General Terms and Conditions of Sale and Delivery (T&Cs) of EWM AG
I. Scope
These General Terms and Conditions of Sale and Delivery shall apply to the sale of machines manufactured by EWM AG, as well as services offered by EWM AG. The T&Cs of the Client shall be expressly rejected, unless these have been expressly acknowledged. This shall also apply if EWM AG does not expressly reject them on submission.
II. Offer and order
Offers made by EWM AG are non-binding. A contract will only come into effect by written confirmation of the order. Written and oral arrangements will only come into effect with written confirmation from EWM AG. Changes and additions to the written contractual documentation from EWM AG must also be made in writing.
III. Sale and delivery
All deliveries, selling transactions and services in the context of this business relationship are carried out in compliance with the T&Cs of EWM AG. Offers made by EWM AG are non-binding and without obligation, and require written confirmation. Deliveries shall be made as legally required and contractually agreed, subject to the estimated delivery times. Delivery times are complied with if EWM AG ships on time without fault. EWM AG reserves the right to use property rights and copyrights in their entirety in cost estimates, diagrams and other documentation. Documents may only be made accessible to third parties with the prior consent of EWM AG. If the contract is not awarded to the supplier, diagrams and other documentation relating to the tender shall be returned on request. This also applies to the documentation of the purchaser. However, this documentation may only be made accessible to third parties if EWM AG has permitted the delivery/provision.
IV. Prices
The prices quoted by EWM AG apply for delivery ex works without set-up or assembly, including the prevailing Value Added Tax and shipping costs. The prices stated in the offer are non-binding and the prices on the EWM AG price list on the date of delivery are valid as amended. VAT, freight, insurance and other additional costs are billed separately. EWM AG is entitled to make price changes. Goods shall be delivered in suitable packaging. Commercial customers must take out adequate transportation insurance. EWM AG complies with the provisions of the Verband der Elektrotechnik, Elektronik, Informationstechnik e.V. (Association of Electrical Engineering, Electronics, Information Technology - VDE), which are an integral part of the contract where permissible.
V. Payments
Invoices issued by EWM AG are due and payable immediately. Unless otherwise agreed. In the event of default of payment, EWM AG is entitled to charge interest for default. This shall not affect any further claims for damages on the part of EWM AG due to default. Default of payment by the customer entitles EWM AG to refuse further delivery.
VI. Reservation of title
The goods supplied by EWM AG shall remain the property of EWM AG until payment has been made in full.
The customer is not entitled, without written consent, to sell goods supplied to him until payment has been made in full.
In the event of processing, the customer may not acquire ownership until payment has been made in full. If goods belonging to EWM AG become an essential part of another item as a main item, the ownership of the newly produced item shall remain with EWM AG in the amount of the co-ownership share. In the event of the processing with other goods supplied by EWM AG under reservation of title, EWM AG shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the total value. The customer's claim resulting from the possible redistribution of EWM AG goods is assigned to EWM AG and serves to secure the claim. These rights include all ancillary rights and securities. Upon the request of EWM AG, the customer shall be obliged to hand over cessions to the purchaser and to provide EWM AG with all of the necessary information and documentation for the assertion of its rights against the purchaser. A pledge or transfer of security relating to goods delivered under reservation is not permitted. The supplier must be immediately notified of any seizure, together with particulars of the creditor concerned. The custody of the goods delivered under reservation is effected free of charge. The customer must insure them against the usual dangers such as fire, theft and water damage. The customer shall send his claims for compensation, to which he is entitled due to damages to the delivered goods, against insurance companies, to EWM AG in the amount of his claim.
VII. Transfer of risk during sale and delivery
Unless otherwise specified, delivery from the factory is agreed.
