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Terms and Conditions

General Terms and Conditions of Sale and Delivery for Machines and Spare Parts including Software Marquardt GmbH

 

I. General, scope of application

1. MARQ4 Automation GmbH (hereinafter referred to as "MAG", "we" or "Seller") shall provide its deliveries and services (hereinafter referred to as "subject matter of the contract") exclusively on the basis of the following General Terms and Conditions of Sale and Delivery. General contractual and business terms and conditions, in particular purchasing terms and conditions of the business partner (hereinafter referred to as "Customer") shall not apply to our deliveries and services unless we expressly acknowledge them. They shall not bind us even if we do not specifically object to them in individual cases.

2. It is agreed that these General Terms and Conditions of Sale and Delivery shall also apply to further orders between MAG and the Customer without the need to refer to them again.

3. Any deviating or supplementary agreements shall only be valid if they have been agreed upon between us and the customer in writing or confirmed by us in writing.

4. These General Terms and Conditions of Sale and Delivery shall only apply to entrepreneurs, legal entities under public law or special funds under public law.

5. Samples, cost estimates, drawings or similar information of a physical nature shall remain our property. Insofar as this information is stored in electronic form, the copyrights shall remain with us. This information may not be made accessible to third parties.

6. Unless otherwise agreed in writing in individual cases, orders shall be executed on the basis of the design approved by the Customer and the sample parts provided by the Customer for the construction. A sufficient quantity of sample parts in accordance with the drawings shall be provided for the construction of the plant. If the parts used later in practice deviate from this, no warranty can be given for the function. Insofar as designs are not described or specified in the order, MAG shall manufacture them according to its professional experience and in compliance with the state of the art.

7. The Customer shall notify MAG of any product changes after the date of the request without delay, but no later than the date of the binding order. The Customer shall have no claim to consideration or implementation for change requests received from the Customer after the binding order has been placed.

8. The following shall apply to workpieces delivered by the customer: we assume that the workpieces have a surface free of oil and grease, are not magnetically or statically charged, are not mixed with foreign or scrap parts and dirt and are free of burrs. This is a prerequisite for the functionality of the contractual object. Costs due to possible rework caused by missing, insufficient or deviating sample parts will be charged additionally according to expenditure. Despite the grounding of all relevant parts of the equipment, it cannot be ruled out that parts may get stuck on the contact surfaces due to static charges and that parts may get mixed up or other malfunctions may occur. Ionization of the parts is generally not part of our offers and will only be provided if agreed separately in writing between us and the customer. Functionality can only be guaranteed for the workpieces provided. The workpieces must be available in the defined number (see offer) and correspond to the production parts in form and design. Rejects or foreign parts can lead to malfunctions depending on the shape.

9. Environment and infrastructure/ responsibility of the client:

The client is responsible for the layout planning at the client's site. We do not check the space conditions at the client (interfering posts, busbars, ceiling loads, ...). Reference edges are to be marked on the floor, sketches or drawings concerning the installation site are to be provided by the client. Sufficient transport routes to the installation site are to be checked and, if necessary, constructed by the customer. The customer shall ensure that all connections and means required for commissioning and further operation of the machine or requested by the customer are available. These include in particular, but are not limited to
a) Media connections in required dimension.

b) Air quality requirements: filtered compressed air, free of oil and water, compressed air quality according to ISO 8573-1:2010 [6:4:4]; air pressure at least 6 bar, maximum 8 bar.

 

II. Offers and prices

1. Unless expressly designated as binding, all parts of our offers are subject to change without notice.

2. In the case of offers marked as binding, a contract shall be concluded if our offer is accepted by the customer within a period of 4 weeks from the date of the offer. After expiry of this period, we are no longer bound by our offer.

3. Our prices are ex works and do not include costs for packaging, transport insurance and other shipping costs. They are net prices to which value added tax at the respective statutory rate must be added.

4. All payments shall be made directly to MAG in accordance with the dates specified in the respective order confirmation and/or offer. This shall also apply to the determination of down payments and partial payments. In the case of individual sales of tools, accessories and spare parts, the entire invoice amount shall be due for payment immediately after delivery without deduction. Repair and assembly invoices are payable 30 days after invoicing.

5. In the event of default in payment, we shall charge the statutory default interest unless higher interest rates have been agreed. We reserve the right to assert further damage caused by default. We shall be entitled to offset incoming payments first against older claims, then against costs and interest of the main performance and only finally against the main claim. The customer shall only be entitled to rights of set-off or retention if his counterclaims have been legally established, are not disputed by us or have been expressly acknowledged.

