General Terms and Conditions of Sale and Delivery of ITW  Industrie-Technik Werth GmbH

General Terms and Conditions of Sale and Delivery of ITW Industrie-Technik Werth GmbH

1. General Provisions and Scope of Application
(1) If the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law, the business relationship between us and the customer shall be governed exclusively by the following General Terms and Conditions of Sale and Delivery.
(2) These Terms and Conditions of Sale and Delivery apply in particular to contracts for the sale or delivery of movable goods, including software (“Delivered Goods”), irrespective of whether we manufacture the Delivered Goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code (BGB)). Unless otherwise agreed, the Terms and Conditions of Sale and Delivery, in the version valid at the time of the Customer’s order or, in any event, in the version last communicated to the Customer in writing, shall also apply as a framework agreement to similar future contracts, without us having to refer to them again in each individual case.
(3) Any deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract to the extent that we have expressly agreed to their validity in writing. This requirement for consent shall apply in all cases, for example even if we carry out the delivery to the customer without reservation whilst being aware of the customer’s General Terms and Conditions.
(4) Legally relevant declarations and notifications to be made by the customer to us after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction) must be in writing or text form to be valid. Statutory formal requirements and further evidence, in particular where there are doubts as to the legitimacy of the person making the declaration, remain unaffected.
(5) To the extent necessary for business purposes, we are authorised to store and process the customer’s data electronically in accordance with data protection laws.

2. Contractual Declarations
(1) Our range of products and services is subject to change without notice. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – including in electronic form. We reserve ownership and copyright in samples, quotations, drawings and similar information of a tangible and intangible nature – including in electronic form. They must not be made accessible to third parties.
(2) The order placed by the customer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the customer.
(4) Insofar as trade terms in accordance with the International Commercial Terms (INCOTERMS) have been agreed, INCOTERMS 2020 shall apply.

3. Delivery, Transfer of Risk, Default of Acceptance, Partial Performance
(1) Unless otherwise agreed, we shall deliver and perform on an FCA (Free Carrier) basis from our warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the customer’s request and expense, the goods shall be dispatched to a different destination (sale by delivery). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular the carrier, route and packaging) ourselves or to arrange for the export clearance of the goods on behalf of the customer.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of a sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Where acceptance is required, this shall be decisive for the transfer of risk.
(3) If the customer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs).
(4) We are permitted to make partial deliveries or provide partial services, provided that this is not unreasonable for the customer. Paragraph 2 shall apply mutatis mutandis in the case of such partial deliveries or services.

4. Force majeure
In the event of force majeure affecting us or our suppliers, our performance and delivery obligations shall be suspended for the duration of the disruption. The same applies in the event of energy or raw material shortages, industrial disputes, pandemics, epidemics, official orders or transport or operational disruptions. Should a material change occur in the circumstances existing at the time of conclusion of the contract, as a result of which we cannot reasonably be expected to adhere to the contract, we shall be entitled to withdraw from the contract. Our performance of the contract is subject to the proviso that we thereby neither violate provisions of national and international foreign trade law nor contravene sanctions or embargoes.

5. Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. The delivery time stated on the written order confirmation is to be understood as an approximate period. Firm delivery dates are only binding if they have been confirmed by us in writing.

(2) The delivery time is determined by the agreements between the contracting parties. Our compliance with this period presupposes that all commercial and technical issues between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon them, such as providing the necessary official certificates or approvals or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply where we are responsible for the delay.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and at the same time notify them of the expected new delivery deadline. If the service is still unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. In this context, a case of non-availability of the service shall include, in particular, the failure of our supplier to deliver to us on time, provided that we have entered into a corresponding covering transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the specific case.
(4) If an agreed delivery or performance date is exceeded for reasons for which we are responsible, the customer must set us a reasonable grace period in writing for delivery or performance. This grace period shall be at least six weeks. If delivery or performance does not take place after the expiry of the grace period and the customer therefore wishes to withdraw from the contract or claim damages in lieu of performance, they are obliged to notify us of this in advance in writing, setting a reasonable further grace period and requesting delivery or performance. The customer is obliged, at our request, to declare within a reasonable period of time whether they are withdrawing from the contract and/or claiming damages in lieu of performance due to the delay in delivery or performance, or whether they insist on the delivery or performance.
(5) The customer’s rights pursuant to Clause 9 of these Terms and Conditions of Sale and Delivery and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
(6) The delivery period shall be deemed to have been met if the delivery item has left our warehouse by the respective expiry date in accordance with Clause 3(1) or if readiness for dispatch has been notified. Where acceptance is required, the acceptance date shall be decisive – except in the case of a justified refusal to accept – or, alternatively, the notification that the goods are ready for acceptance.

