Standard Terms and Conditions for the Sale and Delivery of Goods and Services of Winterhalter Gastronom GmbH, D-88074 Meckenbeuren (per: 09.12.2010)

 

§ 1 Governing terms
1. The legal relations between Winterhalter Gastronom GmbH ("Supplier") and the party lodging the order (“Customer”) shall be governed solely by the
Standard Sale and Delivery Terms of the Supplier, as amended ("ST&Cs").
2. No standard terms and conditions of the Customer that conflict with the Supplier's ST&Cs shall apply, even if not expressly contested in a specific case.
3. Should the parties have concluded more than one transaction in consideration of the Supplier's ST&Cs, these shall also apply, as amended, to subsequent
transactions, even if they are not expressly used as the basis for a new transaction.


§ 2 Offer and conclusion of the Agreement
1. Offers by the Supplier shall be non-binding. A contract shall be formed only upon written confirmation of the order by the Supplier, delivery of the ordered
product or performance of the ordered work. In case of doubt, the subject matter of the agreement shall be determined by the contents of the order confirmation and these ST&Cs.
2. Any amendments, supplements and ancillary agreements pertaining to an order or a contract concluded shall require written confirmation by the Supplier.
3. The written form requirement shall also be satisfied by computer faxes, electronically created order confirmations or e-mails, even if these are not signed by the Supplier.
4. Representations made by the Supplier in offers and other documents such as brochures, web pages, publications etc. are approximations, unless expressly designated as binding or confirmed by the Supplier. These may be subject to error or typographical errors.


§ 3 Delivery terms, prices, partial deliveries
1. In the absence of any other agreement and provided the destination is in Germany, delivery and pricing shall be "carriage-paid to the destination designated by the Customer" (DDU; INCOTERMS 2000) i.e. not including installation, assembly, connection and start-up. However, this rule shall be modified for deliveries of replacement parts, cleaning agents, salt and granules such that a flat fee shall additionally be charged for packaging and freight costs in accordance with the Supplier's rates applicable at the time of dispatch. Deliveries to other countries shall be "ex works Meckenbeuren (postcode 88074) or Endingen (postcode 79346)" (FCA; INCOTERMS 2000) i.e. not including transport, installation, assembly, connection and start-up, except where other customer-specific terms and conditions have been agreed upon. All services shall be governed by the prices in the respective price list applicable at the time of performance.
2. Transport insurance may be taken out at the Customer's expense and request.
3. Statutory value added tax at the rate applicable upon invoicing shall be added to all prices. In the absence of a separate agreement, invoicing shall be in Euros.
4. Should delivery be on a call-off basis, the prices set forth in the price list applicable on the delivery date shall apply in the absence of a separate agreement.
5. Partial deliveries shall be permissible, provided these may reasonably be expected of the Customer.


