General Terms and Conditions of ZENITH Maschinenfabrik GmbH
§ 1 General
- All offers, orders and deliveries of ZENITH Maschinenfabrik GmbH are based on our following terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the customer shall not become part of the contract even upon acceptance of the order.
- In the absence of a special agreement, a contract is only concluded with an order confirmation from ZENITH Maschinenfabrik GmbH. The order confirmation must be in text form. An informal business transaction is only valid in conjunction with a commercial letter of confirmation.
- If the order confirmation deviates from the offer or the order, the written order confirmation of ZENITH Maschinenfabrik GmbH shall be decisive if it has not been objected to within 5 days of receipt of the order confirmation. If the order confirmation is made in text form (by fax or e-mail), it shall be deemed to have been received immediately, unless otherwise stated in the e-mail confirmation or the fax protocol.
- DIE ZENITH Maschinenfabrik GmbH reserves the right to samples, cost estimates, settlements, etc. The ZENITH Maschinenfabrik GmbH reserves all property rights and copyrights to information of a physical nature, including information in electronic form. They may only be made accessible to third parties with the express written consent of ZENITH Maschinenfabrik GmbH.
- The scope of the obligations results from the written order confirmation of ZENITH Maschinenfabrik GmbH. Documents such as brochures, catalogues, drawings, illustrations, descriptions and technical data as well as samples, weights and dimensions are not binding unless ZENITH Maschinenfabrik GmbH has acknowledged them in writing in the order confirmation or otherwise.
- The following conditions refer to the deliveries and services of plants or parts of plants. Unless otherwise stated, the same conditions apply to wear and tear/spare parts, assembly, service and repairs.
§ 2 Offers and payments
- The offers of ZENITH Maschinenfabrik GmbH are always subject to change without notice. A contract is not concluded until ZENITH Maschinenfabrik GmbH has confirmed the order. Prices apply ex works including loading, but excluding packaging, freight and customs duties, plus the applicable statutory value added tax. Prices are quoted in Euro.
- In the absence of a special agreement, the respective payment is to be made within 14 days without any deduction, namely 30% of the invoice amount after receipt of the order confirmation and 70% after receipt of the freight documents by the customer.
- In the event of late payment, ZENITH Maschinenfabrik GmbH shall be entitled to charge interest on arrears in the amount of the respective current account interest of its house bank, but at least in the amount of 8 percentage points above the base rate (§ 247 BGB) of the European Central Bank. This shall also apply in the event that a payment is deferred by ZENITH Maschinenfabrik GmbH.
- The customer undertakes to secure 100% of the agreed sum by means of an irrevocable documentary letter of credit and to have it confirmed by a first-class German bank. The letter of credit must be issued and confirmed immediately to ZENITH Maschinenfabrik GmbH.
- If ZENITH Maschinenfabrik GmbH becomes aware, after conclusion of the contract, of circumstances concerning the creditworthiness of the customer which considerably endanger the execution of the contract, ZENITH Maschinenfabrik GmbH may refuse the performance incumbent upon it until the customer effects counter-performance or provides security.
- The customer shall only be entitled to withhold payments or set them off against counterclaims to the extent that his counterclaims are undisputed or have been legally established.
- Unless otherwise stated in the agreements between the contracting parties, the Zenith plant complies with all applicable German standards and laws, including VDE regulations and German accident prevention regulations, valid at the time the contract is concluded.
- Unless otherwise agreed, prices are ex works, including loading at the works, but excluding packaging and unloading. The goods shall be packed in a manner customary in the trade to the extent necessary at our dutiful discretion. Value added tax at the respective statutory rate shall be added to the prices.
§ 3 Delivery
- The delivery period shall be 4-5 months, unless otherwise agreed by the contracting parties. Compliance with the delivery period by the Supplier is subject to all commercial and technical questions between the contracting parties having been clarified and the Purchaser having fulfilled all obligations incumbent upon it, such as the provision of the necessary official certificates or approvals, approval of the installation drawings or payment of a down payment. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if the Supplier is responsible for the delay.
- Partial deliveries shall be permissible to the extent reasonable for the Purchaser.
