General terms and conditions

General Terms and Conditions of NEW eco-tec Verfahrenstechnik GmbH (hereinafter referred to as “NEW”), Mühldorf am Inn

§ 1 Scope of the Terms and Conditions
(1) The deliveries, services, and offers of NEW to the purchaser are made exclusively on the basis of these Terms and Conditions. They shall therefore also apply to all future business transactions, even if they are not expressly agreed upon again.

(2) These Terms and Conditions shall be deemed accepted by the purchaser at the latest upon receipt of the goods or services.
(3) Any general terms and conditions or purchasing conditions of the purchaser are hereby expressly rejected.

§ 2 Offer and Conclusion of Contract
(1) The offers made by NEW are non-binding and subject to change. A binding contract shall only come into effect upon confirmation of the purchaser’s written order, signed by the Managing Director of NEW. For total order values below €5,000 (net), the contract shall also become effective with the sole signature of a senior employee.
(2) Drawings, illustrations, measurements, weights, or other performance data are only binding if they are expressly agreed upon in writing in the contract.
(3) All agreements made between NEW and the purchaser must be in writing.
(4) Written collateral agreements and subsequent amendments are subject to paragraph 1 accordingly.
(5) The transfer of the purchaser’s rights and obligations arising from this contract to third parties requires the written consent of NEW’s management. This applies particularly to the execution of the contract in connection with leasing companies.
(6) Deliveries and services by NEW that are not explicitly agreed upon in these Terms and Conditions or in the signed contract shall be deemed not agreed.

§ 3 Prices
(1) All prices are quoted net, excluding VAT, and—unless otherwise agreed—EXW (according to Incoterms 2010) Mühldorf am Inn, excluding packaging.
(2) Costs for transport insurance, loading, packaging, transfer, customs duties, official fees, unloading, as well as any additional deliveries and services, shall be borne by the purchaser or invoiced separately. Freight and transport costs shall also be borne by the purchaser unless otherwise agreed in the contract.

§ 4 Delivery and Performance Period
(1) Contractually agreed dates or deadlines must be set out in writing and shall commence upon conclusion of the contract or, if partial payments have been agreed upon, upon the timely receipt of the first installment at the latest. Compliance with binding delivery and performance obligations by NEW requires the timely and proper fulfillment of the purchaser’s obligations. If the purchaser fails to meet contractually agreed obligations (particularly deadlines or schedules), the agreed delivery and performance dates shall be extended by at least the duration of the purchaser’s delay.
(2) If subsequent contract amendments or additions are agreed upon, the delivery and performance dates or deadlines shall, unless otherwise agreed, recommence upon the conclusion of the amendment or addition. § 4(1) shall apply accordingly.
(3) In the event of delayed receipt of contractually agreed payments, the agreed delivery and performance dates or deadlines may be further extended due to necessary adjustments in capacity and production planning. Any such changes will be communicated to the purchaser by NEW after a corresponding adjustment.
(4) Delivery and performance delays due to force majeure or events that substantially hinder or make delivery by NEW impossible — including, in particular, strikes, lockouts, governmental orders, or similar circumstances, even if occurring at NEW’s suppliers or their subcontractors — shall not be the responsibility of NEW, even in the case of bindingly agreed deadlines or dates. Therefore, no delay in delivery shall be deemed to occur. In such cases, NEW is entitled to postpone the delivery or performance by the duration of the disruption plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the unfulfilled portion.
(5) If the obstruction lasts longer than six months, the purchaser shall be entitled, after setting an appropriate grace period, to withdraw from the contract with respect to the unfulfilled portion. If the delivery period is extended or if NEW is released from its obligation, the purchaser shall not be entitled to claim any damages as a result.
(6) If NEW is demonstrably responsible for the non-compliance with bindingly agreed deadlines or is in default, the purchaser shall be entitled to claim default compensation of up to 0.5% for each full week of delay, but not exceeding a total of 5% of the invoice value of the delayed deliveries or services. Any further claims are excluded unless the delay is due to at least gross negligence on the part of NEW.
(7) NEW shall be entitled to make partial deliveries and partial services at any time. These must be paid for proportionally according to their respective delivery value.
(8) If the purchaser is in default of acceptance or payment, NEW shall be entitled to claim compensation for any damages incurred as a result. In the event of the purchaser’s default of acceptance, NEW is entitled to charge the customer storage costs incurred at its facility, starting one month after notification of readiness for shipment, at a rate of 0.5% of the invoice amount for each additional month commenced. The customer retains the right to prove that the storage costs were lower. Otherwise, the provisions of § 300 of the German Civil Code (BGB) shall apply.
(9) Delays in obtaining building permits or financing commitments, as well as changes in legal or economic conditions, do not affect the contractual obligations of the purchaser.

