General Terms and Conditions (GTC)

YMC Europe GmbH, 05/2023

 

1. General

(1) The following terms and conditions shall apply to all our offers, sales, deliveries and services and shall become part of the contract.

(2) These terms and conditions apply only to corporate entities (§ 14 BGB). They shall also apply to all future business relations, even if they are not expressly agreed upon.

(3) We hereby expressly object to any deviating or amending General Terms and Conditions of the Buyer. They shall not apply even if the Buyer has based his purchase order or other declaration on them.

(4) All agreements made between us and the Buyer for executing the respective contract shall be in text form in the relevant contract or in an amendment agreement. A cancellation or amendment shall only apply to the respective conclusion of the contract.

(5) Unless otherwise stated in these terms and conditions and the contract, the terms and definitions of INCOTERMS 2020 shall apply.

 

2. Conclusion of contract

(1) Our offers are subject to change. Likewise, technical descriptions and other details in offers, brochures and other information are initially non-binding. An effective contract is therefore only concluded through our order confirmation.

(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties. Construction drawings shall not be provided.

(3) The purchase order placed by the Buyer by signature shall be deemed accepted by us if it is confirmed in text form.

(4) Information in the sense of paragraph 1 as well as in public statements on our part, by other manufacturers and their assistants (§ 434 I 3 BGB) shall only become part of the scope of supply if explicit reference is made to it in the respective contract.

(5) Our obligations to fulfil the contract shall be subject to the proviso that fulfilment is not prevented or restricted by any applicable regulation of foreign trade law (including embargoes) of the Federal Republic of Germany, the European Union or any other state.

 

3. Prices and terms of payment

(1) Unless otherwise agreed, our prices are "ex works", including regular packaging. Additional expenses, such as for the conclusion of insurance policies, shall be borne by the Buyer. If we have undertaken the set-up, installation, assembly, commissioning or qualification measures and unless otherwise agreed in writing, the Buyer shall bear all necessary additional costs such as travel expenses etc. in addition to the agreed upon payment.

(2) Statutory value added tax is not included in our prices and shall be stated separately on the invoice at the current legal rate on the date of invoicing.

(3) If the costs incurred by us for the delivery change within three months after submission of the offer or order confirmation, e.g. due to subsequent introduction or increase of levies, taxes or other charges on the goods, in particular EU levies and antidumping or countervailing duties or similar, as well as in case of change of currency parities, we shall be entitled to adjust the offered or agreed price accordingly.

(4) Unless otherwise agreed and subject to a coverage release by our credit insurer, purchase price payments shall be made by bank transfer within 30 days after receipt of the goods and the invoice. They shall be deemed to have been made on the date on which the amount is freely available to us. The deduction of cash discount requires special written agreement.

(5) Other forms of payment require a separate agreement in text form. Costs incurred on both sides shall be borne by the Buyer.

(6) If the Buyer defaults on a payment, all of its payment obligations arising from the business relationship with us shall become due immediately. In this case, we shall be entitled to demand interest at the legally stipulated rate. We reserve the right to claim further

(7) If, after conclusion of the contract, it becomes apparent that the Buyer does not provide sufficient guarantee of his ability to pay and that our claim to payment is at risk, we shall be entitled to refuse delivery until the buyer has made payment or provided security for it. If payment or provision of security is not made within 12 working days after a request to that effect, we shall be entitled to withdraw from the contract.

(8) The Buyer shall have a right to set-off or a right of retention only in respect of undisputed or legally established claims or entitlements.

(9) Our invoices may be created and transmitted electronically in accordance with Section 14 (1) of the German Turnover Tax Act (UStG) (Section 14.4 (1) sentence 3 UstAE) and Article 5 of the Tax Simplification Act 2011 of November 1, 2011 (BGBl. I p. 2131). The Buyer agrees to the electronic sending and receiving of invoices and will provide us with a current e-mail address to which the electronic invoices can be sent. Upon dispatch to the e-mail address provided, an electronic invoice shall be deemed delivered unless we receive notice of non-delivery. The Buyer shall notify us in good time of any change in the e-mail address for sending invoices.

 

 

4. Delivery and cooperation obligations

(1) The scope of our delivery obligation results exclusively from the respective contract. We reserve the right to make design changes or other changes based on an improvement in technology or on requirements of the legislator, provided that the changes are not substantial or otherwise unreasonable for the Buyer. The Buyer assumes full responsibility for the documents to be supplied by him, such as drawings, models and samples.

