3. The Purchaser reserves the right to prove the damage was greater.
4. Unconditional acceptance of delayed delivery or performance shall not constitute a waiver of our right to claim compensation due to delayed delivery or performance.
VIII. Force majeure
Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable, serious events shall free the contracting parties from their performance obligations for the duration of the incident and in accordance with the impact thereof. This shall also apply if these incidents occur at a time when the party concerned is in default. The contracting parties shall provide all necessary information without undue delay where feasible and shall adapt their obligations to the altered conditions in good faith.
The supplier must provide evidence of the impact of the force majeure on the order if required.
IX. Quality and documentation
1. With regard to its delivery, the supplier must comply with the accepted rules of engineering, safety regulations, accident prevention and occupational safety regulations, occupational healthcare rules and the agreed technical data and consumer protection regulations. A CE Declaration of Conformity must be appended to every part in the delivery where required under applicable law (currently EU directives). The China Compulsory Certification (CCC) must be provided once with the first delivery by every supplier for every new item incorporated into the product range, if required by international law (currently the China National Regulatory Commission for Certification and Accreditation – CNCA). All required protection provisions must be supplied. Changes to the goods to be delivered shall require the Purchaser's prior written consent.
2. If the type and scope of tests and the means and methods of testing have not been agreed specifically by the supplier and Purchaser, the Purchaser shall be prepared to discuss the tests with the supplier, on the supplier's request, within the scope of its knowledge, experience and opportunities to ascertain the required level of test technology.
3. Regarding the technical documents, the supplier must also keep special records of how, when and by whom the goods were tested in terms of the characteristics requiring mandatory documentation, as well as what results the required quality tests produced. The test documents must be stored for ten years and copies given to the Purchaser on request. The supplier must impose identical obligations on any sub-suppliers to the extent permitted by statutory provisions.
4. If authorities wish to view the production processes and the Purchaser's test documents in order to inspect specific requirements, the supplier shall be prepared to grant them the same rights and all reasonable assistance on its premises at the Purchaser's request.
5. The supplier must take all measures to guarantee supply chain security in production, storage, loading and transportation. This includes in particular securing business premises, protecting goods against unauthorised access and using secure staff.
6. Supplier shall comply with the John Deere Supplier Code of Conduct, which is found at: www.johndeere.com/suppliercode .
1. Acceptance shall be conditional upon inspections to ensure the goods are free from defects and, in particular, correct, complete and proper.
2. The statutory provisions on material defects and defects of title shall apply unless stated otherwise below.
3. The Purchaser shall have the right to choose the type of remedy as a rule. The supplier shall have the right to refuse the type of remedy we choose under the requirements of Section 439(3) of the German Civil Code (BGB).
4. If the supplier does not start to eliminate the defect without undue delay following our request for defect elimination, we shall have the right in urgent cases, in particular to avert acute risk or avoid major damage, to eliminate the defect ourselves or have this done by a third party at the supplier's cost. The limitation period for claims for material defects shall be 24 months after commissioning or installation of spare parts, and no longer than 30 months after delivery to the Purchaser unless the goods have been used for a building site as per their intended purpose and caused a defect in said building site.
5. In the event of defects of title, the Supplier shall also indemnify us from any third-party claims. The limitation period for defects of title shall be ten years.
6. The limitation period for parts repaired during the limitation period for our claims for defects shall start afresh on the date on which the supplier fully meets our claims for remedy.
7. If we incur costs due to defective delivery of the contractual goods, in particular transportation, travel, labour and material costs or intake control costs exceeding the customary amount, the supplier shall bear these costs.
8. If we accept the return of products we have manufactured and/or sold due to defects in contractual goods supplied by the supplier, or if the purchase price of such products is reduced or any other claims are made against us as a result of the defects, we shall retain the right of recourse against the supplier without needing to set a deadline for our rights concerning defects.
9. We are entitled to demand compensation from the supplier for expenses we incurred in our relationship with our customer because our customer claimed compensation from us for expenses incurred in remedying defects, in particular transportation, travel, labour and material costs or import and export duties.
10. Notwithstanding Item X. 4., the limitation period in the cases specified in X. 8. and X. 9. shall begin, at the earliest, two months after the date on which we met our customer's claims, but at the latest five years after delivery by the supplier.
11. If a material defect becomes apparent within six months after the transfer of risk, it shall be assumed that the defect existed when the risk was transferred unless this assumption is inconsistent with the type of goods or defect.
12. If sampling takes place, the characteristics of the sample shall be considered guaranteed. The delivered goods must comply with the sample. If the delivered goods have been specially made, e.g. using drawings, these shall take precedence over the sample.
13. The supplier shall conduct quality control tests which are appropriate in type and scope and consistent with the latest technical standards and shall provide evidence of this on request. The supplier shall fully meet any quality requirements specified in the supply contract regarding the goods to be delivered, production methods and provision of evidence.