§ 5 Transfer of Risk and Acceptance
(1) The risk shall pass to the purchaser as soon as the purchased item has been handed over to the person responsible for transport or has left the seller’s premises for the purpose of shipment. § 447(2) of the German Civil Code (BGB) remains unaffected. If shipment is delayed at the request of the purchaser or without fault on the part of NEW, or if shipment becomes impossible without NEW’s fault, the risk shall pass to the purchaser upon notification of readiness for dispatch. The same applies in the event of a culpable delay in acceptance or takeover by the purchaser.

(2) In particular during the winter months, the purchaser is obliged to wash the delivered goods immediately after delivery in order to prevent corrosion damage, especially on galvanized parts. Any claims for damages arising from improper handling are excluded.
(3) The purchased item must be accepted at the location specified in the contract upon delivery. If the contract also includes assembly services provided by NEW, the purchased item must be accepted after completion of the contractual assembly work.
(4) The purchaser shall be liable for any damage occurring after the transfer of risk, particularly during unloading of the goods from the transport vehicle if carried out by the purchaser.
(5) The products are delivered free from manufacturing and material defects. If the purchaser is in default of acceptance for more than 14 days after receiving the notice of readiness for delivery, and this delay is due to intent or gross negligence, NEW may set a final deadline of 14 days in writing, stating that acceptance will be refused after this period expires. If this grace period expires without result, NEW shall be entitled to withdraw from the contract by written declaration or to claim damages in lieu of performance. No grace period is required if the purchaser seriously and finally refuses acceptance or is clearly unable to pay the purchase price within that time. In such cases, provision of the goods is not required.
If NEW claims damages, these shall amount to 15% of the net purchase price. A higher amount may be claimed if NEW proves greater damage, or a lower amount may apply if the purchaser proves lesser damage.

§ 6 Warranty
(1) If the goods sold to a consumer are defective at the time of the transfer of risk, the mandatory statutory rights of the consumer shall remain unaffected by the following terms and conditions, except that for the delivery of used goods, a warranty period of one year from acceptance is agreed for the consumer.
(2) If the purchased item is defective at the time of the transfer of risk, NEW shall, at its discretion, either deliver a replacement or remedy the defect. Multiple rectifications are permissible. Replaced parts become the property of NEW. At NEW’s request, the purchaser shall return the originally delivered item.
(3) The purchaser’s warranty claims shall expire one year after delivery or collection of the goods. § 438(1) No. 2 BGB and § 634(a)(1) No. 2 BGB remain unaffected.

(4) If the operating or maintenance instructions provided by NEW are not followed, modifications are made to the products, parts are replaced, or consumables are used that do not comply with the original specifications, all warranty claims for defects shall be void—unless the purchaser can clearly prove that these circumstances did not cause the defect.
(5) The purchaser must notify NEW in writing of any defects immediately, but no later than 14 days after receipt of the goods. Defects that could not be discovered within this period even with careful inspection must be reported to NEW in writing immediately after discovery. The purchased item must be kept in the condition it was in at the time the defect was detected and made available for inspection by NEW.
(6) After a defect has been reported in writing, NEW is entitled to three attempts at rectification, unless the nature of the item, the defect, or other circumstances indicate otherwise.
(7) Liability for normal wear and tear, as well as warranty for wear parts, is excluded.
(8) Warranty claims against NEW are granted only to the direct purchaser and are not transferable.
(9) If the purchaser specifies the design or prescribes the material, the warranty claim does not extend to defects arising from such specifications.
ChatGPT:
(10) The foregoing provisions of § 6 apply only to contracts for the delivery of newly manufactured goods and services. For contracts involving the delivery of used items, such delivery is made under the exclusion of any warranty.

