General Terms and Conditions of Sale and Delivery

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§ 1 Scope

  1. All deliveries, services and offers of NACHI EUROPE GmbH (hereinafter referred to as “NACHI”) shall be subject exclusively to these General Terms and Conditions of Sale and Delivery. These shall form a component part of all contracts concluded by NACHI with a contracting party (hereinafter also referred to as the “Customer“) for deliveries or services provided by NACHI and shall also apply to any future deliveries, services or offers to the Customer, even if not specifically agreed again.

  2. The standard terms and conditions of the Customer or a third party shall not be accepted even if NACHI fails to object to them specifically in each case. Any reference of NACHI to correspondence containing the terms and conditions of the Customer or a third party shall not be deemed acceptance of these terms and conditions.

§ 2 Offer and Contract Formation

  1. All offers of NACHI shall be subject to change and without obligation, unless expressly indicated as binding or containing a specific date of acceptance. Orders and assignments may be accepted by NACHI within a fortnight from their receipt.

  2. The minimum purchase order value amounts to EUR 250.00.

  3. All legal relations between NACHI and Customer shall be governed exclusively by the written purchase contract including these General Terms and Conditions of Sale. The contract shall fully reflect all agreements made between the contracting parties in regard to the subject matter of the contract. Verbal commitments of NACHI prior to conclusion of this contract shall not be legally binding; verbal agreements between the contracting parties shall be superseded by the written contract unless these expressly specify in each case that they shall remain in force. Additions and modifications to agreements reached including these General Terms and Conditions of Sale and Delivery shall be required in writing to be legally effective. Transmission using telecommunication by fax or email shall be deemed compliance with the requirement of written form when a copy of the signed declaration will be transmitted. 

  4. Specifics provided by NACHI in regard to the goods delivered or the service provided (e.g. weights, dimensions, practical values, capacities, tolerances and technical data) and any representations of these (e.g. drawings and illustrations) shall be approximates only unless their usability for the purpose specified in the contract requires exact specifics. They shall not be guaranteed characteristics of state or a guarantee of durability but merely describe or identify the delivery or service. Standard variances and variances due to legal requirements or technical improvements, and the replacement of components with equivalent parts shall be permissible where these do not impair their usability for the purpose specified in the contract.

  5. NACHI shall retain title to, or copyright in, all offers or quotations submitted by NACHI and all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without prior express consent of NACHI, the Customer shall not be permitted to make these materials or their content available to third parties, disclose, use or publish them or permit third parties to do so. The Customer shall be obliged to return these materials completely and to destroy potential copies, if these were not needed anymore by him in the ordinary course of business or if negotiations did not lead to a conclusion of a contract.  

§ 3 Prices and Payment

  1. Prices shall be applicable to the scope of services and delivery specified in the order confirmations. Additional or special services shall be charged separately. All prices shall be quoted in EURO and be ex works (EXW, Incoterms 2020) Krefeld, Germany excluding packaging, means of protection and the like statutory value added tax and, for exports, excluding duties and charges or any other public levies.

  2. Payment shall be made according to the agreed payment conditions. In the absence of an agreement to the contrary, the amounts invoiced shall be payable within thirty days from the invoice date without deductions. Payment shall be deemed to have been made once the bank of NACHI has received the payment. Where the Customer fails to make payment by the due date, the amounts outstanding shall bear interest at 5 percentage points above the base rate p.a. from their due date; NACHI shall reserve the right to claim higher interest and further damages where payments are in arrears.

  3. If partial payment has been agreed, and if the Customer is in default with payment of an instalment the remaining amount shall become due immediately. The same applies if the Customer is in default with a partial amount of an installment.

  4. Counterclaims of the Customer which are not in a relationship of mutuality with the payment claim of NACHI may only be offset or payments withheld on account of any such claims where these counterclaims are uncontested or have become res judicata.

  5. NACHI shall be entitled to effect outstanding deliveries or services only after advance payment or the provision of security if after conclusion of the contract it becomes aware of circumstances which may considerably reduce the creditworthiness of the Customer and thus jeopardise the ability of the latter to pay debt due to NACHI under the relevant contractual relations (including other individual contracts governed by the same framework contract).

