Delivery terms

§ 1 Applicability
(1) All deliveries, services, and offers by CUT Wasserstrahlschneidtechnik GmbH, Konstantinstr. 365, 41238 Mönchengladbach (hereinafter referred to as "Contractor") are made exclusively based on these General Terms and Conditions of Delivery. These are part of all contracts concluded by the Contractor with its contractual partners (hereinafter referred to as "Client") regarding the deliveries or services offered by the Contractor. They also apply to all future deliveries, services, or offers to the Client, even if they are not separately agreed upon again.
(2) The Client's or third parties' terms and conditions do not apply, even if the Contractor does not expressly object to their applicability in an individual case. Even if the Contractor refers to a letter containing the Client's or a third party's terms and conditions, or refers to them, this does not constitute acceptance of the applicability of those terms and conditions.

§ 2 Offer and Conclusion of Contract
(1) All offers from the Contractor are non-binding and without obligation, unless explicitly stated as binding or containing a specific acceptance period. Orders or contracts can be accepted by the Contractor within 14 days of receipt.
(2) The written purchase or service contract, including these General Terms and Conditions of Delivery, is solely decisive for the legal relationship between the Contractor and the Client. This contract fully reflects all agreements between the parties concerning the subject matter of the contract. Oral promises made by the Contractor before the conclusion of this contract are legally non-binding, and oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated that they remain binding.
(3) Amendments and supplements to the agreements made, including these General Terms and Conditions of Delivery, require written form to be effective. Employees of the Contractor, except for managing directors or authorized signatories, are not authorized to make oral agreements deviating from the written agreement. Telecommunication transmission, especially by fax or email, is sufficient to maintain written form, provided that a copy of the signed declaration is transmitted.
(4) Information from the Contractor regarding the subject matter of the delivery or service (e.g., weights, dimensions, usage values, load capacity, tolerances, and technical data) as well as illustrations thereof (e.g., drawings and images) are only approximately decisive, unless the use for the contractual purpose requires exact conformity. These are not guaranteed characteristics but descriptions or indications of the delivery or service. Usual commercial deviations and deviations resulting from legal requirements or technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided they do not impair the usability for the contractual purpose.
(5) The Contractor retains ownership or copyright of all offers, cost estimates, drawings, images, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the Client. The Client may not make these items accessible to third parties, disclose them, use or reproduce them either personally or through third parties without the Contractor's explicit consent. Upon the Contractor's request, the Client must return these items in full and destroy any copies made if they are no longer needed in the regular course of business or if negotiations do not result in a contract. Exceptions include the storage of electronically provided data for the purpose of regular data backup.

§ 3 Prices and Payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services are billed separately. The prices are in EUR ex works, plus packaging, statutory VAT, customs duties, fees, and other public charges for export deliveries.
(2) If the agreed prices are based on the Contractor's list prices and delivery is to take place more than four months after the conclusion of the contract, the list prices valid at the time of delivery apply (less any agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within fourteen days without any deductions unless otherwise agreed in writing. The date of payment is determined by the receipt by the Contractor. Payment by check is excluded unless specifically agreed. If the Client fails to make payment on the due date, the outstanding amounts will be subject to interest at a rate of 5% per annum from the due date; the assertion of higher interest and further damages in case of delay remains unaffected.
(4) Offsetting with counterclaims by the Client or withholding payments due to such claims is only permissible if the counterclaims are undisputed or legally established or arise from the same contract under which the respective delivery was made.
(5) The Contractor is entitled to make outstanding deliveries or services only against prepayment or provision of security if circumstances become known after the conclusion of the contract that significantly impair the Client's creditworthiness, which endangers the payment of the Contractor's outstanding claims from the respective contractual relationship (including other individual orders under the same framework agreement).

§ 4 Delivery and Delivery Time
(1) Deliveries are made ex works.
(2) Deadlines and dates for deliveries and services indicated by the Contractor are always approximate and non-binding, unless a fixed deadline or date is expressly promised or agreed upon. If shipment has been agreed upon, delivery deadlines and dates refer to the time of handing over to the carrier, freight forwarder, or any other third party assigned with the transport.
(3) The Contractor may – regardless of its rights in the event of delay by the Client – request an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to fulfill its contractual obligations to the Contractor.
(4) The Contractor is not liable for impossibility of delivery or delays if these are caused by force majeure or other events that were unforeseeable at the time of the contract conclusion (e.g., operational disruptions of any kind, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary official approvals, government measures, or the failure or incorrect or delayed delivery by suppliers) for which the Contractor is not responsible. If such events significantly complicate or make the delivery or service impossible for the Contractor, and the hindrance is not of a temporary nature, the Contractor is entitled to withdraw from the contract. In the case of temporary hindrances, delivery or service periods are extended, or delivery or service dates are postponed by the duration of the hindrance plus a reasonable startup period. If the delay makes it unreasonable for the Client to accept the delivery or service, the Client can withdraw from the contract by immediate written notice to the Contractor.
(5) The Contractor is entitled to partial deliveries
(6) If the Contractor delays a delivery or service, or if delivery or service becomes impossible for any reason, the Contractor's liability for damages is limited in accordance with § 8 of these General Terms and Conditions.

