Used machines purchase conditions

General Terms and Conditions of Delivery and Purchase for Used Machinery and Equipment

Status April 2011

§ 1 General - Scope

Our Terms and Conditions of Delivery and Purchase for Used Machinery and Equipment (TCDP for short) shall apply exclusively; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our TCDP unless we have expressly agreed to their validity in writing. Our TCDP shall also apply if we accept the supplier's delivery without reservation in the knowledge that our supplier's terms and conditions conflict with or deviate from our TCDP. They shall also apply to all future business relations, even if they are not expressly agreed again.

All agreements made between us and the supplier of the used machine or equipment for the purpose of executing this contract shall be set forth in writing in a contract.

Our TCDP apply exclusively to entrepreneurs.

§ 2 Offer - Offer documents

The supplier is obliged to confirm our order in writing within a period of ten working days, either by a written order confirmation or by issuing a proper written invoice. Should the deadline pass fruitlessly, the order shall be deemed accepted on our terms and conditions.

We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for any feasibility based on our order; after processing the order, they are to be returned to us without being requested. They must be kept secret from third parties.

§ 3 Prices - Terms of payment

The price stated in the order is binding. In the absence of any written agreement to the contrary, the price shall include delivery „free domicile“ to the address we shall specify, including packaging. The return of empties and packaging material, unless disposable, shall be carriage forward at the supplier's expense.

Prices are net.

We can only process invoices if we receive them separately from the delivery of goods and if these - in accordance with the specifications of our order - state the order number shown there; the supplier is responsible for all consequences arising from non-compliance with this obligation, unless he proves that he is not responsible for them.

We pay the purchase price of invoices immediately upon receipt of funds from our customer, unless otherwise agreed in writing. A deposit will be made only if we receive a deposit from our customer and it has been so agreed.

We shall be entitled to the statutory rights of set-off and retention in full. We are entitled to assign all claims arising from the purchase contract without the supplier's consent. The supplier is not entitled to assign claims arising from the contractual relationship to third parties without our prior written consent.

We categorically rule out bank guarantees on our part.

§ 4 Delivery - Delivery time

The deliveries must correspond to the purchase order in execution, scope and schedule.

Agreed delivery dates are fixed dates; the supplier guarantees the possibility of delivery on time.

In the event of a delay in delivery, we shall be entitled to the statutory claims. In particular, we shall be entitled, after the fruitless expiry of a reasonable period, to claim damages for delay in addition to performance or damages for non-performance in lieu of performance or to withdraw from the contract. If we demand damages, the supplier shall have the right to prove to us that he is not responsible for the breach of duty.

The supplier is obligated to inform us immediately if circumstances occur or become apparent to him which indicate that the agreed delivery time cannot be met.

The used machine or system must be ready for collection on the agreed date in accordance with the statutory (transport) regulations, additionally completely free of chips and free of cooling lubricants (as far as possible also drip-free). Likewise, the hydraulic oil must be completely removed from the machine so that here, too, no contamination can occur on or after transport. If costs or claims for damages are incurred by the transporter and/or purchaser of the used machine or system on or after the transport of the used machine or system for the removal of damage and/or contamination caused by leaking cooling lubricants (e.g. hydraulic oil, circulating oil, emulsion, swarf, etc.), these will be charged in full to the supplier.

§ 5 Transfer of risk - documents

Unless otherwise agreed in writing, delivery shall be made „free domicile“ and the risk shall pass to us upon unloading of the used machine or equipment when the delivery has been properly handed over and accepted by our buyer.

The supplier is obliged to state our order number exactly on all shipping documents and delivery bills; if he fails to do so, we shall not be responsible for any delays in processing.

All documents pertaining to the used machine or equipment shall always be supplied; these include, but are not limited to, operating instructions, manuals, electrical schematics, current and older software versions on data carriers, etc.

§ 6 Quality

The supplier guarantees that its goods and services have the properties, quality and condition characteristics designated in the order.

The machine corresponds at the time of delivery in terms of condition, appearance and scope of accessories and equipment to the condition encountered during the inspection by VIB and/or the customer/interested party. A different condition of the used machine or equipment at the time of delivery as found during the inspection shall result in additional claims which Supplier shall pay without delay. This applies as long as nothing else has been agreed and accepted by both parties in writing by mutual consent.

The supplier warrants and guarantees compliance with all statutory safety and environmental regulations of the Federal Republic of Germany in accordance with the valid legal situation in the year of manufacture of the used machine or system in accordance with VDMA.

§ 7 Defect inspection - liability for defects

The purchaser of the used machine or plant is obliged to inspect the goods within a period of ten working days for recognizable deviations in quality and quantity; the notice of defect is timely if it is received by us within a period of ten working days, calculated from receipt of the goods or, in the case of hidden defects, from discovery. We shall immediately forward this notice of defects to the supplier.

The statutory claims for defects asserted against us shall pass directly to the supplier; in any case, we shall be entitled to demand from the supplier, at our option, remedy of defects or delivery of a new item. The right to claim damages, in particular damages in lieu of performance, is expressly reserved.

We shall be entitled to remedy the defect ourselves at the supplier's expense if there is imminent danger or special urgency.

The limitation period is 36 months, calculated from the transfer of risk.

§ 8 Product liability - Indemnification - Liability insurance coverage

Insofar as the supplier is responsible for product damage, he shall be obligated to indemnify us against third-party claims for damages upon first request to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.

Within the scope of its liability for damages within the meaning of paragraph 1, the supplier shall also be obliged to reimburse any expenses pursuant to §§ 683, 670 BGB (German Civil Code) as well as pursuant to §§ 830, 840, 426 BGB (German Civil Code), which result from or in connection with a recall action carried out by us. We shall inform the supplier about the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. Other statutory claims shall remain unaffected.

The supplier undertakes to maintain product liability insurance with coverage of € 10 million per personal injury / property damage - lump sum; if we are entitled to further claims for damages, these shall remain unaffected.

§ 9 Property rights

The supplier warrants that no rights of third parties within the Federal Republic of Germany and the EU are infringed in connection with its delivery.

If claims are asserted against us by a third party due to the infringement of property rights, the supplier shall be obliged to indemnify us against such claims upon first written request; we shall not be entitled to make any agreements with the third party - without the supplier's consent - in particular to conclude a settlement.

The supplier's indemnification obligation relates to all expenses necessarily incurred by us as a result of or in connection with a claim by a third party.

§ 10 Confidentiality

The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. This obligation to maintain secrecy shall also apply after execution of this contract; it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.

§ 11 Place of jurisdiction - place of performance - applicable law

Place of performance and exclusive place of jurisdiction for deliveries and payments (including actions on checks) as well as for all disputes arising between the parties from the contracts concluded between them shall be our place of business, insofar as the supplier is a merchant within the meaning of the German Commercial Code. However, we shall also be entitled to sue the supplier at the place of his registered office.

The law of the Federal Republic of Germany shall apply to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG = United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980).

Should any provision of these General Terms and Conditions be or become invalid or unenforceable, this shall not affect the validity of the remainder of the TCDP.