14. If claims are made against the Purchaser on the basis of strict liability as a result of mandatory international law applicable to third parties, the supplier shall be liable to the Purchaser to the extent it would be if it were directly liable.
XI. Product liability and recall
1. The supplier shall take out business and product liability insurance with sufficient cover, including cover for measures to remedy defects in the parts, accessories or equipment of motor, rail or water-borne vehicles where such products were clearly intended for use or installation in motor, rail or water-borne vehicles at the time of delivery by the supplier or a third party engaged by the supplier. If the Purchaser is entitled to further compensation claims, these shall not be affected.
2. In the event that claims are made against us for breach of official safety regulations or international product liability regulations or laws, the supplier shall indemnify us from such claims provided and to the extent that the damage was caused by a fault in the contractual goods delivered by the supplier. In cases of fault-based liability, this shall only apply if the supplier is at fault, however. If the cause of the damage is attributable to the supplier, the supplier shall bear the burden of proof in this respect. In the above cases, the supplier shall bear all costs and expenses, including the costs of any legal proceedings or recall campaigns that the Purchaser may undertake after carrying out a proper inspection. This shall also apply if the Purchaser is officially obliged to carry out such a recall campaign or a third party carries out the recall campaign for the Purchaser. The statutory provisions shall apply in all other respects.
XII. Performance of work
Individuals who perform work on the plant premises to fulfil the contract must comply with the provisions of the applicable plant rules. Liability for accidents involving such persons on the plant premises shall be excluded unless said accidents were caused by a deliberate or grossly negligent breach of obligations by our legal representatives or vicarious agents.
XIII. Provision by the Purchaser
Any materials, parts, containers and special packaging provided by the Purchaser shall remain our property. Said materials etc. must only be used for their intended purpose. Material processing and parts assembly shall be undertaken for us. It is agreed that we shall be co-owners of products that are produced using our materials and parts, based on the value of our materials/parts relative to the value of the total product, which the supplier shall store on our behalf.
XIV. Industrial property rights
1. The supplier shall be liable for claims arising from breaches of industrial property rights and industrial property right applications (industrial property rights) that occur from use of the delivered goods in accordance with the contract.
2. The supplier shall indemnify the Purchaser and its customers from all claims arising from the use of such industrial property rights.
3. The contracting parties must inform each other without undue delay of any infringement risks that they become aware of and shall oppose any alleged claims by mutual agreement.
4. At the Purchaser's request, the supplier shall disclose the use of published or unpublished internal or licensed industrial property rights and industrial property right applications regarding the goods.
5. We have the right to use software included in the product delivery, and its documentation, to the legally admissible extent (Sections 69a et seq. of the German Copyright Act (UrhG)) in addition to the right to use said software with the agreed performance characteristics and to the extent required in order to use the product in accordance with the contract. Copies may also be made in this respect. We may also make a backup copy without explicit agreement.
XV. Use of the Purchaser's manufacturing equipment and confidential information
Models, dies, templates, samples, tools and other manufacturing equipment, as well as confidential information, which the Purchaser makes available to the supplier or which it pays for in full must only be used for deliveries to third parties with the Purchaser's prior written consent.
XVI. General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz)
The supplier hereby declares that all of its employees who come into contact or may come into contact with the Purchaser's employees in the course of meeting current or future contractual obligations to the Purchaser are committed to compliance with the provisions of the General Equal Treatment Act. In particular, the supplier's employees are aware that any discrimination against or general or sexual harassment of the Purchaser's employees due to their race or ethnic origin, gender, religion/world view, age, a disability or sexual identity is prohibited. Should any employee of the supplier breach provisions of the General Equal Treatment Act in respect of the Purchaser's employees, and if compensation claims for material or non-material damage are made against the Purchaser by its employees or third parties as a result, the supplier shall indemnify the Purchaser from all compensation claims including the costs of legal proceedings within their internal relationship.
XVII. General provisions
1. If a contracting party suspends payments or an application for insolvency proceedings is opened into its assets or court or out-of-court insolvency proceedings are initiated, the other party shall be entitled to withdraw from the contract for the non-performed part.
2. If a provision of these Terms and Conditions and further agreements made is or becomes invalid, this shall not affect the validity of the remaining provisions of the contract. The contracting parties undertake to replace the invalid provision with a provision that mostly closely corresponds to it with regard to ensuring commercial success.
3. The contractual relationships shall be subject exclusively to German law to the exclusion of regulations on the conflict of law and the United Nations Convention on Agreements concerning the International Sale of Goods (CISG).
4. The place of performance shall be the location of the Purchaser's registered office. This may be agreed otherwise for delivery.