§ 4 Delivery deadline, delivery default
1. Any agreed-upon delivery deadlines agreed shall commence upon sending of the order confirmation, and in no event, however, before the Customer has
performed the co-operative acts that have been agreed with it or are necessary. The same shall apply as long as no agreement has been reached on the final contents of the agreement, any agreed advance payment has not been rendered or an agreed call-off has not been received. Compliance with a delivery deadline shall be subject to performance of the Customer's contractual duties. Moreover, it shall be subject to proper and timely supply of the Supplier itself.
2. A delivery deadline shall be deemed met if the goods to be delivered have left the Supplier's works prior to expiry of the deadline or notice is given that the
goods are ready for dispatch. If acceptance has to take place, the acceptance date or, alternatively, notification of readiness for acceptance, shall govern. This shall not apply in the event of a legitimate refusal to take acceptance.
3. A delivery deadline shall be reasonably extended in the event of industrial disputes and the occurrence of unforeseen events, provided these circumstances demonstrably affect the performance, completion and delivery of the contract goods and the Supplier is not responsible therefore. Unforeseen events shall include, for example, force majeure, mobilisation, war, unrest, acts of terrorism, breakdown of manufacturing facilities or parts thereof and other delays in the manufacture of necessary parts, transport delays, plant stoppages and late or incorrect delivery of necessary supplied parts, raw materials, manufacturing supplies and other operating resources. The same shall apply should upstream suppliers experience such circumstances. The Supplier shall furthermore not be deemed responsible for events of the aforementioned nature if they occur during default that has already taken place. The Supplier shall notify the Customer to the extent possible of the commencement and end of any circumstances that give rise to a change in the delivery deadline.
4. Should the Supplier not have acted in a wilful or grossly negligent manner, any compensatory damages for delay in performance – provided damage has
actually been incurred - shall be limited to 1% of the net contract value of the part of the total performance that cannot be used in a timely manner or cannot be used in accordance with the agreement as a result of the delay for each full week of the delay, but shall in total not exceed a maximum of 10% of this amount. Section 9 (16) and (17) shall apply mutatis mutandis. The Customer reserves the right to rescind the agreement within the framework of the relevant statutory provisions if it sets the Supplier a reasonable grace period to render performance – taking the statutory exceptions into account – after performance is due and the Supplier does not meet such deadline. Further liability shall be governed by §§ 9, 10 and 11.


§ 5 Payment terms, payment default
1. Winterhalter invoices shall be payable immediately upon receipt. The Customer shall be deemed in default without notice 30 days after receipt of invoice. In addition,section 286 (3) final sentence, German Civil Code (BGB) shall apply to legal transactions with entrepreneurs. The rate of default interest shall always be determined in accordance with section 288 BGB unless proof of a higher rate of interest is provided.
2. Bills of exchange and cheques shall be accepted on account of payment. However, payments by way of bills of exchange shall only be permitted subject to the Supplier's prior written consent. The Customer shall bear any costs associated with discounting and collection. The Supplier's liability for timely presentation or lodging of a protest shall be excluded except in the case of wilful or grossly negligent conduct.
3. If payment by way of bill of exchange is agreed or in the event of other deferment of a receivable, all receivables owed by the Customer to the Supplier shall fall immediately due and payable if a protest if lodged against a bill of exchange or cheque in relation to the Customer, if there is a levy of execution over its assets or if application is made to commence insolvency proceedings over its assets.
4. If payment by instalments is agreed, the outstanding remaining debt shall fall due and payable immediately if the debtor culpably defaults with two consecutive instalments or defaults in part in an amount equivalent to at least 10% of the purchase price. Should the Customer default with two instalments, the Supplier may repossess the goods delivered – unless the provisions on the consumer loan agreement apply – without the Customer being discharged from its duties under the contractual relationship as a result.
5. Employees or members of the Supplier's sales organisation may not accept payments without the Supplier's authorisation.
6. The Customer may only set off claims that are undisputed or have been confirmed in a final and binding judgment. The same shall apply to the assertion of rights of retention.


§ 6 Dispatch and passing of risk
1. In the absence of specific stipulations, dispatch shall take place at the Supplier's discretion and at the Customer's risk to the dispatch address notified by the Customer. In the event of delivery EXW (see § 3), dispatch shall also take place for the Customer's account. If no address for dispatch is stipulated, dispatch shall be effected directly to the Customer's registered office.
2. Risk shall pass to the Customer upon transfer of possession of the products to the respective carrier, even if there are partial deliveries. If acceptance must be taken this shall govern the passing of risk. The Customer shall undertake the acceptance inspection without undue delay upon the acceptance date, or alternatively upon receipt from the Supplier of notification of readiness for acceptance. The Customer may not refuse to take acceptance on the grounds of an immaterial defect.
3. Should dispatch be delayed as a result of circumstances for which the Customer is responsible, risk shall pass to the Customer on the date on which notice is given that the goods are ready for dispatch. The Supplier shall take out any insurance demanded by the Customer at the Customer's request and expense.
4. The Customer shall take delivery of items delivered even in the event of defective delivery. Its rights pursuant to these ST&Cs and the applicable statutory provisions supplementary hereto shall remain unaffected thereby.


