General terms and conditions
de Man Automation + Service GmbH & Co. KG
Industriestr. 18
33829 Borgholzhausen
1. Scope
1.1 All current or future deliveries, services and offers from de Man (supplier) take place exclusively on the basis of these general terms and conditions.
1.2 Deviating terms and conditions of the contractual partners only apply if they are acknowledged in writing with express reference by the supplier.
1.3 When placing an order with the supplier, these conditions are considered accepted. Counter-confirmations of the customer and the reference to his own, different business or purchasing conditions are hereby rejected.
1.4 Verbal side agreements, assurances of properties, subsequent changes to the contract or the waiver of the written form require written confirmation in order to be valid.
2. Offer, conclusion of contract, content of contract
2.1 All offers made by the supplier are generally non-binding and valid for 3 months.
2.2 Contracts with the supplier only come into being through his order confirmation.
2.3 The supplier reserves the right to invoice extensive, particularly complex offers with advance payments depending on the effort involved. In these cases, however, a target price can be agreed for the preparation of the offer before the work on the offer begins.
2.4 With the offer, a specification is drawn up, which the customer checks and which he consents to when placing the order. The supplier then creates a detailed specification for his scope of delivery and services.
2.5 The customer is obliged to inform the supplier already in the offer phase of special risks, which exist in connection with the assemblies, controls or components to be delivered and which could lead to extraordinary damage. If no such notice is given, the supplier is entitled to withdraw from an already concluded contract or to submit a new offer at changed conditions at any time during the order processing against offsetting the services already provided.
2.6 Under no circumstances will the supplier be liable for errors that arise from documents submitted by the customer or other inaccurate information.
2.7 Likewise, the supplier is not liable if the purchaser fails to refer to special risks (as mentioned above).
2.8 Services not expressly stated in the offers, which are necessary to carry out an order to a reasonable extent or which are carried out at the request of the customer, are to be remunerated at the usual conditions.
2.9 Cancellations for an order that has already been placed are generally only permitted if this order has not yet entered the execution phase. If partial deliveries or services have already been performed for this order, these are to be paid to the supplier at cost.
3. Prices, payment, late payment
3.1 Unless expressly agreed otherwise, all prices are in EUR, plus statutory value added tax, ex works, excluding the costs for packaging, transport and insurance, assembly and commissioning, unless contractually stipulated otherwise.
3.2 If a foreign currency is agreed, exchange rate fluctuations shall be borne by the customer. The decisive factor is the EUR equivalent at the time of the offer.
3.3 Orders for which fixed prices have not been expressly agreed are charged at the list prices (daily prices) valid on the day of delivery.
3.4 All invoices are payable immediately, strictly net. Advance payments or "step-by-step" payments can be agreed separately in the offer or order confirmation. In these cases, hedges (by providing bank guarantees) can also be agreed by the supplier.
The following terms of payment apply up to an order value of € 49,999.00:
- 90% after notification of readiness for dispatch, 10% after commissioning
From an order volume of € 50,000.00 the following payment terms apply:
- 40% after placing the order / sending our order confirmation
- 50% after acceptance in our factory / upon delivery or notification of readiness for dispatch
- 10% after acceptance, at the latest 20 days after the start of use
3.5 Invoices for spare parts, services and commissioning are due immediately, strictly net.
3.6 The supplier's claims are only considered fulfilled if the consideration is available to the supplier without restriction. The customer's right of retention is excluded. Offsetting is excluded unless the counterclaim has not been undisputed or has not been legally established.
3.7 Objections to the supplier's invoices must be made in writing within a period of one month after receipt of the relevant document. If there is no timely objection, this is considered approval. Statutory claims of the customer remain unaffected.
3.8 In the event of a delay in payment, the supplier is entitled to charge default interests in the amount of 1% above the current account interest rate of his house bank.
4. Delivery, receipt, commissioning, acceptance
4.1 All deliveries are generally made ex works. Partial deliveries are generally permitted, unless otherwise agreed.
4.2 Delivery dates or delivery periods are only approximate. However, the delivery is in any case under reserve to the timely provision of the documents, parts, permits etc. to be provided by the purchaser, as well as the receipt of agreed advance payments. If a delivery date is not met, the customer is entitled to set a reasonable grace period and to withdraw from the contract after its expiry. Further claims are expressly excluded. In any case, the supplier is entitled to early delivery.
