LaserMicronics GmbH : General Manufacture and Delivery Terms and Conditions
I. In GeneralThese terms and conditions shall automatically form an integral part of all offers and agreements issued by or entered into with LaserMicronics GmbH (LM), including but not limited to all continuing and future business relationships. There shall be no need for LM to make an express reference to these terms and conditions and shall prevail against any of the customer’s contradicting contractual documentation or general terms and conditions.
II. Formation of ContractThe offers made by LM shall remain subject to confirmation, non-binding and valid for a limited period of 4 weeks. A contract would only be formed at the point of time that LM confirms its acceptance of the relevant purchase order in writing (This formation of contract can be replaced by means of due performance of the services requested for).All amendments, supplements and collateral agreements shall be made in writing. “Writing” in this case shall mean a letter, which is duly signed, a fax which is duly signed or authorised e-mail.
III. Extent and Quality of Deliveries or Servicesa) Technical changes can only be made to the goods/services in the event that the quality agreed upon is not affected by such changes.
b) The subject-matter of the delivery shall be the processing of various parts by means of laser technology. Insofar as the customer does not furnish LM with the relevant parts (raw parts), LM shall be entitled to purchase these raw parts pursuant to the instructions issued by the customer in the name of the customer and on its own account. LM shall not be responsible for the quality of the raw parts. (LM hereby assigns all guarantee-based rights and claims, it may have against the seller of the raw parts to the customer and the customer duly accepts the assignment.) The following shall not be scope of delivery obligations: determination of process parameters, the manufacture of material support structures/brackets and the application/insertion of extraction/vacuum technology.
c) The customer shall be obliged to furnish LAM with all necessary materi-als/construction parts (including installation parts, at least 20 pieces as well as at least an excess of 5% for any rejections) at his own costs and risk. The customer shall be fully responsible for the quality of the material and parts he furnishes to LM. LM shall not be obliged to inspect or verify the quality of the same. All costs arising from the customer’s failure to supply suitable materials would be invoiced to the customer.
d) Unless the customer bears all costs for the same and unless LM is able to send the same to the customer without incurring any costs of its own, all tools and equipments, which LM may construct for the purposes of manufacturing the products ordered by the customer, shall remain LM’s property. LM shall not be obliged to verify whether the equipment and tools, which the customer supplies, corresponds with those described in the contractual specifications or furnished graphics or samples. The customer shall be obliged to bear all costs arising from any modifications, maintenance or replacement of the equipment or tools it may furnish to LM. LM shall also not be responsible for the accidental depreciation or destruction of the tools or equipment the customer may provide. LM shall be obliged to store the tools or equipment furnished by the customer for a period of 6 calendar months commencing on the day of the last purchase order. The customer is obliged to collect these tools and equipment at its own costs within this time frame, failing which LM shall be entitled to dispose of the same.
e) Insofar as the customer is not unreasonably disadvantaged by the same, LM shall be entitled to make partial deliveries and services.
f) All information relating to the Product, which is contained outside of the contractual specification shall be deemed to be only demonstrative and exemplary. Any differ-ences in weight or number of pieces shall be permissible insofar as these come within the tolerance level of the relevant business, corresponding norms and technical requirements. LM shall be entitled to invoice the customer based on the actual weight of the delivered goods or the actual number of delivered goods, whichever is applicable.
g) The customer’s provision of all necessary documentation, materials and approvals, as the case may be, shall be a condition precedent to LM’s obligation to perform its obligations of production and delivery.
h) LM shall be obliged to perform all deliveries and services according to the latest technology standards. In addition, the graphics and samples furnished by the cus-tomer or alternatively, the same produced by LM and approved by the customer shall form the applicable quality standards. LM hereby again informs the customer that the parts, which have been manufactured by means of the manufacturing process utilised by LM may display tolerances in dimensions. In the event that the customer requires dimensional accuracy, the same has to be expressly agreed upon. Upon the receipt of the first purchase order, LM shall firstly manufacture sample pieces (in particular, in the course of a “Laser-Day”). The customer shall not be entitled to utilise these sample pieces in a production series without LM’s express approval.
IV. Deliveriesa) The risk in accidental destruction or deterioration shall pass over to the customer at the point of time that LM informs the customer that the contractual products are ready for delivery. If the parties expressly decide upon a different point of time for the transfer of risk and in the event that the customer refuses or neglects to accept delivery of the contractual products, this risk shall at the latest pass at the time of this refusal or neglect.
b) The delivery dateline would be deemed to have been adhered to in the event that the contractual product leaves LM’s facilities before the expiry of the dateline or alternatively, in the event that LM informs the customer that the contractual product is ready for delivery.
c) In the event of an unforeseen event or an event, which is beyond LM’s control, such as but not limited to disruption in operations, strikes, lock-outs, shortage of energy and/or raw materials, attacks, governmental measures and such other instances of force majeure, the time for delivery shall be correspondingly extended for a reasonable time, regardless of whether LM is already in delay or not. This provision for extension of time shall also apply when such event affects LM’s suppliers. LM shall be obliged to inform the customer of the occurrence of such an event that as well as the anticipated duration of this event without delay.