§ 7 Installation, start-up and instruction, connection to supply and disposal lines
1. The installation, start-up and instruction may only be performed by customer service technicians trained and authorised by the manufacturer at the Customer's instigation and expense. The sales organisation of the Supplier or – depending on the distribution channel, its customer service partner - shall be available, on the terms of the price list applicable at the relevant time, for transfer of possession of the operational, connected machinery, start-up thereof and instruction of the Customer's staff. Further information may be obtained by mail or on our homepage.
2. For reasons relating to the law on crafts, connection to supply lines and disposal lines must be arranged by the Customer in its own name and for its own account by a licensed specialised craftsman’s business.
3. Notwithstanding the provisions under the Electrical Devices Act (Elektrogerätegesetz) (or any national or state waste law provisions), the end consumer of the Winterhalter cleaning systems shall be responsible for the return, disposal and other use of old equipment (transport packaging) and shall bear any costs incurred in this respect.
4. The costs for the initial start-up shall be reimbursed separately. As a general rule, the price lists of a country relating thereto shall be binding only where the place of installation is located in the country in which the machine was sold. Sentence 2 shall apply mutatis mutandis to manufacturers' warranties.


§ 8 Refusal, delay in and default of taking delivery
1. Should dispatch or delivery be delayed for reasons for which the Customer is responsible, should the Customer not take delivery of the goods or should the Customer be absent upon delivery, the Customer shall be deemed in default of taking delivery. Any other default already extant at such time shall remain unaffected thereby. The Customer shall bear any and all additional costs resulting therefrom. This shall also apply should the delivery date be postponed by mutual agreement at the Customer's request.
2. In the event of default of taking delivery by the Customer, the Supplier, following fruitless expiry of a reasonable grace period set by it, may demand for storage of the goods under default, 1.5% of the net order amount for each month commenced or arrange for storage at a location to be designated by the Customer against compensation of all associated costs (e.g. storage, handling, transport costs) or otherwise dispose over the goods to be delivered and effect renewed delivery to the Customer subject to a reasonably extended deadline, or rescind the agreement. Should the Supplier store the goods itself, the Customer may prove that the storage costs did not arise at all or are significantly lower than the flat amounts.


