Terms of Sale, Delivery and Payment
of NC-Automation GmbH (NCA)
These Terms of Payment apply for companies, legal entities governed by public law and public law special funds. Our goods and services are supplied exclusively on the basis of the following conditions. Any deviating purchasing conditions of the customer not expressly recognised by us will not become part of the contract through acceptance of the order. By placing the order and accepting the goods we deliver, the customer confirms its consent to our terms and conditions.
- Offer and contractual conclusion
All our offers are always subject to change without notice unless otherwise explicitly agreed. Our delivery contracts are based on the latest version of our catalogue. Dimension and weight values, as well as illustrations, drawings and data, are non-binding and can be changed by us at any time. Therefore, deviations cannot be ruled out and do not justify any compensation claims against us. Orders are considered accepted only when confirmed by us in writing. If, for organisational reasons, the customer does not receive a separate confirmation upon the delivery of goods, the invoice shall also be deemed the order confirmation.
The prices are in EURO, ex-works, excluding VAT, packing, freight, postage and insurance. Unless otherwise agreed, our list prices valid on the day of delivery shall apply. For orders below 50 EUR goods net, we must make a minimum quantity surcharge of a 10 EURO for cost reasons.
- Tool costs
Unless any other agreements have been reached, the tools fabricated for the purpose of executing the order shall remain our property in all cases, even if we have invoiced a tool cost component separately.
Invoices will be sent via e-mail. The client agrees to the electronic transmission of the invoices. Invoices are sent electronically in pdf format to the Client´s e-mail address. On request the invoice can be sent as a printed hard copy invoice.
Unless otherwise stated on the invoice, the purchase price falls due for net payment within 30 days of the invoice date (without deduction of discount). Invoice amounts of below 50 EURO are due for payment immediately. In case of payment default, we shall be entitled to charge default interest. The amount corresponds to our interest rate for current account credits at our main bank; the minimum however being 8 percentage points above the relevant base interest rate applied by the European Central Bank. Moreover, in case of default following written notice to the customer, we shall be entitled to cease to fulfil our obligations until payments are received.
- No set-off
The customer can set-off only with legally confirmed or undisputed counterclaims.
- Right of withdrawal in case of delayed acceptance or payment and insolvency
If the customer fails to accept the goods in due time, we shall be entitled to set a reasonable period of grace, after which we can dispose of the goods elsewhere and supply the customer on a reasonably longer term. Our rights to withdraw from the contract under the provisions of Section 326 BGB and demand damages for non-performance shall not be affected. If the customer fails to pay for the goods once payment is due, we shall be entitled, at the end of a reasonable period of grace we have set, to withdraw from the contract and demand the return of any goods already supplied. Section 323 BGB remains unaffected in all other cases. If the customer applies for the opening of insolvency proceedings, we shall be entitled, prior to the ordering of security measures by the insolvency court, to withdraw from the contract and demand the immediate return of the goods.
- Customer-specific fabrications/project fabrications (custom fabrications)
Customer-specific fabrications require binding information on design, quantity etc. in written form at the time of ordering. For manufacturing reasons, we reserve the right to supply up to 10% above or below the order quantity. Technical modifications or cancellations are subject to any costs incurred. The return of customer-specific fabrications is impossible.
- Delivery and packaging, transfer of risk
The delivery date is non-binding; although stated to the best of our knowledge. It is subject to us receiving correct, defect-free and complete deliveries. The stated delivery dates relate to completion in the factory, starting on the day the order is accepted by us. Delivery is EXW (ex-works) in accordance with Incoterms 2010. Therefore, the costs are borne by the customer. The risk is transferred to the customer when the goods are passed to the person, company or facility nominated to execute the shipment. This applies also for partial deliveries, or if we have assumed responsibility for delivery and installation. The risk shall be transferred to the customer even in the case of delayed acceptance. In the absence of specific shipping instructions, we shall proceed as we deem fit and without any obligation to the cheapest or most expedient method. The customer agrees that the order can also be delivered in parts, insofar as this is reasonable for the customer. We shall charge a 5 EURO processing free for shipping to third parties that we supply on behalf of the customer. The packaging complies with the packaging ordinance. Disposable packaging shall be charged at cost price. The packaging cannot be taken back.
- Performance impediment and/or impossibility
If we are hindered in the fulfilment of our obligation due to the onset of unforeseeable circumstances, which we are unable to avoid despite reasonable effort in relation to the nature of the circumstances (e.g. operational interruption, delay in the delivery of important raw materials, defects in the delivery), the delivery time shall be extended by a reasonable period, insofar as the supply of goods or services is not rendered unreasonably difficult or impossible. If we have to accept that these circumstances are not only temporary, we shall be entitled to withdraw from the contract either in whole or in part. If the supply of goods or services becomes impossible, the customer shall not be obliged to furnish its own contractual service. Section 275 BGB applies mutatis mutandis. If, however, the customer is solely or predominantly responsible for the circumstances that led to impossibility, it shall remain under an obligation to render the return service. The same applies if this circumstance occurs at a time when the customer is behind schedule with acceptance.
