General Terms and Conditions of Business of Östling Marking Systems GmbH
§1 General terms and conditions
The following terms and conditions of these GTC apply to all transactions of Östling Marking Systems GmbH. They also apply to future business relations, even if the GTC are not expressly agreed again. Deviating terms and conditions of the purchaser shall not be valid unless Östling Marking Systems GmbH has expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if Östling Marking Systems GmbH carries out deliveries to the purchaser without reservation in the knowledge of conflicting or deviating terms and conditions of the purchaser. The aforementioned sentences 1 and 2 of this paragraph of the General Terms and Conditions shall also apply to the acceptance of partial deliveries.
No further agreements have been made between us and the customer and no promises have been made. 3. Östling Marking Systems GmbH may have its affiliated companies enter into the contract with the buyer in its place. In this case these General Terms and Conditions shall continue to apply in their entirety.
§2 Offers, conclusion of contract, copyright
Our information and offers are subject to change without notice, i.e. they are not contract applications, but merely requests for the submission of contract applications on the part of the customer. They are non-binding unless expressly assured. With regard to the constant technical development and improvement of our products, we reserve the right to make changes in design and execution against the information given in our offers, provided that this does not impair the value of the products offered. This also applies to changes which serve to maintain the ability to deliver the products offered by us. In this respect, we are also entitled to make changes to the service to the extent that they are reasonable for the purchaser to be able to carry out the order in the best possible way.
Contracts are concluded by our order confirmation.
We reserve the right of ownership and copyright to all documents belonging to the offer and order; they may not be made accessible to third parties without our prior written consent and must be returned immediately upon request if the order is not placed. Development work and designs for the production of marking systems and equipment and other products shall remain our intellectual property and may not be made accessible to third parties or used for the purchaser’s own purposes. The customer is obliged to maintain comprehensive secrecy, even if no order is placed.
§3 Prices, terms of payment
Unless otherwise agreed, we shall be bound by the prices contained in our offers for 90 days from the date of the offer. The prices stated in the order confirmation plus the currently valid statutory value-added tax are decisive. Our prices apply ex company headquarters in Solingen excluding packaging and insurance. Packaging costs shall be charged at cost price. Installation, training or other ancillary services are not included.
Unless otherwise stated in the order confirmation, our invoices are payable 14 days after the invoice date without deduction. The deduction of a discount requires a special written agreement.
Cheques shall in any case only be accepted on account of performance. All actual collection charges will be charged to the customer.
Our prices assume a minimum order value of € 50.00. Orders from 01.07.2019 below this value therefore require a minimum quantity surcharge of 15,00€.
§4 Default in payment, assignment of claims, creditworthiness
If a fixed payment date or the 30-day payment period is exceeded, we shall be entitled to charge interest on arrears at a rate of 5% above the respective discount rate of the Deutsche Bundesbank, but at least 8% p.a. We expressly reserve the right to assert further claims for damages. We are entitled to assign the claims arising from our business relationship.
The assignment of claims against the company Östling Marking Systems GmbH to third parties is excluded, unless Östling Marking Systems GmbH has expressly agreed.
In case of justified doubts about the creditworthiness of the buyer, e.g. non-redemption of cheques and bills of exchange, cessation of payments, application for the opening of composition or bankruptcy proceedings, fruitless seizure, we are entitled to make the entire remaining debt due, even if we have accepted cheques. In this case, we shall also be entitled to demand advance payment or the provision of security.
The customer is only entitled to a right of retention if it is based on the same contractual relationship. The customer may only offset counterclaims which are either undisputed or have been legally established.
§5 Retention of title
The products remain the property of Östling Marking System GmbH until full payment of all claims, bills of exchange and cheques have been received.
The customer must preserve our property until full payment has been received. The pledging or transfer of ownership by way of security is forbidden to the customer in this respect. Resale is only permitted within the framework of a proper course of business. In the event of resale of reserved goods, the customer hereby assigns his purchase price claims against the purchaser in full to Östling Marking Systems GmbH.
Extended retention of title arises in commercial transactions for goods which are resold or handed over to third parties by the customer. The customer has to inform the third party about his obligation to pay and about the existing reservation of title of Östling Marking Systems GmbH. The customer hereby assigns to Östling Marking Systems GmbH all claims and ancillary rights to which he is entitled against his customers arising from the resale of the goods subject to retention of title, including any processing, combining and mixing rights, to the value of the products delivered by Östling Marking Systems GmbH.
For the duration of the retention of title, the equipment owned by Östling Marking Systems GmbH shall be insured by the customer against fire, water, theft and burglary. The rights from this insurance are assigned to the company Östling Marking Systems GmbH. Östling Marking Systems GmbH accepts the assignment.