§ 4 Delivery and Delivery Period

  1. All deliveries shall be ex works (EXW, Incoterms 2020), Krefeld, Germany.

  2. All periods and dates put forward by NACHI for deliveries and services shall be approximates only unless a fixed period or date has been specifically confirmed or agreed. Where shipment has been agreed, the delivery periods and dates shall refer to the time of delivery to the forwarding agent, carrier or any other third party handling the transport.

  3. Without prejudice to its rights arising from default of the Customer, NACHI shall be entitled to request that the Customer extend the agreed period of performance or postpone the dates for delivery or provision of services until such time as the Customer has complied with its contractual obligations toward NACHI.

  4. NACHI shall not be held liable for impossibility of delivery or for delays caused by force majeure or any other events that were not foreseeable when the contract was concluded (e.g. disruption of operations of any kind, difficulties in the supply of material or energy, transport delays, strikes, legal lockouts, shortage of labour, energy or raw materials, difficulties in procuring the required permits, measures imposed by authorities, or overdue, incorrect or late deliveries from suppliers) and for which NACHI cannot be held responsible. Where any of these events significantly impedes the delivery or provision of services by NACHI and is not of a temporary nature, NACHI shall have the right to withdraw from the contract. Where hindrances are temporary, the periods of delivery or for provision of services shall be extended or postponed by the period of hindrance and an appropriate start-up period. Where acceptance of delivery or services cannot be reasonably expected on account of the delay, the Customer may withdraw from the contract by notifying NACHI immediately in writing.

  5. NACHI shall be entitled to effect part deliveries only if
    • the part delivery can be used by the Customer for the purpose intended and specified in the contract,
    • delivery of the remaining goods ordered is guaranteed, and
    • if the Customer does not, as a result, incur considerable additional work or cost (unless NACHI has agreed to assume the cost).

  6. In the event of a default in delivery or where delivery is impossible irrespective of the reason, the liability of NACHI shall be limited to the payment of damages in accordance with § 9.

§ 5 Place of Performance, Shipment, Packaging, Passage of Risk, Acceptance

  1. In the absence of an agreement to the contrary, the place of performance for any obligations under the contract shall be Krefeld, Germany. Where NACHI is also responsible for other services as installation/commissioning, the place of performance shall be the place at which such service is required.

  2. The mode of shipment and the packaging shall be decided by NACHI after due assessment of the circumstances.

  3. In absence of an agreement to the contrary the risk shall pass to the Customer once the goods to be delivered are handed to the forwarding agent, carrier or any other third party handling the shipment (the specific point being the start of loading). The same shall apply to part deliveries or any other services to which NACHI has agreed (e.g. shipment or installation/commissioning). Where the shipment or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer on the day on which the goods are ready for shipment and NACHI has notified the Customer accordingly.

  4. The shipment shall be insured against theft, breakage, transport, fire and water damage or any other insurable risk only where expressly requested by the Customer and at its expense.

  5. Where acceptance is required, the goods shall be deemed accepted if
    • the delivery and, where applicable, any other service as installation/commissioning are completed,
    • NACHI has notified the Customer accordingly with reference to the deemed acceptance specified under this § 5 (5) and has requested acceptance,
    • twelve working days have passed since the delivery or installation/ commissioning, or the Customer has started using the goods purchased (e.g. has started up the system delivered to it) and in this case, six working days have passed since the delivery or installation/commissioning, and
    • the Customer fails to accept the purchased goods within this period for any reason other than a defect reported to NACHI which prevents, or significantly impairs, the use of the purchased goods.

§ 6 Warranty

  1. The warranty period shall be one year from delivery or, where acceptance is required, from acceptance.

  2. Promptly after delivery to the Customer or a third party specified by it, the goods delivered shall be carefully examined. They shall be deemed accepted unless NACHI is notified within seven working days from delivery of the goods of obvious defects or of any other defect identified during a prompt and careful examination, or within seven working days from discovery of the defect or the time when the defect was noticed by the Customer during normal use of the goods delivered.

  3. In the event of material defects relating to the goods delivered, NACHI shall initially be obliged and entitled at its discretion to rectify the defects or provide a replacement within a reasonable period of time. Where unsuccessful, i.e. where rectification or replacement is impossible, unacceptable, refused or causes undue delay, the Customer shall be entitled to withdraw from the contract or reduce the purchase price accordingly.

  4. Where NACHI is responsible for a defect, the Customer shall have the right to demand payment of damages as specified in § 9. By way of derogation from § 6 (1) damage claims based on injuries of life, body and health and in cases were the damage is caused by gross negligence or wilful conduct shall become time barred in accordance with the statutory provisions.