- If ZENITH Maschinenfabrik GmbH does not expressly state a fixed delivery date in the order confirmation, the stated delivery periods and dates shall not be binding. If an agreed fixed date is exceeded by more than one month for reasons for which ZENITH Maschinenfabrik GmbH is responsible, the Customer shall be entitled to set ZENITH Maschinenfabrik GmbH a reasonable grace period of at least 6 weeks and to withdraw from the contract if the grace period expires without result.
- The prerequisite for timely delivery is the timely clarification of all technical and financial questions, the timely receipt of all documents to be supplied by the customer and compliance with the agreed terms of payment.
- Compliance with the delivery period is also subject to correct and punctual self-delivery. ZENITH Maschinenfabrik GmbH will notify you of any imminent delays as soon as possible and will be deemed to have been complied with if the delivery item has left the factory by the time they expire or readiness for dispatch has been notified.
- If non-compliance with the delivery period is due to force majeure, industrial disputes or other events beyond the control of ZENITH Maschinenfabrik GmbH, the delivery period shall be extended accordingly. If the delivery period is extended by more than 3 months as a result of this, both contractual partners shall have the right to withdraw from the contract.
- If delivery or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged the costs incurred as a result of the delay for storage at the supplier's works, starting one month after notification of readiness for dispatch or acceptance, but at least 0.5% of the invoice amount for each month.
- If acceptance is required, it must be carried out immediately on the acceptance date or, alternatively, after notification by the Supplier that the goods are ready for acceptance. The Purchaser may not refuse acceptance if there is an insignificant defect.
§ 4 Retention of title
- If there is a deviation from the terms of payment in § 2 para. 2 of these GTC, i.e. if no complete payment of the purchase price has been made when the ordered items are handed over to the customer or the forwarding agent, a reservation of title to the delivery item is agreed. The delivery item remains the property of ZENITH Maschinenfabrik GmbH until all claims to which it is entitled against the customer arising from the business relationship have been fulfilled.
- The customer is permitted to process or transform the delivery item ("processing"). The processing is carried out for ZENITH Maschinenfabrik GmbH without obligations arising for ZENITH Maschinenfabrik GmbH as a result. If co-ownership arises as a result of the processing, combination, mixing or blending of the item delivered under retention of title with other goods not belonging to ZENITH Maschinenfabrik GmbH, the resulting co-ownership share in the newly created item shall accrue to ZENITH Maschinenfabrik GmbH. The customer must inform ZENITH Maschinenfabrik GmbH of the location of the newly created item upon request.
- In the event of the sale of the delivery item or the new goods resulting from processing, the customer hereby assigns his claim from the resale against his customer with all ancillary rights to ZENITH Maschinenfabrik GmbH by way of security, without any further special declarations being required. The assignment applies including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by ZENITH Maschinenfabrik GmbH. The portion of the claim assigned to ZENITH Emden shall be satisfied with priority.
- If the customer connects the delivery item or the new goods with real estate, he shall also assign his claim, which he is entitled to as remuneration for the connection, in the amount corresponding to the price of the delivery item invoiced by ZENITH Maschinenfabrik GmbH, without requiring any further special declarations.
- Until revoked, the customer is entitled to collect the claims assigned to ZENITH Maschinenfabrik GmbH in accordance with the above provisions. The customer shall immediately forward to ZENITH Maschinenfabrik GmbH payments made on the assigned claims up to the amount of the secured claim. In the event of justified interests, in particular default in payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or well-founded indications of over-indebtedness or impending insolvency of the customer, ZENITH Maschinenfabrik GmbH shall be entitled to revoke the customer's right to collect. In addition, ZENITH Maschinenfabrik GmbH may, after prior warning and under observance of a reasonable period of notice, disclose the assignment of security, utilize the assigned claims and demand the disclosure of the assignment of security by the Customer to the customers.
- If a legitimate interest is substantiated, the customer must provide ZENITH Maschinenfabrik GmbH with the information required to assert its rights against the customers and hand over the necessary documents.
