General Terms and Conditions

§ 1 Scope of the Terms and Conditions (1.) The Seller's deliveries, services and offers are exclusively based on these terms and conditions. Thus, they also apply to all future business relationships, even if they are not stipulated expressly again. These conditions shall be considered as accepted at the latest on receipt of the goods or services. Acknowledgements by the Seller pointing out his/her Terms and Conditions or Purchase Conditions are hereby dismissed.
(2.) Deviations from these Terms and Conditions shall only apply if the Seller confirms them in writing.
§ 2 Offer and Conclusion of Contract
(1.) The Seller's offers are subject to confirmation and shall not be binding. Acknowledgements and all orders shall only be valid if they have been confirmed by the Seller in writing or via facsimile. This also applies to amendments, modifications or collateral agreements.
(2.) Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this has been agreed explicitly in writing.
(3.) Design and shape of the item delivered are subject to alteration in so far as the item is not modified considerably, and the extent of the changes is reasonable for the Purchaser.
(4.) The Purchaser shall be bound to his/her order for 4 weeks.
§ 3 Prices
(1.) All prices specified shall be net prices (not inclusive of the legal VAT); the applicable VAT rate provided by law shall be paid additionally.
(2.) The prices shall be plus the costs for packaging, customs clearance, transport, transport insurance and freight.
(3.) If delivery is effected later than 4 months after issue of the order confirmation, the prices valid on the day of delivery shall be charged.
§ 4 Law regarding Delivery and Services
(1.) Unless otherwise specified explicitly in writing, the deadlines and time limits specified by the Seller shall not be binding.
(2.) Delays in deliveries and services due to force majeure and events which considerably aggravate or even impede the Seller delivering the order - these include difficulties in material procurement (even if these occurred subsequently), business disruptions, strikes, lockouts, lack of transport equipment, regulatory requirements, etc., even if they do not occur at the Seller's suppliers or the subcontractors - shall not be the Seller's responsibility, even if deadlines and time limits were agreed with binding effect. They entitle the Seller to postpone the delivery or the service for the duration of the impediment plus an appropriate start-up period, or to rescind the contract completely or partially due to the part not yet performed.
The delivery period shall be considered as agreed upon if the item delivered has left the Seller's operations up to expiry of this period, or if the Seller has signalized that the items are ready for shipment.
(3.) If the Seller is responsible for the non-compliance of time limits and deadlines which have been promised with binding effect, or is in default, the Purchaser shall be entitled to a proven compensation for default to the max. extent of 0.5 % for each complete week of delay, however, in total up to max. 5 % of the invoice value of the deliveries and services subject to default. Any claims exceeding this limit shall be excluded unless default is based at least on gross negligence on the Seller's part.
(4.) The Seller shall be entitled to perform partial deliveries and partial services at any time.
§ 5 Transfer of Risk
The risk shall pass to the Purchaser as soon as the consignment has been delivered to the person performing transport, or has left the Seller's factory for shipment. If shipment is prevented or delayed without the Seller's fault, the risk shall pass to the Purchaser at the time when the consignment's readiness for shipment is announced.
§ 6 Warranty and Compensation for Damages
(1.) The Seller shall warrant the parts and products delivered by him/her to the effect that he/she eliminates defects at his/her choice either by repair or delivery of a replacement.
If repair or delivery of replacement has been unsuccessful or has not been effected within a reasonable period of time after the notification of defects, the Purchaser shall be entitled to demand, at his/her choice, reduction of the remuneration or rescission of the contract.
Any further liability, especially regarding damage which has not occurred to the items or products delivered as such, shall be excluded unless the Seller or his/her vicarious agents have acted intentionally or grossly negligently.
If necessary, the Seller shall be entitled to have the warranty performed by a third party.
(2) The warranty period shall be 6 months.
(3.) Repair or completion of the items or products delivered and rectification of defects shall neither put back nor interrupt the original warranty periods.