5. The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships on which these Terms and Conditions of Purchase are based shall be the competent court for the location of the Purchaser's head office. We are also entitled, at our due discretion, to take legal action against the Supplier at the competent court for the location of the Supplier's registered office or branch or the place of performance.
January 11th, 2023
1.1 All offers to hire machines shall be made exclusively on the basis of these General Terms and Conditions of Hire. Conflicting or deviating terms and conditions of a Lessee shall not be accepted. This shall apply even if the Lessor delivers the machine to the Lessee without restriction with knowledge of the Lessee’s conflicting or deviating terms and conditions. Deviations from these Terms and Conditions of Hire shall only be valid when confirmed by the Lessor in writing.
1.2 These Terms and Conditions of Hire shall also apply to all future transactions of the same kind with the same Lessee, without specific further agreement being required.
1.3 Services involving on-site installation are additionally subject to the Lessor’s Terms and Conditions of Repair and Installation.
2. Offer and conclusion of agreement
2.1 The Lessor’s offers are always subject to confirmation, unless expressly otherwise stated. Cost estimates are non-binding. Unless otherwise agreed, first offers or cost estimates shall be provided free of charge. The Lessor reserves the right to charge a reasonable fee for further offers or cost estimates as well as for draft works if no rental agreement comes into existence.
2.2 A rental agreement shall come into existence only upon written confirmation by the Lessor. Any changes, amendments or side agreements shall also require written confirmation by the Lessor.
2.3 The documents relating to the offer, including but not limited to illustrations, drawings, and details on weight and measurements, are approximations only, unless they are expressly marked as binding by the Lessor.
2.4 The Lessor reserves all ownership and copyrights to illustrations, drawings, cost estimates, calculations and other documents, which shall not be disclosed to any third party without the Lessor’s express prior written consent. They are to be returned to the Lessor without delay
(i) if no rental agreement comes into existence, or
(ii) as soon as the rental agreement has been executed in full.
2.5 Where the Lessor lends the machine (e.g. for demonstration purposes or as an interim measure), the provisions of the rental agreement shall apply mutatis mutandis.
3. Rental period
3.1 Unless otherwise agreed, the rental period shall start upon delivery to the Lessee (see clause 8.1). If the parties have not agreed on an end date, the Lessee and the Lessor shall agree on a basic rental period on a daily, weekly or monthly basis starting on the delivery or on the agreed date. Unless otherwise agreed, the basic rental period shall be one month.
3.2 In the event the machine has not been returned to the Lessor after expiry of the basic rental period, the rental agreement shall be extended automatically by a period which corresponds to the basic rental period, unless such agreement is terminated in good time before expiry of the basic rental period or any subsequently extended rental period. Notice of termination shall be deemed to have been given in good time if it is received by the Lessor not later than three working days before the end of the rental period if the basic rental period has been agreed on a daily basis, not later than one week before the end of the rental period if the basic rental period has been agreed on a weekly basis, and not later than one month before the end of the rental period if the basic rental period has been agreed on a monthly basis.
3.3 Notice of termination must be given in writing without the necessity to specify reasons.
3.4 At the end of the rental relationship, the Lessee must promptly return the machine in a proper condition, e.g. in particular clean and workable. The machine is to be returned completely, e.g. including all add-ons and components, cleaned and undamaged.
3.5 Any defects in or damage to the machine which go beyond normal wear and tear, and/or have arisen through incorrect use, shall be the responsibility of the Lessee.
3.6 In the event the Lessee continues to use the machine after termination of the agreement by giving notice of termination, the rental relationship shall not be regarded as having been extended. A tacit extension of the rental relationship shall not apply. If the Lessee fails to return the machine at the end of the rental relationship, the Lessor may request the agreed rent for the duration of the failure to return as compensation or, in case no rent was agreed, at a usual market rental rate. The Lessee waives any right of retention for whatever reason.
3.7 If the Lessee defaults on payment, the Lessor shall be entitled to claim default interest. The default interest rate per annum amounts to eight percentage points above the basic rate. The basic rate changes every 1st January and 1st July of a year by the percentage by which the reference basic rate has increased or decreased since the last change in the basic rate. The reference base is the interest rate for the most recent principal financing transaction of the European Central Bank before the first calendar day of the relevant half year. The Lessor may assert higher default damage if proof is provided. However, the Lessee is entitled to prove that the damage incurred as a result of the default in payment was lower.
3.8 If the Lessor becomes aware of circumstances that call the Lessee’s creditworthiness into question, then all deferred claims shall immediately fall due for payment. Furthermore, the Lessor may in such case request advance payment or the provision of security.