(2) Upon request, the Buyer shall be obliged to provide us with adequate and complete information about the end-use of the goods or services to be delivered, in particular to issue so-called end-use certificates (EUCs) and to send the original to us in order to be able to verify the end-use and the intended purpose of the goods or services to be delivered and to provide evidence thereof to the competent export control authority.

(3) Unless otherwise agreed, our deliveries are "ex works". The delivery shall be complete if the delivery item is ready for dispatch within the agreed period and we have notified the Buyer of this. If the Buyer is in default of acceptance, he shall compensate us for any resulting damage.

(4) Unless otherwise expressly agreed in writing, we shall be entitled to make partial deliveries to a reasonable extent, which shall be invoiced individually.

(5) Compliance with our delivery obligation requires the timely and proper fulfilment of the Buyer's obligations. Subsequent changes requested by the Buyer and the failure to provide the documents to be supplied by the Buyer in due time (e.g. required permits and releases) shall require a corresponding extension.

(6) If we ourselves are not supplied, although we have placed congruent orders with reliable suppliers, we shall be released from our obligation to perform and may withdraw from the contract.

(7) The Buyer commits not to sell, export, re-export, deliver, pass on or otherwise make available the delivered goods directly or indirectly to persons, companies, institutions, organizations or to countries if this violates European or German export regulations or embargo regulations.

(8) In the event of unjustified cancellation of the contract by the Buyer, we shall be entitled to demand 20% of the gross order value as lump-sum damages (damages in lieu of performance) without providing evidence of the actual amount of damages. The same shall apply if the contract is not executed for reasons for which we are not responsible. The Buyer reserves the right to prove that no damage or a lower damage has been caused.

(9) Excluded from the regulation according to the above paragraph 8 are goods that have been manufactured according to specific wishes of the Buyer. In this case, we reserve the right to assert further claims for damages.

(10) If we committed to install and commission the delivered products (in particular devices and systems), the Buyer shall make all necessary preparations for this. In particular, he shall provide us with personnel for his own equipment for the duration of the installation as well as a suitable installation site in good time. Any expenses, additional costs or damage arising from non-compliance with this obligation shall be borne by the Buyer.

(11) The Buyer shall bear the costs of the disposal of the packaging pursuant to § 15 paragraph 1 sentence 1 items 1 to 5 VerpackG. If the Buyer demands that we take back the packaging and we are obliged to take it back pursuant to § 15 VerpackG, the Buyer shall be obliged to bear the costs of the return transport of the packaging to our operating site. The Buyer shall be responsible for compliance with the applicable transport regulations, for example regulations relating to hazardous goods.

 

5. Delay in delivery

(1) If the agreed delivery period cannot be met as a result of circumstances for which we or our suppliers are not responsible for or which are beyond our control (e.g. natural disasters, war, riot, intervention by public authorities, energy shortages, labor disputes, etc.), the delivery period shall be extended accordingly. We shall inform the Buyer immediately of any such event. Claims for exceeding the delivery period, which we are not responsible for or for which we have no control of, are excluded.

(2) If we culpably fail to meet an expressly agreed deadline or are in default for other reasons, the Buyer shall grant us an extension, which must be at least 15 working days. After fruitless expiry of this extension period, the Buyer shall be entitled to withdraw from the contract.

(3) In the event of any delay in delivery, insofar as it is not due to intent or gross negligence, claims for damages of any kind shall be excluded.

 

6. Place of performance and transfer of risk

(1) Unless otherwise expressly agreed upon in writing, the delivery is "ex works". The risk shall pass to the Buyer upon loading of the goods, even if carriage paid (free or included) delivery has been agreed upon and/or the shipment is made with our own vehicles. We are not obliged to provide transport insurance.

(2) The place of performance shall be our registered office, unless expressly agreed otherwise.

 

7. Warranty

(1) The Buyer is obliged to inspect the received goods for completeness, transport damage, obvious defects, condition and their properties. Obvious defects shall be reported to us in writing within 7 working days after the receipt of the goods.

(2) We shall not be obliged to provide a warranty if the Buyer fails to notify us in writing of an obvious defect in good time. In case there is a defect in the goods for which we are responsible and which was notified by the Buyer in writing in good time, we shall be obliged to provide subsequent performance - to the exclusion of the Buyer's rights to withdraw from the contract or to reduce the purchase price - unless we are entitled to refuse subsequent performance on the basis of the statutory provision. The Buyer shall grant us a reasonable period of time for subsequent performance for each individual defect.

