1. General/Scope

1.1 Our terms and conditions of purchase and payment apply exclusively. We hereby reject your terms and conditions of sale and delivery. Your deviating terms and conditions are not binding for us unless we expressly accept them. If we tacitly accept goods and services, this does not imply that we accept your terms and conditions of sale and delivery.

1.2 All agreements made between you and us for the purpose of executing this contract are set out in writing in the contract concluded between us, these terms and conditions, and the offer documents.

2. Offer/Offer Documents

2.1 You are obliged to confirm or reject our order within a period of five calendar days.

2.2 We reserve the property rights and copyrights to all documents that we provide to you, such as samples, specifications, drawings, models, and the like. The documents may not be used or reproduced for purposes other than those specified in the contract, which we shall not unreasonably refuse. If our order is not accepted, you are obliged to return all documents to us.

2.3 With your signature, you confirm that all materials, lubricants, and work and testing equipment used by you are suitable for use in the food industry. This must be presented by the supplier at the request of Heinrichsthaler Milchwerke GmbH.

3. Delivery

3.1 Delivery shall be DDP, including assembly and defined trial operation.

3.2 The delivery time specified in the order is binding. If you realize that an agreed interim or final deadline cannot be met for any reason, you must notify us immediately in writing, stating the exact reasons and the expected duration of the delay. You shall take all necessary measures to ensure that the agreed delivery date can be met and inform us of what you have done and will do in this regard in each individual case. Notification of an expected delivery delay does not change the agreed delivery date. If you are in default of delivery, we are entitled to the statutory claims.

3.3 If you exceed one of the agreed dates and are therefore in default, you shall pay us a penalty for delay of 0.15% of the total order value per calendar day or part thereof, up to a maximum of 5% of the total order value. In addition to the penalty for delay, we may claim compensation for the damage resulting from the delay in delivery. In this case, the contractual penalty will be offset. We may assert the penalty for delay if we notify you of a reservation within five calendar days of acceptance of the delayed delivery. You grant us the right to intervene with your supplier if necessary. 

4. Acceptance

4.1 If the system proves to be functional after successful trial operation, joint acceptance of the system shall take place. The acceptance date shall be determined by the dates specified in the minutes of the price and performance negotiations.

4.2 You and we shall each bear our own personnel and material costs incurred during acceptance. The measuring equipment required for performance verification and its installation and dismantling shall be included in your scope of services.

4.3 Once you have provided evidence that the agreed delivery and performance data have been achieved, acceptance shall be confirmed in an acceptance report.

4.4 If the acceptance test shows that the system has not been manufactured in accordance with the contract and the acceptance test therefore fails, you shall immediately do everything necessary to ensure that a new acceptance test can be carried out. You shall bear all costs incurred in repeating the test.

5. Transfer of risk/documents

5.1 The risk shall only pass to us on the day on which commissioning is completed and the system is operated exclusively by our personnel.

5.2 After the delivery/service has been performed or at the latest one week after acceptance, you must send us the drawings, calculations, and other technical documents relating to the delivery item in the required number in German (in written and paper form) and in the standard DIN format or on data carriers. The documents must be updated to the current status as soon as subsequent changes are made.

6. Confidentiality

You are obliged to keep all illustrations, drawings, calculations, and other documents received strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation shall remain in force even after the execution of this contract and shall only expire when the know-how received has become generally known. Any culpable breach of this confidentiality obligation shall result in a contractual penalty of €25,000. We shall be entitled to assert further claims for damages, taking into account the contractual penalty.

7. Warranty

7.1 The warranty period for 3-shift operation is:

– 60 months for the structural integrity and leak tightness of tanks and containers,

– 24 months for all other parts, excluding wear parts

7.2 You guarantee that all items delivered by you and all services provided by you comply with the latest state of the art, the relevant legal provisions applicable on site, the regulations and guidelines of authorities, professional associations, and trade associations, as well as food law provisions, etc.

7.3 The warranty period shall commence on the date of acceptance of the complete scope of delivery and services. The rectification of defects identified during acceptance and the completion of any remaining work shall be included in the scope of delivery and services. This work shall be carried out within a reasonable period of time.

7.4 The warranty period shall be suspended upon discovery of a defect.

7.5 For repaired or newly delivered parts, the agreed warranty period shall commence upon completion of the repair. This shall not apply if the work was carried out as a gesture of goodwill or if the defect is minor and can be remedied by you without significant cost or time expenditure.

7.6 You shall assume warranty for the use of flawless materials and the professional and proper execution of the system to be delivered by you in such a way that you shall repair or replace free of charge all parts that prove to be unusable or significantly impaired in their usability, in particular due to their faulty design or defective workmanship. We shall notify you immediately upon discovery of any such defects.

7.7 All costs incurred in connection with the changes, repairs, and new deliveries, including transport and packaging costs as well as the costs of assembly, shall be borne by you. If you fail to rectify the delivery/service despite repeated requests, we shall be entitled to commission a third party to remedy the defect at your expense.

7.8 You undertake to supply us with spare parts for the entire service life of the delivered system, but for at least ten years from the date of acceptance, calculated from the date of order.

8. Increases/decreases

We reserve the right to accept increases or decreases in delivery quantities. The agreed price is considered a fixed price until the contract is fulfilled. However, if significant changes (increases or decreases) to the scope of delivery or services are agreed, these will be invoiced in accordance with the unit prices, discounts, and other conditions underlying this order. A written order must be available for all increases and reductions before the measure is carried out.