4. Rent and payment of rent
4.1 The rent shall be charged according to depending on the basic rental period agreed (clause 3.1), i.e. per day, week or month. The calculation of the rent is based on the normal monthly working hours, i.e. a maximum of 8 hours of use per day. If, on this basis, the calculated period of use is expected to be exceeded or is actually exceeded by more than 5%, the Lessor may adjust the rent according to the expected or actual period of use. The Lessee shall notify the Lessor without delay of the actual or expected additional use of the machine.
4.2 The rental price does not include the statutory value added tax. The parties endeavour to avoid any unnecessary expenses or infringements of tax or customs regulations. The Lessee is therefore obliged to provide all requisite information where necessary. The parties will strive in all cases where legally permissible to ensure that the Lessor receives the full rent without any deduction whatsoever. Charges, taxes or customs duties shall be borne by the Lessee.
4.3 The rent does not cover wear and tear of wearing parts. The Lessor is entitled to charge the Lessee the costs for wear and tear in accordance with the use of the machine.
The calculation of the costs for wear and tear of wearing parts shall be based on the data on wear and tear set out in checklists or comparable records providing information on the condition of the machine. The costs shall be calculated as a percentage, depending on the current selling price of the respective wearing parts plus any work time which may be incurred. Other costs for the operation and repair of the machine during the rental period shall be borne by the Lessee.
4.4 The Lessor shall issue rent invoices. The Lessor is entitled to issue partial invoices during the basic rental period. If the basic rental period has been agreed for days or weeks, the Lessor is entitled to invoice at weekly intervals. If the basic rental period is in weeks or months, the Lessor may issue partial invoices at monthly intervals. The amount of the partial invoices shall be determined proportionately.
4.5 The Lessor is entitled to request advance payments. If the Lessor requests an advance payment before delivering the machine for duration of the basic rental period, the Lessor may refuse to surrender the machine until receipt of the advance payment has been received.
4.6 The rent shall be payable, without any deduction, not later than 8 days from the date of invoice.
4.7 The Lessee shall not be entitled to offset, withhold or reduce the rent, unless any counterclaims are either not disputed by the Lessor or have been established by final and non-appealable judgement. The same shall apply in the case of an assertion of warranty claims.
4.8 Any fees under public law, premiums and other charges levied during the agreement due to the rent, possession or use of the machine, shall be borne by the Lessee. This shall also apply to investigations ordered by authorities. If any such claims are asserted against the Lessor or if the Lessor is required to make advance payments, the Lessee is obliged to reimburse the costs to the Lessor.
4.9 Delays in the delivery of the machine due to force majeure or other events which substantially impede or prevent delivery by the Lessor, such as war, terrorist attacks, import and export restrictions, strike, lockout or orders made by the authorities, even if they relate to the suppliers or subsuppliers of the Lessor, shall not entitle the Lessee to terminate the rental agreement unless otherwise agreed. If possible, the Lessor shall inform the Lessee about the start, end and expected duration of the aforementioned circumstances.
4.10 The Lessor is not in default if the Lessor provides the Lessee with a replacement, in compliance with the agreed delivery date, for the time until the delivery of the actual machine, provided that such replacement meets the Lessee’s technical and functional requirements in all material respects, and the Lessor bears all costs incurred for providing the replacement.
4.11 If the Lessor is in default and the Lessee suffers any damage as a consequence, the Lessee shall be entitled to request lump sum default compensation. Such compensation shall amount to 0.5 % of the value of that part of the entire delivery which cannot be used in time or according to the agreement due to the delay for each full week of delay, up to a maximum of 5 % of such value in total. Any additional claim for damages based on default shall be excluded.
5. Duties of the Lessee
5.1 The Lessee is obliged:
The Lessee shall indemnify the Lessor against any third party claims that may arise from culpable non-compliance with these duties.
5.2 Upon request, the Lessee shall grant the Lessor or the Lessor’s agents access to the machine at any time during normal working hours and upon prior agreement in order to check the use and operability of the machine. Any costs that are directly or indirectly incurred by either party in this connection shall be borne by such party itself.
6.1 The Lessee may only sublet the machine to a third party, assign rights under this Agreement or grant rights to the machine of any kind with the Lessor’s prior written consent.
6.2 The Lessee shall be responsible for any fault of a third party which it authorised to use the machine to the same extent as for its own faults and shall accept such fault.
6.3 The Sublessee shall be advised that it may acquire the machine only with the consent of the owner (Lessor). On signing the sublease agreement, the Sublessee shall confirm in writing knowledge of the ownership relationships and requirements of consent by the Lessor for any intended acquisition of the machine. The Lessee shall immediately notify the Lessor in case of the termination of the sublease.
7. Pledging of the machine or similar
7.1 In the event of acts of authorities, confiscations, pledges or similar, irrespective of whether they are initiated at the instigation of an authority or of a private person, the Lessee shall immediately inform the authority or other party about the ownership relationships verbally and in writing and also notify the Lessor without delay, providing all necessary documents.
