General Terms and Conditions

General Terms and Conditions of Business of INTERTEX Maschinenbau GmbH

All transactions of INTERTEX Maschinenbau GmbH (hereinafter referred to as "INTERTEX") as the contractor or service provider are based exclusively on these General Terms and Conditions (hereinafter referred to as "GTC").  The GTC only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law. The GTC apply in particular to contracts for the sale and/or delivery of goods (hereinafter also referred to as "goods") – including the extent to which INTERTEX is responsible for the installation of the goods. Agreements deviating from these GTC require the express written confirmation of INTERTEX in order to be valid. Individual agreements (e.g. framework supply agreements) and information in our order confirmation take precedence over the GTC.

 

1. Offers

INTERTEX's offers are subject to change. Illustrations, dimensions and weight specifications in advertising brochures and printed advertising material are not binding. INTERTEX reserves the right to further develop, improve and change models. Orders are only deemed to have been accepted when they have been confirmed by INTERTEX in text form or when INTERTEX delivers the goods.

 

Offers and proposals from INTERTEX are non-binding - it is the customer's responsibility to check them carefully. INTERTEX does not guarantee that the ordered design is suitable for the intended purpose.

 

INTERTEX's offer documents, drawings, descriptions, samples and cost estimates may not be passed on, published, reproduced or otherwise made accessible to third parties without its authorisation. Upon request, the documents must be returned without retaining copies. INTERTEX reserves the right of ownership and copyright to the illustrations capable of copyright protection, drawings, calculations and other documents prepared by INTERTEX.

 

If assembly conditions are attached to the order documents, these form part of the contract.

 

2. Prices

Unless otherwise agreed in individual cases, INTERTEX's current prices at the time the contract is concluded apply, ex warehouse, net plus statutory VAT. Statutory VAT is not included in the prices. It shall be shown separately on the invoice at the statutory rate applicable at the time the invoice is issued.

 

When the contractual service is dispatched, the customer bears the transport costs ex warehouse and the costs of any transport insurance requested by the customer. Unless INTERTEX invoices the transport costs actually incurred in the individual case or transport costs are expressly agreed in the contract, a flat rate for transport costs (excluding any transport insurance to be agreed separately) amounting to 7% net of the total remaining net order value is deemed agreed. Any customs duties, fees, taxes and other public charges must be borne by the customer; unless otherwise agreed in individual cases, these are not included in the prices.

 

INTERTEX reserves the right to increase prices appropriately if, after conclusion of the contract, cost increases occur for which INTERTEX is not responsible, in particular due to material costs, increases in raw material prices, prices of auxiliary materials, wages and salaries, freight or public charges. INTERTEX must provide evidence of the change in these costs to the customer upon request.

 

3. Payment, Security

Invoices from INTERTEX are payable within 10 days of the invoice date. Assembly, freight and packaging costs are payable immediately in cash.

 

The customer may only offset claims by INTERTEX against undisputed claims or legally established claims or synallagmatic claims, i.e. main performance obligations from the same contract.

 

INTERTEX is authorised at any time, even within the framework of an ongoing business relationship, to make a delivery as a whole or in part only in return for advance payment. INTERTEX will declare a corresponding reservation with the order confirmation at the latest. In this case, the customer may demand security for the advance payment in the form of an advance payment guarantee in accordance with Section 239 of the German Civil Code.

 

If it becomes apparent after the conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that INTERTEX's claim to the agreed remuneration is jeopardised by the customer's inability to pay, INTERTEX is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from or terminate the contract. Furthermore, INTERTEX is entitled to declare any existing residual debt from the respective contract due and payable. In the case of contracts for the manufacture of non-fungible items (customised products), INTERTEX may declare its withdrawal or termination immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

 

INTERTEX may always demand security from the customer (even in the event of premature termination of the contract) within the meaning of Section 650f of the German Civil Code for the remuneration agreed in additional orders and not yet paid, including associated ancillary claims, which are to be set at 10 per cent of the remuneration claim to be secured. The claim to security is not excluded by the fact that the customer can demand fulfilment or that acceptance has taken place. Claims which the customer can offset against INTERTEX's claim to remuneration shall not be taken into account when calculating the remuneration, unless they are undisputed or have been legally established. Section 650 f (1) sentence 5 and (2) to (6) of the German Civil Code apply accordingly; in particular, INTERTEX is entitled to refuse performance or terminate the contract after the expiry of a reasonable period for the provision of security; Section 650 f (5) of the German Civil Code shall also apply accordingly in this respect.