§ 7 Retention of Title
(1) The purchased item shall remain the property of NEW until all claims arising from the purchase contract to which NEW is entitled have been fully satisfied. Dieser Eigentumsvorbehalt besteht fort für alle Forderungen, welche die NEW gegen den Käufer im Zusammenhang
mit dem Kaufgegenstand jetzt oder nachträglich erwirbt, z. B. aufgrund von Reparaturen, Ersatzteillieferungen, Zubehör und Betriebsstofflieferungen, Einstell- und Versicherungskosten sowie sonstigen Leistungen.
(2) Handelt es sich beim
Käufer um eine juristische Person des öffentlichen Rechts, ein öffentlich rechtliches Sondervermögen oder einen Kaufmann, bei welchem der Vertrag zum Betrieb seines Handelsgewerbes gehört, so erstreckt sich der Eigentumsvorbehalt auch auf Forderungen,
welche der NEW gegenüber dem Käufer aus jedem Rechtsgrund jetzt oder künftig zustehen. This retention of title shall continue to apply to all claims that NEW acquires against the purchaser in connection with the purchased item, whether current or future—for example, from repairs, spare parts deliveries, accessories and operating supplies, adjustment and insurance costs, as well as other services.
(2) If the purchaser is a legal entity under public law, a special fund under public law, or a merchant whose contract forms part of the operation of their commercial business, the retention of title shall also extend to all claims that NEW has or will have against the purchaser on any legal basis, now or in the future. At the purchaser’s request, NEW is obligated to waive the retention of title once the purchaser has fulfilled all claims related to the purchased item and adequate security has been provided for any remaining claims arising from the business relationship.

(3) If the purchaser acts in breach of contract—particularly in the event of payment default or failure to comply with obligations arising from the retention of title—NEW shall be entitled to reclaim the reserved goods or, if applicable, to demand the assignment of the purchaser’s claim for return against third parties. The repossession or seizure of the reserved goods by NEW shall not constitute a withdrawal from the contract. This applies if the purchaser is a legal entity under public law, a special fund under public law, or a merchant whose contract forms part of the operation of their commercial business.
(4) If the purchaser is not a legal entity under public law, a special fund under public law, or a merchant, the following shall apply:
If the purchaser acts in breach of contract—particularly in the event of payment default—NEW shall be entitled to repossess the reserved goods at the purchaser’s expense. The repossession and seizure of the reserved goods by NEW shall, in accordance with § 503 para. sentence 4 and 5 of the German Civil Code (BGB), shall always be regarded as a withdrawal from the contract.
(5) The purchaser’s rights of retention that do not arise from the purchase contract are excluded.
(6) As long as the retention of title remains in effect, any sale, pledge, transfer by way of security, rental, or other disposition or modification of the purchased item that could impair NEW’s security shall require NEW’s prior written consent.
(7) In the event of third-party actions against the reserved goods, particularly in the case of seizure, the purchaser must point out NEW’s ownership and immediately notify NEW in writing or by fax so that NEW can enforce its ownership rights. If the third party is unable to reimburse NEW for any judicial or extrajudicial costs incurred in this connection, the purchaser shall be liable for such costs.
(8) The purchaser is obligated, for the duration of the retention of title, to maintain the purchased item in proper condition and to carry out all prescribed maintenance work and necessary repairs without delay—except in emergencies—through NEW or a workshop authorized by NEW to service the item.
(9) The processing or transformation of the reserved goods shall be carried out exclusively on behalf of NEW, which shall be deemed the manufacturer, but without incurring any obligation on NEW’s part. If the (co-)ownership is extinguished through combination, it is hereby agreed that NEW’s (co-)ownership of the resulting unified item shall transfer to NEW in proportion to its value share (invoice value).
(10) The purchaser shall hold NEW’s (co-)ownership in safekeeping free of charge. Items in which NEW holds (co-)ownership are hereinafter referred to as reserved goods.

