General terms and conditions

General Terms and Conditions of Delivery and Sale for products and services of the company Bear-Machines GmbH

Status 13.12.2023

Following the neutral condition recommendations of the ZVEI e.V..

I. General provisions

1. The scope of deliveries or services (hereinafter referred to as “deliveries”) shall be determined by the written declarations of both parties. However, the customer’s general terms and conditions shall only apply to the extent that the supplier or service provider (hereinafter referred to as “supplier”) has expressly agreed to them in writing.

2. The Supplier reserves its unrestricted property rights and copyrights to cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred Supplies.

3. The Purchaser shall have the non-exclusive right to use standard software with the agreed performance features in unmodified form on the agreed equipment. The Purchaser may not create a backup copy without express agreement.

4. Partial deliveries are permissible insofar as they are reasonable for the customer.

5. The Bear-Cut may only be operated with the special “Bear-Blades” intended for this purpose. The use of other blades will invalidate all warranty claims.

6. The operator of the Bear-Cut is responsible for ensuring that the Bear-Cut is used properly and in accordance with the manufacturer’s instructions. It is the operator’s responsibility to ensure that all actions are carried out in accordance with the manufacturer’s express instructions.

7. The Bear-Cut operator is reminded that a final inspection of the cutting results and the tire is required. After each use of the Bear-Cut, it is the operator’s duty to carry out a thorough check of the cutting results and the condition of the tire.

8. The operator of the Bear-Cut is liable for any damage to the tire or resulting consequential damage caused by improper handling of the Bear-Cut. It is the responsibility of the operator to use the Bear-Cut properly and to ensure that it is used exclusively for its intended purpose. Any damage or consequential damage caused by improper handling is the full responsibility and liability of the operator.

II. prices and terms of payment

1. The prices are EUR prices. Value added tax shall be invoiced additionally at the statutory rate applicable on the day of performance (in the case of advance payments: on the day of payment). The prices do not include customs duties or other import charges; these shall be borne by the Purchaser. If, by way of exception, the Supplier has assumed these costs at fixed rates, any increases, e.g. due to changes in the law, shall be borne by the Purchaser. The costs of packaging shall be invoiced additionally. Special packaging shall remain the property of the supplier and shall be charged at rental rates on the basis of cost price; it shall be returned to the supplier without delay and carriage paid.

2. If the supplier has undertaken the installation or assembly and unless otherwise agreed, the customer shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of hand tools and personal luggage as well as allowances.

3. payments shall be made without any deduction free Supplier’s paying agent in EURO as follows:

a.) Terms of payment EU: 40% down payment due 14 days after receipt of order confirmation. 20% payment due 14 days after presentation of the layout or the installation plan of the plant to be delivered. 30% payment due 14 days after delivery of the plant.10% payment due 14 days after acceptance of the plant, but not later than 60 days after delivery Payment terms not EU (Only transactions with LC security or with cash in advance then): 30% deposit due 14 days after receipt of order confirmation. 60% payment due 14 days after “Bill of Lading” of the plant to be delivered. 10% payment due 14 days after acceptance of the equipment, but not later than 60 days after delivery.

b.) In the case of supplies and works for which no provisional final sum can be fixed at the time of ordering, the supplier reserves the right, depending on the circumstances, to request a down payment at the time of ordering and payments on account during the period of performance in accordance with the costs incurred. Advance payments and payments on account shall not bear interest.

c.) The delivery period shall commence on the date of receipt of the down payment, provided that the other contractual conditions applicable thereto have been fulfilled.

d.) In the case of payments of all kinds, the date of performance shall be the date on which the supplier can freely dispose of the amount.

e.) If the payment dates are exceeded, the consequences of default shall arise without the need for a special reminder. Without prejudice to other or further rights and claims, interest on arrears shall be owed annually at a rate of 8 percentage points above the base rate.

f.) If the Purchaser is in default of payment of the price, the Supplier shall be entitled to demand the return of the goods and damages for non-performance (see also Art. III “Retention of title”). In the event of default, in particular in the event of suspension of payment, request for a composition or moratorium, all claims of the supplier shall become due immediately.

g.) The supplier shall be entitled to offset all claims to which he or the companies in which Bear-Machines GmbH has a direct or indirect majority shareholding are entitled against the customer against all claims which the customer has against the supplier or one of the aforementioned companies. Upon request, the Supplier shall send the Purchaser a list of the companies. The Purchaser may only set off claims of the Supplier against claims of the Supplier which are undisputed or have been finally adjudicated.

III. retention of title

1. the objects of the deliveries (reserved goods) shall remain the property of the supplier until all claims to which it is entitled against the purchaser from the business relationship have been fulfilled. 2. the processing and treatment of the delivery item shall be carried out for the supplier without obligating it.

