Terms and conditions

For deliveries and services of the company EMA - Egel Maschinen & Anlagen GmbH + Co. KG IN-062 - Status 1/2016

1. Scope

1.1
These terms and conditions only apply to companies in the context of section §14 of the German civil code (BGB) and do not apply to consumers.
1.2 We shall make all our deliveries and perform all our services exclusively in accordance with these terms and conditions. We do not acknowledge any conflicting or otherwise deviating customer terms and conditions unless we have expressly agreed in writing to their applicability.

1.3 Our terms and conditions shall also apply to future transactions even if they are not specifically referred to in each case.

2. Offers, documents and conclusion of contract / changes

2.1
Our offers are subject to confirmation and non-binding as far as they are not expressly referred to as a binding offer.

2.2 In the course of confirming the order, the customer must make available all the documents which are necessary to execute the order and in particular technical drawings, inspection instructions, etc.. The customer is liable for the correctness of these documents and this information. We will not accept any liability for errors which are related to these documents or information.

2.3 Our order confirmation in writing is authoritative for the order. If the customer has any objections to the details contained in the order confirmation, he must raise these immediately. Otherwise, the contract has been concluded on the basis of the order confirmation in question.

2.4 After conclusion of the contract we reserve the right to make technical changes to the products to be delivered or services to be delivered as far as this is reasonable for the customer as follows:
a) Product and process changes in the course of general further developments and improvements.
b) We are also entitled to make changes which due to missing or incorrect information from the customer are required to maintain performance. The customer shall be liable for any costs which are incurred in this respect.

2.5 We reserve unlimited rights and copyrights to all drawings, price quotations and other documentation. On our request the customer is obliged to return all of these documents. A right to retain the documentation does not exist. Third parties are not allowed access to the documentation without our permission in writing.

3. Deliveries, transfer of risk, deviations in quantity

3.1
The delivery time is governed by the agreements made between the parties according to the order confirmation. Compliance with the delivery time presupposes that all commercial and technical questions have been clarified and that the customer has met all the obligations for which he is responsible and in particular has made available the documents in accordance with item 2.2.. If this is not the case, the delivery time shall be extended by a reasonable amount. This shall not apply insofar as we are responsible for the delays.

3.2 To the extent that the delivery time has not been contractually agreed, our information with regard to the delivery is not binding. If the delivery time is agreed to be a calendar week, we are entitled to supply our performance up to and including the Wednesday of the following week.
3.3 If the non-adherence of the delivery time is due to an act of god, industrial action, or other events which are beyond our control, the delivery time shall be extended by a reasonable amount. This shall also apply when the respective supplier does not deliver in time when we have concluded a hedging transaction. We will immediately notify the customer of any delays and simultaneously notify the customer of the probable new delivery time.

3.4 The delivery time has been adhered to when the delivery item has left our company before the delivery time has expired or the item has been notified as being ready for delivery. If the dispatch or acceptance of the item to be supplied is delayed by a reason for which the customer is responsible, the customer will be invoiced for the costs which result from the delay commencing one month after the announcement that the object is ready for dispatch.

3.5 The shipping and transport is at the customer's own cost and risk. The customer assumes risk as soon as the goods leave our premises.
3.6 The risk for the deliveries and services rendered by the supplier shall pass to the customer as follows, even with carriage paid delivery:
a) for deliveries without installation or assembly, even when part shipments are made if they are brought to the dispatch department or are picked up. On the request and cost of the customer, insurance will be taken out by us to protect the deliveries against the usual risks of transport. If such insurance cover has been taken out, we must be immediately notified of any transport damage.

3.7 We are entitled to supply part shipments as far as this is not unacceptable to the customer.

3.8 For deliveries outside Germany our obligations are subject to the reservation that possibly a necessary export licence must be issued. All products subject to a restriction on exports are supplied by us provided the relevant valid export rules are observed and are to be exclusively used and retained at the location agreed with the customer. If the customer intends to reexport products, he is obliged to adhere to the prevailing export regulations. The re-export of individual products or products integrated in a system contrary to this regulation is prohibited.