- During the existence of the retention of title, the purchaser is prohibited from pledging the goods or assigning them as security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform ZENITH Maschinenfabrik GmbH immediately. The resale of the delivery item or the new goods is only permitted to resellers in the ordinary course of business and only under the conditions that the equivalent value of the delivery item is paid to the customer. The customer must also agree with the customer that the customer will not acquire ownership until this payment has been made.
- In the event of breaches of duty by the customer, in particular default in payment, ZENITH Maschinenfabrik GmbH shall be entitled, even without setting a deadline, to demand the return of the delivery item or the new goods and/or - if necessary after setting a deadline - to withdraw from the contract; the customer shall be obliged to return the goods. The demand for return of the delivery item/new goods does not constitute a declaration of withdrawal by ZENITH Maschinenfabrik GmbH, unless this is expressly declared. The application for the opening of insolvency proceedings entitles ZENITH Maschinenfabrik GmbH to withdraw from the contract and to demand the immediate return of the delivery item.
- ZENITH Maschinenfabrik GmbH is entitled, after prior warning and setting a reasonable deadline, to utilize the object taken out by it in the best possible way by private sale, notwithstanding the customer's continuing payment obligation.
- ZENITH Maschinenfabrik GmbH is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the customer's expense, provided that the customer has not demonstrably taken out the insurance himself.
- The customer grants ZENITH Maschinenfabrik GmbH irrevocable and unhindered access to the rooms in which the property of ZENITH Maschinenfabrik GmbH is located in the event that ZENITH Maschinenfabrik GmbH exercises its right to take back the goods delivered under retention of title.
§ 5 Shipment, transfer of risk and acceptance
- Loading and dispatch are carried out at the risk of the customer, even if this is done by the employees of ZENITH Maschinenfabrik GmbH. The risk is transferred to the customer when the goods are handed over to the customer or the forwarding agent.
- If the delivery is not called off despite notification of readiness for delivery, ZENITH Maschinenfabrik GmbH shall be entitled to store the goods at its own discretion at the expense and risk of the customer or to place them in safe custody for the customer at the latter's expense.
- If the customer does not accept goods or services offered or delivered to him, ZENITH Maschinenfabrik GmbH may grant the customer a grace period of 4 weeks for acceptance. After expiry of the period, ZENITH Maschinenfabrik GmbH shall be entitled to withdraw from the contract and/or to claim damages. The claim for damages shall amount to at least 15% of the agreed price, irrespective of the possibility of proving higher damages. The customer is at liberty to prove that a lower damage has occurred.
- In the case of shipment, we insure the goods against breakage at the expense of the customer at the request of the customer and in accordance with our customary conditions. As a fee we charge 3% of the net invoice value for Germany and Europe, 4% for all other countries. In special cases 5% and more will be charged to the customer.
§ 6 Warranty
ZENITH Maschinenfabrik GmbH shall be liable for material defects and defects of title of the delivery for 12 months to the exclusion of further claims subject to §7. Clause 2 as follows:
- Parts which turn out to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the discretion of ZENITH Maschinenfabrik GmbH. ZENITH Maschinenfabrik GmbH must be notified immediately in writing of the discovery of such defects. Replaced parts become the property of ZENITH Maschinenfabrik GmbH. After agreement with ZENITH Maschinenfabrik GmbH, the customer must give ZENITH Maschinenfabrik GmbH the necessary time and opportunity to carry out all repairs and replacement deliveries that appear necessary for ZENITH Maschinenfabrik GmbH. Otherwise ZENITH Maschinenfabrik GmbH shall be released from liability for the resulting consequences.
- Only in urgent cases where operational safety is endangered or in order to prevent disproportionately large damage shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand compensation from ZENITH Maschinenfabrik GmbH for the necessary expenses. Provided that the customer has informed ZENITH Maschinenfabrik GmbH immediately.
- The customer has a right to withdraw from the contract within the framework of the statutory provisions if ZENITH Maschinenfabrik GmbH - taking into account the statutory exceptions - allows a reasonable period of time set for it for the repair or replacement delivery due to a material defect to elapse fruitlessly.
- Warranty claims do not exist in the case of insignificant deviations from the agreed quality or in the case of insignificant impairment of usability.
- In particular, we do not assume any warranty in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, operational wear and tear, faulty or careless handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical influences - insofar as these are not the responsibility of the supplier.