§ 9 Handling of defects and defect liability
1. The Supplier shall be notified in writing without undue delay of any defects. The Customer shall send defective parts to the Supplier. The Supplier shall reimburse any associated costs (reasonable packaging and shipping costs) against relevant proof thereof.
2. The Supplier may render subsequent performance, at its option, through repair or replacement of defective parts. The Supplier shall acquire title in replaced parts.
3. The Customer shall grant the Supplier the necessary time and opportunity to render subsequent performance; otherwise, the Supplier shall be exempted from liability for any consequences attributable thereto. The Customer shall notify the Supplier without undue delay should subsequent performance be particularly urgent due to ongoing risk to the course of business, business security or prevention of disproportionately serious damage. Should subsequent performance definitively fail, the Customer may, at its option, rescind the agreement or demand reduction of the purchase price. However, rescission shall not be permitted in the event of immaterial defects.
4. The Supplier may refuse to deliver replacement parts, render customer services and other services and deliver filling materials if the Customer is in arrears in making due payments. This shall apply to subsequent performance only if the payments in arrears do not pertain to the defective transaction or retention is not justified in relation to the defect.
5. The Supplier shall be liable in accordance with the relevant statutory provisions if the Customer asserts compensatory damages claims based on wilful or grossly negligent conduct. If the Supplier has not wilfully breached the agreement, liability for compensatory damages shall be limited to the foreseeable damage that typically arises. Section 4 (4) of these ST&Cs shall apply to damages resulting purely from delay.
6. In the event of culpable breach of material contractual duties (cardinal duties) the Supplier shall also be liable in accordance with the relevant statutory provisions. In this event, the liability for compensatory damages shall be limited to the foreseeable damage that typically occurs. Winterhalter hereby advises that due to the continuous technical development, no warranty can be provided for the accuracy and completeness of the documents available on the web pages at www.winterhalter.de and www.winterhalter.biz. However, Winterhalter shall always endeavour to reproduce the current technical state of the art on its web pages. In the event of any doubts, the user of this information shall remain subject to an obligation to obtain its own professional advice with regard to the accuracy of any technical representations. Winterhalter excludes any liability of any kind in conjunction with use of such representations.
7. Should the Customer have a claim to compensatory damages in lieu of performance, the Supplier's liability shall also be limited to compensation for the foreseeable damage that typically occurs within the context of paragraph 3, second last sentence.
8. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability pursuant to the Product Liability Act (Produkthaftungsgesetz).
9. In the case of consumer transactions, the liability for compensatory damages shall furthermore be limited to the maximum liability amount equivalent to twice the gross value of the goods or services in the event of breach of material duties as a result of ordinary negligence on the part of the Supplier. Moreover, any liability for breach of ancillary duties as a result of ordinary negligence shall be excluded. The foregoing paragraph 8 shall apply mutatis mutandis to this paragraph.
10. In order to protect its statutory rights to payment of compensatory damages in lieu of performance due to performance not rendered or performance not rendered as owed, the Customer must notify the Supplier in writing that the Supplier must expect a demand for compensatory damages in lieu of performance. In so doing, the Customer shall also stipulate a deadline for performance or subsequent performance.
11. Unless the foregoing provides otherwise, liability shall be excluded.
12. For business between entrepreneurs, the limitations period for claims based on defect shall be 12 months calculated from the passing of risk. This shall not apply in cases a) in which § 309 (8 b) et seq. BGB expressly does not permit any reduction of the limitations period (i.e. §§ 438 (1) No. 2, § 634 a (1) No. 2 BGB), b) in cases of culpable injury to life, limb or health, c) in cases of wilful or grossly negligent breach of duty by the Supplier, d) in cases of malicious concealment of a defect, e) in cases of an express warranty on the absence of defects and f) in cases falling within the ambit of the Product Liability Act. Commencement of the limitations period shall be governed by the relevant statutory provisions.
13. Should the Customer ordering the dishwashers not be the same as the end customer, the foregoing deadline shall be extended by the period between delivery of the dishwasher to the Customer and its start-up by the end customer, up to a maximum, however, of six months. The extension of this deadline shall be subject to start-up of the dishwasher within 18 months of delivery to the Customer and proof of start-up by the end customer by sending a fully completed start-up card to the Supplier within 14 days (date of the postmark) from the date of start-up by the end customer.
14. Wear and tear shall not give rise to any defect liability. In case of doubt, the Customer must prove that its objection is based on a defect and that there is no normal wear and tear.
15. The Supplier shall not have any duty to assume liability, inter alia, in the event of any inappropriate or improper use, installation, assembly, connection and start-up contrary to § 7 of these ST&Cs, incorrect installation, assembly or start-up by the Customer or third parties, incorrect or negligent handling or use, use of inappropriate operating materials, installation of third party parts, improper maintenance, use of inappropriate alternative materials, performance of work on the products by persons not authorised by the Supplier, chemical, electrochemical or electric influences, provided there is no fault on the part of the Supplier. The same shall apply to excess voltage, force majeure and third party intervention. Nor shall there be any obligation to assume liability for problems based on auxiliary equipment not furnished by the Supplier.
16. A breach of duty on the part of the Supplier shall be deemed equivalent to a breach of duty by a statutory representative or vicarious agents.
17. The provisions set forth in § 9 shall not give rise to any modification to the statutory burden of proof to the detriment of the Customer.