7.2 The Lessee shall immediately notify the Lessor if a compulsory sale or compulsory administration is filed with respect to the property on which the machine is located.
7.3 The Lessee shall bear the costs for any measures to rectify any such interventions.
8. Transfer of risk
8.1 The delivery shall be made on the date of the contractually agreed delivery or on the date of the actual delivery, whichever comes first. When the machine is delivered, a checklist or a handover document shall be prepared in order to determine the condition of the machine. The Lessee undertakes to cooperate in preparing and completing the documents on delivery. For this purpose, the Lessee or an authorized employee or a third party shall be present when deliveries are made. If this is not the case, the machine shall be deemed to have been handed over as recorded by the Lessor.
8.2 Upon delivery, the risk of loss or damage to the machine shall pass to the Lessee. Delivery shall be deemed to have been made even if the Lessee is in default of acceptance according to §293 BGB (German Civil Code).
The place of delivery (place of performance) is always the premises of the Lessor, irrespective of whether the machine is shipped by the Lessor, brought to the Lessee’s premises or its place of use by the Lessor or a third party commissioned by the Lessor or is collected by the Lessee itself or by a third party commissioned by it.
If the machine is located at a different place before the start of the rental period or transfer (for example at the premises or place of use of a previous lessee or at the manufacturer) and if it is shipped or transported from there by the Lessor or an affiliated company or by a third party commissioned by them to the Lessee for use or if the Lessee or a third party commissioned by it collects the machine at such place, this place shall be equivalent to the Lessor's premises.
8.3 The Lessee shall bear the costs of commissioning and maintenance work arising from any damage that occurs after the risk has been transferred to the Lessee. This shall also apply in the event of theft or other loss as well as destruction or significant deterioration which makes repair uneconomical. In this case, the Lessee shall reimburse the Lessor the fair value of the lost machine.
8.4 The Lessee shall cease to bear the risk as soon as the machine has been returned to the Lessor's premises due to or following the end of this Agreement (date of the actual return).
For the return of the machine, the place of delivery shall also be the Lessor’s premises, irrespective of whether the machine is shipped by the Lessee, brought to the Lessor’s premises by the Lessee or a third party commissioned by the Lessee or collected by the Lessor itself or by a third party commissioned by the Lessor.
If the Lessee ships or transfers the machine to a different place (for example to the place of use of a subsequent Lessee or to a purchaser) on prior instruction of the Lessor or if the machine is collected by the Lessor or a third party commissioned by the Lessor from the Lessee and brought to a place other than the Lessor's premises, this place shall be equivalent to the Lessor's premises.
8.5 If shipping is delayed or omitted due to circumstances not attributable to the Lessor, the risk shall pass to the Lessee as from the date of notification of readiness for shipping or acceptance.
8.6 If the Lessee is in default of delivery or infringes any other obligations to cooperate, the Lessor shall be entitled to request compensation for the damage incurred, including any additional expenses, in particular the costs incurred by the delayed acceptance of delivery.
9. Liability of the Lessee
9.1 The Lessee shall be liable for the operational risk associated with the machine.
9.2 If third parties claim damages from the Lessor or from a company affiliated with the Lessor due to personal injury or damage to property – irrespective of the legal reason – based on the operational risk associated with the rented machine the Lessee shall indemnify the Lessor within their internal relationship against all such claims and costs.
9.3 In the event of a claim of any kind whatsoever the Lessee shall be obliged to immediately notify the Lessor about the circumstances, extent and parties involved and to provide the Lessor with all requisite information.
10. Liability for defects and compensation of damages by the Lessor
For all claims for damages asserted by the Lessee which are not governed by this Agreement – irrespective of the underlying legal foundation – and in particular claims for compensation which do not relate to the machine itself, the Lessor shall be liable only:
In the case of culpable infringement of material contractual obligations, the Lessor shall also be liable for gross negligence of non-executive employees and for slight negligence, though in the latter case liability shall be limited to typical and reasonably foreseeable damage.
All further claims, in particular liability for consequential damage, shall be excluded.
11 Machine and business liability insurance
11.1 The machine and its operation must be covered by insurance.
11.2 The machine insurance may be taken out by the Lessee or by the Lessor after agreement.
In the event that the parties agree that the Lessee should insure the machine, or if the parties have not made any agreement, the Lessee shall be obliged to take out a machine insurance (including the risk of transportation) at the replacement value, including all ancillary costs, in favour of the Lessor for the duration of the rental period or for the duration of use covering all risks including fire, natural hazards, vandalism, theft, transportation etc.
The Lessee assigns its current and future rights and claims against its machine insurer arising out of the insurance policies for which it has assumed the burden of insurance here and now to the Lessor. The Lessor hereby accepts the assignment.