Defects of title
- If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, procure the right for the Purchaser to continue using the delivery item or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement no longer exists.
- 7. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, ZENITH Maschinenfabrik GmbH shall also be entitled to withdraw from the contract. The customer can only assert rights due to the infringement of industrial property rights and copyrights if:
(a) the customer has immediately informed ZENITH Maschinenfabrik GmbH of the asserted infringement of industrial property rights and/or copyrights,
(b) the customer supports ZENITH Maschinenfabrik GmbH to a reasonable extent in defending against the asserted claims or enables ZENITH Maschinenfabrik GmbH to carry out the modification measures in accordance with Section VI, Item 1,
(c) ZENITH Maschinenfabrik GmbH has previously been entrusted with the initiation of arbitration proceedings, the formal framework of which is determined by ZENITH Maschinenfabrik GmbH,
(d) the defect of title is not based on an instruction of the customer and
(e) the infringement of rights was not caused by the fact that the customer has arbitrarily modified the delivery item or used it in a manner not in accordance with the contract.
§ 7 Liability
- If the delivery item cannot be used by the purchaser in accordance with the contract due to the fault of the supplier as a result of omitted or faulty execution or suggestions and advice made before or after conclusion of the contract or due to the breach of other contractual ancillary obligations, the provisions under §6 and §7 paras. 2 and 3 shall apply accordingly to the exclusion of further claims by the purchaser.
- ZENITH Maschinenfabrik GmbH is also liable in cases of intent or gross negligence on the part of representatives or vicarious agents as well as in cases of culpable injury to life, body or health in accordance with the statutory provisions. However, the liability of ZENITH Maschinenfabrik GmbH in cases of gross negligence is limited to the foreseeable damage typical for the contract, unless at the same time another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph exists. Otherwise, ZENITH Maschinenfabrik GmbH shall only be liable in accordance with the Product Liability Act, for culpable breach of essential contractual obligations or insofar as ZENITH Maschinenfabrik GmbH fraudulently concealed the defect or assumed a guarantee for the quality of the delivery item. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph is present at the same time.
- The provisions of the above paragraph 2 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal basis, in particular for defects, breach of duties arising from the contractual obligation or tort. They shall also apply to claims for reimbursement of futile expenses.
- The liability of ZENITH Maschinenfabrik GmbH for delay in payment for damages in addition to performance and for impossibility of payment for damages and compensation for futile expenses is, however, additionally limited to a total of 5% and for damages in addition to performance and to a total of 5% of the value of the delivery items for damages instead of performance including compensation for futile expenses. Further claims of the customer are excluded even after expiry of a period of time set for ZENITH Maschinenfabrik GmbH to perform. The limitation shall not apply in the event of culpable violation of essential contractual obligations.
- The right of the customer to withdraw from the contract remains unaffected. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
- The customer is exclusively responsible for the suitability of the rooms, buildings and installation for the installation and operation of our delivery items (environment conditions); ZENITH Maschinenfabrik GmbH is not liable for this.
§ 8 Statute of limitations
- All claims of the customer - for whatever legal reasons - shall become statute-barred 12 months after delivery. The statutory periods shall apply to claims for damages in accordance with Section 7, Clauses 2 a) to e). They shall also apply to defects in a building or to delivery items which have been used for a building in accordance with their usual use and which have caused its defectiveness.
§ 9 Use of software and copyrights
- Insofar as ZENITH Maschinenfabrik GmbH supplies software, the customer is granted a non-exclusive right to use the supplied software including its documentation. It shall only be made available for use on the delivery item intended for this purpose. The use of the software on more than one system or the circumvention of the protective function (hardware dongle) is prohibited.
- The customer may only copy, revise, translate or convert the provided software from the object code to the source code with the consent of ZENITH Maschinenfabrik GmbH. The customer undertakes not to remove, violate or alter - in particular copyright features - without the prior written consent of the supplier.
- All rights to the software and its documentation, including copies, shall remain with the supplier or the software manufacturer. The granting of sub-licenses is not permitted and prohibited. Registered trademarks.
