Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery

§ 1 Scope of application

The following terms and conditions of sale and delivery of ProductionToGo GmbH, Reutäckerstraße 7, 76307 Karlsbad, Germany (ProductionToGo) are valid for all business transactions and services, which are carried out between ProductionToGo and the client, in particular for offers, purchase and delivery contracts, orders, purchase orders, order confirmations and deliveries, unless otherwise expressly determined in writing. They apply equally to future business relations, even if they are not expressly agreed upon again. Deviating general terms and conditions of the client are not recognized, even if ProductionToGo does not expressly contradict them.

§ 2 Conclusion of Contract

(1) The offers of ProductionToGo are subject to confirmation, unless they are expressly designated as binding in the offer text. The contract comes into effect only with mutual signature, or if ProductionToGo confirms the order to the client in writing (by letter post, by fax or by mail).

(2) Additional agreements and changes require mutual written confirmation.

§ 3 Scope of delivery, dispatch and transfer of risk

(1) The scope of delivery is determined by the order confirmation of ProductionToGo.

(2) ProductionToGo expressly reserves the right to make technical changes to the characteristics of the delivery item agreed upon at the time of the conclusion of the contract. Possible price changes caused by this will be communicated to the client for approval.

(3) Shipment takes place immediately after completion of the delivery item, if not agreed otherwise. The customer bears all transport costs.

(4) Delivery shall be made "free carrier" (FCA) in accordance with Incoterms 2020, unless otherwise agreed. The risk shall pass to the Customer at the latest when the respective delivery item is made available at the named place. If the delivery is delayed due to a behavior of the client or a circumstance for which ProductionToGo is not responsible, the risk is transferred to the client with the notification of readiness for shipment or collection.

§ 4 Delivery period and force majeure

(1) Delivery periods which are not expressly agreed in writing as binding are non-binding.

(2) Delivery periods shall commence at the earliest after receipt of the documents required for the determination of the delivery item, after receipt of the Customer's down payment and after fulfillment of the cooperation obligations to be fulfilled by the Customer.

(3) A delivery period shall be deemed to have been met if the delivery item has been made available for dispatch or collection within the period.

(4) Delivery periods do not begin to run or are extended accordingly upon the occurrence of such circumstances for which ProductionToGo is not responsible and which affect the manufacture or delivery of the delivery item, in particular (i) events of force majeure, natural disasters and labor disputes affecting ProductionToGo or subcontractors (operational disruptions for which ProductionToGo is not responsible), (ii) in case of a valid amendment of the contract if ProductionToGo does not receive the technical and commercial documents in time, or if these were subsequently amended by the Client with ProductionToGo's consent, or (iii) if the Client is in default with the fulfillment of its obligations, by the duration of the respective circumstances.

(5) If an adjustment of the contract required due to the occurrence of such circumstances is not possible despite all reasonable efforts, ProductionToGo is released from its obligation to perform.

(6) If the delivery period is extended due to the aforementioned circumstances or if ProductionToGo is released from its obligation to deliver, the client has no liability claims of any kind against ProductionToGo. ProductionToGo is also not liable for interruptions of operation through no fault of its own during a delay. ProductionToGo is obliged to inform the client about the occurrence of such circumstances.

(7) ProductionToGo is entitled to partial deliveries and invoices to a reasonable extent before the expiration of the delivery period.

(8) If the delivery of the delivery item is delayed at the request of the Client or due to circumstances which have their origin in the risk and responsibility of the Client, the Client must pay ProductionToGo the costs incurred by the storage as well as interest on arrears. In case of storage by ProductionToGo, the interest on arrears amounts to at least 0.5% of the outstanding invoice amount for each outstanding month, starting one month after notification of readiness for shipment. ProductionToGo is entitled to dispose otherwise of the delivery item after setting and fruitless expiration of a reasonable deadline and to deliver to the client as a substitute with a reasonably extended deadline.

§ 5 Delivery of Software

(1) Insofar as software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including its documentation. The software is provided solely for use on the delivery item designated for this purpose or on the item designated by the customer and approved by ProductionToGo. A use of the software on more than one system is prohibited.

(2) All copyrights and property rights as well as other rights to the software and the documentation remain with ProductionToGo or its software suppliers. The client is obligated not to remove or change manufacturer's information - especially copyright notes. The client may copy, revise, translate or convert the software from the object code into the source code only exceptionally to the extent expressly permitted by law. Any other form of duplication, revision, translation, distribution or other use of the software or granting of sublicenses by the customer is not permitted.

