GENERAL TERMS AND CONDITIONS

elumatec AG General Sales & Delivery Terms and Conditions

(May 2017 version)

1. General
1.1 The following conditions apply for all quotations we have issued and for all transactions we have concluded with Purchaser, including those that have been conducted by way of e-commerce. The general terms and conditions of Purchaser or of third parties shall not be applicable even if we do not specifically reject their application in individual cases, except if we expressly accept their application for individual cases in writing. In the event that framework agreements (esp. global agreements) exist between us and Purchaser, the divergent provisions in the framework agreements shall take precedence.

1.2 All of our quotations are subject to confirmation and are non-binding inasmuch as they have not been expressly designated as binding or do not contain a specific deadline for acceptance. We are entitled to accept orders or jobs from Purchaser within ten days of receipt.

1.3 Our written order confirmation is decisive for the content of the contract, especially as regards pricing, scope of services, quality of services, performance time frame, other deadlines and commercial conditions. All other terms agreed shall apply only secondarily. In particular, verbal agreements or assurances before conclusion of the contract are legally non-binding and are replaced by the written contract inasmuch as it is not expressly evident from them that they are of a continuously binding nature. Subsequent changes and additions to the contract shall only be valid when we have confirmed them in writing.

1.4 The documents associated with a quotation, such as illustrations, drawings, weight and dimensional specifications, are only approximately applicable inasmuch as they have not been expressly designated as being binding. We reserve the right to make changes in the design and technical execution. We reserve the copyright for drawings, documentation and other papers, including all administrative rights. These must not be made accessible to third parties or exploited in any other manner without our prior written consent. Purchaser commits to only provide third parties access to plans that we have marked as confidential with our consent.

1.5 All deliveries to Purchaser are subject to the reservation that our own supply deliveries are correct and timely, also with respect to the necessary raw materials and base products for the products to be delivered to Purchaser. If these do not take place or are not timely, we shall inform Purchaser promptly and are entitled to withdraw from the contract within a reasonable time period. If a withdrawal occurs, we shall promptly refund to Purchaser any payments already received.

2. Prices / Payment
2.1 In the absence of special agreements, prices are without discount or other reductions ex works Mühlacker-Lomersheim, inclusive of loading, but exclusive of packaging and the respective statutory VAT. In the absence of special agreements, payment for the delivery of machine tools shall be made as follows: 60% down payment after receipt of the order confirmation, 30% as soon as Purchaser has been notified that the main parts are ready for dispatch and 10% after commissioning, at the latest, however, 14 days after the passing of risk.

2.2 If Purchaser omits to perform an action incumbent on him, and thereby makes it impossible for us to perform the service (within the specified time), or if he fails to make a due payment or otherwise defaults, we are entitled to grant him a reasonable period of time to perform the contract and give due warning that the contract will be terminated if the period of time expires ineffectually; setting the period of time is also regarded as a demand for payment in the sense of Par. 286 BGB (German Civil Code). If Purchaser fails to carry out the previously omitted action before this period of time expires, we are entitled to terminate the contract and dispose of the delivery item in another manner. In the event of such termination, we are entitled to demand payment of the full purchase price. Any payments already made and the value of those parts that can be re-used without modification will be deducted. If Purchaser's behaviour in breach of contract is due to force majeure, we are only entitled to demand payment of any unavoidable costs incurred up to the date of termination.This is without prejudice to any other rights and claims (e.g. claims for damages in the event of breach of duty by Purchaser).

2.3 If, after conclusion of the contract, we become aware of any concrete and objectively verifiable circumstances of Purchaser/user, or in their country, in view of which our claims no longer appear sufficiently assured according to business principles, we are entitled to perform our own duties under the contract only after payment of further advance payments or provision of securities by Purchaser. If Purchaser fails to make further advance payments or provide securities on request within a reasonable period of time granted to him, we are entitled to withdraw from the contract.

2.4 No payments may be offset or withheld on the basis of Purchaser's claims - e.g. claims arising from liability for defects - unless such claims are undisputed or upheld by a court of law.

3. Delivery period and default in delivery
3.1 The delivery period begins with the dispatch of the order confirmation, however, not before the provision of documents, permissions or approvals which Purchaser must secure or before receipt of an agreed payment. If no other delivery deadline and no delivery time is specified, then a delivery period of six weeks as of issuance of the order confirmation shall apply, provided that at this point in time all of the documents, permissions or approvals which Purchaser must secure have been obtained and we have received any agreed down payment; otherwise, six weeks as of the fulfillment of the respective final remaining condition.

3.2 The delivery period is deemed to be fulfilled if, before it expires, the delivery item has left the factory or notification has been made of its readiness for dispatch.