§6 Transfer of risk, dispatch, freight
The risk shall pass to the customer as soon as the consignment has been handed over to the company carrying out the transport or has left our warehouse for the purpose of dispatch, even if freight-free delivery has been agreed. This shall also apply in the case of delivery with installation/assembly/commissioning. The risk shall also pass to the customer if he does not accept the ordered and already separated goods from us despite our willingness and ability to perform. If the shipment is delayed at the request of the customer despite existing readiness to perform and due date, the risk of the purchased goods shall pass to the customer. In addition, we are entitled to charge a monthly flat rate of 10% of the invoice amount as storage costs as damage caused by delay.
Shipment shall be at the expense of the customer. If no shipping instructions are given by the customer, the choice of the means of transport and route is left to us.
Östling Marking Systems GmbH is entitled, but not obliged, to insure deliveries against transport risks in the name and at the expense of the customer.
§7 Delivery time, delivery periods
Agreed delivery periods only begin after complete clarification of all execution details and order confirmation by Östling Marking Systems GmbH. Delivery periods are always understood to be exclusively transport times.
We are entitled to partial deliveries and premature deliveries.
Delays in delivery and performance due to force majeure and due to circumstances and events which significantly impede or prevent delivery shall release us from our obligation to deliver and shall not be our responsibility even in the case of bindingly agreed deadlines and dates. The same applies if Östling Marking Systems GmbH is not responsible for non-delivery by a pre-supplier. In these cases, we are entitled, at our discretion, to postpone our deliveries and services with a corresponding delay plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the unfulfilled part of the contract.
Force majeure is an extraordinary, unforeseeable and unavoidable event (e.g. natural catastrophes, war, revolution, fire), the consequences of which cannot be averted by economically reasonable precautions. This also includes strikes, lockouts and government interventions, insofar as these are unforeseeable or are not caused by actions or omissions attributable to the Supplier.
If our delay in delivery exceeds three months, the customer shall be entitled, after setting a reasonable period of grace and threatening to refuse performance, to withdraw from the unfulfilled part of the contract. The customer may not derive any further claims for damages from a delay in delivery if we have informed him immediately.
Proper and timely fulfilment of the customer’s obligations is a prerequisite for compliance with our delivery and service obligations. If the customer is in default of acceptance, he undertakes to reimburse the expenses incurred by us.
In the event of a breach of ancillary obligations, no liability shall be assumed in the event of slight negligence.
§8 Installation and assembly
The following provisions shall apply to any type of installation or assembly: The customer shall assume responsibility at his own expense and provide it in good time: Suitable skilled workers as assistants, as well as the tools required by them in the required quality and number.
All necessary preparatory and ancillary work (additional work) so that assembly can be started quickly and carried out without interruption.
All necessary equipment (electricity, compressed air, etc.) including the necessary connections up to the point of use.
If the installation, assembly or commissioning is delayed due to circumstances within the Purchaser’s sphere of risk, the Purchaser shall bear all costs for waiting time and further travel expenses of our assembly personnel.
We guarantee warranted properties and freedom from defects in accordance with the current state of the art. The warranty period begins with the transfer of risk and is 12 months for mechanical and electronic parts. Possible repair work does not set a new warranty period in motion. We reserve the right to make changes in the design or execution which do not impair the functionality or the value of the product ordered and which do not entitle the customer to make a complaint. The assurance of properties requires our written declaration or confirmation in any case.
If the delivered item lacks a warranted characteristic or if there is a defect in the product for which we are responsible which more than insignificantly impairs the value or usability, we shall be entitled, at our discretion, to rectify the defect or deliver a replacement. If, at the Buyer’s request, warranty work is to be carried out at the Buyer’s place of performance and delivery address and we comply with this request, the Buyer shall bear the costs for travel time and travel expenses at our standard rates, while the parts and working hours covered by the warranty shall not be invoiced. Replaced parts shall be returned to us free of charge upon request.
Warranty obligations for Östling Marking Systems GmbH shall only come into force if the customer has given notice of recognizable defects within a period of 14 days after receipt of the products in writing. Defects occurring later must be notified in writing immediately after discovery. This shall not affect the duties of examination and complaint of § 377 HGB concerning merchants.
If our operating or maintenance instructions are not followed, changes are made to the product, parts are replaced or consumables are used which do not correspond to the original specifications, any warranty shall lapse. A warranty obligation for self-contained device systems exists only if these systems were delivered by us at the same time and completely (all parts). Commissioning of the machine part or parts is prohibited until all requirements of the EC Machinery Directive (EC 89/392) regarding safety and health have been fulfilled after installation in a main machine or after the necessary safety devices have been installed. Warranty claims of the purchaser do not exist if he himself or a third party makes changes to his operating procedures which go beyond the necessary adaptation of the delivery items without our written consent and the defect is based on these changes.
A warranty for optical elements and normal wear and tear is generally excluded.
Warranty claims against us are only due to the direct purchaser and are not transferable.