§ 10 Handling of defects and exclusion of liability for second hand machinery
In the case of second hand machinery, claims against the Supplier for material defects are generally excluded in business between entrepreneurs. This shall not apply to relevant claims to compensatory damages resulting from injury to life, limb or health if the Supplier is responsible for the breach of duty and for compensation of other damage resulting from wilful or grossly negligent breach of duty by the Supplier. Section 9 (16) and (17) shall apply mutatis mutandis.


§ 11 Exclusion of liability for more extensive compensatory damages claims
1. Notwithstanding the legal nature of the claim asserted, any more extensive liability for compensatory damages over and above that contemplated in § 9 and § 10 shall be excluded. This shall apply, in particular, to compensatory damages claims based on culpa incontrahendo, other breaches of duties or for tortious claims for compensation of property damage pursuant to § 823 BGB.
2. Should the Supplier's liability for compensatory damages be excluded or limited, this shall also apply to personal liability for compensatory damages on the part of its employees, statutory representatives and vicarious agents. The same shall apply to those persons who, on the Customer's side, fall within the ambit of protection of the agreement concluded.


§ 12 Customer's right of rescission
Provided there is no financially legitimate interest in refusing overall performance where only individual parts are defective and performance may be rendered in parts, rescission that is permissible according to the general provisions shall be limited only to the defective parts of the overall performance. Should the Customer effect rescission, the original contractual relationship shall be deemed reduced by mutual consent to the defect-free part of the overall performance. The Customer's rights with regard to the defective part shall remain unaffected thereby. A further option for rescission is set forth in § 4 (4).


§ 13 Supplier's right of rescission
1. Should the Customer's solvency deteriorate following receipt of the order confirmation or should the Supplier subsequently become aware that there are doubts as to the Customer's solvency, the Supplier may demand from the Customer advance payments based on the manufacturing progress or security equivalent to the consideration payable by the Customer, notwithstanding the payment terms agreed in the specific case. The security may only be furnished by an absolute, irrevocable, indefinite and unconditional guarantee issued by a credit institute authorised as a domestic customs and tax guarantor. Section 14 (1) sentence 2 of the Terms and Conditions shall apply mutatis mutandis. The Supplier shall not be obliged to render performance until payment of the advance payment or furnishing of the security by the Customer within a reasonable period to be set for it. After expiry of the period set, the Supplier may rescind the agreement or demand compensatory damages in lieu of performance. Application for commencement of insolvency proceedings over the Customer's assets shall entitle the Supplier to rescind the agreement and to demand immediate return of the delivered goods.
2. Should unforeseen events within the meaning of § 4 (3) of these ST&Cs occur, the Supplier may rescind the agreement, even if an extension of the delivery period was agreed with the Customer. A further option for rescission is set forth in § 8 (2). Compensatory damages claims on the part of the Customer based on such rescission shall be excluded.