(4.) The warranty obligation shall not apply unless the notification of defects has been issued in writing and in case of obvious defects, at the latest within 2 weeks after receipt of the delivery, in the case of not obvious defects at the latest until expiry of the warranty obligation. The warranty obligation shall moreover cease to exist if the items delivered have been interfered with or changed. Furthermore, the warranty obligation does not exist in case of inexpert handling, natural wear and tear, infringement of the Seller's operating, assembly and maintenance instructions, and in case of use of inappropriate and unsuitable operating equipment.
(5.) If the Purchaser requests that warranty services are to be performed at a location determined by him/her, the Seller may fulfil this demand to the effect that parts subject to warranty shall not be calculated, however, labour and travel expenses shall be charged at the Seller's standard rates.
(6.) Liability for normal wear shall be excluded.
(7.) Warranty claims versus the Seller shall only be due to the direct Purchaser, and cannot be assigned.
(8.) The above stipulations of this section shall not apply to second-hand machines. These shall be delivered excluding any warranty.
§ 7 Other Claims for Damages
(1.) In case an impossibility to deliver has been caused negligently by the Seller, the Purchaser shall be entitled to rescind the contract or request compensation for damages. The claim for damages shall be limited to 5 % of the purchase price. In addition to that, the Purchaser shall not be granted replacement of a direct or indirect damage, no matter which legal cause, unless the Seller has acted intentionally or grossly negligently.
(2.) Other claims for damages on the part of the Purchaser, especially due to consequential harm caused by defect, no matter which legal cause, shall be excluded, unless the Seller or his/her vicarious agents are charged with intent or gross negligence.
§ 8 Reservation of Ownership
(1.) Until performance of all claims (including all claims resulting from open current account balances) which the Seller is entitled to from the Purchaser now or in future, no matter which legal cause, the Seller shall be granted the following collateral which he/she shall release on request at his/her choice, provided that their value exceeds the claim permanently by more than 20%. However, release can only be requested for such deliveries or their replacement values as have already been paid for in full.
(2.) The goods shall remain the Seller's property; processing or transformation shall always be effected for the Seller as manufacturer, however without binding him/her. If the Seller's (co)ownership ceases to exist due to connection, it shall be agreed as of now that the Purchaser's (co)ownership in the uniform object shall be transferred to the Seller in terms of value (invoice value). The Purchaser shall keep the Seller's (co)property free of charge. Goods of which the Seller has a (co)ownership shall be designated below as reserved property.
(3.) The Purchaser shall be entitled to process the reserved goods only in the normal course of business and to sell them subject to the reservation of ownership, unless he/she is in default. Pledges or transfer by way of security shall be inadmissible. The Purchaser shall assign claims resulting from resale or any other legal cause (insurance, tortuous act) regarding the reserved goods (incl. all claims from open current account balances) in full and already now to the Seller by way of security. The Seller authorizes him/her subject to revocation to collect the claims assigned to the Seller for his/her account on his/her own behalf. This authorization to collect can only be revoked if the Purchaser does not meet his/her liabilities to pay correctly.
(4.) Should third parties access the reserved goods, the Purchaser shall point out that these are the Seller's property and shall inform the latter without delay.
(5.) In the case of a conduct on the Purchaser's part which is not in conformity with the contract - especially default in payment - the Seller shall be entitled to take the reserved goods back or, if necessary, demand the assignment of the Purchaser's claims for return of the goods versus third parties. The fact that reserved goods are taken back or pledged by the Seller - unless the Instalment Law is applied - does not constitute rescission of the contract.
(6.) The Purchaser's right to possess the reserved goods shall expire if he/she does not fulfil his/her obligations of payment at all or not in time. This also applies if the Client's financial situation deteriorates considerably after delivery. In this case, the Seller shall be entitled to demand immediate surrender with the exclusion of any right of retention. The Purchaser shall bear the costs incurred due to taking back the object of the contract. The Seller shall be entitled to utilize the returned object of the contract plus accessories optimally by open-market sale. The proceeds shall be set off against the Purchaser's debt after deduction of costs; any extra proceeds shall be paid to him/her.
