Altendorf Terms and Conditions of Sales and Delivery

For use in transactions with:
1. A person who is exercising a commercial or free-lance occupational activity upon conclusion of the contract (entrepreneur);
2. Legal persons under public law or a public-law special fund;

I. General

All deliveries and services shall be based on these terms and conditions and any separate contractual agreements. Deviating terms and conditions of purchase on the part of the ordering party shall not form a part of the contract, even as a result of acceptance of an order.
A contract shall be formed – in the absence of a separate agreement – with written confirmation of the order by the supplier.

II. Price and payment

1. In the absence of a separate agreement, the prices shall be ex works, including loading at the works, but excluding packaging. Value-added/sales tax shall be added to the prices at the applicable statutory level.

2. Payments shall be made in principle in EUR (euros) when the goods are ready to be dispatched, and free the place of payment of the supplier.

3. If the payment deadlines are not observed, interest shall be charged in accordance with the bank rates that the supplier must pay for loans.

4. The withholding of payments or offsetting of any counterclaims of the ordering party that are disputed by the supplier shall not be permissible.

III. Delivery deadline, delay in delivery

1. The delivery deadline shall be as specified in the agreements between the parties. The supplier’s compliance with deadlines is contingent upon the ordering party’s fulfillment of all the obligations incumbent upon it. Compliance with the delivery deadline shall be subject to correct and prompt delivery of the supplier itself. The supplier shall provide notification of any delays that become apparent as soon as possible.
The delivery deadline shall be regarded as having been met if the delivery item has left the works by the time the deadline expires, or has been reported as being ready to be dispatched.

2. If dispatch or acceptance of the delivery item is delayed for reasons for which the ordering party is responsible, the ordering party shall be charged the costs caused by the delay, beginning one month after the report that the delivery item is ready to be dispatched or undergo acceptance.

3. If the failure to comply with the delivery deadline can be attributed to force majeure, labor disputes or other events or occurrences that are outside the sphere of influence of the supplier, the delivery deadline shall be extended by a reasonable period. The supplier shall inform the ordering party of the beginning and end of such circumstances as soon as possible.

IV. Passage of risk, acceptance

1. The risk shall pass to the ordering party when the delivery item has left the works, even if partial deliveries are made or if the supplier has assumed responsibility for other services, such as shipping costs or delivery and installation.

2. If dispatch or acceptance is delayed or not carried out due to circumstances that cannot be attributed to the supplier, the risk shall pass to the ordering party from the day on which the delivery item is reported as being ready to be dispatched or undergo acceptance. The supplier is obligated to conclude the insurance demanded by the ordering party at the expense of the ordering party.

V. Reservation of ownership

1. The delivery items shall remain the property of the supplier until all claims against the ordering party have been settled to which the supplier is entitled as a result of the business relationship. If the value of all security interests to which the supplier is entitled exceeds the level of all secured claims by more than 20 percent, the supplier shall release a corresponding share of the security interests at the request of the ordering party.

2. The supplier shall be authorized to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the ordering party if the ordering party itself has demonstrably not concluded insurance.

3. The ordering party shall neither sell nor attach the delivery item, nor transfer ownership of it by way of security. It shall notify the supplier of any attachments and confiscation or other disposal of it by a third party.

4. If the ordering party acts in violation of the contract, in particular if it defaults on payment, the supplier shall be authorized to take back the delivery item and the ordering party shall be obliged to surrender it. Assertion of a reservation of ownership and attachment of the delivery item by the supplier shall not be regarded as a rescission of the contract.

5. The supplier may only demand surrender of the delivery item due to a reservation of ownership if it has rescinded the contract.

6. The application to instigate insolvency proceedings shall also authorize the supplier to rescind the contract and demand immediate return of the delivery item.

7. If the delivery item is resold, the ordering party hereby assigns to the supplier the receivables due from the resale, plus any other justified claims against its customers to which it is entitled, together with all subsidiary rights, until all the claims of the supplier have been fulfilled. At the request of the supplier, the ordering party shall be obliged to provide the supplier without delay with all information and documents that are required for the supplier to assert its rights against the customers of the ordering party.

8. If the goods are resold by the ordering party after being processed together with other goods that do not belong to the supplier, the assignment of the purchase money claim shall only apply to the level of the invoice value of the supplier’s goods.

9. If the supplier makes use of its reservation of ownership by taking back goods subject to reservation of ownership in accordance with the provisions herein described, it shall be authorized to sell the goods privately or have them auctioned. The goods subject to reservation of ownership shall be taken back at the earned revenue, but at most at the agreed delivery prices. The supplier reserves the right to assert further claims for damages, in particular for the loss of prospective profits.