 

4. Dispatch and Packaging

In the case of an agreed shipment by INTERTEX, INTERTEX is free to choose the means of transport, unless a special agreement is provided for in the order confirmation. The customer shall bear any additional costs for a shipping method requested or accelerated by the customer, even if INTERTEX assumes the freight costs in individual cases.

 

In the event of cancellation of the contract, the customer must return the goods delivered by INTERTEX to the registered office in Heiningen at its own expense and risk, provided that the customer is responsible for the termination of the contractual relationship, and the customer shall be obliged to return the transport and outer packaging used by INTERTEX to the registered office of INTERTEX within normal business hours if it wishes INTERTEX to take back this packaging. Transport and outer packaging will only be taken back by INTERTEX if it is free of foreign substances (substances that do not originate from the delivered goods) and sorted according to different packaging materials.

 

If the customer does not fulfil this obligation, it shall bear the additional costs of disposal incurred by INTERTEX as a result, unless it is not responsible for this.

 

5. Delivery Time

If the performance of the contractual service by INTERTEX requires cooperation on the part of the customer, such as obtaining official approvals, end-use declarations, import licences, import certificates, import permits, the approval of drawings, etc., the delivery periods specified by INTERTEX shall not commence until the customer has duly fulfilled all obligations and duties incumbent upon it in this respect.

 

If the customer is in default of acceptance or violates its obligations to co-operate, INTERTEX is entitled to demand compensation for the damage incurred in this respect, including any additional expenses and storage costs, unless the customer is not responsible for this. The right is reserved to assert further claims. The customer is obliged to temporarily store goods already delivered for the period of default of acceptance and breach of existing duties to co-operate at his own expense and risk until INTERTEX has provided the entire service.

 

In the event of default of acceptance, INTERTEX is entitled to demand lump-sum compensation from the customer in the amount of 2 % net of the net order value per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. Proof of higher damages and the statutory claims (in particular compensation for additional expenses, reasonable compensation, cancellation) of INTERTEX remain unaffected; however, the lump sum shall be offset against monetary claims due to default of acceptance. The customer remains entitled to prove that INTERTEX has incurred no damage at all or only significantly less damage than the above lump sum.

 

INTERTEX delivery deadlines do not take into account delays in cross-border transport and deliveries. Should delays occur at the border crossing (e.g. due to customs declarations and clearances, traffic jams or queues due to customs declarations and clearances, border closures or similar), these delays shall be borne by the customer and extend the delivery periods accordingly.

 

Obstructions, in particular events of force majeure, entitle INTERTEX to postpone delivery for the duration of the obstruction. Lawful industrial action, mobilisation, war, blockades, import and export bans, shortages of raw materials and energy, fire, traffic blocks, bad weather conditions (e.g. during assembly work) and other circumstances are considered equivalent to force majeure unless INTERTEX is responsible for them. It is irrelevant in this context whether they occur at INTERTEX, a pre-supplier or a subcontractor.

 

If INTERTEX proves that, despite careful selection of suppliers and conclusion of the necessary contracts on reasonable terms, the suppliers do not deliver on time, the delivery period shall be extended by the period of delay caused by the suppliers' failure to deliver on time.

 

If delivery becomes impossible due to events - as described in the above paragraphs 3 and 4 - or if the temporary impediment to performance caused by such events lasts longer than four weeks, INTERTEX is entitled to withdraw from the contract or to terminate the contract. After expiry of the four weeks, the customer may request a declaration from INTERTEX as to whether it will withdraw/terminate or deliver within a reasonable period of time. If INTERTEX does not make a declaration within a reasonable period of time, the customer may exercise the rights to which he is legally entitled.

 

INTERTEX's liability for default shall be governed exclusively by Section 8 of these GTC. A reminder is required in any case for INTERTEX to be in default; Section 286 (2) of the German Civil Code does not apply to INTERTEX.

 

In the case of a delivery abroad owed by INTERTEX, the licences, permits or consents required for the export must be procured by the customer. INTERTEX shall be entitled to withdraw from a contract as a whole or in part without compensation if the required export licences, permits, approvals or consents are not granted by the authorities or not granted within a reasonable period of time, unless INTERTEX is responsible for this. Without a separate agreement, INTERTEX shall not be obliged to procure certificates or documents beyond the above documents in order to obtain the necessary licences, permits or other formalities for import or to arrange customs clearance. Without a separate agreement, INTERTEX is not obliged to comply with specifications regarding weight and measuring technology, packaging, labelling and markings that are required outside Germany. INTERTEX is not obliged to insure goods without a separate agreement. If no specific acceptance period has been agreed for sales on call, the call must be issued by the customer no later than 6 weeks before the delivery date.