d) In the event that the customer elects to extend the dateline for delivery or is in delay of accepting delivery, LM shall be entitled to charge the customer for storage of the contractual product. This right to charge the customer shall arise upon the expiry of one calendar month after LM informs the customer that the contractual product is ready for delivery. The storage charges shall amount to at least 0,5% of the contractual invoice per month. LM shall be entitled to set a reasonable dateline for the acceptance of the contractual product and in the event that the customer fails to meet this dateline, LM shall be entitled to rescind the contract, to arrange for alternative access/storage to the contractual product or to deliver alternative goods, which correspond to the relevant contractual requirements at the later point of time.
e) LM is entitled to perform early delivery of the contractual products.
V. Pricea) All prices indicated are nett prices in the Euro currency on an ex factory basis including loading but excluding packaging. LM shall not be obliged to take back pack-aging material. Instead, the customer shall be obliged to dispose of the same at its own costs. In the event that any construction parts or material require special or additional external packing, the same would be designed, produced and furnished to the customer at the customer’s costs.
b) In the event that a period exceeding four calendar months separates the date of the order and date of delivery, LM shall be entitled to adjust the price to correspond with any changes in price-related factors outside of LM’s control and influence including but not liming to tariff-bound salaries.
VI. Terms of Payment, Return of Goods, Retentiona) The customer shall be obliged to make full payment without any deductions on or before the expiry of 30 days from the date of receipt of the invoice, regardless of whether the delivery of the same was delayed for reasons outside of the customer’s control. A fax or e-mail shall be sufficient to prove of delivery of the invoice.
b) Payment would only be deemed to have been made when the whole invoice sum is unconditionally credited into LM’s bank account and made accessible to LM.
c) In the event that the customer fails or neglects to make payment of invoice on time, LM shall be entitled to impose interest on the outstanding sum at a rate of 8% above the prime lending rate of the European Central Bank. LM shall remain entitled to claim damages for any further loss or damages suffered.
d) In the event that LM accepts the return of the contractual products, it shall have full discretion to the utilisation of the same. LM shall however be entitled to invoice the customer for reasonable costs incurred in such utilisation.
e) In the event that the customer is in delay of payment for more than 4 weeks, LM is entitled to rescind the agreement entered into with the customer and to claim compensation for damages suffered, which shall at least be equal to the value of the purchase price of the contractual goods.
f) Unless the relevant claim is expressly admitted or confirmed in a court of law, the customer shall have no rights of retention or of set-off.
VII. Retention of Titlea) LM shall retain title in the contractual products until such time that all claims arising from its business relationship with the customer is fully satisfied. The customer shall not be entitled to pledge the contractual products or to utilise the same as security until such time that it receives title to the same. The customer shall be entitled to re-sell the contractual products in the ordinary course of business until such time that the customer is in delay of paying its debts to LM.
b) In the event that the contractual product is further processed or combined with other products or matter, LM shall obtain title in the newly formed object to such extent that corresponds with the value of the contractual product in relation to the newly formed product.
c) The customer shall be entitled to ensure that LM’s ownership is preserved upon resale. The customer hereby assigns all claims, which it may have from its resale activities, to LM and LM duly accepts such assignment. Until such time that LM elects to retract such rights, the customer shall be authorised and entitled to make demands for payment on behalf of LM. LM agrees not to retract such authorisation until such time that the customer fails to make timely payment of invoices. In the event of delay in payment, LM shall be entitled to demand that the customer duly informs its customers, whose debts have been assigned to LM, that these debts have been assigned to LM. In addition, the customer shall be obliged to furnish all information and documentation, which would be necessary to enable LM to enforce the claims.
d) In the event that the value of all security rights exceeds the actual value of the outstanding claims by 25%, LM shall release corresponding rights of security of its choice upon request of the same.
e) The customer shall be obliged to take proper care of all contractual products, for which LM retains title and property. In this regard, the customer shall be obliged to insure the same against fire, flood, theft to the extent of the replacement value and hereby assigns all rights, which it may have against the insurer to the LM. LM hereby accepts such assignment.
f) In the event of pledges, confiscation or such other rights of third parties, the customer shall be obliged to inform LM of the same without delay. Insofar as the third party is not in the position to reimburse LM with the court and out-of-court costs of litigation proceeding pursuant to § 771 of the German Civil Procedural Rules, the customer shall be obliged to make payment of the shortfall.
g) In the event that the applicable laws contradict with the property and title regula-tions contained herein, the customer shall be obliged to take all measures in accor-dance with the relevant applicable laws to ensure that LM obtains the maximum extent of rights of title and property or alternatively maximum alternative substitute rights such as claims.