(3) The complete transfer of the software or the rights to use it shall only be permissible in exceptional cases if the Customer proves a justified interest in transferring it to a third party while relinquishing its own use, e.g. in the event of resale of the delivery item. In this case, the client is obligated to contractually obligate the purchaser to observe the rights to which ProductionToGo is entitled.

§ 6 Duties to cooperate, installation, assembly and commissioning

(1) In case of delivery of delivery items with previous machine testing and acceptance by the client at ProductionToGo, after delivery an installation, assembly and commissioning at the client's site has to be carried out by an assembler of ProductionToGo or by a partner to be named by ProductionToGo.

(2) All necessary preparations and measures, in particular access roads, areas for machines and accessories as well as machine connections for the delivery items are to be carried out by the client in due time before the arrival of the assembler, so that he can immediately start with the installation, assembly and commissioning. If requested by ProductionToGo, the client has to provide qualified personnel as well as all materials, devices, cranes, lifting equipment, tools etc. necessary for the installation, assembly, commissioning and adjustment of the delivery item at his own expense.

(3) The working time of the fitter as well as all costs and expenses incurred for or during the assignment of the fitter in connection with the installation, assembly and commissioning shall be borne by the Customer. Travel and waiting times shall be deemed to be working time.

(4) If there are delays in the performance of services by ProductionToGo because the client has not fulfilled his duties to cooperate in time or not completely, all fixed dates and deadlines for the performance of services by ProductionToGo are non-binding and require a new examination by ProductionToGo as well as a new agreement between the contracting parties. The client is obligated to additionally remunerate ProductionToGo for additional expenses incurred by ProductionToGo due to violation of its duties to cooperate according to ProductionToGo's prices valid at that time. Both contracting parties are obligated to notify delays immediately in writing.

§ 7 Prices and Terms of Payment

(1) The current price list on the date of the order confirmation by ProductionToGo is decisive for the price determination of all deliveries and services.

(2) All prices are valid ex works or place of dispatch. They are in Euro (EUR) or the currency specified differently in the order confirmation plus transport, packaging, insurance, installation and instruction costs as well as the legally valid value added tax, excise, withholding, import, export taxes, customs duties, levies or similar other taxes in the respective applicable amount. If training courses are included in the price or are additionally offered by ProductionToGo for a fee, no travel, accommodation or meal costs of the client and the participants named by the client are included. These costs are to be borne by the client. The same applies to the costs of the assemblers according to § 6 (4) above.

(3) ProductionToGo is entitled to make the entire remaining purchase price due for immediate payment in the case of installment payments, if the client is in arrears with two or more consecutive payment installments and the amount in arrears amounts to more than 10% of the purchase price.

(4) Offsetting or the exercise of a right of retention by the customer is only permitted with undisputed, recognized or legally established counterclaims.

§ 8 Retention of title

(1) Drawings, plans and system concepts, which ProductionToGo prepares in the context of the contract initiation or implementation, remain the property of ProductionToGo. Any duplication or transfer to third parties is prohibited, they may also not be used by the client or third parties for the production of the respective delivery items or otherwise misappropriated.

(2) ProductionToGo retains ownership of the respective delivery item until it has been paid for in full. Furthermore, the retention of title continues to exist until all claims from the business relationship with the client have been settled.

(3) During the duration of the retention of title the following applies:

a) The Customer shall have the right to use the delivery item, but not the right to transfer it to third parties, to sell it or to encumber it.

b) The customer shall keep the delivery item free from any access by third parties (e.g. seizure) at his own expense and shall immediately notify us in writing of any threatened access, including such access affecting the customer's business premises. The client is only entitled to transfer his expectant right by way of security with the consent of ProductionToGo.

c) A change of location of the delivery item requires the prior written consent of ProductionToGo and may only be carried out by employees of ProductionToGo or their representatives.

d) The client has to keep the delivery item in perfect condition. Furthermore, he has to insure it at his own expense for the benefit of ProductionToGo against machine breakage, fire, burglary and water damage and to make proof of insurance and premium payment available to ProductionToGo upon request.

e) The client allows ProductionToGo or its representatives to inspect the delivery item after prior announcement during the usual business hours and allows access to its premises for this purpose without claiming compensation for this.