 

6. Reservation of Title

INTERTEX retains title to the goods and deliveries sold until all current and future claims arising from the contract and an ongoing business relationship (secured claims) have been paid in full.

The goods and deliveries subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform INTERTEX immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to INTERTEX (e.g. seizures).

 

If the customer acts in breach of contract, in particular in the event of non-payment of the prices due, INTERTEX is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods shall not simultaneously include a declaration of withdrawal; INTERTEX shall rather be entitled to merely demand the return of the goods/delivery and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, INTERTEX may only assert these rights if INTERTEX has previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

The customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with the provisions below. In this case, the following provisions apply in addition:

 

The retention of title extends to the full value of the products resulting from the processing, mixing or combining of INTERTEX's goods, whereby INTERTEX shall be deemed the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their ownership rights remain in force, INTERTEX acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

 

The customer hereby assigns to INTERTEX as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share in accordance with the above paragraph. INTERTEX accepts the assignment. The obligations of the customer stated in paragraph 2 also apply in consideration of the assigned claims.

 

In addition to INTERTEX, the customer remains authorised to collect the claim. The customer undertakes not to collect the claim as long as he fulfils his payment obligations to INTERTEX, there is no deficiency in his ability to pay and INTERTEX does not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, INTERTEX may demand that the customer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, INTERTEX shall also be entitled to revoke the customer's authorisation to resell and process the goods subject to retention of title.

 

If the realisable value of the securities exceeds INTERTEX's claims by more than 10%, INTERTEX must release securities of INTERTEX's choice at the customer's request.

 

7. Warranty

Load-bearing capacity specifications are only valid in case of installation by INTERTEX or for installation according to INTERTEX's instructions in compliance with all specifications. If the customer carries out assembly in deviation from the assembly instructions, INTERTEX does not assume any warranty for the intended loads, unless the deviation has no effect on the loads. In the event that original components are not used for repairs or system retrofitting, INTERTEX is not liable for any defects or damage attributable to the use of these components. This also applies to load capacity specifications.

 

If goods delivered by INTERTEX or work produced by INTERTEX is defective, the customer's claims are initially limited to subsequent fulfilment. At INTERTEX's discretion, subsequent fulfilment shall take the form of rectification of the defect or replacement delivery. If the rectification of defects fails, the customer may, at his discretion, demand a reduction in payment or, if the liability for defects does not relate to a work performance, cancellation of the contract if the statutory requirements are met.

 

If the customer asserts claims for damages due to defects,

 

• INTERTEX is liable in accordance with the statutory provisions insofar as the claims for damages are based on intent or gross negligence on the part of INTERTEX or its vicarious agents;

 

• INTERTEX is liable in accordance with the statutory provisions if INTERTEX has negligently breached a material contractual obligation; in this case, however, INTERTEX's liability shall be limited to the foreseeable damage typically occurring, provided that no intentional breach of contract has been committed.

 

Liability for culpable injury to life, limb and health as well as mandatory liability under the Product Liability Act shall remain unaffected.

 

The limitations of liability in this Section 7 also apply in the event of breaches of duty by or in favour of persons for whose fault INTERTEX is responsible in accordance with statutory provisions. They shall not apply if INTERTEX has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods.

 

If there is a risk of unusually high damage as a result of a defect that exceeds the order value, the customer must expressly inform INTERTEX of this before the contract is concluded. Otherwise, INTERTEX can rely on the fact that any damages will not exceed the order value.

The limitation period for claims for defects is,

 

• insofar as the customer's claims for defects are based on intent or gross negligence or for injury to life, body or health as well as for claims under the Product Liability Act and for claims pursuant to Section 438 (1) No. 1 and No. 2, (3), Sections 444, 445b of the German Civil Code, the respective statutory limitation periods;

 

• in all other cases, 12 months from delivery of the goods or from installation of the goods (if INTERTEX is also responsible for installation) - in each case without significant defects. If acceptance has been agreed, the limitation period commences upon acceptance.

 

The above limitation periods also apply to contractual and non-contractual claims for damages of the customer based on a defect, unless the application of the regular statutory limitation period (Sections 195, 199 of the German Civil Code) would lead to a shorter limitation period in individual cases.