  5. In the event of defects of components supplied by other manufacturers which NACHI cannot rectify for licensing or factual reasons, NACHI shall either assert its warranty claims against the manufacturer and supplier for the account of the Customer or, at its discretion, assign its claims to the Customer. Warranty claims against NACHI based on such defects shall be permissible subject to the other conditions and these General Terms and Conditions of Sale and Delivery only where the enforcement of the above claims against the manufacturer and supplier by legal action was unsuccessful or offers no prospect of success due, for instance, to insolvency. For the duration of the legal action, the statute of limitations for the particular warranty claims of the Customer against NACHI shall be suspended.

  6. The warranty shall lapse if the Customer makes changes to the goods delivered or has changes made by third parties without the consent of NACHI, thus making the rectification of defects impossible or unreasonably difficult. At all events, the Customer shall bear any additional cost incurred for the rectification of defects.

  7. Warranty claims of NACHI or the Customer with respect to the goods delivered hereunder shall be exclusively governed by this § 6 providing for the sole and exclusive remedy with regard to any defects relating to the goods delivered. 

§ 7 Intellectual Property Registrations

  1. Each party will maintain all right, title, and interest in its own pre-existing intellectual property (which includes any samples or prototypes it provides in connection with its preparation of the goods delivered).

  2. In the event either party creates an invention, the party shall notify the other party within a reasonable time thereafter, and the parties shall discuss intellectual property registration in any countries.

  3. In the event the invention was made independently by either party, the party shall have a right to file an intellectual property registration independently in any country upon a confirmation by the other party. The party which made the invention may file for registration at its own discretion and expense.

  4. In the event the invention was made jointly by the parties, both parties may also jointly file the intellectual property registration and share the costs accordingly.

§ 8 Industrial Property Rights

  1. Where the goods delivered violate an industrial property right or copyright of a third party, NACHI shall, at its discretion and expense, change or replace these goods such that they no longer violate any third-party rights but continue to perform the function agreed by contract, or provide the Customer with the right of use through conclusion of a licence agreement. Where NACHI fails to do so within a specific period, the Customer shall be entitled to withdraw from the contract or reduce the purchase price accordingly.

  2. Any claims for damages of the Customer shall be subject to the restrictions of § 9 hereunder. § 6 (1) and § 6 (4) Sentence 2 shall apply regarding the statute of limitation of damage claims.

  3. Where the products of other manufacturers delivered by NACHI violate any rights, NACHI shall have the option of asserting its claims against the manufacturer and sub-supplier for the account of the Customer or assign these claims to the Customer. Claims against NACHI in these cases shall be permissible subject to the other conditions and these General Terms and Conditions of Sale and Delivery only where the enforcement of the above claims against the manufacturer and supplier by legal action was unsuccessful or offers no prospect of success due, for instance, to insolvency.

§ 9 Liability for Damages due to Fault

  1. The liability of NACHI for damages irrespective of the cause in law, specifically on grounds of impossibility, default, defective or incorrect delivery, breach of contract, violation of obligations during contract negotiations and tortuous acts, where these are based on fault, shall be limited as specified under this § 9.

  2. NACHI shall not be liable for simple negligence of its executive bodies, legal representatives, employees or any other vicarious agents unless it relates to the violation of material contractual obligations. Material contractual obligations shall be obligations whose fulfilment is a prerequisite in the first place for enabling the proper fulfilment of the contract which includes particularly timely, faultless deliveries and installation/commissioning along with the duty to provide advice, to protect and to exercise proper care, in order to enable the Customer to use the goods delivered as stipulated and to protect life and limb of employees of the Customer or of third parties or the property of the Customer from considerable damage.

  3. Where NACHI is liable on the merits for payment of damages in accordance with § 9 (2), this liability shall be limited to damage which, on conclusion of the contract, NACHI foresaw as a potential consequence of a breach of contract or should have foreseen exercising due care and attention if it had taken into account the circumstances known to it or which it should have known.

  4. In the event of liability for simple negligence, the liability of NACHI to pay damages for personal injury or damage to property shall be limited to EUR 2,000,000.00 (in words: two million Euro) per claim (equal to the current amount of cover of its third-party liability insurance), even where a violation of material contractual obligations is involved.