6. If the customer does not pay due invoices, exceeds a granted term of payment or if the customer's financial circumstances deteriorate after conclusion of the contract or if we receive unfavorable information about the customer after conclusion of the contract which calls into question the customer's solvency or creditworthiness, we shall be entitled to demand immediate payment of the customer's entire remaining debt and to demand advance payment or the provision of security or, after delivery has been made, immediate payment of all our claims based on the same legal relationship, amending the agreements made. This shall apply in particular if the Customer ceases its payments, checks issued by the Customer are not honored, bills of exchange issued by the Customer are not paid by the Customer, insolvency proceedings have been opened against the assets of the Customer, or if an application for the opening of insolvency proceedings has been filed and the insolvency proceedings have not been opened due to lack of assets.

 

III. Delivery and delivery time

1. The delivery periods stated by us are subject to change unless fixed dates have been expressly agreed. These shall only be authoritative if all documents, approvals, releases and agreed payments required for the execution of the order have been submitted to us by the customer in due time. If the customer has not fulfilled his obligations to cooperate, the delivery time shall be extended accordingly. The delivery period shall commence at the earliest upon receipt of the order confirmation by the customer. It shall be deemed to have been complied with if the delivery item has left the manufacturer's works within the period or readiness for dispatch has been notified. Delivery period days are working days.

3. If, after conclusion of the contract, the customer requests amendments to the order which affect the delivery period, any delivery periods shall be agreed anew; in case of doubt, the delivery period shall be extended accordingly.

4. If shipment is delayed for reasons for which the customer is responsible, the customer shall bear the costs incurred by the delay, starting one month after notification of readiness for shipment, but at least storage costs in the amount of 0.5% of the net invoice amount for each week or part thereof, up to a maximum of 5%, whereby it is left to the customer to prove that the damage was less. We shall be entitled to otherwise dispose of the delivery item after expiry of a set reasonable acceptance period and to supply the customer again with appropriately extended deadlines. Place of performance: Trossingen. The statutory rights to which we are entitled in the event of default in acceptance (e.g. rescission, damages) shall remain unaffected.

5. We shall be entitled to make partial deliveries and render partial services within the agreed delivery and performance times if this is reasonable for the customer.

6. Disruptions in business operations, in particular work stoppages and lockouts as well as other cases of force majeure, both at our company and at our Sellers, shall extend the delivery dates appropriately. Both claims for damages by the customer due to delay in performance and claims for damages in lieu of performance shall be excluded in all cases of delayed performance, even after any deadline set for us for performance. This shall not apply in cases of mandatory liability for intent, gross negligence or injury to life, body or health. The customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in performance. In this case, the Customer shall be obliged to declare at our request within a reasonable period of time whether it continues to insist on the performance due to the delay in performance and/or which of the claims and rights to which it is entitled it asserts.

 

IV. Transfer of risk

MAG shall in principle deliver ex works. If the Customer requests shipment of the subject matter of the contract to be delivered (hereinafter: delivery item) (e.g. to its branch office), the risk for the delivery item shall pass to the Customer as soon as MAG has handed over the delivery item to the transport company commissioned by the Customer at its plant. This shall also apply if partial services are rendered or MAG performs additional services for commissioning or assembly of the delivery item at the location of the Customer's branch office. Insurance of the delivery item, e.g. against transport damage, shall only be taken out at the written request of the Customer and only at the expense of the Customer. A corresponding request by the Customer must be received by MAG no later than 14 days prior to the date of shipment.

 

V. Installation, commissioning and cooperation obligations of the customer

1. The installation and commissioning of the delivery item by MAG shall only take place after agreement on the duration and costs. In any case, the Customer shall provide a general contact person and assistants at his own expense.

2. MAG's fitters shall in all cases be dispatched at the earliest upon the Customer's call and upon the Customer's notification that the delivery item has arrived on site and that everything is ready.

3. The customer shall certify in writing to the fitters the working time and work performance as well as the acceptance of the object of the contract in perfect condition.

4. Any waiting time of the fitters incurred through no fault of MAG, irrespective of the reasons, shall be charged separately to the Customer.

5. Parts produced during commissioning (hereinafter referred to as "test parts") are for testing purposes only and are not intended to be used or placed on the market. The customer shall take appropriate measures in his company to ensure that test parts are not used or placed on the market. Should test parts be placed on the market, the Customer shall be solely responsible for this and for the consequences thereof and any damage. The Customer shall indemnify MAG against claims by third parties at MAG's first request and shall reimburse MAG for any legal costs incurred in connection with the claim.

6. During commissioning as well as in later series operation, no operating mode is provided for process monitoring (automatic sequence with open safety door is not possible).