6. Prices, Terms of Payment
(1) Our prices are quoted FCA (Free Carrier) ex our warehouse. Unless otherwise agreed, our prices do not include the costs of packaging, insurance, freight and VAT.
(2) In the case of sale by delivery, the customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public levies shall be borne by the customer, even if we carry out customs clearance on the customer’s behalf.
(3) In the absence of a specific agreement, the purchase price is payable without any deduction as follows: i) 40% deposit due upon receipt of the invoice, ii) 60% payment upon notification to the customer that the main parts of the delivery item are ready for dispatch.
(4) The customer shall be in default upon expiry of the above payment periods. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages arising from default. Our claim to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in dealings with merchants.
(5) The Customer shall only be entitled to rights of set-off or retention insofar as their claim has been legally established or is undisputed. In the event of defects in the delivery, the Customer’s counterclaims, in particular those under Clause 8(7), remain unaffected.
(6) If the delivery or performance date is more than three months after the conclusion of the contract, we shall be entitled, following timely notification to the customer and prior to the performance of the service or delivery of the goods, to adjust the price of the goods or service in such a way as required by general price developments beyond our control (such as exchange rate fluctuations, currency regulations, changes in customs duties, or a significant increase in material or manufacturing costs) or as necessitated by a change of suppliers. For deliveries or services within three months, the price valid on the date of conclusion of the contract shall apply in all cases.

7. Retention of title
(1) We retain title to the goods sold until full payment has been made of all our present and future claims arising from the sales contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or transferred as security prior to full payment of the secured claims. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) gain access to the goods belonging to us.
(3) In the event of the Customer’s breach of contract, in particular failure to pay the purchase price when due, we shall be entitled, in accordance with statutory provisions, to withdraw from the contract and to reclaim the goods on the basis of the retention of title and the withdrawal. If the customer fails to pay the purchase price due, we may only exercise these rights if we have previously set the customer a reasonable deadline for payment without success, or if setting such a deadline is dispensable under the statutory provisions.
(4) Until further notice in accordance with (c.) below, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products created by processing, mixing or combining our goods to their full value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combining with third-party goods, the third party’s right of ownership remains in force, we shall acquire 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 delivery item supplied under retention of title.
(b) The Customer hereby assigns to us, by way of security, all claims against third parties arising from the resale of the delivered goods or the product, either in full or in the amount of our share of co-ownership in accordance with the preceding paragraph. We accept the assignment. The Customer’s obligations set out in Clause 7(2) shall also apply in respect of the assigned claims.
(c) The Customer remains authorised, alongside us, to collect the claim. We undertake not to collect the claim as long as the Customer meets their payment obligations to us, there is no impairment of their ability to pay, and we do not assert the retention of title by exercising a right in accordance with Clause 7 (3). However, if this is the case, we may demand that the Customer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case, we shall be entitled to revoke the customer’s authority to further sell and process the goods subject to retention of title.
(d) If the realisable value of the security exceeds our claims by more than 10%, we shall, at the customer’s request, release security at our discretion.