§ 14 Retention of title, advance assignment
1. The Supplier shall retain title in the delivered goods until full payment of any and all liabilities under the supply agreement and other liabilities on the part of the Customer already created upon conclusion of the agreement, or, in the event of payment by way of bills of exchange or cheques, until unconditional crediting of the equivalent sum. The Supplier agrees to release security at the Customer's request, provided such security is no longer required not only temporarily, in particular, if it exceeds the value of the receivables to be secured and not yet paid by more than 20%.
2. The Supplier may, at its discretion, insure the delivered goods at the Customer's expense against theft, breakage, fire, water and other damage, provided the Customer has not demonstrably taken out the relevant insurance.
3. The goods subject to the retention of title may not be pledged or transferred by way of security. The Customer must notify the Supplier without undue delay of any third party execution measures and other events affecting the Supplier's interests. The Customer shall bear the costs of the Supplier necessary for defending the retention of title.
4. While the retention of title applies, sale, lease, provision in another manner and transport to a location other than the shipping address of the goods shall be permissible only with the Supplier's written consent. However, the following exception shall apply: resellers may revocable resell the goods subject to their own retention of title during the ordinary course of business. Any receivable created from a resale is hereby assigned by the Customer to the Supplier in full upon conclusion of the agreement. If the receivable is included in an open credit account relationship with its customers, the Customer assigns its outstanding balance on the open credit account to the Supplier. The Customer1 hereby accepts such assignments.
5. The Customer is revocable authorised to process the delivered goods or combine them with other items during the ordinary course of business. Such processing or combination shall take place for the Supplier, which shall acquire title in the item created by virtue of the processing or combination. Should the delivered goods be processed or combined with items not owned by the Supplier, the Supplier shall acquire joint title in the new item based on the ratio of the value of the delivered goods to the other items. The foregoing paragraph 4 shall apply mutatis mutandis to the disposal of any item solely or jointly owned by the Supplier, in which respect, in the event of joint title, the portion of the receivable equivalent to the joint title shall be assigned.
6. The Customer shall be authorised and obliged to collect receivables assigned to the Supplier as long as the Supplier does not expressly revoke such authorisation.
7. The foregoing authorisations to sell, combine or process goods and to collect receivables shall be revoked by the Supplier only if the Customer fails to meet its contractual duties.
8. If the Customer's conduct is in breach of this agreement, in particular, default of payment, the Supplier may take possession of the delivered goods as security without waiving its contractual claims until satisfaction thereof. The Customer shall be obliged to deliver up the goods.
9. However, the Supplier may demand surrender of the delivered goods based on the retention of title only if it has previously rescinded the agreement.


§ 15 Assignability of the agreement
The Supplier and the Customer may assign their rights under the agreement only by mutual agreement.


§ 16 Industrial property rights, confidentiality
Samples, quotes, illustrations, drawings, sketches, data carriers and stored data and other documents and information furnished to the Customer shall remain the property of the Supplier. The Customer shall comply with relevant copyrights, which shall be retained by the Supplier. Documents, computer files and other information designated by the Supplier as confidential may not be disclosed to third parties.


§ 17 Data protection
The data provided as part of the business contact shall be stored, transmitted and used in compliance with the German Federal Data Protection Act (Bundesdatenschutzgesetz).


§ 18 Place of performance and forum
1. The place for payment is Meckenbeuren. The place of performance for the contract goods delivered from the Endingen works is Endingen; the place of performance for the contract goods delivered from the Meckenbeuren works is Meckenbeuren.
2. Sole forum, if the Customer is a merchant, shall be the courts of competent jurisdiction for Meckenbeuren/Württemberg. The Supplier may also sue at the principal registered office of the Customer.


§ 19 Choice of law
The contractual relations between the Customer and the Supplier shall be governed exclusively by substantive German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.


§ 20 Miscellaneous
1. The customers of chemical products of Winterhalter hereby agree to being informed of any and all amendments to the safety data sheets pursuant to EU Directives 93/112 EC and 2001/58/EC in the context of service of the delivery note or customer service report and agree with accessing of the safety data sheets via Winterhalter's website.
2. The Customer itself shall be liable for damage resulting from the fact that amendments to safety data sheets transmitted by Winterhalter were not communicated within the Customer's business.
3. The distribution partners of Winterhalter (specialised dealers and carriers) shall be obliged to comply with the provisions of the accord governing international transport of dangerous goods on the road (Accord européen relatif au transport international des marchandises Dangereuses par Route, "ADR"). These shall be furnished to the distribution partners and may also be accessed at any time under www.winterhalter.de and www.winterhalter.biz. Should the distribution partners engage third parties to transport our chemical products, these shall, in turn, ensure that these persons are notified of the ADR provisions.
4. Winterhalter shall not be liable for damage resulting from failure to notify third parties of the ADR provisions. The distribution partners indemnify Winterhalter against any third party claims resulting from the fact that they were not notified of the ADR provisions. The current ADR provisions, as amended, shall apply.


§ 21 Severability
Should one of the foregoing provisions be or become invalid or void, the remainder of the agreement shall remain unaffected thereby.
The invalid or void provision shall automatically be replaced by a statutory provision that most closely reflects the legal and commercial interests of the parties.