VIII. Guarantee, Claim for Defects, Limitation Perioda) The customer shall be obliged to check the contractual products without delay and to notify LM of any defect in writing, at the latest on or before the expiry of 8 days after establishment of such defect. In the event that the customer fails or neglects to make such notification, the contractual product shall be deemed to be complete and to correspond with all quality requirements.
b) The customer shall not be entitled to lodge any notice of defect in the event of an agreed acceptance or when an initial sample had been checked where the relevant defect could have been identified.
c) In the event that the contractual product does not corresponding with contractual quality requirements (“Defect”), the customer shall be obliged to grant LM two chances to fulfil its contractual obligations by means of either replacement or repair. The customer shall not be obliged to grant these 2 chances to LM when it would be unreasonable to require the same.
d) In the event that LM still remains unable to fulfil its contractual obligations or in the event that it is unreasonable to require the customer to grant these chances to LM, the customer shall be entitled to reduce the purchase price. The extent of the reduction of the purchase price shall be determined by an expert recommended by the chamber of commerce of the city/state in which the customer is domiciled. Either party shall be entitled to call upon the assistance of such expert. The customer shall only be entitled to rescind the contract in the event that the defect is significant to the extent that it materially affects the utility of the contractual product and in the event that the costs of the repair of the defective contractual product would exceed at least 20% of the purchase price.
e) All damages caused in the cause of transportation shall be nofied to the relevant transportation company on an immediate basis.
f) Upon agreement with LM, The customer shall be send the contractual products to LM for repair or replacement on a carriage forward basis (as fas as this is possible) and grant LM the necessary time and opportunity for such repair and replacement. In the event that the customer fails to grant LM such time and opportunity, LM shall be released from its guarantee obligations. All exchanged or defective parts, which are exchanged, shall become LM’s property.
g) In the event that LM is unable to establish any defect, the customer shall be obliged to reimbuse LM for all costs arising from the wrongful notice of defect.
h) The customer shall not be entitled to assign the guarantee rights, which it may have against LM. The limitation period for such rights shall be 12 months after delivery.
IX. Claims for Damagesa) All claims for damages on the basis of delay shall be limited to 0,5% of the contractual value of the affected contractual product. The total claim for damages shall however not exceed 10% of the value of relevant (delayed) the contractual product or service rendered on the part of LM.
b) Unless and except when bodily injury is caused, the right to make any claim on the basis of mere negligence with regards to breach of contractual secondary duties is hereby excluded. In the event of bodily injury, LM’s obligations shall be limited to 2,5 millin Euros.
c) In the event of a third party claim made against LM, the customer shall be obliged to compensate LM for all damages suffered, to defend LM in all such claims made and to indemnify LM against all damages and losses suffered.
d) Insofar as the obligations of compensation owed by LM is excluded or restricted, such exclusion or restriction shall also apply to personal compensation obligations owned to employees, agents and fiduciaries.
e) In the event of the application of a law other than the laws of the Federal Republic of Germany, the limitations and exclusions of liability shall apply to such extent that the same is legally possible.
X. Confidentiality, Non-Disclosure and Inddustrial Property Rightsa) LM shall exclusively retain full title and all copyrights relating to cost estimates, technical or contractual documentation or any other technical information or graphics. All documentation shall be returned without any delay to LM upon request for the same in the event that that a purchase order is not issued.
b) The customer shall be obliged to refrain from practicing any form of reverse engineering on LM’s products or product parts. The direct or indirect participation in the business or distribution of such copied or reverse-engineered products is similarly forbidden.
c) The customer shall be responsible to ensure that the goods and/or parts, which it furnishes to LM for processing do not breach any intellectual property rights. The customer shall indemnify LM against any third party claims, which may be made in this regard and compensate LM for any losses and damages, which it may suffer as a result of the same. In the event that the customer requires that the contractual products manufactured by LM be fitted with specific test or product marks, the customer shall bear the risk and responsibility to ensure that the utilisation of such marks does not breach any prevailing rights or law.
XI. Jurisdiction, Place of Performance, Applicable Lawa) The courts in Garbsen shall have the jurisdiction to hear all disputes arising out of these terms and conditions. The parties shall be obliged to perform all of the key obligations contained in these terms and conditions in Garbsen. LM shall be entitled to commence litigations proceedings against the customer in its general statutory court of jurisdiction.
b) In the event that the customer is domiciled outside of the Federal Republic of Germany, the legal relationship between LM and the customer shall be governed by the UN Convention on Contracts for the International Sale of Goods and the laws of the Federal Republic of Germany. The applicability of this clause shall be determined by the laws of the customer’s domicile.
XII. Miscellaneousa) The customer hereby acknowledges and takes notice that LM saves data relating to the customer. In this regard, a special notice pursuant to the requirements of the German Federal Data Protection Act would be deemed to have been issued.
b) Insofar as the same are applicable, these terms and conditions shall also govern all business relationships entered into with any of LM’s related companies (such as associated companies or subsidiaries).
LaserMicronics GmbH * Company Domicile: Garbsen * District Court Hannover: HRB 111150 * VAT Identification Number.: DE 811383004
Status as of July 1, 2015
Tel.:+49 (0)5131 90811-0
Fax:+49 (0)5131 90811-29