4. Installation and assembly of machines and systems

The installation and assembly of devices and machines by us may only be made by qualified personnel in compliance with our guidelines taking into account the relevant technical standards. To the extent that the installation and/or assembly is performed by us, the following conditions shall apply provided other conditions have not been agreed in writing:

4.1 At his own cost the customer must provide the following in a timely manner:

a) all excavation work, construction work, and other auxiliary work which is outside of our particular industrial sector including the respectively required qualified and auxiliary workers, construction materials and tools, 

b) the consumer goods and materials such as scaffolding, lifting gear and other fixtures, fuels and lubricants required for the assembly and commissioning, 

c) power and water at the place of use including the connections, heating and lighting,
d) rooms at the assembly site which can be locked for the storage of machine parts, equipment, materials, tools, etc. which are sufficiently big, suitable and dry and also adequate work rooms and recreational rooms for the assembly personnel including sanitary systems which are reasonable for the circumstances. Apart from that, the customer is obliged to take measures to protect our possessions and the possessions of the assembly personnel to the extent that he would also take to protect his own possessions.

e) protective clothing and protective equipment which are necessary due to the special circumstances of the assembly site,
4.2 Prior to commencement of the assembly work, the customer is obliged without being asked to provide information about any hidden power lines, gas pipes, water pipes or similar systems together with the required information concerning structural loads at the installation site.
4.3 Prior to commencement of the installation or assembly work, in order to start the work the required items and objects to be supplied must be located at the installation of assembly site and all preparation work before the start of the installation work must be advanced such that installation or assembly can be started in accordance with the agreement and performed without interruption. The access routes and installation or assembly site must be level and free of other articles.

4.4 If the installation, assembly, or commissioning is delayed through circumstances which are beyond our control, the customer must to a reasonable extent bear the costs for the waiting time and additional travelling time which are necessary for the assembly personnel.

5. Supplied goods / receiving inspection

5.1
The customer must deliver the goods such that the article description, quantity, gross and net weight is clearly readable and a clear assignment is possible.

5.2 We only inspect the goods received from the customer for external damage to the packaging. We will notify the customer of any damage which is determined within 10 working days.

5.3 We will not accept liability for any damage which occurs during the production to materials supplied by the customer which is the result of a violation of the conditions in accordance with 5.1. If we incur consequential damage, the customer shall be liable for such damage.

6. Prices / offsetting and retention

6.1
The prices listed in the order confirmation are authoritative.
Our quoted prices apply to delivery ex-works and are subject to additions for freight, postage, insurance, customs duty, other expenses, and statutory VAT.

6.2 As far as costs increase between conclusion of the contract and performance of the order to an extent which is not foreseeable for us, e. g. with regard to an increase in wage or material costs, we shall be entitled to adjust the prices within the scope of the altered circumstances.

6.3 If, during execution of the order, additional expenses are incurred which are required to realise the performance which were not known to us when the contract was concluded, we are entitled to invoice the customer for said costs.

6.4 Unless otherwise agreed, the customer is responsible for paying costs for an agreed installation and assembly including all required ancillary costs such as travel expenses or transport costs for hand tools or personal luggage.

6.5 Insofar as not all of the outstanding invoices have been settled, a deduction of cash discount for new invoices is not permissible.

6.6 As long as outstanding invoices have not been settled by the customer, we are entitled to assert a right of retention with regard to the owed processing of new orders.

6.7 If facts exist which indicate a significant deterioration in the financial circumstances of the customer, we are entitled to make all accounts receivable due for payment at once. Furthermore, in this case, we are entitled to demand advance payment or suitable guarantees. If this demand, despite the setting of a deadline by us, is not met, we are entitled to withdraw from the contract.