The insurance of the Lessor must contain the following provisions which the insurer must confirm:
11.3 The following applies to business liability insurance:
The Lessee undertakes to insure the operating risk associated with the machine in all events at its own cost (liability insurance).
11.4 Before the machine is handed over, the Lessee shall prove - by presentation of a suitable insurance certificate or certificates - that the rented machine is covered by business liability insurance for the duration of the rental agreement and, where the Lessee has committed to taking out machine insurance, is covered by machine insurance. The requisite insurance certificate or certificates must contain all necessary details on the type, scope and duration of the respective insurance.
Failure to submit insurance certificates or the submission of incomplete insurance certificates upon the handover of the machine shall entitle the Lessor to retain the machine until such time as the requisite insurance certificates have been provided. If the Lessor does not exercise its right of retention, the Lessee shall submit to the Lessor the requisite insurance certificate(s) without delay and not later than 10 working days after handover of the rented machine. If the insurance certificate(s) are not submitted, the Lessor is entitled to take out the requisite insurance at the Lessee's expense. In the intervening time until insurance certificate(s) have been submitted or the requisite insurance policies have been taken out by the Lessor, the Lessee shall be liable – subject to clause 10 of these Terms and Conditions of Hire – for all damages, including without limitation consequential damages, arising for any reason whatsoever associated with the lack of insurance cover although such cover has been agreed.
In the event of retention, the Lessor is entitled to request the agreed rent at the beginning of the rental period.
11.5 Any deductibles due under the respective insurance policies shall be borne by the Lessee in the case of a claim, irrespective of whether the insurance was taken out by the Lessee or the Lessor.
11.6 If the rented machine has been subjected to a criminal act (theft, possibly also of spare parts, embezzlement, criminal damage to property or similar), the Lessee shall promptly file a complaint with the competent authority (public prosecutor office, police) and notify the Lessor immediately. If the return of the machine is impossible due to the criminal act (particularly in the case of theft or embezzlement), and if no insurance cover exists in whole or in part - for whatever reason -, the Lessee shall also be liable if it is without fault and shall reimburse the Lessor with the fair value of the machine at the time of theft or embezzlement. The fair value shall be equal to the amount which the Lessor must pay to purchase an equivalent machine.
12. Termination without notice
The Lessor shall be entitled to terminate the Agreement without notice if:
13. Modifications to the machine
Modifications to the machine, in particular attaching, installing and removing parts, must not be made without the consent of the Lessor. If changes have been made with the Lessor's consent, the Lessee shall at its own expense restore the machine to its original condition at the end of the rental agreement.
14. Statute of limitations
All claims which the Lessee may have for whatever reason shall fall under the statute of limitations within twelve months. The statutory period shall apply to claims for damages set out in clause 10.
15. Rights to software / data protection
15.1 If the machine contains software, the Lessee is granted a non-exclusive right to use the delivered software, including its documentation, for application on the machine intended for this purpose. Using the software in more than one system is prohibited.
15.2 The Lessee may reproduce, revise or translate the software or convert the object code into the source code only to the extent permitted by law. The Lessee undertakes not to remove or change any manufacturer information, in particular copyright notes, without the Lessor’s express prior approval.
15.3 All other rights to the software and any related documentation, including copies thereof, shall remain with the Lessor or software provider. The granting of sublicences or any passing on to third parties in any other form is prohibited.
15.4 The Lessor shall not be liable for software which is already installed or will be installed in the future (including any software upgrades or updates) if the Lessee uses the software improperly. In particular, an improper handling or use is deemed to have occurred if the Lessee or a third party:
• deletes, changes or otherwise influences any machine parameters of the rented machine without written consent of the Lessor, so that the functionality of the machine can be impaired;
• installs software (including a software upgrade or update) not authorised by the Lessor for the respective type of machine acquired by the Lessee; or
• installs software (including a software upgrade and update) authorised by the Lessor for the respective type of machine sold while the engine is running and does not observe the machine during the entire installation, upgrade or update process and fails to continuously monitor its behaviour and keep persons at a distance.
15.5 The Lessor is entitled to equip the machine with Fleet View and similar systems (e.g. WITOS or similar), which store machine data (e.g. on ongoing operations, standby times, etc.) and transmit them to the Lessor. The Lessor is entitled to analyse and process such data and use them without restrictions and without charge for internal purposes, unless the Lessee expressly objects. The data may be disclosed to third parties, e.g. for purposes of reference and comparison, if the data is anonymised or if the Lessee, upon request, expressly consents to the disclosure.