(3) The Buyer may only assert claims for damages due to the defect under the hereinafter-following terms and paragraphs if subsequent performance has failed or we refuse subsequent performance. The right of the Buyer to assert further claims for damages under the following conditions shall remain unaffected.

(4) If a defect leads to damage, we shall be liable in accordance with the statutory provisions only if the damage is personal injury, if the damage falls under the ProdHaftG or if it is due to intent or gross negligence.

(5) If the damage is based on a culpable breach of an essential contractual obligation or a "cardinal obligation", we shall otherwise only be liable for the damage typical for the contract.

(6) Further contractual and/or tortious claims of the Buyer are excluded. Therefore, we shall not be liable in particular for damages that have not occurred to the delivery item itself, nor for loss of profit or other financial losses of the Buyer.

(7) The above provisions shall not apply to used goods. Here, we shall only be liable for material defects where a guarantee has expressly been given or in case of intent or gross negligence.

(8) If our operating and maintenance instructions are not followed, parts are replaced or materials are used that do not comply with the original specifications, or interventions are carried out by unqualified personnel, our liability for defects shall lapse to the extent that defects have arisen as a result. If a defect exists and one of the above cases is given, the Buyer must prove that the defect was not caused by one of the above conditions.

(9) Any further liability is excluded regardless of the legal nature of the asserted claim.

(10) Insofar as the liability of the Seller is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.

 

8. Other liability for damages

(1) We shall also be liable for damages caused by slight negligence, insofar as such negligence relates to the breach of contractual obligations, which are essential to the performance and the fulfilment of the contract ("cardinal duties"). If a cardinal duty is neglected, the amount of a claim for damages shall be limited to the damage that was typical and foreseeable (“typically foreseeable damage”). We shall not be liable for slight negligent breaches of secondary obligations not essential to the contract.

(2) Any further liability is excluded regardless of the legal nature of the asserted claim.

(3) Insofar as the liability of the Seller is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.

(4) In the event of a breach of a pre-contractual obligation or an impediment to performance already existing at the time of conclusion of the contract (§§ 311 II, 311a BGB), our obligation to pay compensation shall be limited to the negative interest.

 

9. Retention of title

(1) Ownership of the delivered goods shall remain reserved until all our claims against the Buyer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if claims are included in a current invoice and the balance has been struck and acknowledged.

(2) The Buyer shall be entitled to sell or process the goods in the ordinary course of business. He shall be obliged to resell the reserved goods only with the retention of title if they are not paid for immediately by the third party Buyer. He shall carry out any processing on our behalf without any obligation on our part arising therefrom. In the event of processing, combination or mixing of the reserved goods with other goods, a co-ownership share in the new item shall generally arise for us. In case of processing it shall be based upon the ratio of the value (= gross invoice value including ancillary costs and taxes) of the reserved goods to the value of the new item. In case of combination or mixing in the ratio of the value of the reserved goods to the value of the other goods.

(3) The Buyer hereby assigns to us all third party claims arising from the resale. He shall remain authorized to collect these claims even after the assignment. Our right to collect the claims ourselves shall remain unaffected; however, we shall not make use of this right as long as the Buyer duly meets his payment and other obligations. Upon request, the Buyer shall inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors of the assignment.

(4) Insofar as and for as long as the reservation of title exists, the Buyer may neither pledge our property nor assign it by any way of security without our consent. Conclusion of financing contracts (for example leasing) which include the transfer of our rights of retention, require our prior written consent, unless the contract obligates the financing institution to pay our purchase price share due to us directly to us.

(5) In the event of seizures and other interventions by third parties, the Buyer shall notify us immediately in writing. He shall be prohibited from entering into agreements with his customers, which could impair our rights. He is obliged to immediately insure the reserved goods against theft, machine, fire and water damage.

 

10. Jurisdiction and applicable law

(1) The contractual relationship between the Buyer and us shall be governed exclusively by the laws of the Federal Republic of Germany, even if the Buyer has its place of residence or business abroad.

(2) German law shall apply exclusively with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) The invalidity of individual contractual provisions shall not affect the validity of the remaining provisions.

(4) The Buyer's rights under contracts with us are not transferable.

 

11. Data processing

(1) The Buyer agrees that we may process (in particular store or transmit) its data received in connection with the business relationship to a credit insurer in compliance with the General Data Protection Regulation (DSGVO). This is carried out under the provision that it is necessary for the fulfilment of our contractual obligations or to protect our legitimate interests, and there is no reason to assume that the Buyer's legitimate interest prevail and therefore exclude the processing of such data.