EWM AG is entitled to make part deliveries to the extent they are appropriate for the purchaser. The risk of accidental loss is transferred to the commercial customer as soon as the goods leave our factory. Compliance with agreed deadlines requires the timely receipt of all documentation, necessary approvals, plans and other obligations which are to be provided by the customer. The deadline is considered to be met if the delivery is made during the period specified without set-up or assembly of the ordered consignment. In the event that the delivery is delayed for reasons which are attributable to the customer, the deadline period will apply to when notification of readiness for dispatch is given. If EWM AG is not culpably hindered from meeting the delivery deadline, the performance deadline shall be postponed to a reasonable date, in particular in the case of force majeure and other circumstances beyond the control of EWM AG. If the shipment is delayed at the request of the customer, EWM AG may request reasonable storage charges. Claims for compensation due to a delayed delivery are excluded if they are not legally prescribed. EWM AG may demand that the customer be obliged to declare within a reasonable time whether the order has been withdrawn or delivered.
VIII. Set-up and assembly
When setting up and assembling EWM AG goods, the customer must pay the costs of the necessary support staff. In addition, he must undertake all additional work such as construction, stemming, scaffolding, plastering and painting. The customer shall provide the necessary materials for assembly and commissioning, e.g. wedges, cement, documentation, plaster, lubricants and fuels, scaffolding and lifting equipment. He must ensure that all necessary connections for electricity and water are available and that protective clothing and protective devices are provided. Prior to the start of the assembly work, the customer must provide the necessary information on hidden electricity, gas and water pipes. EWM AG shall not be liable for tasks which are not related to the ordered work. If EWM AG has taken over the set-up or assembly against payment, the EWM AG remuneration rates shall apply.
IX. Warranty / defects / liability
In accordance with the legal provisions, EWM AG shall be liable in the case of defects with the following characteristics: The obligation to repair underlies all those parts and services that have been deficient within the statutory time limits from the date of transfer of risk as a result of circumstances arising prior to the transfer of risk, or of which the usability has been impaired. The commercial customer shall notify EWM AG of the detection of such defects immediately and in writing. EWM AG shall only be liable in case of intent and gross negligence and shall exclude further liability, if permissible. In the case of simple negligence, further damages - in particular in relation to lost profit and other damages - shall be excluded. This limitation and exclusion of liability shall not apply to claims which have been brought about by personal injury or material damage due to faulty goods.
The customer's rights shall be excluded if the purchaser has not, or has not completely, complied with the service and operating instructions, or if any other improper operation has been carried out. If the commercial customer detects a defect, and provides written notification of this within the warranty period, his claims for warranty shall expire one year after the issue of the notification.
X. Applicable law and jurisdiction
The following shall apply for dealers:
The contractual relationship is subject to the law of the Federal Republic of Germany, in particular to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), and private international law. The exclusive place of jurisdiction for all contractual and related claims is Koblenz.
XI. Severability Clause
If an individual provision of these T&Cs or the other contractual components should be or become ineffective, the remaining provisions shall remain effective. This shall not apply if adherence to the contract would place undue hardship on one of the contracting parties.
July 2014 version
Special provisions regarding software delivered at the same time or separately
Scope of application
This software clause applies exclusively to standard software which is transferred together with other deliveries or as part of a delivery. The General Terms and Conditions of Delivery and Payment only apply if the following provisions are not deviated from in any way.
The supplier does not assume any obligation to provide software services. These require a separate agreement.
Right of use
1. The customer may use the program concurrently on one machine (individual licence). Unless the customer has been granted a multiple licence. The same applies when using the software on networks even if the software is not copied. Use is understood to include any permanent or temporary, total or partial duplications of the program as a result of storing, loading, running or displaying for the purposes of executing the program and processing the data contained in the program. The customer is not authorised to duplicate the user handbook.
1.1 The customer may only change or revise the program to the extent that, when using it in accordance with the provisions, this is required for it to be connected to other programs or for correcting errors. Reverse engineering of the program code (decompilation) that goes beyond the statutory provisions is not allowed. The customer must not remove alphanumeric and other answer-back codes from the data carriers and must transfer them unchanged to any back-up copy.
1.2 The customer may only use the software with the hardware referred to in the contractual documents and in the absence of such a referral only with the accompanying hardware which is supplied with the software. Using the software with another machine requires the express written agreement of the supplier and, when using the software, gives rise to a reasonable additional payment; this does not apply if and so long as the customer temporarily uses a replacement appliance within the agreed scope on account of a defect in the agreed appliance.
The customer may produce a back-up copy of the software if this is required to safeguard future use. Moreover, the customer may only duplicate the software within the context of a multiple licence.