3.3 The delivery period shall be extended reasonably in the event of measures in the context of labour disputes, especially strikes or lock-outs, as well as in the event of unforeseen hindrances that lie beyond the Supplier's control inasmuch as such hindrances demonstrably exert a considerable influence upon the completion or delivery of the delivery item.

3.4 We are entitled to make partial deliveries or perform partial services if the partial delivery or partial service is of use to Purchaser within the context of the contractual intended purpose, the remaining delivery is ensured and the partial delivery or partial service does not cause any considerable additional effort and no additional costs for Purchaser (except if we bear these costs).

3.5 If dispatch is delayed by request or on the initiative of Purchaser, then the costs arising from storage shall be charged to Purchaser beginning one month after notification of readiness for dispatch; for storage in our factory, however, at least 0.5% of the invoice amount for each month of storage after notification of readiness for dispatch shall be billed. The right of exercise and the proof of further storage costs incurred by us or the proof of lower storage costs by Purchaser are reserved. However, after setting a reasonable time period that expires ineffectually, we are entitled to dispose of the delivery item in another manner and to supply Purchaser within a reasonably extended period of time.

3.6 Compliance with the delivery period is contingent upon Purchaser's fulfillment of his contractual obligations.

4. Passing of risk and taking delivery
4.1 The risk passes to Purchaser at the latest upon handing over of the delivery items to the carrier, freight forwarder or other third party assigned to carry out the shipping, even if partial deliveries were made or if we undertook to perform other services, e.g. cover dispatch costs or transport and set-up. At Purchaser's request we will insure the consignment at his cost against theft, breakage, transport, fire and water damage, and other insurable risks.

4.2 If dispatch is delayed due to circumstances for which Purchaser is responsible, the risk passes to Purchaser at the date the delivery item is ready for dispatch and we have notified Purchaser of this fact. At Purchaser's request and expense, we will insure consignments against theft, fire and water damage, and other insurable risks.

4.3 Notwithstanding the rights under section 7, Purchaser must take delivery of delivered items even if they display minor defects.


5. Retention of title/Insurance

5.1 We retain title to the delivered goods until all our claims have been settled in full, including such claims arising in future from the business relationship with Purchaser.

5.2 Purchaser undertakes to handle the delivery item with care and to insure it at his own expense in favour of the Supplier against theft, breakage, fire, water and other damage for the duration of retention of title. Purchaser shall furnish proof of such insurance to us.

5.3 Purchaser is entitled to resell the delivery item in the ordinary course of business. For the eventuality of resale, Purchaser herewith assigns the claims against the buyer arising from such sale to us as security for our purchase price claim. Under no circumstances is Purchaser authorized to assign the claims against the buyer to a third party.

5.4 Purchaser is furthermore entitled to process and incorporate the delivery item and to sell the new item in the ordinary course of business. No pledging or assignment as collateral is permitted without our prior written consent. If Purchaser incorporates the delivery item, the incorporation takes place in our name and for our account as the manufacturer. By this, we acquire direct ownership in the new item. If the incorporation makes use of materials from several owners, we acquire a co-ownership share in the new item in a proportion corresponding to the value of the delivery item. If we acquire ownership or a co-ownership share in the new item, we assign our ownership or co-ownership share in the new item to Purchaser under the suspensive condition of full payment of the purchase price.

5.5 If the delivery item is connected to or mixed with other items of Purchaser and if Purchaser's item is to be seen as the primary item, then we assign to Purchaser a co-ownership share in the main item corresponding to the value of the delivery item under the suspensive condition of full payment in accordance with clause 5.1.

5.6 If Purchaser sells the new item or the item created by connection or mixing, then Purchaser herewith assigns to us the purchase price claim against the buyer of this item to which he is entitled as a security for our purchase price claim. In the event that we have acquired a co-ownership share in this item, Purchaser assigns to us the amount receivable proportionately corresponding to the value of the co-ownership share.

5.7 We authorize Purchaser to collect the amounts receivable assigned to us in his own name and for our account.

5.8 If Purchaser falls behind on payment for the delivery item, we are entitled to withdraw from the contract and to demand from Purchaser the surrender of delivered delivery items which are still subject to retention of title.

5.9 If the law of the country in which the delivery item is located does not permit retention of title, but does allow supplier to reserve other rights in the delivery item, we can exercise all rights of this kind. Purchaser must participate in such measures that we intend to take in order to protect our retention of title - or, in its place, any other right to the delivery item.

6. Warranty
6.1 Our performance is free of defects when its actual condition evidences only minor deviations from the contractually agreed condition and this deviation is reasonable for Purchaser.