Samples shall be provided only against payment. If samples or models are provided, a credit note shall be issued with the subsequent order if the order value is 125 EURO net or more. Goods can be returned only by agreement, although custom fabrications are excluded from such return. In the case of returns for which we are not responsible (e.g. incorrect order), we shall charge a processing fee of 10%, the minimum value, however, being 7.50 EURO.
- Retention of title
The goods shall remain our property unless full payment of all claims and/or until the cheques provided for this purpose are honoured. The itemisation of claims in an ongoing invoice, as well as balancing the account and the recognition thereof does not affect the retention of title. The customer is entitled to sell on the retained goods during the ordinary course of business. However, the customer is not permitted to pledge the goods or transfer them by way of security. It shall assign its claim ensuing from the selling on of the retained goods to us in advance. The customer shall be entitled to collect the claim to the extent that it has fulfilled its obligations towards us. At our request, the customer shall be obliged to state third-party debtors and we shall be entitled to report this and the assignment.
- Property rights
We reserve property rights and copyrights to all contractual documents such as drafts, drawings, calculations and cost estimates. Such documents must not be reproduced or disclosed to third parties without our consent. Any rights to patents, utility models etc. reside solely with us, insofar as such patents have not yet been filed. Our products are allowed to be replicated only with our written consent. If objects are fabricated according to drawings or samples, the customer shall warrant that any third party property rights are not infringed by manufacture or delivery. If a third party forbids manufacture and delivery on account of property rights, we shall be entitled to stop manufacture and delivery immediately. The customer shall be obliged to reimburse us with all costs incurred and indemnify us from third party compensation claims. Compensation claims by the customer are impossible.
If the customer agrees with us a particular quality of the goods, we shall base this agreement on our technical delivery specifications. If we have to deliver according to customer drawings, specifications, samples etc., the customer shall assume the risk for suitability for the intended purpose. If, after the contract is concluded, the scope of goods or services is changed at the customer’s request and this impairs the quality or suitability of the goods, claims for defects on the part of the customer shall be ruled out, insofar as such impairments are caused by the customer’s requests for change. The time at which the risk is transferred is decisive for the contractual state of the goods. Wear and tear of wearing parts caused by ordinary use does not constitute a defect. Claims for defects are ruled out in the following cases in particular: Unsuitable or improper use, incorrect installation and/or commissioning by the customer or third party, normal wear and tear, incorrect or negligent handling – in particular excessive use -, unsuitable equipment, replacement materials, chemical, electrochemical or electrical influences, unless such defects are caused by ourselves. If the goods contain a defects, we shall provide, following a reasonable period of grace set by the customer, either a replacement or a repair as we deem fit. If such subsequent performance fails, the customer shall be entitled to either reduce the purchase price or withdraw from the contract. Any further warranty claims are ruled out. In case of negligible deviations from the agreed quality, no claims for defects shall be recognised. The discovery of defects must be communicated to us immediately in writing. In the case of recognisable defects, however, within 10 days of acceptance, in the case of non-recognisable defects immediately after they become evident. The warranty is 12 months, starting with delivery of the goods ex-works.
With the exception of harm to life, body or health on account of a breach of duty by ourselves, our liability shall be limited to intent or gross negligence.
- Place of fulfilment, place or jurisdiction and governing law
The place of fulfilment for all obligations ensuing from this contractual relationship is D-87437 Kempten. The place of jurisdiction for all legal disputes ensuing from the contractual relationship is the court responsible for the headquarters of NC-Automation GmbH. All disputes ensuing from the contract or regarding the validity thereof shall be finally decided by a court of arbitration in accordance with the Court of Arbitration Ordinance of the German Committee for Arbitration Court Procedures or the Conciliation and Arbitration Arrangement of the International Chamber of Commerce, recourse to ordinary courts of law being excluded. The legal dunning process, however, remains permissible. German law shall govern (BGB and HGB). The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is ruled out.
- Severability clause
If individual provisions become legally invalid, the remaining provisions shall not be affected. The legally invalid provision shall be replaced by regulations that most closely reflect the economic purpose of the contract with reasonable consideration for the mutual interests. The publication of these Terms of Sale, Delivery and Payment renders all previous versions invalid. This does not apply for any contracts concluded prior to announcement.