9. Deadlines

The binding dates can be found in the contract documents.

10. Liability/Insurance

10.1 If we are held liable by third parties for damages caused by a product for which you are responsible, you shall indemnify us upon first request against all third-party claims, including the necessary costs of defending against such claims, if the cause lies within your sphere of control and organization.

10.2 Coverage for personal injury, property damage, and financial loss caused by the responsible party (i.e., you or your subcontractor) must be proven by submitting confirmation of liability insurance for assembly work. The sum insured shall be at least €2,500,000 and shall include extended product liability. If we are entitled to further claims for damages, these shall remain unaffected. If a separate supplementary agreement is concluded in this regard, which provides for a maximum liability amount – depending on the order value and risk of the order – your liability shall be governed by this agreement.

10.3 The liability/installation insurance shall include coverage for “items in the danger zone” in order to cover the risk of damage to third-party parts that may occur as a result of work on and with the installation object.

10.4 The liability/installation insurance shall cover the warranty period as follows:

– 60 months for the structural integrity and tightness of tanks and containers,

– 24 months for all other parts, excluding wear parts

10.5 You guarantee that the delivery by you does not culpably infringe any third-party property rights, in particular patents, licenses, or other property rights. You shall indemnify us against any third-party claims in this regard upon first request.

11. Standards, rules, laws, etc.

The entire scope of delivery must comply with the requirements of the Equipment Safety Act, in particular the 9th Regulation of the Equipment Safety Act (Machinery Regulation), as well as the relevant regulations applicable to the scope of delivery. The basic health and safety requirements of Annex I of the Machinery Directive and applicable directives must be met in the design of machines and equipment. These requirements can be specified in harmonized standards. In the absence of harmonized standards, the relevant national standards, occupational health and safety regulations (BGVen/UVVen), VDE regulations, and other generally recognized rules of technology, occupational medicine, and hygiene must be observed in order to implement the basic health and safety requirements. Deviations from contractually agreed standards or other technical specifications are only permitted if another solution is proposed and agreed with the client that achieves at least the same level of safety as these standards or technical specifications. Our respective factory standards and factory hygiene regulations are known and must be applied.

12. Pricing

12.1 The price is quoted free at the place of use, including any necessary scaffolding and lifting equipment, as well as costs for freight, packaging, license fees, and patent fees.

12.2 The agreed prices are exclusive of statutory value added tax.

12.3 The hourly rates and material prices valid at the time of order placement shall remain valid until project completion and may not be increased.

12.4 We are entitled to set-off and retention rights to the extent permitted by law.

13. Terms of payment

30% of the order amount plus VAT upon receipt of the written order confirmation and submission of the first partial payment invoice against provision of a bank guarantee or group guarantee limited in time until commissioning, waiving the right to deposit for the purpose of providing security.

30% of the order amount plus VAT upon commencement of installation, provided that the delivery is complete and the second partial payment invoice has been submitted. If the commencement of installation is delayed through our fault, payment is due upon delivery of the essential parts, but no later than six weeks after notification of readiness for delivery.

30% of the order amount plus VAT after commissioning and presentation of the third partial invoice.

10% (remainder) of the order amount plus VAT after defect-free acceptance, handover of the documentation and submission of the final invoice against provision of a directly enforceable bank guarantee or group guarantee limited to the duration of the warranty period with waiver of the right of deposit for the purpose of providing security, but no later than three months after acceptance. Partial payments shall have no effect on our liability and warranty. They shall not be deemed acceptance of partial performance.

14. Miscellaneous

14.1 Amendments, supplementary agreements, and ancillary agreements require the written consent of both contracting parties. Deliveries and services performed without a written order will not be accepted. Our silence in response to your suggestions, demands, or evidence shall in no case be construed as consent.

14.2 You must dispose of any waste you generate, including transport packaging, in consultation with our project manager. A maintenance-friendly and easily accessible installation must be provided.

14.3 Work to be carried out on our premises must not hinder operations or third parties more than is unavoidable.

14.4 If you use tools provided by us to perform the contract, these shall remain our property. The same applies to other parts that we provide to you. You are obliged to insure the tools belonging to us at replacement value at your own expense against fire, water, and theft. You are obliged to carry out any necessary maintenance and inspection work in good time at your own expense. Any malfunctions must be reported to us immediately. Tools must be handed over upon first request, if necessary.

14.5 In the event of incorrect or incomplete delivery documents, invoices, etc. (e.g., missing order number, address, etc.), we will charge you a flat fee of $100 for each individual case.

15. Place of jurisdiction

15.1 The place of jurisdiction is Dresden. We reserve the right to assert claims at any other permissible place of jurisdiction.

15.2 The place of performance for delivery and services is the respective place of use or installation.

16. Applicable law

German law applies to all legal relationships between you and us.

17. Handover

The handover of the system includes the timely provision of all necessary technical documentation, such as:

• Assembly plan and instructions
• Installation plan
• Piping diagrams
• Flow diagrams
• Electrical circuit diagram
• Operating instructions
• Spare parts lists with detailed drawings
• Electronics documentation/instruction list/cross-reference list/contact plan/assignment list
• Operating and maintenance instructions
• Installation plans and technical drawings on DVD

As of: November 2015