 

Minor defects do not entitle the customer to withhold payment.

 

Subsequent fulfilment does not include the removal of the defective item or reinstallation if INTERTEX was not originally obliged to install it.

 

INTERTEX shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, INTERTEX may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.

 

Warranty claims and rights of the customer presuppose that the customer fulfils his obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code. In the case of goods intended for installation or other further processing, a new inspection must in any case be carried out immediately before processing. If a defect is discovered during delivery, inspection or at any later point in time, INTERTEX must be notified of this immediately in writing. If the customer fails to carry out the proper inspection and/or report defects, claims and rights for the defect not reported or not reported on time, or not reported properly, are excluded. In the case of goods intended for fitting, mounting or installation, this also applies if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the customer shall in particular have no claims for reimbursement of corresponding costs ("removal and installation costs").

 

When the goods are dispatched, the customer must also immediately report any damage or complaints to the responsible forwarding agent or carrier, or have them confirmed.

 

It is presumed that constructional standards that merely reflect equipment and comfort features are not recognised rules of technology. If the quality has not been expressly agreed, a deviation from the recognised rules of technology does not constitute a material defect if the permanent safety and suitability of the goods for the contractual or other customary use is guaranteed by an equivalent design and INTERTEX notifies the customer of this deviation before the service is performed and the customer does not object to this without undue delay.

 

8. Limitation of Liability

If claims for damages are asserted against INTERTEX due to breaches of duty which do not lie in the defectiveness of the contractual service (Section 7 applies in this case),

 

• INTERTEX is liable in accordance with the statutory provisions insofar as the claims for damages are based on intent or gross negligence on the part of INTERTEX or its vicarious agents;

 

• INTERTEX is liable in accordance with the statutory provisions if INTERTEX has negligently breached a material contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and is entitled to rely); in this case, INTERTEX's liability is limited to the foreseeable, typically occurring damage.

 

Any further liability on the part of INTERTEX is excluded, irrespective of the legal nature of the asserted claim. Liability for damage resulting from injury to life, body or health as well as mandatory liability under the Product Liability Act shall remain unaffected.

 

The limitations of liability in this Section 8 shall also apply to breaches of duty by or in favour of persons for whose fault INTERTEX is responsible in accordance with statutory provisions. They shall not apply if INTERTEX has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods.

 

If there is a risk of unusually high damage that exceeds the order value, the customer must expressly inform INTERTEX of this before the contract is concluded. Otherwise, INTERTEX can rely on the fact that any damages will not exceed the order value.

 

The limitation period for claims against INTERTEX - which are not based on the defectiveness of the contractual performance - shall be

 

• insofar as the customer's claims are based on intent or gross negligence or for injury to life, limb or health as well as for claims under the Product Liability Act, the respective statutory limitation periods;

 

• in all other cases, 12 months from the date on which the claim arose and the customer became aware of the circumstances giving rise to the claim and the identity of the debtor or should have become aware of them without gross negligence, but no later than 24 months from the date on which the claim arose regardless of knowledge or grossly negligent ignorance.

 

 

 

9. Installation

Unless otherwise agreed, installation work must be remunerated separately. In addition to the installation costs, the customer shall also bear the travelling expenses arising in connection with the installation.

 

Agreed flat rates for assembly work do not include surcharges for necessary overtime, night work, work on Sundays and public holidays. These may be charged additionally by INTERTEX. The customer shall bear the surcharges for overtime (25%), night work (50%) and work on Sundays and public holidays (100%) if the customer arranges such work.

 

If the installation or commissioning is delayed, the customer shall bear all costs for the waiting time at an hourly rate according to the offer for the waiting time per waiting person and for any further travelling required, unless INTERTEX is responsible for this.

 

The assembly work associated with the installation of the system shall be deemed to have been completed with the trial commissioning. If the installation is carried out by the customer or a third party commissioned by the customer, the supplier's applicable operating and installation instructions must be observed.

 

10. Final Provisions

All contracts concluded by INTERTEX shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Should any provision of the General Terms and Conditions or of the contract as a whole and/or its amendments or supplements be or become invalid, this shall not affect the validity of the remaining provisions.

 

Upon conclusion of the contract, the customer gives his consent for his personal data to be stored by us for the purpose of order processing and invoicing by means of electronic data processing.

 

If the customer is a businessperson within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of fulfilment shall be Heiningen and the exclusive place of jurisdiction shall be Cologne, Germany. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.