7. If the customer does not fulfill his obligations to cooperate or if we are prevented from carrying out the work assigned to us by the customer due to other circumstances that are attributable to the customer's sphere of risk, we may demand reasonable compensation for the additional expenses caused by this in addition to the remuneration. In such a case, we will allow ourselves to be credited with what we could save in expenses or acquire through other orders.

 

VI. Warranty/Acceptance

1. We assume the warranty described below for material defects to the exclusion of further rights.

2. Parts that were defective at the time of transfer of risk shall be repaired or replaced at our discretion. Unless otherwise agreed, the contractually owed quality for the delivery item results exclusively from our product specifications valid at the time of conclusion of the contract. Acceptance reports and notices of defects must be made in writing without delay. Replaced parts shall become our property and shall be returned to us.

3. The warranty period shall be 12 months from delivery or, if agreed or provided for by law, from acceptance of the delivery item. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions. Wear parts are excluded from the warranty.

4. The customer must give us the necessary time and opportunity to carry out all rectification measures and/or replacement deliveries that we deem necessary; otherwise we shall be released from liability for the consequences arising therefrom.

5. The customer is obliged to have all defects occurring within the warranty period remedied exclusively by us. If he fails to do so and remedies defects occurring during the warranty period himself or through third parties, any warranty claims shall expire. The costs incurred by the customer as a result of such attempts at rectification shall be borne by the customer.

6. No warranty is given for damage caused by unsuitable or improper use, faulty assembly or commissioning, excessive stress, natural wear and tear, faulty or negligent handling, unsuitable operating materials, inadequate maintenance or failure to observe the instructions in the operating manual.

7. For parts or components included in the scope of delivery which MAG obtains from Sellers, the warranty and liability towards the Customer shall only exist to the extent that the Seller warrants and is liable towards MAG. Upon request of the Customer, we shall disclose the liability agreements between us and the Seller.

8. The technical availability according to VDI 3423 determined during acceptance must only be given at the time of acceptance of the plant and is not a characteristic of the plant.

9. If acceptance has been agreed with the Customer in an individual case, the Customer may not refuse acceptance in the event of a non-substantial defect. After delivery or assembly of the delivery item, the Customer shall be obliged to accept the contractual item, insofar as acceptance has been agreed, is prescribed by law or is owed by the Customer for any other legal reason.

10. The subject matter of the contract shall be deemed to have been accepted in any case - even in the event of any agreement on acceptance within the meaning of Section 9 above - if a) MAG reports that the work ready for acceptance is ready for operation, or b) Customer commences production with the subject matter of the contract or c) otherwise at the latest after the expiry of 6 weeks from the passing of risk and the provision of all contractually owed services by MAG.


VII. Retention of Title

1. The goods shall remain our property until full payment of all our claims, subject matter of the contract in any other way uses, in particular also the respective balance claims to which we are entitled from the business relationship with the customer (balance reservation) and the claims which are established by the insolvency administrator unilaterally by way of choice of performance. This shall also apply to future and conditional claims. In particular, ownership shall not pass to the Customer until and to the extent that we have been released by the Customer from all contingent liabilities which we have entered into in the Customer's interest, in particular in the event of the application of the bill of exchange or check procedure.

2. The customer is obliged to treat the goods delivered by us, which are still our property, with care; in particular, he is obliged to insure them at his own expense against loss and damage and destruction, e.g. against fire, water and theft damage, sufficiently at replacement value. The customer hereby assigns to us his claims under the insurance contracts, namely a first-ranking partial amount in the amount of the purchase price claim of the goods delivered by us under reservation of title. We accept this assignment.

3. The customer may neither pledge nor transfer by way of security the goods which are our property. The resale of the goods delivered under retention of title is generally prohibited. However, we reserve the right to permit resale if the customer names his buyer to us prior to conclusion of the contract and handover of the subject matter of the contract and assigns to us his purchase price claim in the amount of our total residual claim from the current account. We hereby accept this assignment. However, a prerequisite for our consent to resale is always that the contractual partner of the customer also co-signs the declaration of assignment and in doing so declares that it is aware of the assignment and can only pay us with debt-discharging effect. Resale shall be prohibited in any case if the Customer has assigned or pledged the claim against its contractual partner arising from the resale - in each case effectively - to a third party in advance or has agreed a prohibition of assignment with such third party.

4. In the event of insolvency or composition proceedings, the Customer shall be obliged to identify the goods as our property to any third party by means of signs or in any other feasible manner prior to the commencement of such proceedings.

5. As long as a claim exists on our part, we are entitled to demand information from the customer at any time as to which goods delivered under retention of title are still in his possession and where they are located. We are also entitled to inspect these goods at the place at any time and to retrieve them at the customer's expense.

6. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO).