If we do not fulfil our warranty obligation within reasonably set periods for reasons for which we are responsible, the customer shall be entitled to withdraw from the contract or demand a reduction in the purchase price.
Further claims, in particular liability claims for consequential damages of any kind or claims for damages on any legal grounds whatsoever, do not exist and cannot be asserted by the customer.
§10 Warranty for software
We guarantee that the software essentially works in accordance with our program specifications, provided that the software is installed on the device systems provided by us in accordance with our guidelines. The warranty only applies to software defects that can be reproduced at any time. The warranty for software is limited to 6 months.
We undertake to remedy all defects which are not insignificant for the contractual use, but reserve the right, depending on the significance of the defect, to remedy the defect at our discretion either by installing an improved software version or by providing instructions on remedying or circumventing the defect.
If we make software and adaptation components (e.g. interfaces, etc.) available to the customer as third-party products, we shall not assume any warranty or liability for them. In this case, the limited license and warranty provisions of the respective manufacturer shall apply as supplementary agreements. The customer must be made aware of this use and warranty provision and must be given the opportunity to acquire knowledge of these provisions in a reasonable manner.
We do not guarantee that the software will work faultlessly in all combinations selected by the customer but not specified by us.
According to the current state of the art, it is possible that original diskettes of software manufacturers are also affected by so-called computer viruses. The company Östling Marking Systems GmbH assures that all necessary care will be taken to ensure that customer devices are not infected with such computer viruses by the company Östling Marking Systems GmbH. However, it is not possible to detect and fight all mutations of these viruses according to the current state of knowledge. However, if a computer virus has demonstrably been transmitted by Östling Marking Systems GmbH to a customer device, Östling Marking Systems GmbH shall only be liable to the extent that it has deliberately or grossly negligently spread the virus. The customer exempts the company Östling Marking Systems GmbH from checking the original packaged software for viruses and releases it from any liability for damages caused by virus infection of this software. The above exclusion of liability does not apply if the damage was caused intentionally or by gross negligence.
§11 Rights to software
The customer shall receive a non-exclusive and non-transferable right of use for the internal operation of each individual delivery for programs and associated documentation which belong to the appropriate use of our systems as well as updates/upgrades. The customer is not entitled to any further rights to programs and documentation.
Östling Marking Systems GmbH remains the sole owner of the copyrights. The customer does not acquire ownership of the programs and is not entitled to reverse engineer, decompile or disassemble the software.
The customer is not permitted to make programs, documentations and, if applicable, subsequently delivered supplements accessible to third parties, to copy or otherwise reproduce them without our prior written consent.
As a rule, source code is not made available; it is only made available on the basis of a separate written agreement.
Further claims, in particular claims for damages from warranty including warranty claims in case of lack of warranted characteristics, culpa in contrahendo, tort etc. are excluded, unless they are based on at least gross negligence of the legal representatives or executive employees of Östling Marking Systems GmbH. If the customer is not a merchant within the meaning of the German Commercial Code, claims for damages are excluded unless they are based on intent or gross negligence on the part of Östling Marking Systems GmbH or its vicarious agents. As far as Östling Marking Systems GmbH has to pay damages, the obligation, as far as legally permissible, is limited to the compensation of the direct damage, which has arisen at the delivery and service object itself. In this respect the company Östling Marking Systems GmbH is not liable for lost profit or other financial losses of the purchaser.
§13 Industrial property right
If goods are to be manufactured or supplied according to specifications, drafts, drawings, models or samples provided by the customer, the customer shall guarantee that industrial property rights or copyrights are not infringed by the manufacture or supply. If the manufacture or delivery by third parties is prohibited with reference to an industrial property right or copyright, we shall cease manufacture or delivery. We are not obliged to review the legal situation. At the same time, we exclude claims for damages by the customer insofar as he is responsible for the infringement of the industrial property right or copyright.
§14 Compensation in case of cancellation of contract
If a contract is cancelled for reasons for which the customer is responsible, he must pay Östling Marking Systems GmbH a compensation of 25% of the net order value, irrespective of the possible assertion of a higher actual damage.
§15 Data protection and data storage
Östling Marking Systems GmbH is entitled to process data of customers, no matter whether they originate from the customer himself or from third parties, within the meaning of the Federal Data Protection Act. Customer data will be stored within the scope of the statutory provisions.
§16 Place of Jurisdiction, Place of Performance, Applicable Law
If the customer is a registered trader or legal entity under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of our company.
Place of performance for delivery and payment is our registered office in Solingen.
German law shall apply exclusively to all transactions between the contracting parties (excluding international sales law). The applicability of foreign law to the contractual relationship is excluded.
§ Severability clause
Should provisions of these General Terms and Conditions be or become invalid in whole or in part, they shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The remaining contractual provisions shall remain unaffected.