General Terms and Conditions of SHG - Conveyor Control GmbH

Part One General Conditions

I. Fundamentals

General information

1. 1. These General Terms and Conditions of Business and Contract (“GTC”) apply to all business and contractual delivery and service relationships between the commercial customer and SHG – Conveyor Control GmbH (“SHG”). German law shall apply, with the exception of the UN Convention on Contracts for the International Sale of Goods. Conflicting terms and conditions of purchase or other terms and conditions of the customer shall not apply unless expressly agreed to by us in writing (automated order confirmations without signature or verbal declarations are not sufficient for this purpose). Our GTC shall also apply if we carry out deliveries or services without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. They shall also apply to all future transactions with the customer, even if they are not expressly referred to again in individual cases. In the event of contradictions or ambiguities, the German language version always takes precedence.
   2. The following provisions apply exclusively to business transactions between the user and entrepreneurs within the meaning of § 14 BGB (German Civil Code)

Offer and payment conditions, prices, assignment/offsetting restrictions

1. 1. SHG reserves all proprietary and, if applicable, copyright exploitation rights without restriction to binding offers and non-binding quotations as well as cost estimates, calculations, samples, models, drawings and other documents of a physical or non-physical nature (hereinafter collectively referred to as “offer documents”).
   2. The customer is obliged to use the offer documents only for the purpose of checking the offer and otherwise to keep them strictly confidential; they may only be disclosed to third parties with the express consent of SHG (in written or text form). If SHG is not awarded the contract, the offer documents must be immediately and permanently destroyed or irretrievably deleted. Otherwise, IV confidentiality applies.
   3. The information in offer documents is generally based on the customer’s specifications or has been carefully determined by SHG on this basis. Nevertheless, the scope of the delivery or service shall be determined exclusively by the order confirmation.

Order confirmation

1. 1. The contractual relationship with the customer is concluded by written, electronic or implied order confirmation on the part of SHG.
   2. We reserve the right to make changes that only insignificantly modify or improve the deliveries and services, even after conclusion of the contract, insofar as they are reasonable for the customer. In particular, SHG reserves the right to make design changes at any time, but is not obliged to make such changes to products that have already been delivered.

Prices and costs

1. 1. Product prices, remuneration for services and ancillary costs (the “prices”) are based on the written, textual or electronic agreements or, in the case of transactions in the online shop, on the agreements in text form, otherwise on the current price list of SHG or on the customary market rates, unless the price list contains a relevant provision. All product prices are FCA SHG Bovenden (according to Incoterm® 2020), unless otherwise agreed in the offer and order confirmation.
   2. Deliveries are only ever made in whole packaging units; if necessary, the goods are to be delivered in a separate packaging unit. appropriate surcharges are levied when packaging is opened. If the minimum order value according to the respective price list is not reached, a reasonable processing fee shall be deemed agreed.
   3. Unless expressly stated otherwise, prices are net prices. If significant price-determining factors (such as raw material prices, wages, taxes and duties) change in the period between order confirmation and provision of the services or if cost-increasing complications occur during this time (in particular in the form of new or changed legal requirements), SHG is entitled to charge an appropriate price surcharge, insofar as the above changes have a significant influence on the economic efficiency of the order.
   4. Invoices are due within 14 days of invoicing and delivery to the customer, unless otherwise agreed. Unless otherwise agreed, the customer shall only be entitled to rights of retention and set-off arising from the same contractual relationship and only in respect of those claims which are undisputed or have been recognised by declaratory judgement.

