GENERAL TERMS AND CONDITIONS of martin krail gmbh FOR THE PROVISION of DELIVERies and performance of SERVICES

1. GENERAL

1.1 The following terms and conditions shall apply to all services/repairs/inspections/accompanied production and training services including provision of training materials, such as literature, as well as to machine/plant/ spare part deliveries, provided by Martin Krail GmbH (‘supplier’) to the buyer. A buyer is any person engaged in professional or independent activities at the time of conclusion of contract (contractor), as well as any legal persons governed by public law or special assets as defined by public law.

1.2 Any different, contradictory or deviating terms and conditions of the buyer shall be deemed invalid. The supplier is in no case subject to such terms and conditions, even in cases where the latter does not expressly repudiate them upon receipt of order.

2. CONCLUSION OF CONTRACT 

2.1 The language of the contract is German or English.

2.2 A contract between supplier and buyer is deemed to be concluded and binding upon confirmation through Martin Krail GmbH, in writing or orally. 

3. PRICES, PAYMENT TERMS AND SPARE PART SHIPMENT 

3.1 All prices stated in the supplier’s quotation are subject to VAT at the current rate within Germany and the EU. For all countries outside the European Union customs charges, besides shipping costs, may be incurred. The buyer shall assume these costs.

3.2 The buyer shall be in default of payment, without a reminder, within 10 days of delivery. In the event of default, interest shall be charged at a rate of 7% above the respective base rate. We reserve the right to claim further damages in the event of payment arrears. 

3.3 Spare parts shall be dispatched via parcel shipment or, e.g. if repair or maintenance are to be carried out by Martin Krail GmbH, brought along by the serviceman himself, if possible. The risk of accidental loss or accidental impairment shall pass to the buyer upon transfer of the spare part for delivery to the carrier at the latest, however, upon leaving the plant, warehouse or branch, except, if brought along by the serviceman. The same consequences arise if the buyer is in default of acceptance.

3.4 The buyer shall only be entitled to offset claims and/or assert a right to retention, if his counter-claim is undisputed or legally established.

4. PERFORMANCE PERIOD AND DELAY IN PERFORMANCE 

4.1 The buyer shall be responsible for the correct specification and technical description of spare parts, as well as for their suitability for the intended service or repair. Any instructions or advice from the supplier regarding the suitability of spare parts or services/repairs selected by the buyer are non-binding, as the supplier receives the order without prior inspection of the machine where the spare part is meant to be installed or the service/repair carried out.

4.2 Delivery periods are defined in agreements between the contractual parties. Delivery periods shall only be adhered to by the supplier, if all commercial and technical issues have been clarified by the contractual parties and the buyer has complied with all the obligations incumbent upon him. If this is not the case, the delivery period shall be extended accordingly. 

4.3 If failure to meet the delivery date is due to force majeure, strikes or other events beyond the control of the supplier, the delivery period shall be extended accordingly. The supplier shall immediately notify the buyer of the beginning and end of such circumstances.

5. LIABILITY FOR MATERIAL DEFECTS 

5.1 The supplier’s liability for any material defects and defects of title with regard to spare parts/machines/plant and services/repairs shall be governed by statutory provisions, subject to the following regulations, whereby the supplier may be entitled, at his discretion, to supplementary performance by rectifying the defect or delivering spare parts/machines/plant free from defects/performing services/repairs free from defects.

5.2 The buyer shall provide the supplier with the time and opportunity required for the supplier to undertake all actions he deems necessary for supplementary performance. Otherwise, the supplier shall not be liable for any consequences resulting thereof. Supplementary performance does not include either removal of the defective spare part or its refitting, if the supplier was originally under no obligation to fit the part.

5.3 If the buyer’s request for rectification of defects proves unjustified, the supplier may claim compensation from the buyer for any costs incurred.

5.4 The supplier shall NOT be liable in the following cases: Improper or incorrect use, incorrect assembly or fitting or commissioning by the buyer or third parties, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating equipment, defective construction work, unsuitable support medium, chemical, electro-chemical or electrical influences, unless these are the fault of the supplier. In each case, the buyer shall assume any additional costs thus incurred for the correction of defects.

5.5 If the buyer or a third party carries out repairs incorrectly, the supplier shall not be liable for any consequences thereof. The same applies to any modifications made to spare parts delivered without the consent of the supplier. In each case, the customer shall assume any additional costs thus incurred for the correction of defects caused by modifications or improper repairs. 