15.6 For the event that personnel data are stored within the scope of installation, upgrade or update, the following shall apply:
The Lessor ensures compliance with the statutory data protection regulations. In particular, as far as this is required for installing software, any provided personal data shall not be disclosed to any third party; rather, any such personal data shall be processed and used exclusively internally for performing the rental agreement. The data shall be deleted when no longer necessary. Should such deletion not be possible due to statutory retention periods, such data shall be blocked instead of deleted, in accordance with the applicable statutory regulations.
Where required by the statutory data protection regulations, the Lessee shall, prior to the conclusion of the respective agreement, obtain the necessary written consent of the person whose personal data are required for satisfying the Agreement.
16. Proprietary rights of third parties
16.1 The Lessor shall only be liable for infringement of third party rights resulting from the use of the machine by the Lessee in accordance with the rental agreement for the intended purpose.
16.2 If any third party asserts claims against the Lessee for infringements of its rights by the Lessee, the Lessee shall notify the Lessor without delay. The Lessor shall be entitled, without being obliged, to defend against the asserted claims at its own expense to the extent permitted by law. The Lessee is not entitled to acknowledge any third party claims before having given the Lessor reasonable opportunity to defend against third party rights by other means.
16.3 Clause 10 shall additionally apply with regard to any claims for damages and reimbursement of expenses.
17. Export control
17.1 Any delivery of the machine outside of the country in which the Lessor is domiciled shall be subject to the proviso that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Lessee undertakes to provide all information and documents required for the export or transfer. Delays resulting from export controls or permission procedures shall set aside any delivery periods agreed. If necessary permissions are not granted, or if the usage cannot be approved, the rental agreement shall be deemed as not concluded with regard to the subject matter concerned.
17.2 The Lessor is entitled to terminate the rental agreement without notice if termination on the part of the Lessor is required for compliance with national or international legal regulations.
17.3 In the event of a termination under clause 17.2, the assertion of any claim for damages or the assertion of other rights by the Lessee based on the termination shall be excluded.
17.4 The Lessee is not entitled to use or sublet the machine abroad if this is contrary to national and international export control law.
18. Applicable law, place of jurisdiction, severability clause
18.1 The contractual relationship between the Lessor and the Lessee shall be exclusively subject to the laws of the country in which the Lessor has its registered office.
18.2 Exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Lessor and the Lessee, including claims arising from bills of exchange and cheques, shall be the court competent for the Lessor’s principal place of business. However, the Lessor may, at its discretion, also bring action against the Lessee at the latter’s general place of jurisdiction.
18.3 If one or several provisions or parts of any provision of these Terms and Conditions of Hire are or become invalid for any reason whatsoever, this shall not affect the validity of the remaining provisions. The Lessee and the Lessor undertake to replace the invalid provisions or partial provisions by such legally valid provisions which most closely approximate the economic intent of the invalid provisions. The same shall apply for any unintentional gaps.
1. Scope and Conclusion of the Contract
1.1 These Special Terms and Conditions for Supervisor Assemblies supplement the Wirtgen Group’s General Terms and Conditions of Service and General Terms and Conditions of Sale and Supply.
1.2 Insofar as a Supervised Assembly is not already the subject of a supply or service contract, the Contract is deemed concluded upon written confirmation by the Contractor.
2. Service Performed by the Supplier or Contractor
2.1 Insofar as the terms of a Supervised Assembly have not already been contractually stipulated as part of a supply or service contract, the following Section 2.2 will serve as the contractual description of the Supervised Assembly service.
2.2 The Contractor is responsible for supervising the mechanical assembly, electrical assembly, and commissioning, including a trial period until the system is ready for operation (hereinafter referred to collectively as “Supervised Assembly”), of systems or system components owned by the Client that the Client has purchased from the Contractor and/or from third parties. Insofar as the Client only engages the Contractor to carry out “supervised electrical assembly” and/or “supervised mechanical assembly” and/or “commissioning,” these Special Terms and Conditions of Supervised Assembly will only apply to this limited scope. The provisions contained herein do not apply insofar as they are of no significance to the underlying contractual relationship.
Mechanical assembly, electrical assembly, commissioning, and trial operation of the system or system components are carried out by the Client independently and on the Client’s own responsibility. In this context, the Contractor will provide a supervisor or supervisors who will support the Client by issuing technical instructions and familiarizing the Client’s personnel with the use of the system or system components.
2.3 Supervision and instruction by the Contractor will be carried out by qualified personnel who are familiar with the assembly and operating instructions of the system or components thereof.
3. Assembly and Client’s Duty to Cooperate
3.1 The Client must designate a contact person prior to the commencement of performance who will receive the technical instructions from the supervisor(s). As the Client’s assembly coordinator, this individual will serve as the sole contact person for the Contractor and must have a sufficient command of the German or English language.