8. Customer’s rights in the event of defects
Material defects
(1) We guarantee only that the products we supply and the services we provide comply with the applicable German regulations and standards as well as with EU directives. We do not guarantee compliance with other national regulations. The customer undertakes, when using the delivered items abroad, to check their conformity with the relevant legal systems and standards themselves and to make any necessary adjustments.
(2) Unless otherwise specified below, the statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including incorrect or short deliveries, as well as improper assembly or defective assembly instructions).
(3) The Customer’s claims for defects are subject to the Customer having fulfilled their statutory obligations to inspect and give notice of defects (Sections 377, 381 of the German Commercial Code (HGB)). If a defect becomes apparent during the inspection or at a later date, we must be notified of this immediately, and in any event within one week, in writing. Timely dispatch of the notification is sufficient to preserve the rights. Irrespective of this duty to inspect and give notice of defects, the customer must notify us of obvious defects (including incorrect or short deliveries) immediately, and in any event within one week, in writing, whereby, again, timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or give notice of defects, our liability for the unreported defect is excluded.
(4) If the delivery item is defective, we shall, at our discretion, either make a replacement delivery or repair the item (subsequent performance). To this end, the customer must grant us an opportunity to do so within a reasonable period. In the event of a replacement delivery, the customer must return the defective delivery item to us in accordance with the statutory provisions.
(5) The following cases do not constitute a material defect: i) unsuitable or improper use, ii) faulty assembly or repair by the customer or third parties, iii) natural wear and tear, iv) incorrect or negligent handling, v) improper maintenance, vi) unsuitable operating materials, vii) defective construction work, viii) unsuitable building ground, and ix) chemical, electrochemical or electrical influences – provided that we are not responsible for them.
(6) We shall bear the costs necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (excluding: removal and reinstallation costs), shall be borne by us if a defect actually exists, provided that the costs are not increased by the fact that the item of delivery has subsequently been moved to a location other than the original place of delivery, unless such removal is in accordance with its intended use, provided that this does not result in a disproportionate burden for us. If there is in fact no defect, we may demand reimbursement from the customer for the costs incurred as a result of the unjustified request for rectification (in particular inspection and transport costs), unless the absence of a defect was not apparent to the customer.
(7) If the subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract. However, withdrawal is only permissible if the customer has first expressly notified us of this in writing, setting a reasonable further grace period. In the case of a minor defect, there is no right of withdrawal.
(8) Claims by the customer for damages or reimbursement of futile expenses shall, even in the case of defects, only apply in accordance with paragraph 9 and are otherwise excluded.
(9) If the customer or a third party carries out repairs improperly, we shall not be liable for the resulting consequences. The same applies to modifications to the delivery item made without our prior consent.
Legal defects
(10) Rectification in the event of defects of title shall take the form of us securing the right for the customer to continue using the goods or modifying the delivered goods in a manner reasonable for the customer so that the infringement of property rights no longer exists.
(11) If third parties assert intellectual property rights against the customer, the customer shall notify us immediately in writing. We shall, at our discretion and in consultation with the customer, either defend against or satisfy such claims. We shall defend against third-party claims at our own expense and indemnify the customer against all necessary costs and damages associated with the defence of such claims, provided these do not result from a breach of duty on the part of the customer. In this context, it shall also constitute a breach of duty in particular if the Customer acknowledges third-party claims without our prior written consent.
(12) If the subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract. However, withdrawal is only permissible if the customer has first expressly threatened us with this in writing, setting a reasonable further grace period.

9. Liability for Damages
(1) Unless otherwise provided for in these Terms and Conditions of Sale and Delivery, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis – under the principle of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, we shall be liable in accordance with statutory provisions as follows:
(a) for damage resulting from injury to life, limb or health,
(b) for damage resulting from a breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage;
(c) in all other cases, not for damage that has not occurred to the delivery item itself, in particular not for loss of profit or other financial losses suffered by the customer.
(3) The limitations of liability arising from paragraph 2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are liable under statutory provisions. They shall not apply insofar as we have assumed a guarantee for the quality of the delivery item and for claims by the customer under the Product Liability Act.
(4) In the event of a breach of duty that does not consist of a defect, the customer may only withdraw from the contract or terminate it if we are responsible for the breach of duty. Withdrawal or termination must be declared in writing or in text form. In all other respects, the statutory requirements and legal consequences shall apply.
(5) The aforementioned provisions shall apply mutatis mutandis to claims by the customer for reimbursement of futile expenses.

10. Limitation Period
The limitation period for claims arising from defects in our deliveries and services, as well as for claims relating to our liability for damages, is one year from the date of delivery. This shall not apply where longer periods are prescribed by law, nor in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part, or in the case of claims for damages under the Product Liability Act.