2. processing and treatment of the delivery item shall be carried out for the supplier without obligating him. In the event that the delivery item is processed, combined or mixed (together: “processing” and correspondingly: “processed”) with other items not belonging to the Supplier, the Purchaser and the Supplier already agree that the Supplier – if it has no further rights – acquires co-ownership of the processed items (hereinafter together: “new goods”) in the amount of the share resulting from the ratio of the value of the processed delivery item to the value of the other processed goods at the time of processing. The Purchaser shall keep the new goods for the Supplier with the due care of a prudent businessman.

3. If the Purchaser sells the delivery item or the new goods, the Purchaser hereby assigns to the Supplier by way of security its claims against the customer arising from the resale together with all ancillary rights – including any balance claims. However, the assignment shall only apply to the amount corresponding to the value of the processed delivery item invoiced by the supplier. The share of the claim assigned to the supplier shall be satisfied with priority. Until revoked, the Purchaser shall be authorised to collect the assigned claims from the resale. At the Supplier’s request, the Purchaser shall immediately notify its customer of the assignment and provide the Supplier with the information and documents required to assert the rights against the customer.

4. If the realisable value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier shall release a corresponding part of the security interests at the request of the customer; the supplier shall be entitled to choose between different security interests when releasing the security interests.

5. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier immediately.

6. In the event of a breach of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to rescind the contract and take back the Retained Goods after a reasonable period of grace granted to the Purchaser has expired to no avail; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The Purchaser shall be obliged to surrender the goods.

7. Any costs of collection shall be borne by the customer. He shall take all necessary measures at his own expense to prevent any impairment or loss of the rights to which the Supplier is entitled in respect of the delivery item or the new goods. The Supplier shall be entitled to damages in the event of non-compliance with the Purchaser’s obligations under Article III.

IV. Deadlines for deliveries; delay

1. compliance with deadlines for deliveries presupposes the legal receipt of all documents to be supplied by the purchaser, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these preconditions are not fulfilled in good time, the periods shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay. 2.

2. correct and punctual self-delivery remains reserved. The Supplier shall inform the Purchaser without delay of the non-availability of the delivery item and, in the event of withdrawal, shall reimburse the Purchaser without delay for the corresponding consideration. Circumstances for which the Supplier is not responsible also include difficulties in procuring the supplies (including raw materials) and services required for the delivery. The supplier does not guarantee the quality or durability of the delivery. The Supplier shall not be responsible for defects in the delivery which it procures from third parties and passes on unchanged to the Purchaser.

3. If non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly.

4. If the Supplier is in default, the Purchaser may – provided that it can credibly demonstrate that it has suffered a loss as a result – claim compensation of 0.5% for each full week of default, but in no case more than a total of 5% of the price of that part of the Supplies which, owing to the default, could not be put to the intended use.

5. The Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

6. at the supplier’s request, the customer is obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or whether it insists on delivery. 7. if dispatch or delivery is delayed for reasons for which the supplier is responsible, the customer is entitled to withdraw from the contract.

7. If dispatch or delivery is delayed at the request of the Purchaser for more than one month after notification of the readiness for dispatch, the Purchaser may be charged storage costs of 0.5 % of the price of the items of the Supplies for every month commenced, but in no case more than a total of 5 %. The contracting parties shall be free to prove higher or lower storage costs. 

V. Transfer of risk

1. The risk shall pass to the Purchaser as follows, even in the case of carriage paid delivery: a.) In the case of deliveries without installation or assembly, when they have been dispatched or collected. At the request and expense of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport. b.) In the case of Supplies with erection or assembly, on the day of taking over in operation or, if so agreed, after a fault-free trial run. 2.

2. If dispatch, delivery, the start or performance of installation or assembly, the taking over in the Purchaser’s own works or the trial run is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for any other reason, the risk shall pass to the Purchaser.

VI. Installation and assembly

Unless otherwise agreed in writing, the following provisions shall apply to assembly and erection. 1:

1. the purchaser shall take over at his own expense and provide in good time:

a.) All earthwork, construction work and other ancillary work not related to the industry, including the skilled and unskilled labour, building materials and tools required for this purpose,

b.) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants,

c.) energy and water at the place of use including connections, heating and lighting,

d.) suitable dry and lockable rooms of sufficient size at the place of erection for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances; in all other respects the Purchaser shall take the same measures to protect the property of the Supplier and the erection personnel on the site as he would take to protect his own property.

e.) Protective clothing and protective devices which are necessary as a result of special circumstances at the assembly site.

2. before the start of the assembly work, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data without being asked to do so.

3. Before the start of assembly or erection, the materials and objects required for the start of the work must be available at the site of assembly or erection and all preparatory work must have progressed to such an extent that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.