§ 9 Payment
(1.) Unless otherwise specified, invoices shall be payable immediately without deduction on announcement that the goods are ready for shipment by the Seller.
The Seller shall be entitled to set off payments to the Purchaser's older debts, despite any contrary instructions by the Purchaser. If costs and interest have already incurred, the Seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the principal service.
(2.) Payment shall only be considered as having been performed if the Seller is able to dispose of the amount. In case of cheques, the payment shall only be considered as having been performed once the cheque has been honoured.
(3.) If the Purchaser gets into default, the Seller shall be entitled to charge interest at the interest rate that would be invoiced to the Seller by the commercial banks for open current account credits, plus the legal value-added tax as of that date.
(4.) If the Purchaser does not meet his/her payment obligations, especially if a cheque is not honoured or if he/she ceases payment, or if the Seller is aware of other circumstances which compromise the Purchaser's credit standing, the Seller shall be entitled to accelerate the entire debt balance, even if he/she has accepted the cheque. In this case, the Seller is also entitled to demand advance payments or collateral, unless these have already been agreed upon.
(5.) The Purchaser shall only have the right of set-off, retention or reduction - even if notifications of defects or counterclaims have been asserted - if the counterclaims have been established with legally binding effect, or are uncontested.
The Purchaser shall only be entitled to assert a right of retention if it is based on the same contractual relationship.
§ 10 Limitation of Liability
Damage claims due to impossibility of performance, breach of contract, fault upon contract conclusion and in tort, shall be excluded versus the Seller as well as his/her vicarious agents and assistants, unless the damage has been caused by gross negligence or intent.
§ 11 Purchaser's Default in Acceptance of Delivery
(1.) If the Purchaser does not accept the purchased items within 14 days after notification of the readiness for shipment or after dispatch, or if the Purchaser gets into default regarding the advances due, according to the contract, before delivery, the Seller shall be entitled - after having fixed a period of grace of 14 days - to rescind the contract or to demand damages on account of non-performance.
(2.) If the Seller demands damages on account of non-performance, he/she can request - notwithstanding the right to assert a higher, actual damage - 15% of the purchase price in terms of compensation, unless the Purchaser furnishes proof of a minor damage.
§ 12 Applicable Law, Partial Nullity
(1.) These Terms and Conditions and the entire legal relationship between the Seller and the Purchaser shall be governed by the law of the Federal Republic of Germany. The provisions of the Uniform Law on the International Sale of Goods shall not apply.
(2.) The place of performance and sole legal venue for all disputes arising directly and indirectly from the contractual relationship shall be Regensburg.
(3.) Should one of the stipulations of these Terms and Conditions or one of the stipulations in the scope of other agreements be or become ineffective, it shall not affect the validity of all the other stipulations and agreements.

Limitation of Warranty, Software Product

§ 1 Exclusion of Warranty. HOLMER Maschinenbau GmbH explicitly excludes warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT and the related documentation shall be made available to you "as is", without any kind of warranty, neither express nor implied, including - however not limited to - implied warranty of marketability, suitability for a certain purpose or the non-existence of an infringement on a right. The entire risk resulting from the use or the performance of the SOFTWARE PRODUCT shall be assumed by you.
§ 2 No Liability for Damage.
Neither HOLMER Maschinenbau GmbH nor its suppliers can be held liable for damage no matter which kind (including, but not limited to loss of profit, business interruption, loss of business information or any other property loss), which result from the use or the impossibility to use the HOLMER product, even if HOLMER has been notified previously that there is a possibility of such kind of damage. As some states/jurisdictions do not permit the exclusion of limitation on liability for consequential or incidental damage, the above limitation may not apply to you.

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