7. Notification obligations of the customer

7.1
As far as corresponding information is not listed in the documentation pursuant to 2.2, at the latest when the parts to be processed are delivered, the customer has to provide us with all the information which is required to ensure a correct processing of the parts. This in particular includes detailed information on the handling of the parts.
7.2 The customer is obliged to notify us if the use of the parts to be processed is associated with special risks. This particularly applies to use of the parts in sectors where safety is a prime concern such as medical engineering or the automotive industry, etc..

8. Material defects

8.1
The customer is obliged to immediately inspect the parts delivered to him and to notify us in writing of any identifiable defects. If hidden defects are detected, the customer must immediately notify us in writing. The delivery and performance shall be deemed to be approved by the customer if the customer violates his obligation to inspect the goods and does not immediately inform us of any defects.

8.2 In so far as we are responsible for a defect, we are entitled to subsequently fulfil our obligation by removing the defect. The customer shall grant us an appropriate amount of time to enable this. If a repair proves impossible for technical reasons, or if we refuse to repair the item, or if the repair is not successful, or if the repair is unreasonable for the customer, the customer may assert its other legal rights. If the above conditions are not met and the customer undertakes to repair the goods on his own, he may only assert claims against us as far as we have given our express consent.

8.3 Claims for defects by the customer do not exist if the customer or a third party has acted improperly on our performance or if the parts are used when there is knowledge of a defect. In these cases we are only liable as far as the customer can prove that the defect was not caused completely or in part by the improper actions described above.

9. Compensation

9.1
We assume liability for compensation of loss, irrespective of any legal basis, where the loss is due to intent or gross negligence. In cases of minor negligence we are only liable:
a) for damage resulting from death, physical injury or harm to human health;
b) for damage resulting from the breach of an essential contractual obligation (an obligation whose proper fulfilment makes fulfilment of the agreement possible at all and on whose observance the contractual partner regularly relies and may rely); in this case, our liability is restricted to foreseeable and typically occurring damage.
9.2 These limitations on liability shall not apply insofar as we have fraudulently concealed a defect of the goods, or have accepted a warranty for the quality of the delivered item or if we are liable for compensation in accordance with product liability law.
9.3 Any fault of our legal representatives and agents may be attributed to us.
9.4 The legal regulations concerning onus of proof remain unaffected by the above stipulations.

10. Limitation period

10.1
Unless otherwise specified the limitation period for claims of the customer for quality defects and defects of title is one year following delivery of the item. This limitation period is also valid for contractual and extra-contractual claims for compensation made by the customer which are based on a defect of the goods.
10.2 The statutory period of limitation shall apply 

a) to damage claims resulting from loss of life, bodily injury or damage to the health of a human;

b) with regard to liability under product liability law

c) as far as we have fraudulently concealed a defect of the goods;

d) as far as we have assumed a guarantee;

e) as far as the contractual object is a building or an object that, in conformity with its customary manner of utilisation, has been used as a building and which caused the defect;

f) to claims of recourse against the supplier in final supply to a consumer (§ 479 German Civil Code)

11. Obligation of secrecy

All business and technical information made available to the customer by us shall as far as they are not available in the public domain be kept secret and not disclosed to a third party and may only be made available to a third party with our express written consent, whereby the third party must also be bound to secrecy.
The customer may only use the information in connection with the order or the later use of the item in accordance with the order. On our request, all the information derived from us must without delay be immediately and completely returned or destroyed. Confidential information within the meaning of this agreement includes all data, plans, programs, knowledge, experience and expertise irrespective of the type of record, storage or transfer and also independent of whether this information is expressly or tacitly described as secret or confidential.

12. Place of performance

12.1
Unless otherwise agreed, the place of performance for delivery, payment and all other liabilities resulting from the contractual relationship is Koenigsbach, Germany.
12.2 Should individual provisions of these terms and conditions be or become inoperative, this shall not affect the validity of the other provisions. Instead of the invalid or missing terms the respective legal regulations of the Federal Republic of Germany shall come into effect.