§ 5 Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Mönchengladbach, unless otherwise specified. If the Contractor is also responsible for installation, the place of performance is the location where the installation is to take place.
(2) The method of shipment and packaging are at the discretion of the Contractor.
(3) The risk passes to the Client at the latest upon handover of the goods (with the start of loading being decisive) to the carrier, freight forwarder, or any other third party assigned with shipping. This also applies if partial deliveries are made or if the Contractor has assumed other services (e.g., shipping or installation). If shipping or handover is delayed due to circumstances caused by the Client, the risk passes to the Client from the day the goods are ready for shipment and the Contractor notifies the Client.
(4) The Client bears storage costs after the transfer of risk. If storage is carried out by the Contractor, the storage costs amount to 0.25% of the invoice amount of the stored goods per week. The Contractor reserves the right to assert higher or lower storage costs.
(5) The shipment will only be insured by the Contractor upon the Client's explicit request and at the Client's cost, against theft, breakage, transport damage, fire and water damage, or other insurable risks.
(6) If an acceptance is required, the goods are considered accepted if:
• The delivery and, if the Contractor is also responsible for installation, the installation is completed.
• The Contractor has notified the Client of the completion and requested acceptance, indicating the assumption of acceptance according to this § 5 (6).
• Six working days have passed since the delivery or installation, or the Client has started using the goods (e.g., has continued using or put the delivered goods into operation).
• The Client has not refused acceptance within this period for reasons other than a defect that makes the use of the goods impossible or significantly impairs its function.

§ 6 Warranty, Defects in Goods
(1) The warranty period is one year from delivery or, if acceptance is required, from the acceptance. This period does not apply to the client’s claims for damages arising from the violation of life, body, or health, or from intentional or grossly negligent breaches of duty by the contractor or their agents, which expire according to the legal provisions.
(2) The delivered goods must be carefully examined immediately after delivery to the client or to a third party designated by the client. They will be deemed approved by the client with regard to obvious defects or other defects that would have been detectable by an immediate, careful examination, unless the contractor receives a written notice of defects within five working days after delivery. Regarding other defects, the delivered goods will be deemed approved if the contractor does not receive the notice of defects within five working days from the time the defect became apparent; if the defect was already evident at an earlier point during normal use, that earlier time will be the starting point for the notification period. Upon request by the contractor, a defective delivery item must be returned to the contractor freight-free. In the case of a justified notice of defects, the contractor will reimburse the cost of the cheapest shipping method, unless the costs increase because the delivery item is located elsewhere than at its intended place of use.
(3) In the case of defects in the delivered goods, the contractor is initially obligated and entitled, at their discretion and within a reasonable period, to either repair the defect or provide a replacement delivery. In the event of failure, i.e. impossibility, unreasonableness, refusal, or undue delay of the repair or replacement delivery, the client may withdraw from the contract or demand a reasonable reduction in the purchase price.
(4) If a defect is caused by the contractor’s fault, the client may claim damages under the conditions specified in § 8 of these general terms and conditions.
(5) In the case of defects in components from other manufacturers, which the contractor cannot rectify for licensing or factual reasons, the contractor will either assert warranty claims against the manufacturers and suppliers at the client's expense or assign these claims to the client. Warranty claims against the contractor for such defects will only exist under the other conditions and according to these general terms and conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, hopeless due to insolvency. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the client against the contractor is suspended.
(6) The warranty shall be void if the client changes the delivery item or has it changed by third parties without the contractor’s consent, and the removal of defects becomes impossible or unreasonably difficult as a result. In any case, the client must bear the additional costs of removing defects caused by the change.
(7) Any delivery of used goods agreed upon in individual cases with the client is made excluding any warranty for material defects.

§ 7 Intellectual Property Rights
(1) The contractor guarantees in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each party must immediately inform the other in writing if any claims are made against it regarding the infringement of such rights.
(2) In the event that the delivery item infringes on the industrial property rights or copyright of a third party, the contractor will, at their discretion and at their cost, either modify or replace the delivery item in such a way that no third-party rights are infringed, while still fulfilling the contractually agreed functions, or obtain the right to use the item for the client by entering into a license agreement with the third party. If the contractor is unable to do so within a reasonable period, the client is entitled to withdraw from the contract or demand a reasonable reduction in the purchase price. Any claims for damages by the client are subject to the limitations set out in § 8 of these general terms and conditions.
(3) In the case of infringements by products from other manufacturers delivered by the contractor, the contractor will, at their discretion, assert claims against the manufacturers and suppliers on behalf of the client or assign these claims to the client. Claims against the contractor in these cases exist under this § 7 only if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example, hopeless due to insolvency.