4.3 Agreed delivery times are extended - even within a delay in delivery - appropriately in the event of unforeseeable obstacles that cannot be avoided despite the reasonable due diligence required by the circumstances of the case, regardless of whether these occur at the supplier or its sub-suppliers (e.g. operational disruptions, official intervention, energy supply difficulties, delays in delivery by sub-suppliers, strikes and lockouts, etc.). The supplier must immediately inform the customer of such obstacles. If delivery or service provision becomes impossible due to the above-mentioned circumstances, the supplier is thereby released from his obligation to perform.
4.4 In the event of subsequent delivery and contract changes or expansions after the order has been placed, the delivery time will be extended accordingly and there may be additional costs. These changes or extensions must be confirmed in writing by both contract partners.
4.5 The timely and free provision of all the information, documents, samples, etc. required for order processing is required after the supplier's appointment, documents made available late lead to delayed delivery.
4.6 The customer enables commissioning at the latest 3 weeks after delivery of the hardware. If commissioning is not possible within this period, a commissioning appointment is agreed. However, the remaining amount of the order value to be paid is due for payment after this 3-week period, regardless of the actual commissioning date. In addition to the scope of delivery of the supplier, any desired additions or changes that only arise in the course of commissioning will be charged based on the cost rates for commissioning and services provided by the supplier.
4.7 Acceptance of the system is recorded in writing and signed by the purchaser and supplier. The system will only be released for production after the acceptance is signed.
4.8 The customer is not entitled to use the work or part of it before acceptance. Otherwise, the work is deemed to have been accepted by him unless the written consent of the manufacturer has been obtained. The manufacturer is then no longer obliged to carry out acceptance tests.
4.9 If the customer is not represented in the acceptance test after a date has been set, he can no longer dispute the accuracy of the protocol.
4.10 If an orderer does not accept the manufactured systems, components or controls by an agreed date, even though their structure and function correspond to the delivery item offered, the supplier is entitled to set a reasonable grace period for the acceptance. If the acceptance test cannot be carried out even then, the test is deemed to have been successfully carried out on the day specified as the date for the acceptance test. Irrespective of this, the supplier is entitled to invoice the customer for the additional expenses arising from the non-acceptance, starting at the end of one month after notification of readiness for dispatch / acceptance, in the amount of 0.5% of the invoice amount for each month started. The calculation is limited to 5% of the invoice amount, unless higher costs can be proven. Regardless of this, the customer is obliged to pay for the delivery immediately.
4.11 In the case of installations or commissioning, the customer is obliged to accept the delivered systems or controls immediately after notification of the completion. Unless otherwise expressly agreed, the acceptance must be confirmed in writing to the commissioning personnel of the supplier. If the customer does not comply with this request, the acceptance is deemed to have taken place after 3 working days.
4.12 Minor defects that do not affect the performance do not constitute reasons for refusing acceptance.
5. Transfer of risk, shipping
5.1 If goods are sent at the request of the customer to him or a third party, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon leaving the supplier's warehouse. This applies regardless of whether the shipment is made from the place of performance or who bears the freight costs.
5.2 If goods are reported ready for collection or dispatch and delivery is delayed for reasons for which the supplier is not responsible, the risk passes to the purchaser upon receipt of the notification of readiness for collection or dispatch. At the same time, the supplier is entitled, but not obliged, to insure the goods against breakage, transport and fire damage at the customer's expense from this point in time.
5.3 If the takeover of goods by the purchaser is delayed beyond the usual extent, the supplier is entitled to store them at the purchasers costs at his premises or at the premises of a third party until collection.
6. Assemblies, installations, commissioning
6.1 For every type of assembly, installation and commissioning of the supplier, he is free to choose and allocate personnel. The supplier is entitled to have these activities carried out by own personnel or by third parties.
6.2 The normal working time of the supplier is 7.5 hours on working days. For assembly, installation and commissioning, the daily working hours are determined differently by the supplier.
6.3 The customer allows the supplier to enter the company premises and the hall upon consultation, even at times that go beyond normal working hours.