11. Use of Software
(1) Where software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited.
(2) Otherwise, the provision of our goods and services does not, as a matter of principle, entail any transfer of rights of use in respect of industrial property rights or copyrights to which we are entitled. Such a transfer shall only take place on the basis of a separate agreement.

12. Installation work
(1) Where installation work has been commissioned, the installation sites must be freely accessible. If this is not the case, the customer shall be invoiced for any additional costs incurred as a result.
(2) In the event that installation services are commissioned, we are entitled to engage subcontractors.
(3) The customer shall, at their own expense, provide all earthworks, construction work and other ancillary work not specific to the industry, including the necessary skilled and unskilled labour, building materials and tools, the items and materials required for installation and commissioning such as scaffolding, lifting gear and other equipment, fuels and lubricants, as well as energy and water at the place of use, including connections, heating and lighting, at their own expense and to provide them in good time.
(4) The customer shall be responsible for the storage of machine parts, equipment, materials, tools, etc. at the installation site. The Customer is obliged to provide sufficiently large, suitable, dry and lockable rooms for this purpose, as well as appropriate work and rest areas for the installation personnel, including adequate sanitary facilities. Furthermore, the customer must protect and treat our property and our installation personnel with the utmost care.
(5) Protective clothing and protective equipment required due to special circumstances at the installation site must be provided by the customer.
(6) Before the start of the installation work, the Customer must, without being asked, provide the necessary information regarding the location of concealed electricity, gas and water pipes or similar installations, as well as the required structural data.
(7) Before installation or assembly commences, the items and materials required for the work must be present at the installation or assembly site, and all preparatory work must be sufficiently advanced prior to the start of assembly so that installation or assembly can commence as agreed and be carried out without interruption. Access routes and the installation or assembly site must be levelled and cleared.
(8) If installation, assembly or acceptance is delayed due to circumstances for which we are not responsible, the customer shall bear, to a reasonable extent, the costs of waiting time and any additional travel required by us or our assembly personnel.

13. Acceptance of Contract Work
(1) Where acceptance of the work has been agreed, we shall be entitled to demand acceptance of the work upon completion. In this case, the customer must carry out acceptance within 12 working days. Upon request, self-contained parts of the work must be accepted separately. Acceptance may only be refused on the grounds of material defects until such defects have been rectified.
(2) If no acceptance is requested, the work shall be deemed accepted upon the expiry of 12 working days following written notification of the completion of the work. If no acceptance is requested and the customer has commenced use of the service or a part thereof, acceptance shall be deemed to have taken place upon the expiry of 6 working days following the commencement of use, unless otherwise agreed.
(3) Upon acceptance, the risk shall pass to the customer, insofar as the customer does not already bear it pursuant to Clause 3.

14. Confidentiality
(1) The parties shall treat as confidential any confidential information, in particular samples, cost estimates, drawings, documents, business intentions, personal data, issues, data and/or solutions to problems, and other know-how, regardless of their content, as well as information obtained visually through inspection of facilities/equipment (hereinafter collectively referred to as “Information”) of which they become aware from the other party in the course of the business relationship, shall treat such information as confidential during the term of and after the termination of the contractual relationship; in particular, they shall not disclose it to third parties or use it without authorisation for their own business purposes. The parties shall also impose this obligation on their employees and vicarious agents.
(2) The duty of confidentiality shall not apply to information which:
– was already known to the other party outside the contractual relationship at the time of its disclosure,
– has been developed by the party itself or lawfully acquired from third parties,
– is generally known or constitutes the state of the art, or
– has been released by the contracting party from whom it originates.
(3) Upon termination of the contractual relationship, the parties shall return all information of the other party requiring confidentiality, whether in physical or digital form, or, at the request of the party from which it originates, to destroy it or – insofar as this is technically possible with reasonable effort – to delete it irrevocably.
(4) The parties shall comply with data protection regulations, in particular where they are granted access to the other party’s premises or IT facilities. They shall take appropriate measures to ensure that their employees and vicarious agents also comply with these provisions.

15. Miscellaneous
(1) These General Terms and Conditions of Sale and Delivery and the contractual relationship between us and the customer 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.
(2) If the customer is a trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Birstein, Germany. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale and Delivery or a prior individual agreement, or at the customer’s general place of jurisdiction. Prevailing statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.

As of July 2025