§ 8 Liability for Damages Due to Fault
(1) The contractor’s liability for damages, regardless of the legal basis, especially for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tortious acts, is limited in accordance with this § 8, insofar as fault is involved.
(2) The contractor is not liable in the event of simple negligence by their organs, legal representatives, employees, or other vicarious agents, unless it involves a breach of essential contractual obligations. Essential contractual obligations include the obligation for timely delivery and installation of the delivery item, its freedom from legal defects, and those material defects that significantly impair its functionality or usability, as well as duties of advice, protection, and care that are intended to enable the client’s contractual use of the delivery item or protect the life or health of the client’s personnel or safeguard their property from significant damage.
(3) If the contractor is liable according to § 8 (2), the liability is limited to damages that the contractor foresaw or should have foreseen as a possible consequence of a breach of contract when the contract was concluded, using due diligence. Indirect damages and consequential damages resulting from defects in the delivery item are only compensable if such damages can typically be expected from the intended use of the delivery item, and the damage was caused intentionally by the contractor.
(4) In the case of liability for simple negligence, the contractor’s liability for property damage and any resulting financial losses is limited to 125% of the contract value, even if it involves a breach of essential contractual obligations.
(5) The above exclusions and limitations of liability apply equally in favor of the contractor’s organs, legal representatives, employees, and other vicarious agents.
(6) If the contractor provides technical information or advice that is not part of the agreed contractual scope, this is done free of charge and without any liability.
(7) The limitations in this § 8 do not apply to the contractor’s liability for intentional conduct, for guaranteed quality features, for breaches of life, body, or health, or under the Product Liability Act.

§ 9 Retention of Title
(1) The goods delivered by the contractor to the client remain the property of the contractor until all secured claims have been fully paid. The goods, as well as any items that replace them and fall under the retention of title, are referred to as "reserved goods."
(2) The client stores the reserved goods free of charge for the contractor. The client is entitled to process and sell the reserved goods in the ordinary course of business until the occurrence of the disposal event (subsection 5). Pledging and transferring as security is not allowed.
(3) If the reserved goods are processed by the client, it is agreed that the processing will be carried out on behalf of and for the account of the contractor as the manufacturer, and the contractor will immediately acquire ownership or – if the processing involves materials from several owners or the value of the processed item exceeds the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in proportion to the value of the reserved goods to the value of the newly created item. In the event that no such transfer of ownership occurs with the contractor, the client hereby transfers their future ownership or – in the above-mentioned proportion – co-ownership of the newly created item as security to the contractor. If the reserved goods are connected with other items to form a unified item or inseparably mixed and one of the other items is considered the main item, the contractor, to the extent that the main item belongs to them, transfers to the client proportional co-ownership of the unified item in the ratio mentioned in sentence 1.
(4) In the case of resale of the reserved goods, the client hereby assigns to the contractor, by way of security, any resulting claims against the purchaser – in the case of co-ownership of the contractor in the reserved goods, proportionally to the contractor’s share of ownership – at the time of the delivery. The same applies to other claims that replace the reserved goods or otherwise arise in relation to the reserved goods, such as insurance claims or claims from tort for loss or destruction. The contractor authorizes the client to collect the claims assigned to the contractor in their own name, subject to revocation. The contractor may only revoke this collection authorization in the event of disposal.
(5) If third parties access the reserved goods, especially through seizure, the client must immediately point out the contractor’s ownership and inform the contractor to enable the enforcement of their ownership rights. If the third party is not in a position to reimburse the contractor for any judicial or extrajudicial costs arising in this context, the client is liable to the contractor for these costs.
(6) The contractor will release the reserved goods as well as any items or claims replacing them to the extent that their value exceeds the secured claims by more than 50%. The selection of which items to release lies with the contractor.
(7) If the contractor withdraws from the contract due to a breach of contract by the client – especially in the event of late payment (disposal event) – the contractor is entitled to demand the return of the reserved goods.

§ 10 Final Provisions
(1) If the client is a merchant, a legal entity under public law, or a special fund under public law, or if they do not have a general place of jurisdiction in the Federal Republic of Germany, the court of jurisdiction for all disputes arising from the business relationship between the contractor and the client, at the contractor’s discretion, shall be Mönchengladbach or the client’s registered office. However, in these cases, the exclusive place of jurisdiction for claims against the contractor shall be Mönchengladbach. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationship between the contractor and the client is exclusively governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(3) If the contract or these general terms and conditions contain any gaps in regulation, the parties agree that those legally effective provisions are to be deemed agreed which the parties would have agreed upon, in light of the economic objectives of the contract and the purpose of these general terms and conditions, if they had known of the gap.

Mönchengladbach (Germany), February 2020