4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.

5. The Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working hours of the erection personnel and the completion of the erection, assembly or commissioning.

6. If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out such acceptance within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use – if applicable after completion of an agreed test phase.

VII. reception

The Purchaser may not refuse to accept deliveries due to insignificant defects.

VIII Material defects

The Supplier shall be liable for material defects as follows. 1:

1. All parts or services which show a material defect within the limitation period – irrespective of the period of operation – shall, at the Supplier’s discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the passing of risk.

2. claims for material defects shall become statute-barred after 12 months. This shall not apply insofar as the law pursuant to §§ 438 para. 1 no. 2 (buildings and things used for a building), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (defects of a building) German Civil Code (BGB) prescribes longer periods as well as in cases of injury to life, body or health, in the event of a wilful or grossly negligent breach of duty by the Supplier and in the event of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected. The Purchaser shall immediately notify the Supplier in writing of any material defects.

3. In the event of a notification of defects, payments by the Purchaser may be withheld to an extent which is in reasonable proportion to the material defects which have occurred. The Purchaser may withhold payments only if a notice of defect is asserted and there can be no doubt as to its justification. If the notice of defect is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by it from the Purchaser.

4. The supplier shall first be given the opportunity to remedy the defect within a reasonable period of time.

5. If the supplementary performance fails, the customer may – without prejudice to any claims for damages pursuant to Art. XI – withdraw from the contract or reduce the remuneration. 6.

6. Claims for defects shall not exist in the case of insignificant deviations from the agreed quality, insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable foundation soil or as a result of particular external influences not assumed under the contract, or in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences. 7.

7. Claims of the customer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses are increased because the subject-matter of the delivery has subsequently been brought to another location than the customer’s branch office, unless such transfer is in accordance with the intended use of the subject-matter of the delivery.

8. The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478 BGB (German Civil Code) shall only exist to the extent that the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Furthermore, No. 8 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier pursuant to section 478 para. 2 of the German Civil Code (BGB). 9.

9. claims for damages shall otherwise be governed by Art. XI (Other claims for damages) shall apply to claims for damages.

10. Further claims or claims other than those provided for in this Art. Translated with www.DeepL.com/Translator (free version)

VIII of the orderer against the supplier and his the supplier and his vicarious agents due to a material due to a material defect are excluded.

IX. Industrial property rights and copyrights; Defects of title

1. Unless otherwise agreed, the Supplier shall be obliged to provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as “IPR”) only in the Supplier’s country. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows:

a.) The Supplier shall, at its option and expense, either obtain a right of use for the Supplies concerned, modify them so that the IPR is not infringed or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduction.

b.) The supplier’s obligation to pay damages shall be governed by Art. XI

c.) The aforementioned obligations of the Supplier shall only exist insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for the Supplier. If the Purchaser ceases to use the Supplies in order to reduce the damages or for other good cause, it shall be obliged to inform the third party that such cessation of use does not constitute an acknowledgement of an infringement of the IPR.

2. Claims of the customer shall be excluded insofar as he is responsible for the infringement of the property right.

3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by an application not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier. 4.

4. in the event of infringements of industrial property rights, the claims of the Purchaser set out in No. 1 a) shall otherwise be governed by the provisions of Art. VIII No. 4, 5 and 9 shall apply mutatis mutandis. 5.

5. in the event of other defects of title, the provisions of Art. VIII shall apply mutatis mutandis.

6. Further claims or claims other than those provided for in this Art. IX against the supplier and his vicarious agents on account of a defect in title are excluded. 

X. Impossibility; adjustment of the contract

1. If delivery is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser’s claim for damages shall be limited to 10% of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this shall not entail a change in the burden of proof to the detriment of the Purchaser. The right of the customer to withdraw from the contract remains unaffected.

2. if unforeseeable events within the meaning of Art. IV No. 3 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, the supplier shall have the right to withdraw from the contract. If the Supplier intends to exercise this right of withdrawal, it shall notify the Purchaser thereof without undue delay after having realised the consequences of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.

XI. Other claims for damages

1. claims for damages and reimbursement of expenses of the customer (hereinafter: claims for damages), irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from tort, shall be excluded.

2. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of a condition which goes to the root of the contract. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, body or health. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

3. Insofar as the orderer is entitled to claims for damages according to this Art. XI, they shall become statute-barred upon expiry of the limitation period applicable to claims based on material defects pursuant to Art. VIII No. 2. VIII No. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.

XII. Place of jurisdiction and applicable law

1. The general place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s registered office if the Purchaser is a merchant. However, the Supplier shall also be entitled to bring an action at the Purchaser’s place of business.

2. German substantive law shall apply to the legal relationships in connection with this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

XIII Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.