VI. Warranty claims

Warranty claims for defects of quality and defects of title shall, in principle, only be assumed for deliveries of new machines. The supplier shall warrant the following, with the exclusion of further claims (subject to Paragraph 7) for such deliveries:

Defects of quality

1. All parts that have proven to be defective due to a circumstance obtaining before the transfer of risk shall, at the discretion of the supplier, be remedied or replaced by error-free parts free of charge. Ascertainment of such defects shall be reported immediately in writing to the supplier. Replaced parts shall become the property of the supplier.

2. The ordering party shall give the supplier the necessary time and opportunity to conduct all the remedies and replacement deliveries that appear necessary to the supplier following agreement with the supplier; otherwise, the supplier shall be discharged from liability for the resultant consequences. Only in urgent cases where there is a risk to work safety or to avoid disproportionately large damage (of which the supplier shall be informed immediately) shall the ordering party have the right to remedy the defect itself or have it remedied by third parties, and to demand reimbursement of the necessary expenses by the supplier.

3. Of the direct costs resulting from the remedy or replacement delivery, the
supplier – where the complaint proves to be justified – shall bear the costs of the replacement item, including dispatch. It shall also bear the costs of deinstallation and installation and the costs of any necessary provision of required mechanics and assistants, including travel expenses, provided no disproportionate burden is imposed on the supplier as a result.

4. Under statutory regulations, the ordering party has a right to rescind the contract if the supplier – under consideration of the legal exceptions – allows a deadline set for the remedy of a defect or a replacement delivery due to a defect to expire without any resolution. If the defect is merely insignificant, the ordering party shall only have a right to reduce the contract price. The right to reduce the contract price shall otherwise be excluded.

Further claims shall be defined in accordance with section VII.2 of these terms and conditions.

5. No liability shall be assumed in particular in the following cases:
Unsuitable or incorrect use, incorrect assembly or commissioning by the ordering party or third parties, natural wear and tear, incorrect or negligent treatment, incorrect maintenance, unsuitable operating resources, defective construction work, unsuitable building site, chemical, electrochemical or electrical influences – provided the supplier is not responsible for them.

6. If the ordering party or a third party remedies a defect incorrectly, the supplier shall not be liable for the resultant consequences.
The same shall apply to any modifications to the delivery item made without the prior consent of the supplier.

VII. Liability

1. If the delivery item cannot be used by the ordering party in accordance with the contract due to a fault on the part of the supplier as a result of non-implementation or incorrect implementation of suggestions or advice made before or after conclusion of the contract, or due to the violation of other subsidiary contractual obligations – in particular instructions on operating and maintaining the delivery item –, the provisions of sections VI and VII.2 shall apply mutatis mutandis with the exclusion of further claims of the ordering party.

2. The supplier shall only be liable – for whatever legal reasons – for damage that has not occurred to the delivery item itself

in the event of intent
in the event of gross negligence on the part of the owner/
the organs or executive staff,
in the event of culpable injury to life, body and health,
for defects that it has maliciously concealed or whose absence it has warranted,
for defects to the delivery item where the supplier is liable for injury to persons or damage to privately used objects under product liability law.

In the event of culpable violation of cardinal contractual obligations, the supplier shall also be liable for gross negligence on the part of non-executive staff and for slight negligence, with liability in the latter case being restricted to the reasonably foreseeable damage typical of the contract.

Further claims shall be excluded.

VIII. Limitation of action

All claims of the ordering party – for whatever legal reasons – shall become statute-barred in 12 months.

IX. Use of software

If software is contained in the scope of supply, the ordering party shall be granted a non-exclusive right to use the supplied software, including its documentation. It shall be provided for use on the intended delivery item. Use of the software on more than one system shall be prohibited.

The ordering party may only copy, revise or compile the software or convert it from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG (Copyright Law)). The ordering party is obligated not to remove or change manufacturer information – in particular copyright notes – without the express prior consent of the supplier.

All other rights to the software and the documentation, including copies thereof, shall remain with the supplier or the software vendor. The assignment of sublicenses shall not be permissible.

X. Applicable law, place of jurisdiction

1. The law of the Federal Republic of Germany applicable to the mutual legal relationships between domestic parties shall apply exclusively to all legal relationships between the supplier and the ordering party.

2. The courts at the place of the supplier’s registered office shall have venue and jurisdiction. However, the supplier shall be authorized to bring action at the place of the head office of the ordering party.

3. The UNO Sales Convention (CISG) shall not apply.