6. RETENTION OF TITLE FOR deliveries

The supplier shall retain ownership to all deliveries until all payments resulting from the respective sales contract have been received. In the event of a breach of contract by the buyer, in particular for payment delay, the supplier shall be entitled to rescind the contract in accordance with legal requirements and request the return of the spare parts/machines/plant delivered on account of the retention of title and to withdraw from the contract. An application to open insolvency proceedings shall entitle the supplier to withdraw from the contract and request the immediate return of the spare part. However, the assertion of the retention of title or the seizure of the spare part by the supplier shall not constitute withdrawal from the contract. 

7. SUPPLEMENTARY PROVISIONS FOR SERVICES/REPAIRS 

7.1 The buyer shall assume any costs incurred by the supplier, if the repair/service cannot be carried out by himself for reasons beyond his control, in particular if
7.1.1 the alleged defect did not occur during inspection,
7.1.2 the buyer was culpable for missing the service/repair deadline agreed,
7.1.3 the order was cancelled by the buyer during performance of the work,
7.1.4 the spare parts required cannot be procured within a reasonable period of time

The item for repair/service shall be restored to its original condition at the buyer‘s express wish and against reimbursement of costs.

7.2. The buyer shall undertake to carry out a final inspection of services/repairs upon notification of their completion or in particular cases, upon completion of a test run that has been contractually agreed. If the final inspection is delayed due to no fault of the supplier, it shall be deemed as completed 1 week from notification of the completion of the repair/service, but no later than the commissioning of the machine. The supplier shall not be liable for visible defects following final inspection of the repair/service, unless the buyer has reserved the right to claim damages for a specific defect.

7.3 For repair requests, which require the item for repair to be transferred to the supplier’s factory site or a site belonging to a third party appointed by him, the delivery and collection of the item for repair shall be carried out at the buyer’s own cost and risk. If acceptance of the item for repair is delayed by the buyer, the supplier may charge storage fees for storing it at his own site or at the site of a third party appointed by him. The item for repair may also be stored at other premises, at the supplier’s own discretion. Any costs and risks incurred for storage shall be charged to the buyer.

8. SUPPLEMENTARY PROVISIONS FOR TRAINING 

8.1 The supplier provides training courses at the machine/plant at the buyer’s premises. The content and scope of the training services to be provided by the supplier are defined in the quotation.

8.2 The buyer assumes responsibility for ensuring that the registered training participants adhere to the trainers’ instructions at all times and to their full extent. Where training courses are provided at the machine/equipment, the buyer is in full responsibility to ensure that in particular the machine and its surrounding are safe. Buyer engages that general accident prevention regulations in their current version are observed and all safety provisions are observed.

8.3 The buyer shall provide all technical equipment required for the training course (e.g. projector, screen, etc.).

8.4 The supplier holds the copyright to all training documents. The training documentation may only be used by the buyer. Any copying, distribution, publication or other disclosure of the training documentation by the buyer to third parties requires prior written authorisation by the supplier.

9. LIABILITY OF SUPPLIER, DISCLAIMER 

9.1 Any claims for damages by the buyer are hereby excluded. Exceptions are claims for damages from the buyer for culpable injury to life, body or health or a material breach of contract (cardinal duties), as well as liability for other damages, which arise from a wilful or grossly negligent breach of duty by the supplier, his legal representatives or sub-contractors. Material contractual obligations are duties whose fulfilment is necessary for achieving the purpose of the contract.

9.2 Consequential damages or loss of profit are hereby excluded.

9.3 The restrictions in clause 10 shall also apply to the supplier’s legal representatives and sub-contractors, if claims are made directly against them. 

9.4 The provisions of the Product Liability Act remain unaffected.

10. LIMITATION PERIOD

Any claims from the buyer are subject to a limitation period of 12 months, irrespective of the legal cause. The limitation period for claims for material defects and defects of title commences from the delivery date. If a final inspection has been agreed, the limitation period commences from this date. For claims for damages in accordance with clause 9.1, statutory periods shall apply.

11. APPLICABLE LAW AND PLACE OF JURISDICTION 

11.1 All legal relations between the supplier and buyer shall be governed by the laws of the Federal Republic of Germany. The application of international uniform law and in particular, CISG is hereby excluded. 

11.2 The place of jurisdiction is the registered office of the supplier. However, the supplier is also entitled to pursue legal proceedings at the registered office of the buyer.