II Delivery and performance

Contractual provision of services

1. 1. SHG shall provide the contractual deliveries and services on the basis of the agreements made, both in accordance with the state of the art and on time, if necessary. also with the involvement of vicarious agents and subcontractors. Unless the contracting parties have expressly agreed otherwise in writing or in text form, the delivery or performance times agreed between them shall be deemed to have been met if SHG notifies the customer that the goods are ready for dispatch or agrees a date for performance with the customer. SHG is authorised to provide partial services as long as this does not result in unreasonable additional expense for the customer.
   2. The customer shall create all conditions within his area of responsibility to enable SHG to fulfil the order in accordance with the contract; in particular, the customer shall provide all necessary cooperation in a timely manner. This includes, in particular, the provision of qualified personnel if the fulfilment of the order requires the operation of a machine or the modification or supplementation of the customer’s software. The customer must provide SHG with all internal information required for the proper fulfilment of the order in good time and without being asked.
   3. If SHG is in default, the customer may – provided he can credibly demonstrate that he has suffered a loss as a result – demand compensation of 0.5 % of the invoice value for each completed calendar week of the deliveries and services affected by the delay, up to a maximum of 5 % of the invoice value. Any further claims are excluded (except in cases of intent).
   4. SHG retains title to all delivery items until payment of the agreed remuneration (including all current account balance claims).

Legal provisions

1. 1. The agreed deliveries and services are subject to the express reservation that there are no obstacles to the fulfilment of the contract due to national or international regulations. If official authorisations (e.g. for export/transfer/import) are not granted, the contract shall be deemed not to have been concluded with regard to the parts concerned; any resulting claims for damages or other compensation shall be excluded. The customer assures strict compliance with all provisions of national and international foreign trade law (including any bans on deliveries and services) as amended from time to time. The customer confirms that he is not a sanctioned natural or legal person and is obliged to inform SHG immediately if he becomes a sanctioned person or if he should be in the possession or under the control of a sanctioned person in the future.
   2. In addition, the customer assumes the statutory manufacturer’s obligation to duly return delivered products to SHG after the end of use.

III Liability

Liability for material defects

1. 1. SHG guarantees to provide the contractually owed deliveries and services carefully and professionally in accordance with the state of the art and the relevant safety regulations. The customer’s specifications shall only be taken into account if their binding nature has been agreed in writing or in text form prior to the provision of the deliveries and services (automated order confirmations without signature or verbal declarations are not sufficient for this purpose). No warranty is given for the installation of products by third parties not authorised by SHG. Furthermore, the warranty claim does not apply to natural wear and tear, nor to damage arising after the transfer of risk due to incorrect or negligent handling, excessive use, unsuitable operating materials and electrical and/or mechanical influences that go beyond normal use.
   2. The limitation period for claims for defects is 12 months from the transfer of risk, unless a longer period is mandatory by law. The warranty claim expires (also within the limitation period) if the result of the services or execution or the delivery item has been changed by the customer or a third party and this change is at least partly responsible for the occurrence of the defect. If the customer refuses to allow SHG’s authorised representatives to inspect and check the defects complained about or if he rectifies the defects without SHG’s prior consent (in writing or text form), the warranty claim also expires, unless the customer had to take immediate action himself due to the risk of deterioration. Mängelansprüche sind ausgeschlossen, wenn der Kunde seinen gesetzlichen Untersuchungs- und Rügeobliegenheiten (gemäß § 377 HGB) nicht ordnungsgemäß nachgekommen ist. In the event of justified complaints, SHG shall, at its own discretion, repair or replace the defective delivery or service. In the case of discontinued products, subsequent fulfilment may alternatively be effected by supplying functionally equivalent products or issuing a credit note to the customer. Otherwise, SHG shall bear the costs necessary for the purpose of subsequent fulfilment only insofar as these are proportionate. If the subsequent fulfilment finally fails, the customer may withdraw from the contract or reduce the purchase price appropriately. Any further claims are excluded, subject to clause 3 below.
   3. SHG shall only be liable for damages beyond the above paragraph 2 in the event of intent or malice, gross negligence (including that of owners, legal representatives or executives), non-compliance with an assumed guarantee or culpable injury to life, limb or health. In addition, SHG is liable to the customer for the breach of essential contractual obligations, but in this respect only to the amount of the foreseeable damage typical for the contract.
   4. In the event of a defect, SHG reserves the right to choose the type of subsequent fulfilment.
   5. If the delivery is made without installation and assembly and if the assembly instructions supplied by SHG are faulty, we are only obliged to supply faultless assembly instructions and only if the fault in the assembly instructions prevents proper assembly.
   6. With regard to the customised software created by SHG, SHG guarantees that it is free of third-party property rights and that, to the best of SHG’s knowledge, no other rights exist that restrict or exclude its use. If the contractual use is nevertheless impaired by third party property rights, SHG has the right, without prejudice to the claims to which the client is entitled, either to modify the contractual services to an extent reasonable for the client so that they fall outside the scope of protection, but nevertheless comply with the contractual provisions, or to obtain the authorisation that they can be used in accordance with the contract without restriction and without additional costs for the client. However, warranty claims by the customer are excluded if the customer has modified the software or had it modified. Claims for damages due to defects are excluded from the provisions of § 7. § 8 applies here.
   7. 445a para. 3 BGB is excluded.