§ 9 Claims for Defects - Limitation Period

(1) If the delivery item is defective, the following applies:

a) ProductionToGo commits itself to subsequent performance and renders this at its own choice by removal of the defect or delivery of a defect-free item. The replaced parts become property of ProductionToGo.

b) If further attempts of rectification are not reasonable for the client and the supplementary performance finally fails, the client is entitled to withdraw from the contract or to reduce the purchase price. The withdrawal is excluded if the breach of duty by ProductionToGo is only insignificant.

c) The client must give ProductionToGo the necessary time and opportunity to carry out all repairs and replacement deliveries that ProductionToGo deems necessary. Otherwise ProductionToGo is released from liability for the resulting consequences. If the client wishes for operational reasons the urgent dispatch of a service technician connected with additional costs for ProductionToGo or the execution of the work outside the normal working hours, he has to bear the additional costs arising from it (e.g. overtime surcharges, longer journeys).

d) The limitation period for claims for defects is one year from delivery. The client has to inform ProductionToGo immediately about defects.

(2) Claims for defects are excluded:

a) For used machines or other used objects, unless a liability for defects is expressly agreed.

b) The consumption and wear of materials and parts which are subject to unavoidable and regular wear and tear due to their nature is not covered by the liability for defects.

c) If the delivery item is used in the Client's business in functional connection with already existing hardware or software components or hardware or software components acquired from third parties, provided that the malfunction is caused by these or their lack of compatibility with the ProductionToGo delivery item. If ProductionToGo has warranted compatibility with third party products, this refers only to the current product version at the time of this warranty, but not to older or future product versions (software upgrades, service releases or software updates) of this product.

d) If and to the extent that a malfunction is due to the fact that the customer has not ensured compliance with the technical framework conditions specified in the documentation and these supplementary documents.

e) If and to the extent that a malfunction is due to the fact that the customer has not carried out or allowed to be carried out the prescribed maintenance and care work in accordance with the specifications of the operating manuals or improper interventions on the delivery items.

The service interventions necessary for the elimination of the malfunctions mentioned under a) to e) have to be paid by the client according to the respectively valid service conditions of ProductionToGo at the valid cost rates.

(3) The customer remains solely responsible for damages due to unavoidable, regular wear and tear, faulty or negligent handling, excessive stress, unsuitable operating materials, unsuitable installation location, in particular installation reason, lack of stability or unsuitable securing of the power supply, chemical, electrochemical or electrical influences, weather and other natural influences.

(4) The customer shall bear any additional costs of supplementary performance resulting from the delivery item being transported to a place other than the place of delivery.

(5) In case of discovery of a defect in consumables, these must be separated in the condition of the discovery of the defect and kept ready for inspection by ProductionToGo. Otherwise they are considered approved in the delivered condition without further liability of ProductionToGo.

§ 10 Liability for damages

(1) ProductionToGo is liable for claims:

- as a result of a culpable injury of life, body or health

- of persons,

- from the product liability law,

- as a result of non-compliance with a guarantee

- due to fraudulent concealment of a defect or

- or as a result of an intentional or grossly negligent breach of duty

breach of duty without limitation in accordance with the statutory provisions.

(2) Apart from that, the liability of ProductionToGo is limited or excluded as follows:

a) In the case of a breach of essential contractual obligations caused by simple negligence, liability is limited to the typical damage foreseeable at the time of conclusion of the contract. An essential contractual obligation is an obligation which the contract intends to impose on ProductionToGo according to its content and purpose or the fulfillment of which enables the proper execution of the contract in the first place and on the compliance of which the client regularly relies and may rely.

b) ProductionToGo's liability is excluded in the case of a breach of non-essential contractual obligations caused by simple negligence and in the case of other breaches of obligations caused by simple negligence.

(3) Contractual claims for damages of the client against ProductionToGo become statute-barred in 12 months from knowledge of the conditions giving rise to the claim. This does not apply to the claims mentioned in paragraph 1.

(4) A change of the burden of proof to the disadvantage of the client is not connected with the above regulations of paragraphs 1 to 3.

§ 11 Liability for indirect damages

ProductionToGo is not liable for indirect damages as a result of a defective delivery, such as loss of production, loss of profit and additional consumption of material, unless in cases of intent.