6.4 At the beginning of the work, the supplier will name a project manager from his house who is available as a contact person for the customer. If this employee is temporarily or permanently no longer available during the project schedule, the supplier will immediately appoint a representative.
6.5 The work of the supplier's employees and representatives extends to the installation of the system delivered, its installation and test run, the subsequent commissioning and presentation for acceptance, and also to the instructions of the persons specified by the customer who will later operate and maintain the system.
6.6 Changes in the implementation of the assembly and commissioning compared to previous agreements or the take over of work that have nothing to do with the actual assembly and commissioning are to be clarified with the supplier before and are to be ordered by the customer in writing, so that the personnel on site receive appropriate instructions from the supplier.
6.7 The customer must take the measures necessary to protect people and property at the assembly site. He also has to inform the supplier's employees about existing safety devices, insofar as these are important for the supplier's personnel.
6.8 The customer has to provide and prepare at his own expense at the beginning of the work (the preparation is carried out according to the specification and agreement in the project planning phase):
• Assistants in the number and time required for assembly. The assistants must follow the instructions of the supplier's staff. The supplier assumes no liability for these assistants.
• Implementation of necessary construction measures prior to delivery such as foundations, steel foundation plates and associated welding work as well as fastening points and fastening aids etc. are provided by the customer according to the supplier's specifications.
• Other trades including the necessary tools.
• Protective clothing and protective devices that are required depending on the type and scope of the installation.
• Execution of earthworks, mortising, bricklaying, carpentry, plumbing and similar work.
• Provision of necessary equipment and devices (e.g. forklift trucks).
• Provision of heating, lighting, operating power, water and similar.
• Transport of the assembly parts to the assembly site, protection of the assembly parts against fire and water damage, theft and similar. Furthermore, the customer provides the assembly site (hall) lockable.
• Provision of the materials and take over of all other actions that are necessary to regulate the delivery item and to carry out a contractually provided testing, e.g. the necessary link signals for interlinkage of existing plants, machines and equipment with automation equipment of the supplier.
• All components to be provided by the customer are assembled and installed in time before the start of installation in accordance with the supplier's installation plan.
• Changes and installations of existing equipment and facilities are not included in the scope of delivery, even if they are necessary due to the installation of the system offered.
• further, individual contractual services
If the customer does not meet these obligations, the supplier is entitled, but not obliged, to carry them out or to have them carried out in the place and at the costs of the customer.
6.9 Before the installation begins, the purchaser must provide all information about statics (if necessary) and inform the supplier about the location of the electricity, gas and water pipes.
6.10 Unless expressly agreed otherwise, services, installation and commissioning services are billed at the supplier's current "charge rates for commissioning and services".
6.11 If the services of the customer do not meet the required tolerance values, the customer must remedy the situation immediately. The resulting additional expenses for the supplier during the pre-acceptance and final assembly are borne by the customer and will be charged separately.
6.12 The program creation and instruction does not include any specific process development for the customer. Should new knowledge emerge from the project execution (changed component geometry, tolerances and process technologies), the offer price / order value will change according to the new effort. If the customer is unable to provide the machines, components and devices in the tolerances / qualities required for the automatic manufacturing process, the system is delivered and approved with programs for the best possible quality. In this case, any optimization of the programs at the customer's site by the supplier can only be invoiced at cost.
6.13 The components, devices and workpieces required for pre-acceptance are made available to the supplier free of charge in sufficient quantity and specific quality at least 6 weeks before pre-acceptance.
7. Warranty
7.1 The supplier grants a 12-month parts guarantee on all delivered controls, systems or assemblies, calculated from the delivery note date or commissioning date for a single-shift operation, and 24 months when concluding a maintenance contract with the supplier. For components replaced within this period, the warranty period begins anew.
7.2 The prerequisite for the warranty period is regular, preventive maintenance in accordance with the maintenance instructions by specialist personnel and the operation of the system in accordance with the operating instructions.
7.3 If a delivery item is defective or lacks guaranteed attributes, the supplier has - at his discretion - the possibility of rectification or replacement delivery, to the exclusion of further warranty claims of the customer. The buyer must grant the necessary time and opportunity for any reworking and, if reasonable, hand the parts over to the supplier's plant. A rectification of defects by third parties is only permitted if this is expressly recognized and approved by the supplier.