Liability for damages

1. 1. SHG’s liability for contractual breaches of duty and tort is limited to intent, malice and gross negligence. This does not apply to injury to life, limb and health of the customer. In the event of a non-intentional or non-grossly negligent breach of cardinal obligations (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely), SHG’s liability is limited to the foreseeable damage typical for the contract, but not exceeding the order value.
   2. The above provisions on joint liability also apply to the legal representatives, vicarious agents and organs appointed by SHG. A reversal of the burden of proof is not associated with the above provisions.
   3. Insofar as liability for damages that are not based on injury to life, limb or health of the customer is not excluded for slight negligence, such claims shall become time-barred within one year of the claim arising.

IV. Secrecy

1. 1. The customer is obliged to maintain strict confidentiality regarding all confidential information received from SHG; this information may only be disclosed to third parties with the express written or textual consent of SHG.
   2. The customer must obligate his employees accordingly. All information, facts, documents, data and/or knowledge, in particular technical and/or commercial information, design documents, specifications, drawings, samples, prototypes, test results and/or other know-how (hereinafter referred to as “Confidential Information”) that are not generally accessible at the time of their transmission are confidential. Confidential information includes in particular the offer documents and the prices and other conditions agreed between the parties.
   3. The duty of confidentiality shall only end if and to the extent that the know-how contained in the confidential information has become generally known without breach of duty by the customer.

V. Place of jurisdiction

The exclusive place of jurisdiction is Göttingen (Germany).

Part Two Special Conditions

The provisions of the first part of these GTC are supplemented or replaced in certain constellations by other contractual conditions in their respective valid version or by individual contractual conditions. The details can be found in the following sections 29 ff. The special contractual conditions referred to there will be made available to the respective customer on an order-related basis.

Software and hardware with integrated software

1. 1. In addition to the first part of these GTC, the special licence regulations and other provisions of the SHG Software Licence Agreement (“SLV”) or “SHG Subscription” apply to computer and software programs and the associated documentation (together referred to as “Software”). The warranty and liability provisions of the SLV take precedence over the corresponding provisions of the GTC.
   2. For hardware products with integrated software, the provisions of Section 1 above shall apply accordingly insofar as the software integrated in the hardware is concerned. In all other respects (i.e. as far as the hardware itself is concerned), the provisions of the first part of these GTC shall apply, also with regard to warranty and liability, unless otherwise agreed.

Part Three Final Provisions

1. 1. Should one of the provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Die betroffene Bestimmung ist durch eine wirksame und durchführbare Regelung zu ersetzen, die den mit der betroffenen Bestimmung verfolgten Regelungszielen am nächsten kommt. The same applies to any contractual loopholes.
   2. These GTC are available in different language versions. In the event of contradictions or ambiguities, only the German language version shall apply