6.2 We warrant our performances to be free from defects as follows: We shall rectify for Purchaser at no charge all defects for which notification is made within the warranty period at our discretion either through repair or through delivery of flawless parts (subsequent performance). Purchaser shall return defective parts to us upon request. If a subsequent performance in the required quality is not possible for us, we shall consult with Purchaser. Inasmuch as this is reasonable for Purchaser, we may deliver other delivery items or solutions from our product range in fulfillment of our obligation to subsequent performance which display an overall condition that is compatible with that agreed, or, in the absence of an agreement on quality, a condition of the contractual item defined as defect-free according to law (Par. 434 Sec. 1, 633 Sec. 2 BGB).


6.3 The warranty period for normal operation as well as for single-shift operation is 12 months as of delivery or, if acceptance is required, as of acceptance. Acceptance in the sense mentioned above is deemed to have been completed if Purchaser does not refuse the acceptance for stated reasons within three months after dispatch of the respective delivery item / plant.

6.4 The warranty period of clause 6.3 shall not apply in the case of unusual circumstances or if the delivery item is employed in the context of multi-shift operation in the sense of clause 6.9. In these cases, shorter warranty periods shall apply due to the exceptional demands placed on the delivery item; we shall reach an agreement on this with Purchaser after we have been notified by Purchaser in accordance with clause 6.9. Furthermore, the warranty period for refurbished parts shall be six months as of delivery. For specially marked parts as per the operating manual or dispatch documents, the warranty period shall expire after a specified number of operating hours as indicated for each individual case.

6.5 The warranty period of clauses 6.3 and 6.4 does not apply for claims for damages by Purchaser arising from facts and circumstances named in clause 7.1 and not inasmuch as the law prescribes longer periods in Par. 438 Sec. 1 No. 2 (Buildings and Objects used for Buildings), Par. 479 Sec. 1 (Right of Recourse) and Par. 634a Sec. 1 No. 2 (Construction Defects) BGB.

6.6 Purchaser is not permitted to rectify possible defects himself or have them corrected by third parties without our written consent. This does not apply in urgent cases of endangerment of operational safety, to the prevention of unreasonably great damage or if we are behind schedule with the subsequent performance; but we must be notified without delay in these cases as well. Inasmuch as Purchaser is permitted to rectify defects himself or by means of competent third parties, he shall be entitled to compensation for reasonable costs for the rectification of defects.

6.7 We provide no warrant if:
a) Purchaser modifies the delivery item or has it modified by a third party without our consent and the rectification of the defect is hereby rendered impossible or unreasonably difficult. In any case, Purchaser shall bear the excess costs for the rectification of defects;
b) The delivery item was not set up by our personnel or was set up or put into operation against their instructions;
c) Our operating and maintenance instructions were not followed or the delivery item was employed or used in any other improper manner;
d) The delivery item was operated by incompetent, untrained personnel;
e) The defect is due to usual and customary wear,
provided that the defect was caused by this or our warranty work is thwarted or rendered unreasonably difficult as a consequence.

6.8 We provide a warranty for parts that are included in delivery but were not manufactured by us, e.g. all electrical and electronic parts, only to the extent that we are entitled to warranty claims against the supplier. In such cases, at our discretion, we will either exercise our warranty claims against the supplier for the account of Purchaser or will assign these to Purchaser. Warranty claims against us for such defects shall only arise if the legal enforcement of the claims against the supplier was unsuccessful or, as in the case of insolvency, is futile. The statue of limitations shall be suspended for warranty claims of Purchaser against us for the duration of the litigation.

6.9 Purchaser shall notify us in writing in a timely fashion before execution of the contract if the delivery item will be subjected to unusual circumstances (e.g. of a climatic, site-specific or operational nature) or is to be used for multi-shift operation. If he fails to provide corresponding written notification, this shall be at his own risk.

6.10 If subsequent performance (possibly including several attempts) fails, is refused by us, is unreasonable for the Customer or setting of a time limit according to Par. 281 Sec. 2 and Par. 323 Sec. 2 BGB is unnecessary, Purchaser is entitled, at his discretion, to reduce the remuneration by a reasonable amount, or withdraw from the contract, without, as otherwise required, the necessity of first specifying a reasonable time period for the subsequent performance and its ineffectual expiration in the event of a serious defect and - provided we do not substantiate that we are not at fault - in accordance with clause 7 to demand damages or compensation for his expenditures in accordance with Par. 284 BGB, except if we would have no cause to expect this.