7.4 For all delivered third-party parts, the purchaser is granted the guarantee periods of the supplier, calculated from the time of delivery by the supplier. These periods can be asserted against the supplier.
7.5 Warranty claims do not exist for defects and damage caused by: not contractually provided operating conditions, improper use or treatment by the customer, normal wear and tear, influences from third parties, improper changes or repair work or similar or by force majeure.
7.6 Warranty claims do not exist in particular if the delivered systems have been used in areas that differ from the areas of application specified by the supplier in the specification.
7.7 Further claims of the purchaser, in particular a claim for compensation for damage, regardless of whether they have arisen on the delivery item itself or elsewhere, are excluded, unless they are based on intent or gross negligence on the part of the supplier.
7.8 Furthermore, the conditions from point 6 of the "Charge rates for commissioning and services" of the supplier apply.
8. Retention of title
8.1 The delivered items, whether hardware or software components, documentation, plans, sketches and the like, remain the property of the supplier until all claims resulting from the business relationship have been paid in full - in the case of payment by check until it has been cashed. Until that point the purchaser is not entitled to pledge the items or assign it as security transfer. The extended retention of title applies.
8.2 The customer is entitled to resell the reserved goods in normal business transactions. However, he is obliged to secure the rights of the supplier when reselling the reserved goods on credit. The customer bears any costs of interventions.
9. Liability
9.1 The legal and contractual liability of the supplier and his agents is limited to gross negligence and intent as well as direct damage.
9.2 The supplier does not grant compensation for direct damage, e.g. loss of production, loss of interest, lost profits and similar.
10. Others
10.1 The end customer is obliged to provide the supplier with a sufficient amount of sample material free of charge so that the delivered system can be fully tested in terms of structure and function.
11. Documentation
11.1 The supplier provides a set of technical documents (in accordance with the supplier's works standard) in German consisting of:
• Operation manual
• Technical information
• Construction plans
• Circuit diagram
• Bills of materials
• Risk analysis
• CE marking
• Declaration of conformity in triplicate and on CD
12. Equipment regulations
12.1 The supplier's equipment regulations apply. Other equipment regulations can only be recognized after checking whether installation is possible and for a surcharge.
12.2 The supplier would like to point out that any delivery regulations regarding controls, drives, drive controllers etc. cannot be complied with. These are components that are coordinated with each other down to the last detail.
13. Copyright
13.1 As far as services exist in the creation of technical advice, in particular in the preparation of technical solutions, the creation of drawings, the development and improvement of products, etc., the supplier reserves all property rights. This applies in particular to the intellectual property (software etc.) of the supplier, but also to his physical ownership of drawings, offer documents, sample systems and models. The costs for damage caused by misuse would be charged to the customer, in the amount of the damage, but at least € 100,000.00.
13.2 Any disclosure, even for viewing only, any type of further use and reproduction (in whole or in part) as well as the use of the know-how of the supplier - also in offer documents - is prohibited and obliges to surrendering what was produced or obtained in this way, without prejudice to all other claims of the supplier.
13.3 If the supplier supplies controls, systems or components according to the information or documents of the customer, the customer assumes that third party property rights are not violated and releases the supplier from all third party claims if necessary.
14. Limitation
14.1 All claims of the customer - for whatever legal reasons - expire after 12 months from the transfer of risk. The statutory deadlines apply to willful or fraudulent behavior and claims under the Product Liability Act.
15. Place of performance, place of jurisdiction, applicable law
15.1 The place of performance for all obligations from business relationships is D-33829 Borgholzhausen. The place of jurisdiction for all legal disputes arising from the business relationship is D-33602 Bielefeld.
15.2 The business relationship is subject to the law of the Federal Republic of Germany.
16. Liability clause
16.1 These general terms and conditions remain binding in their remaining parts even if individual parts are legally ineffective. Any condition that is not legally permissible will be replaced by the legally permissible regulation that comes closest to the one originally met.
The "General Terms and Conditions of Delivery for Products and Services in the Electrical Industry" apply to all items not mentioned.
Date: 04.02.2016