1.4 A prerequisite to a multiple licence is the express written confirmation of the supplier as regards the number of copies of the licensed software the customer is permitted to make and the number of machines or workstations on/at which the software may be used.
2. Transfer of risk
When transferring the software by means of electronic communications media (for example via the Internet), the risk is transferred when the software leaves the supplier's sphere of influence (for example, when downloaded).
3. Further distribution of the software package
3.1 The customer to whom the software is transferred not for the purpose of commercial resale is entitled to transfer the right to use the software to a third party only together with the machine he has acquired from the supplier together with the software. He must however also contractually impose on this third party the obligations vis-à-vis us which ensue from the transfer of the program package. The right to pass on does not extend to the passing on of copies and partial copies or amended or revised versions or copies and partial copies made of these.
The customer is not entitled to grant sub-licences.
If the customer transfers the software to a third party, then the customer is responsible for the compliance with any possible export requirements and in this respect he must release the supplier from any obligations.
When the program package is passed on, the right to use it passes over to the third party who then contractually replaces the customer whose right of use expires at the same time.
3.3 Multiple licenses may only be transferred to a third party if they are transferred in total together with all the machines on which the software may be used.
3.4 When passing on the program package, the customer must immediately and completely destroy all copies, partial copies and also all back-up copies as well as amended or revised versions of the program and copies, partial copies and back-up copies made of these.
3.5 Hiring out the program package or parts thereof is not allowed.
4. Warranty
4.1 The customer should note that it is not possible to develop computer programs in such a way that they are faultless when used under any circumstances.
4.2 We assure that the transferred program will carry out the agreed functions and will demonstrate the agreed qualities and attributes. A prerequisite to any warranty is use in accordance with the contract.
4.3 We also guarantee that the original program has been duly recorded on a tested data carrier. This shall not apply to pre-installed programs.
4.4 You must inform us immediately in writing of any program defects. The defect must be described in as much detail as possible. Only deviations from the specification which are proven and reproducible by the customer are deemed to be material defects in the software. The warranty always covers twelve months. The period starts on the date that the risk is transferred over.
4.5 If the software is showing a material defect, the supplier must first of all be given the opportunity to subsequently comply with the warranty agreement in respect of reparations within a reasonable period of time, at least however within four weeks. The supplier has the right to choose between the types of subsequent compliance. We do not reimburse the expenses for any rectification of defects carried out by the buyer or a third party.
Warranty for defects of quality cannot
be claimed in the case of just insignificant deviation from the agreed quality
or just insignificant impairment of usability;
in the case of damage caused by faulty or negligent handling or by special external influences not anticipated by the contract;
in the case of any alteration made by the customer or a third party, including the consequences thereof;
in respect of any software extension made by the customer or a third party beyond the interface provided for this purpose by the supplier;
based on the fact that the licensed software is incompatible with the data processing environment used by the customer.
4.6 This is the scope of our warranty. In particular we do not assure that the transferred program corresponds to the special requirements of the customer or user and we also do not provide a warranty for changed or revised versions of the program unless the customer proves that the defects are not in any way connected with the changes or revision. The customer is solely responsible for the selection, installation and use of the programs and for the intended results.
5. Customer's other duties to cooperate, and liability
The customer shall take all necessary and reasonable measures to prevent or limit damage by the software. In particular the customer must ensure that the programs and data are backed up regularly. If the customer culpably violates this obligation, the supplier is not liable for any ensuing consequences and in particular not for the replacement of lost or damaged data or programs. This provision shall not mean a reversal of the burden of proof.
6. Compensation for damages
6.1 Any further claims by the customer or a third party, in particular claims for damages of whatever kind, namely indirect or consequential damage, are ruled out, unless the injured party proves that the damage was caused by us intentionally or as a result of gross negligence. However, we cannot be held liable for indirect damage even in such a case.
6.2 Apart from this, our General Terms and Conditions of Business apply.
7. Further rights
7.1 We reserve all further rights. The rights of the customer to use his own programs which are developed or operated when using the transferred program in accordance with the provisions are not affected by this and his rights to use any other results of his work which he achieves through using the transferred program are also not affected by this.