6.11 Purchaser undertakes to declare at our request and within a reasonable time period set for him by us in writing, whether he still insists on the performance and/or which claims and rights to which he is entitled he is exercising. If Purchaser does not fulfill this obligation, the exercise of these rights or claims shall require the ineffectual expiration of a further reasonable time period set for us by Purchaser for the subsequent performance if we had not already conclusively refused the subsequent performance. Statutory claims for damages on our part shall remain unaffected.


6.12 Purchaser's legal right of withdrawal due to a defect of the contractual item does not presuppose culpability on our part. In all other cases of breach of duty, Purchaser can only withdraw from the contract if we are responsible for the breach of duty.

7. Liability
7.1 Following subsections 7.2 to 7.5 apply to damage claims of any kind, regardless of their legal basis (e.g. liability for defects, default, violation of other obligations arising from contractual obligations, impossibility, tort, etc.), but not to claims due to damage arising from injury to life, limb and health, rights and claims of Purchaser in the event of fraudulent concealment of a defect by us, or due to the absence of a condition for which we have assumed warranty, claims and rights of Purchaser based on intentional or grossly negligent behaviour by us, our legal representatives or persons employed by us in the performance of our obligations, and claims under the Product Liability Act. The above exceptions are governed by the statutory regulation.

7.2 In the event of damage caused by slight negligence, we are liable only if essential rights and obligations are violated that arise from the nature of the contract and the violation of which jeopardizes attainment of the purpose of the contract. In all other respects, our liability is excluded in the event of damage caused by slight or simple negligence.

7.3 In the event of liability on the merits, pursuant to subsection 7.2, for violation of essential contractual obligations, such liability is limited in amount to typical damage to be expected for us at the date of concluding the contract. In these cases, any liability for indirect damages and for consequential damages such as loss of profit is excluded.

7.4 Liability according to the above provisions for typical damage to be expected for us at the date of concluding the contract is limited to the amount of coverage of our commercial/professional liability insurance, this being, for two events of damage per annum, EUR 10,000,000 each for damage to property and personal injury.

7.5 Purchaser's damage claims become statute-barred - unless a shorter term is prescribed by law - in the event of liability for defects (section 6) upon expiry of the period stipulated in subsection 6.3, sentence 1, in all other cases in one year starting at the end of the year in which the claims arose and Purchaser becomes aware of the circumstances justifying the claim and of the debtor's identity, or of which he should become aware without gross negligence. Irrespective of such awareness or grossly negligent ignorance, these claims become statute-barred five years after the time they arose, and irrespective of their arising and awareness or grossly negligent ignorance in ten years as of committing the action, violating the obligation, or other event causing the damage (maximum period).

8. Special conditions for e-commerce
8.1 Purchaser shall ensure with respect to the customer accounts which exist for his company that only those employees of Purchaser place electronic orders that have been duly authorized to do so.

8.2 Purchaser shall ensure and shall instruct his employees accordingly, that passwords and user identifiers for the use of his customer accounts are not given to third parties and must ensure the strict secrecy and safeguarding of this information against unauthorized access or unauthorized parties gaining knowledge of it.

9. Software, usage rights
9.1 Liability on our part for software-caused errors of the items we have delivered is excluded if Purchaser changes and/or modifies the software without our consent and this is the cause of the fault.

9.2 If the delivery item contains software, Purchaser undertakes to connect it to the Internet and act in cooperation as agreed so that it is possible for us to perform remote maintenance.

9.3 Purchaser is only entitled to install software updates which we have released. If such updates are installed, Purchaser is obligated to test the compatibility of the update with the respective machine settings by means of trial runs supervised by specialist staff before beginning production.

9.4 The transfer of usage rights to the software is governed by the licence conditions for end customers (EULA) of the respective software producer which apply accordingly in the contractual relationship between us and Purchaser. These licence conditions are a significant integral part of this contract. In order to obtain approval for the transfer of the usage rights from us to Purchaser, Purchaser confirms by initiation of the software that he accepts the licence conditions of the software producer that we deliver together with the software and all components and backup copies. Prior to this, use of the software is not permitted.

10. Applicable law, place of jurisdiction
10.1 Our General Terms and Conditions do not shift the statutory burden of proof to Purchaser.

10.2 Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract is Stuttgart. However, we are also entitled to take legal action against Purchaser at his domicile.

10.3 German law applies exclusively, to the exclusion of the conflict of law rules of Private International Law and the UN Convention on the International Sale of Goods.

End of the General Sales & Delivery Terms and Conditions

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Main contact

elumatec AG
Pinacher Straße 61
75417 Mühlacker
Germany

Phone +49 7041 14-0
Fax +49 7041 14-280
mail(at)elumatec.com

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