Our deliveries and services are based on these conditions and any separate contractual agreements. Deviating purchasing conditions of the customer do not become part of the contract, even if the order is accepted.
2. In the absence of a special agreement, a contract is formed when we confirm the order in writing.
3. We reserve the property rights and copyrights to samples, cost estimates, drawings and other information of a physical and non-physical nature – also in electronic form; they may not be made accessible to third parties. We undertake to only make information and documents designated as confidential accessible to third parties with the customer’s consent.
II. Price and Payment
In the absence of a special agreement, the prices apply ex works including loading in the works, but excluding packaging and unloading. Sales tax is added to the prices at the respective statutory rate.
2. In the absence of a special agreement, payment is to be made to our account without any deductions, namely:
– 1/3 deposit after receipt of order confirmation,
– 1/3 as soon as the customer is informed that the internal assembly begins,
– the remaining amount with readiness for dispatch.
3. The customer is only entitled to withhold payments or offset against counterclaims insofar as his counterclaims are undisputed or have been legally established.
III. Delivery time, delivery delay
1. The delivery time results from the agreements between the contracting parties. Compliance with them by us presupposes that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all his obligations, such as providing the necessary official certificates or permits or making a down payment. If this is not the case, the delivery time will be extended appropriately. This does not apply if we are responsible for the delay.
2. Adherence to the delivery period is subject to the right and timely provision of materials by the customer. We will inform you of any delays that become apparent as soon as possible.
3. The delivery period is met if the delivery item has left our works by the end of the period or readiness for dispatch has been reported. Insofar as an acceptance has to take place, the acceptance date is decisive – except in the case of justified refusal of acceptance – alternatively the notification of readiness for acceptance.
4. If the shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, he will be informed of the shipping or the readiness for acceptance, the costs incurred as a result of the delay will be charged.
5. If non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond our control, the delivery time will be extended appropriately. We will inform the customer of the beginning and end of such circumstances as soon as possible.
IV. Passing of Risk, Acceptance
The risk passes to the customer when the delivery item has left the factory, even if partial deliveries are made or we have taken on other services, e.g. the shipping costs or delivery and installation. Insofar as an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance if there is an insignificant defect.
2. If the shipment or acceptance is delayed or does not take place due to circumstances for which we are not responsible, the risk passes to the customer from the day of notification of the readiness for shipment or acceptance. We declare our willingness to take out the insurance policies requested by the customer at the customer’s expense.
3. Partial deliveries are permitted as long as they are reasonable for the customer.
V. Retention of title
1. We reserve ownership of the delivery item until receipt of all payments from the delivery contract.
2. We are entitled to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the customer, unless the customer has demonstrably taken out the insurance himself.
3. The customer may neither sell nor pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, he must notify us immediately.
4. In the event of a culpable violation of essential contractual obligations, in particular in the event of a delay in payment, we are entitled to take back the goods after a reminder. The purchaser is bound to the publishing. Taking back or asserting the retention of title or pledging the delivery item by us does not constitute a withdrawal from the contract unless we have expressly declared this.
5. The supplier ERMAFA is entitled, after prior warning, to utilize the returned goods subject to retention of title and to satisfy himself with the outstanding claims from the proceeds.
6. The application for the opening of insolvency proceedings at the customer entitles us to withdraw from the contract and to demand the immediate return of the delivery item.
VI. claims for defects
For material defects and defects of title in the delivery, we provide the following warranty to the exclusion of further claims – subject to Section VII:
1. All those parts that turn out to be defective as a result of a circumstance that occurred before the transfer of risk are to be repaired free of charge or replaced free of defects at our discretion. The detection of such defects must be reported to us immediately in writing. Replaced parts become our property.
2. After agreement with us, the customer must give us the necessary time and opportunity to carry out all repairs and replacement deliveries that we deem necessary; otherwise we are released from liability for the resulting consequences. Only in urgent cases of endangering operational safety or to prevent disproportionately large damage, in which case we must be informed immediately, does the customer have the right to have the defect remedied himself or through a third party and to demand compensation from us for the necessary expenses.