  5. The above exclusions and limitations of liability shall apply to the same extent to the executive bodies, legal representatives, employees and other vicarious agents of NACHI.

  6. The restrictions of this § 9 shall not apply to liability of NACHI based on wilful conduct, for guaranteed characteristics  of state or a guarantee of durability, due to loss of life or injury to body or health, or under the German Product Liability Act.

§ 10 Retention of Title

  1. The retention of title agreed in the following shall serve to secure all currently existing and future claims of NACHI against the Customer under the delivery agreement between the contracting parties (including balance claims based on an open account relationship restricted to this delivery agreement).

  2. The goods of NACHI delivered to the Customer shall remain the property of NACHI until full payment of all secured claims. These goods and those replacing them under this clause as subject to the retention of title shall hereinafter be referred to as goods subject to retention of title.

  3. The Customer shall store the goods subject to retention of title without cost to NACHI.

  4. The Customer shall be authorised to process or re-sell the goods subject to retention of title in its ordinary course of business until realisation (§ 10 (9)). Pledging and assignment as security shall not be permitted.

  5.  Where the goods subject to retention of title are processed by the Customer, the parties hereby agree that they shall be processed on behalf and for the account of NACHI as the manufacturer and that NACHI shall directly acquire the ownership or – where processed involving materials of several owners or where the value of the processed item exceeds the value of the goods subject to retention of title – the co-ownership (fractional share) in the new item in proportion of the value of the goods subject to retention of title to the value of the new item. Where the Customer fails to acquire such ownership, Customer shall hereby transfer its future ownership or – in the aforementioned situation – co-ownership in the new item as collateral to NACHI. Where the goods subject to retention of title are combined, or inseparably mixed, with other goods to form a unified whole and where any of the other items is considered the main item, NACHI, where it is the owner of the main item, shall transfer to the Customer the prorated co-ownership in the unified item in the proportion specified in Sentence 1.

  6. Where the goods subject to retention of title are resold, the Customer shall hereby transfer to NACHI as collateral all claims arising against the purchasing party – in case of co-ownership of NACHI in the goods subject to retention of title, prorated according to the co-owner’s share. The same shall apply to any other claims which take the place of the goods subject to retention of title or arising in any other way in regard to the goods subject to retention of title, e.g. insurance claims or claims in tort in the event of loss or destruction. Until revoked, NACHI shall authorise the Customer to collect any claims assigned to NACHI in its own name for the account of NACHI. NACHI shall revoke this collection authorisation only in case of realisation.

  7. Where the goods subject to retention of title are seized by third parties, specifically through attachment, the Customer shall promptly advise these third parties of the ownership of NACHI and notify NACHI accordingly in order to enable it to exercise its ownership rights. Where the third party is unable to reimburse NACHI for any judicial and extra-judicial costs incurred in this connection, the Customer shall be held liable vis-à-vis NACHI.

  8. On request, NACHI shall release the goods subject to retention of title and the items or claims taking their place at its option where their value exceeds the amount of secured claims by more than 50 %.

  9. Where NACHI withdraws from the contract (realisation) due to breach of contract on the part of the Customer – specifically default – it shall be entitled to demand the return of the goods subject to retention of title.

  10. If Customer plans to transport the delivered goods in a third country, he shall immediately notify NACHI of such plans in writing. Upon NACHI’s request, Customer is to grant him a security right that approximates the above-described retention of title according to the laws of the destination country. Customer has to take whatever measures necessary to justify and maintain such rights. 

§ 11 Final Provisions

  1. The place of jurisdiction for disputes arising from the business relations between NACHI and the Customer shall be, at NACHI’s option, Krefeld, Germany or the seat of the Customer. The exclusive place of jurisdiction for action against NACHI shall be Krefeld, Germany. Peremptory provisions of the law relating to exclusive places of jurisdiction shall not be affected by this provision.

  2. All relations between NACHI and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

  3. Where the contract or these General Terms and Conditions of Sale and Delivery contain loopholes, these loopholes shall be deemed filled by legally effective provisions which the contracting parties would have agreed on the basis of the economic objectives of the contract and the spirit and purpose of these General Terms and Conditions of Sale and Delivery if the loopholes had been known.

  4. These General Terms and Conditions of Sale and Delivery are drafted in the English and German language. The English version is only a convenience translation of the German version. In case of any discrepancy between the English and the German version, the German version shall prevail.