§ 12 Cancellation of the sales contract

(1) In case of cancellation of the contract after delivery (e.g. due to withdrawal of one of the contracting parties) the client is obligated to return the delivery item to ProductionToGo in advance, without prejudice to the other processing according to the following paragraphs. ProductionToGo is entitled to have the delivery item removed from the client's premises. § 8 para. 3 e) applies accordingly.

(2) Furthermore, ProductionToGo can demand reasonable compensation from the client for the deterioration, the loss or an impossibility of surrender of the delivery item occurring for another reason, which lies in the area of risk or responsibility of the client.

(3) In addition, ProductionToGo may demand compensation for the use or enjoyment of the delivery item if the value of the delivery item has decreased between the termination of its installation and its complete immediate repossession by ProductionToGo. This reduction in value is calculated from the difference between the total price according to the purchase contract and the current value as determined by sales proceeds or, if a sale is not possible, by an estimate of a sworn expert.

(4) If ProductionToGo justifiably withdraws from the contract,

e.g. because the client finally refuses the fulfillment or he does not get a financing promise, the client is obligated to pay to ProductionToGo the entire additional expenses resulting from the withdrawal. As a rule, ProductionToGo will at least charge a possibly received down payment for the delivery item as expenditure in this case, the client reserves the right to prove a lower expenditure to ProductionToGo.

§ 13 Assignment

The assignment and/or the transfer of the rights and obligations of the client from the contract is not permitted without the written consent of ProductionToGo.

§ 14 Service

If ProductionToGo or the service organization of ProductionToGo, has taken over the provision of assembly, service or instruction services as well as the delivery of service parts, the general service conditions of ProductionToGo apply in addition to these sales and delivery conditions.

§ 15 Secrecy

(1) The contracting parties are mutually obliged to maintain secrecy of such facts, documents and knowledge which the other contracting party makes known to them in the course of the execution of the contract, provided that the other party designates the respective information as confidential or has an obvious interest in its secrecy ("Confidential Information"). The contracting parties will also maintain secrecy about the conclusion of the contract, the subject matter and the contents of this contract, with the exception of the ProductionToGo reference list. Publications of the client about the conclusion of the contract may only be made with prior written consent of ProductionToGo. The contracting parties further undertake to use Confidential Information exclusively for the execution of the contract and to make it accessible only to those of their employees and consultants who need the Confidential Information for the implementation of the contract and who are themselves bound to secrecy in the same way. In particular, they shall not make Confidential Information received the subject of their own developments or use it for the further development of their own products, nor shall they make it the subject of applications for industrial property rights or use it to oppose applications for industrial property rights of the disclosing contracting party.

(2) The obligation to maintain secrecy and the restrictions on use shall not apply insofar as the respective Confidential Information is demonstrably

- is state of the art accessible to the general public or becomes so without any action on the part of the receiving Contracting Party or

- was already known to the receiving Contracting Party or is made known by a third party authorized to disclose it, or

- is developed by the receiving Contracting Party without exploitation of the Confidential Information or

- must be disclosed due to mandatory statutory provisions or sovereign orders.

(3) Should the contractual relationship and the cooperation of the Contracting Parties be terminated, each Contracting Party shall be obliged, upon request of the other Contracting Party, to return the received Confidential Information to the other Contracting Party or to destroy it upon its request. Electronically stored data shall be completely deleted in this case.

(4) These obligations and restrictions on use shall commence upon initial receipt of the Confidential Information and shall end 10 years after complete performance of the respective contract for the performance of which the information was disclosed.

§ 16 Export Control Provisions

The Deliverables and Software may be subject to the export control regulations of the Federal Republic of Germany, the European Union, Switzerland, the United States of America or other countries. The deliveries and services are subject to the proviso that no obstacles due to national or international regulations, in particular export control regulations as well as embargos or other sanctions, stand in the way of performance.

§ 17 Place of Jurisdiction and Applicable Law

(1) In the case of contracts with merchants, persons who act in the exercise of their commercial or independent professional activity when concluding the contract (entrepreneurs); as well as with legal entities under public law, Karlsruhe is agreed as the exclusive place of jurisdiction.

(2) These General Terms and Conditions of Sale and Delivery and all contracts concluded under them shall be governed by German substantive law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG - United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980).

§ 18 Severability clause

If any provision of these agreements is or becomes invalid in whole or in part, this shall not affect the validity of the remaining provisions. The contracting parties shall jointly endeavor to find a valid provision which comes as close as possible to the invalid provision in economic terms.