3. Of the direct costs arising from the rectification or replacement delivery, we shall bear the costs of the replacement part, including shipping, if the complaint turns out to be justified. We shall also bear the costs of removal and installation as well as the costs of providing the necessary fitters and assistants, including travel expenses, provided this does not result in a disproportionate burden.
4. Within the framework of the statutory provisions, the customer has the right to withdraw from the contract if we – taking into account the statutory exceptions – allow a reasonable deadline set for the repair or replacement delivery due to a material defect to elapse without result. If there is only an insignificant defect, the customer only has the right to reduce the contract price. The right to reduce the contract price is otherwise excluded.
Further claims are determined according to Section VII. 2 of these conditions.
5. In particular, no guarantee is given in the following cases:
Unsuitable or improper use, use of material compositions not contractually agreed, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment, improper maintenance, unsuitable operating resources, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – unless we are responsible for them.
6. If the customer or a third party makes improper improvements, we shall not be liable for the consequences arising therefrom. The same applies to changes made to the delivery item without our prior consent.
defects of title
7. If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, we will, at our expense, provide the customer with the right to continue using it or modify the delivery item in a way that is reasonable for the customer in such a way that the infringement of property rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer is entitled to withdraw from the contract. Under the above conditions, we also have the right to withdraw from the contract.
In addition, we will indemnify the customer against undisputed or legally established claims of the relevant property right holder.
8. Subject to Section VII.2, the obligations specified in Section VI.7 are final in the event of an infringement of industrial property rights or copyrights.
They only exist if:
• the customer informs us immediately of asserted infringements of industrial property rights or copyrights,
• the customer supports the supplier to a reasonable extent in defending against the asserted claims or allows us to carry out the modification measures in accordance with Section VI. 7 enables
• we reserve the right to take all defensive measures, including out-of-court settlements,
• the legal defect is not based on an instruction from the customer and
• the violation of rights was not caused by the fact that the customer arbitrarily modified the delivery item or used it in a manner that was not in accordance with the contract.
1. If the delivery item cannot be used by the customer in accordance with the contract through our fault as a result of omitted or incorrect execution of suggestions and advice given before or after the conclusion of the contract or through the violation of other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivery item – the following apply under Exclusion of further claims of the customer according to the provisions of Sections VI and VII.2.
2. We are only liable for damage that has not occurred to the delivery item itself, for whatever legal reason
b. gross negligence of the owner / the organs or executives,
c. culpable injury to life, body, health,
i.e. defects that have been fraudulently concealed or the absence of which has been guaranteed,
e. Defects in the delivery item, insofar as there is liability under the Product Liability Act for personal or property damage to privately used items.
In the event of a culpable breach of essential contractual obligations, we are also liable for gross negligence on the part of non-managerial employees and for slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage.
Further claims are excluded.
Our employees as well as freelance employees, fitters or deployed assembly personnel may not be directly or indirectly hired, employed or commissioned within 24 months after completion of the customer’s last order. They may not be given an offer either orally or in writing or in any other way for such an activity.
In the event of violations, damages of €100,000.00 (in words: one hundred thousand euros) are due.
statute of limitations
All claims of the customer – for whatever legal reason – become time-barred in 12 months. The statutory time limits apply to claims for damages in accordance with Section VII.2 a – e. They also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused the building to be defective.
Insofar as software is included in the scope of delivery, the customer is granted a non-exclusive right to use the software supplied, including its documentation. It is made available for use for the specific delivery item. Use of the software on more than one system is prohibited.
The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer information – in particular copyright notices – or to change them without our prior express consent.
All other rights to the software and the documentation including the copies remain with us or with the software supplier. Sublicensing is not permitted.
Governing Law, Jurisdiction
1. For all legal relationships between ERMAFA Sondermaschinen- und Anlagenbau GmbH and the customer, the law of the Federal Republic of Germany, which is decisive for the legal relationships between domestic parties, applies exclusively.
2. Place of jurisdiction is Chemnitz. However, we are entitled to bring an action at the customer’s headquarters.