(11) Pledging or transferring ownership of the reserved goods by way of security is not permitted. The purchaser hereby assigns to NEW, as security, all claims arising from the resale of the reserved goods or from any other legal basis (including insurance claims or claims arising from tort), including all balance claims from current account relationships, in their full amount. NEW hereby revocably authorizes the purchaser to collect the claims assigned to NEW in the purchaser’s own name but for NEW’s account. This collection authorization may be revoked only if the purchaser fails to properly meet their payment obligations. At NEW’s request, the purchaser shall provide NEW with the information necessary to collect the assigned claims and shall notify the debtors of the assignment.
(12) For the duration of the retention of title, the purchaser must take out a separate comprehensive insurance policy (or a similar policy covering equivalent risks) for the purchased item, with a reasonable deductible. The insurance policy must be concluded in such a way that the rights arising from the insurance contract are vested in NEW. The purchaser hereby authorizes NEW to request a security certificate for the comprehensive insurance in its own name and to obtain information regarding the aforementioned insurance policy. If the purchaser fails to fulfill this obligation, NEW may itself take out the separate comprehensive insurance or a similar policy at the purchaser’s expense, advance the insurance premiums, and collect them as part of the claim arising from the purchase contract.
(13) If the validity of the retention of title is subject to specific formal requirements in the purchaser’s country, the purchaser is obliged to inform NEW of these requirements, ensure their fulfillment at their own expense, and provide NEW with appropriate evidence confirming compliance with these formalities.

§ 8 Payment
(1) Unless otherwise agreed, invoices issued by NEW are payable in full immediately upon receipt, without any deductions. NEW is entitled, notwithstanding any differing provisions of the purchaser, to apply payments first toward the purchaser’s older debts and will inform the purchaser of the manner in which the payment has been applied. If costs and interest have already been incurred, NEW is entitled to apply the payment first to the costs, then to the interest, and finally to the principal amount.
(2) A payment shall be deemed made only when NEW has the unrestricted ability to dispose of the amount. In the case of checks, payment shall be considered made only once the check has been cleared. Costs for guarantees, check processing, and any additional expenses or fees incurred by NEW in connection with the payment arrangements shall be borne by the purchaser and will be invoiced subsequently.
(3) If the purchaser is in default of payment, NEW is entitled to charge default interest in accordance with § 288 of the German Civil Code (BGB) and to claim compensation for any damages incurred.
(4) If NEW becomes aware of circumstances that call the purchaser’s creditworthiness into question—particularly if a check is not honored, payments are suspended, the purchaser is in default for more than one month, or other circumstances arise that cast doubt on the purchaser’s financial reliability—NEW shall be entitled to declare the entire remaining debt immediately due and payable, even if checks have been accepted. In such cases, NEW is also entitled to demand advance payments or the provision of security.
(5) The purchaser is entitled to set-off, retention, or reduction—even if complaints of defects or counterclaims are asserted—only if the counterclaims have been legally established, are undisputed, and arise from the same contractual relationship.

§ 9 Design / Technical Modifications
(1) NEW reserves the right to make technical modifications (e.g., to design, shape, materials, or color) as well as changes to the scope of delivery up until the acceptance of the purchased item, provided such changes are reasonable for the purchaser, taking into account NEW’s legitimate interests.

§ 10 Confidentiality
(1) Unless expressly agreed otherwise in writing, information provided to NEW by the purchaser or third parties in connection with orders shall not be considered confidential.
(2) Drawings, plans, and other product-specific documents of NEW must be treated as confidential by the purchaser and by any third parties acting on the purchaser’s behalf.

§ 11 Liability
(1) In the event of a negligent breach of duty by NEW, its liability shall be limited to the foreseeable, contract-typical, and direct average damage according to the nature of the goods. This limitation shall also apply in the case of slight negligence on the part of NEW’s legal representatives or vicarious agents.
(2) In relation to business customers, NEW shall not be liable for minor breaches of non-essential contractual obligations resulting from slight negligence.
(3) The foregoing limitations of liability do not affect the purchaser’s claims arising from product liability. Furthermore, the limitations of liability do not apply to bodily injury or damage to health, or in the event of loss of life attributable to NEW.
(4) The purchaser’s claims for damages arising from a defect shall become time-barred one year after delivery of the goods. This does not apply if NEW is guilty of fraudulent intent.

§ 12 Applicable Law, Jurisdiction, Severability
(1) These Terms and Conditions and all legal relationships between NEW and the purchaser shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(2) If the purchaser is a merchant, a legal entity under public law, or a special fund under public law, Mühldorf am Inn shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) Should any provision of these Terms and Conditions or any other agreement be or become invalid, the validity of all remaining provisions and agreements shall remain unaffected.

Mühldorf
am Inn, April 2017