3.2 The Client will carry out mechanical assembly, electrical assembly, commissioning, and trial operation with sufficient in-house and/or external personnel. The Client must ensure that the personnel employed are qualified to carry out these activities. In particular, these individuals must be qualified to perform mechanical and electrical work. Unless otherwise stipulated in the Contract, agreed at the beginning of Supervised Assembly, or coordinated with the Contractor, the Client must provide skilled workers who have completed vocational training as metalworkers, mechanics, welders, or electronics technicians (in particular with the ability to carry out electrical installation work in the low voltage range up to 380 V), as well as assistants. If any of the Client’s personnel proves to be insufficiently qualified, the Client is obligated to replace such person(s) at the Contractor’s request. The Client is also obligated to provide additional personnel at the Contractor’s request.
The Client guarantees that the personnel employed are adequately insured, in particular against occupational accidents, in accordance with the legal provisions and any other regulations applicable at the installation site, and that all other applicable legal provisions and other regulations, e.g. with respect to illegal employment, minimum wages, etc., are fully observed.
3.3 The Client guarantees that the supervision and instruction by the Contractor as well as the mechanical assembly, electrical assembly, commissioning, and trial operation itself can be carried out safely in accordance with the applicable occupational safety laws and regulations, including regulations on working time, applicable at the assembly site. The Client must instruct its personnel accordingly in this regard and equip said personnel with the personal protective equipment required for the activities.
When carrying out work on site, the Client must comply with the requirements applicable in the country where the installation site is located. In the case of sites in the Federal Republic of Germany, the Verordnung über Sicherheit und Gesundheitsschutz auf Baustellen (“Baustellenverordnung”; Ordinance on Safety and Health Protection on Construction Sites (“Construction Site Ordinance”)) particularly applies; in other European Union countries, the provisions of European Directives transposed into national law apply, as will any supplementary national law. In the case of sites in countries outside the European Union, an average European standard should be observed. Stricter national regulations must be observed, and the Client must notify the Contractor of such regulations.
In the event of imminent danger, in particular danger to the life and limb of the Client’s personnel, other third parties, or the supervisor(s) themselves, as well as in the event of danger to major property and assets, the Client’s personnel must immediately cease their activities at the instruction of the Contractor. The Contractor will notify the Client and the installation coordinator of the situation – if possible in writing, if necessary via text message or other messaging service, or verbally. After being notified of the situation, the Client must implement the necessary measures to eliminate the risk. Work may not be resumed until the risk has been fully eliminated.
3.4 The Client is responsible for providing all of the assembly and operating instructions and other documents relevant to the assembly of the system or system components, such as factory standards, tools (including those for calibration), operating and auxiliary materials, media (in particular water, electricity, and compressed air), welding equipment (gas/oxygen), slings and safety equipment (in particular for work at height, such as harnesses, etc.), as well as all operating materials and additives required for trial operation, commissioning, and instruction. In the case of asphalt production systems, the Client must guarantee a daily production of at least 400 tons of asphalt for commissioning (including fine tuning), unless a different amount has been stipulated in the supply or service contract.
The Client must ensure that a mobile telephone is available to the parties at the site, and that an Internet connection for data transfers that meets the requirements stipulated in the Contract as well as meets an international standard for data transfer, in particular for uploading and downloading via remote service, is simultaneously available.
3.5 The Client must arrange, book, and provide, at its own expense, accommodations for the supervisor(s) in a hotel with a reasonable standard of cleanliness and service in the form of a single room or apartment, each with its own bathroom. Furthermore, the Client is responsible for arranging, at its own expense, transportation between the accommodations and the installation site for the supervisor(s). If Supervised Assembly lasts more than one week, the Client is responsible for ensuring, at its own expense, that the supervisor(s) can travel freely in the vicinity of the assembly site on weekends, for example by providing a rental vehicle (Central European compact car standard).
3.6 If the Client fails to comply with the aforementioned duties to cooperate and/or the duties to cooperate stipulated in the supply or service contract, or fails to do so in a timely manner, and if the assembly work cannot be commenced or continued as a result, the Contractor reserves the right not to commence or to interrupt Supervised Assembly, as the case may be. Scheduled dates will be extended in accordance with the duration of the interruption and an extra fee will be charged for the resumption of Supervised Assembly and any postponement to an unfavorable time of year.
4.1 Unless otherwise stipulated in the contract governing Supervised Assembly, the Contractor’s schedule of fees for Supervised Assembly will apply.
4.2 If the Client does not comply with its duties to cooperate under the supply or service contract and/or these Special Terms and Conditions of Supervised Assembly, the Contractor is entitled to compensation for the resulting additional expenses for the storage of the system or components in the amount of 0.5% of the value of the goods as specified in the supply contract per full week, up to a maximum of 3%.
In addition, the Contractor is authorized to issue invoices at its own discretion, if necessary in the form of partial invoices, for services rendered to date.