- Most product and brand names of hardware and software as well as company names and logos mentioned on our website are usually also registered trademarks and should be regarded as such. ZENITH Maschinenfabrik GmbH follows the manufacturer's spelling in its descriptions. Texts, illustrations, data and all sources used on our website or CD may not be changed, published, or made accessible to third parties under any other name without our written consent - or used, or mirrored on servers.
- The products marked with ™ are trademarks of the respective companies. As far as signets and logos of other companies, websites and organizations are used, their consent is assumed. Should there be justified claims against the information published by us, we will of course observe them and ask you to inform us accordingly. Please refrain from cost-causing measures.
§ 10 Services of the customer
The following services shall, unless otherwise agreed by the parties to the contract when the contract was concluded, be provided or rendered on the customer's own account:
- Production forms of all kinds for the basic machine
- Air pressure system (10 Bar) including the complete installation
- Production boards according to high quality standard
- Forklift truck with a clamp for the transport of stone packages, cranes or hoists
- Provision of accurate, robust and clean foundations according to the drawings of ZENITH Maschinenfabrik GmbH
- Aggregate and cement silos
- Rails for the bucket conveyors, inclined lifts, funnels, vehicle groups, etc.
- Safety guard according to valid safety guidelines; ZENITH Maschinenfabrik GmbH supplies the electrical control.
- Pipe cable bushings of all kinds for the laying of hydraulic and electrical connections, provided that the laying takes place on / in the foundation.
- Separate cable pipes/ducts for the electrical connection to the switch cabinets with a minimum distance of the pipes to the cable duct of at least 20 cm.
- Power supply of all switch cabinets with 3 x 400 V (+/- 10%), 50Hz (+/- 1%) and 230 V (+/- 10%), 50 Hz (+/- 1%)
- Soundproof cabin of the production machine, its protective grating and staircase to the roof
- Strapping machines (horizontal / vertical), foil / hood applicator
- Dust extraction devices
- Plateau for the switch cabinets and the hydraulic unit
- Staircases for the production lines
- Provision of sufficiently qualified personnel to support the mechanical and electrical fitters of ZENITH Maschinenfabrik GmbH in the reinstallation and commissioning of the equipment
- Main electrical supply and power distribution
- Voltage, air pressure, water supply during assembly work
- Light for the entire production plant
- Provision of welding machines, gases and other tools or auxiliary means
- Safety equipment for all personnel according to local criteria
- Assembly material such as cables, pipes, glands and junction boxes, ..., unless it has been supplied or agreed by ZENITH Maschinenfabrik GmbH.
- All earthwork, concrete work, masonry work, pit work, work for important protective equipment and barriers, staircases, etc. shall be carried out by ZENITH Maschinenfabrik GmbH.
- Soundproofing equipment / cabins according to local regulations
- Internet for remote maintenance and service work
- Securing of assembly work without delay on the part of the customer
§ 11 Confidentiality
- Each party shall only use the information, knowledge, templates, including illustrations, drawings, plans, construction documents received from the other party, which the seller transmits to the customer, e.g. within the framework of an offer, for the purposes of the contract, shall treat them confidentially and shall not make them accessible to any third party without the express written consent of the other party. This shall not apply to information which is generally known at the time of receipt or which was already known to the receiving party at the time of receipt without being obliged to maintain secrecy, or which is subsequently transmitted by a third party authorized to pass it on, or which is developed by the receiving party without exploitation of information of the other party which is to be kept secret. 15.2 Information shall be returned to the Seller immediately if the contract is not concluded. A right of retention of the customer is excluded.
§ 12 Applicable law and place of jurisdiction
- All legal relationships between the Supplier and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the conflict of law’s provisions. The United Nations Convention of 11.04.1980 on Contracts for the International Sale of Goods shall not apply.
- The place of jurisdiction for all disputes in connection with deliveries or services by ZENITH Maschinenfabrik GmbH as well as for any disputes concerning pre-contractual obligations or the conclusion of a contract between merchants shall be the competent local and material court at the registered office of ZENITH Maschinenfabrik GmbH.
- ZENITH Maschinenfabrik GmbH is also entitled, at its discretion, to file suit at the customer's headquarters.