7. The processing or transformation of the goods delivered by us under reservation of title shall always be carried out by the customer on our behalf, without any liabilities accruing to us as a result. If the goods delivered by us under retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by us (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under retention of title. If the goods delivered by us under reservation of title are inseparably mixed or combined with other items not belonging to us, the same shall apply as in the above-mentioned case of processing or transformation. If the mixing or combining is done in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to be agreed that the Customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole or co-ownership thus created in safe custody for us. The customer shall be entitled to dispose of the products newly created by processing or transformation or combination or mixing in the ordinary course of business as long as and to the extent that he meets his obligations arising from the business relationship with us in due time. Under no circumstances, however, shall the Customer be entitled to resell or otherwise dispose of the new products by agreeing a prohibition of assignment with his principal, or to pledge or assign them by way of security. The Customer hereby assigns to us by way of security its claims arising from the sale of these new products to which we are entitled (co-)ownership rights to the extent of our ownership share in the goods sold. If the customer combines or mixes the delivered goods with a main item, he hereby assigns to us his claims against the third party up to the value of our goods. We hereby accept this assignment. The claims arising from bills of exchange accepted by the customer on account of payment or in lieu of payment are hereby assigned to us. We hereby accept the assignment. The handing over of the bills of exchange shall be replaced by the fact that the customer shall keep the accepted bills of exchange in safe custody for us.

8. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds our claims against the customer to be secured by more than the customer by more than 10 %; the choice of the securities to be released shall be incumbent upon us.

 

VIII. Liability

1. We shall be liable, irrespective of the legal grounds - including for our executive employees and other vicarious agents - for damages or futile expenses only in cases of intent, gross negligence, culpable breach of a material contractual obligation or insofar as liability for injury to life, limb or health is mandatory. In addition, we shall be liable in accordance with the Product Liability Act.

2. Claims for damages on the part of the client shall become statute-barred within one year of the statutory commencement of the limitation period. This shall not apply in the case of liability due to intent, gross negligence, injury to life, body or health as well as in the case of fraudulent concealment of a defect or in the case of claims under the Product Liability Act.

 

IX. Supplementary provisions regarding software included in the scope of delivery

1. For software products of other Sellers included in the scope of delivery, their general terms and conditions shall have priority. If these are not available to the customer, we will send them to the customer upon request.

2. In all other respects - insofar as no applicable provisions of general terms and conditions of other Sellers conflict with this - the following shall apply between us and the Customer in addition to the preceding Sections I.-VIII:

a) The Software is protected by copyright. The Customer acknowledges that the Software, including all of its components, is and shall remain the property of MAG or its licensors and that all copyrights thereto shall belong to MAG and/or its licensors. Customer shall protect the Software against misuse. The Customer is also aware that it is responsible for protecting its computer-stored data against data data against data loss in accordance with the state of the art.

b) The Customer shall receive a simple, non-exclusive right of use in perpetuity to the software products delivered by us to the Customer as well as the associated documentation.

c) However, the Customer shall not be entitled to use the software for purposes other than use in connection with the subject matter of the contract. In particular, the Customer is prohibited from duplicating, editing, decompiling, distributing, renting, leasing, selling, publishing or otherwise making the software available to third parties for use, whether for a fee or free of charge. The client may not remove manufacturer's information - in particular copyright notices - nor change them without our prior written consent. The client is permitted to make backup copies for his own purposes.

d) We are not obliged to hand over the source code to the client.

e) The number of (sub)licenses included in the scope of delivery to the Customer are listed in the respective offer. When increasing the number of Users, the Customer shall also acquire the corresponding additional (sub)licenses; the granting of sublicenses by the Customer is not permitted.

 

X. Place of performance, place of jurisdiction, applicable law

1. If the customer is a merchant, a legal entity under public law or a special fund under public law, Trossingen shall be the place of performance and Rottweil shall be the exclusive place of jurisdiction.

2. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between us and the Customer. The application of the provisions on the international sale of goods (CISG; UN Sales Convention) are expressly excluded.

 

XI. Secrecy

Know-how of MAG as well as all other business and trade secrets of MAG, including the content of the contractual relationship with the Customer, shall be treated by the Customer as strictly confidential. The Customer shall take all reasonable and necessary precautions to protect the aforementioned information from unauthorized access, disclosure, duplication, disclosure and other unauthorized use (such as reverse engineering). The aforementioned obligations of the Customer shall also apply beyond the termination of the contract.

 

XII Severability clause

Should any of the above provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In this case, the invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes as close as possible to the regulatory objectives pursued by the invalid or unenforceable provision. The same shall apply to the filling of any gaps in the contract.

 

These General Terms and Conditions of Sale and Delivery shall apply as of June 1, 2021