General Terms and Conditions of Sale

1. Validity

1.1 These General Terms and Conditions of Sale apply to all deliveries from Orbitalum Tools to the Purchaser. They also apply to all future business, even if no express reference is made to these General Terms and Conditions of Sale.

1.2 Deviating or supplementary provisions, in particular the Purchaser’s general terms and conditions of purchase as well as oral agreements, shall only apply if they have been confirmed in writing by Orbitalum Tools.

1.3 All forms of transmission that enable proof by text, such as fax, email, etc., are equivalent to the written form.

2. Offers

Offers from Orbitalum Tools are only binding if they are accepted unchanged and without reservation within the acceptance period contained in the offer.

3. Scope of Delivery

3.1 Orbitalum Tools reserves the right to make changes to the product range.

3.2 The order confirmation is decisive for the scope and execution of the delivery.

4. Data and Documents

4.1 Technical documents such as drawings, descriptions, illustrations, any dimensions, properties or weight specifications as well as references to standards serve information purposes and do not contain any guarantee commitments. Where it appears appropriate in the interest of technical progress, Orbitalum Tools reserves the right to make corresponding changes.

4.2 All technical documents remain the intellectual property of Orbitalum Tools and may only be used for the agreed purposes or purposes specified by Orbitalum Tools.

5. Confidentiality and Data Protection

5.1 The contracting parties will treat all non-public commercial or technical information of the other contracting party that becomes known to them through their business relationship as confidential and will neither disclose it to third parties nor use it for their own purposes.

5.2 Within the framework of the contractual relationship with the Purchaser, personal data will be processed by Orbitalum Tools in compliance with legal regulations.

6. Regulations at the Destination, Export Controls

6.1 The Purchaser must draw the attention of Orbitalum Tools to local, legal or other regulations that relate to the execution of the delivery and to compliance with safety and approval regulations.

6.2 Responsibility for compliance with export control regulations in the event of a re-export of the products lies with the Purchaser.

7. Price

7.1 Unless otherwise agreed, prices are exclusive of value added tax, ex works, in accordance with the Incoterms of the ICC (current edition), including standard packaging. All incidental costs such as freight, insurance, export, transit, import or other permits, as well as certifications, are at the expense of the Purchaser. Likewise, the Purchaser shall bear all types of taxes, levies, fees and customs duties.

7.2 If the costs for packaging, freight, insurance, levies and other incidental costs are included in their offer or delivery price or are shown separately in the offer or order confirmation, Orbitalum Tools reserves the right to adjust the rates accordingly if tariffs change.

7.3 A net minimum order value of EUR 100.00 applies.

7.4 Orbitalum Tools reserves the right to change list prices at any time.

8. Terms of Payment

8.1 Payments are to be made by the Purchaser at the location of the invoicing Orbitalum Tools plant without any deductions such as discounts, expenses, taxes and fees, in accordance with the agreed terms of payment.

8.2 The Purchaser has a right of set-off and retention for claims based on the same contractual relationship. For claims that are not based on the same contractual relationship, the Purchaser only has a right of set-off and retention if the claims are undisputed or have been legally established. In particular, the absence of non-essential parts of the delivery, which does not make the use of the delivery impossible, does not entitle the Purchaser to retention.

9. Retention of Title

9.1 Ownership of delivery items only passes to the Purchaser after full payment has been made. Insofar as the validity of the retention of title in the country of destination is linked to special requirements or special formal regulations, the Purchaser must ensure their fulfillment. Orbitalum Tools is entitled to withhold the delivery until the retention of title is effective and proof of fulfillment of the formal regulations has been provided.

9.2 The Purchaser may neither pledge the delivery item, sell it, nor transfer it as security before the transfer of ownership. In the event of seizures, as well as confiscation or other dispositions by third parties, the Purchaser must point out the reserved ownership and notify Orbitalum Tools immediately.

9.3 In the event of breach of contract by the Purchaser, in particular in the event of default in payment, Orbitalum Tools is entitled to take back the delivery items subject to retention of title after a reminder. The Purchaser is obliged to surrender them. Neither the request for surrender hereafter nor the seizure of the delivery item by Orbitalum Tools shall be deemed a withdrawal.

9.4 An application for the opening of insolvency proceedings over the assets of the Purchaser entitles Orbitalum Tools to withdraw from the contract and to demand the immediate return of the delivery item subject to retention of title.

9.5 If the Purchaser has its registered office in the Federal Republic of Germany, the following shall apply additionally:

a) Deviating from Section 9.1, Orbitalum Tools retains ownership of the delivery items until all claims against the Purchaser from the current business relationship have been satisfied.

b) Deviating from Section 9.2, the Purchaser is entitled to resell or process delivery items subject to retention of title in the ordinary course of business under the following conditions:
The Purchaser must resell the delivery items subject to retention of title if the delivery items have not already been paid for in full by the third-party purchaser. The authorization for resale expires in the event of default in payment by the Purchaser. Upon conclusion of the contract with the third-party purchaser, the Purchaser assigns to Orbitalum Tools all claims arising from a resale or any other legal reason concerning the delivery items subject to retention of title. In the event of combination/processing with other movable items and the creation of co-ownership, the assignment only covers the share of the claim of Orbitalum Tools corresponding to the co-ownership.

c) The Purchaser remains authorized to collect the claims assigned to Orbitalum Tools even after the assignment as long as it fulfills its payment obligations to Orbitalum Tools in accordance with the contract. Orbitalum Tools can demand at any time that the Purchaser discloses the assigned claims and their debtors to Orbitalum Tools. In such cases, the Purchaser must provide Orbitalum Tools with all information required for collection, hand over the documents required for this and notify the debtor of the assignment.

d) The processing of reserved goods is always carried out by the Purchaser for Orbitalum Tools as the manufacturer. If the reserved item is mixed, blended, combined or processed with other items not owned by Orbitalum Tools, Orbitalum Tools acquires (co-)ownership of the new item in the ratio of the invoice value of the reserved item to the other processed items at the time of processing. If the goods from Orbitalum Tools are mixed, blended, combined or processed with other movable items to form a uniform item and the other item is to be regarded as the main item, it is agreed that the Purchaser transfers proportional ownership to Orbitalum Tools insofar as the main item belongs to it. The Purchaser shall keep the ownership or co-ownership for Orbitalum Tools. For the item created by mixing, blending, combining or processing, the same applies as for the reserved goods.

e) Orbitalum Tools undertakes to release the securities to which it is entitled insofar as their invoice value exceeds outstanding (remaining) claims of Orbitalum Tools by more than 20% on a non-temporary basis.

f) Insofar as the delivery items from Orbitalum Tools are firmly connected to the ground or inserted into a building, the connection or insertion is only for a temporary purpose.

10. Delivery, Impossibility

10.1 The delivery period begins as soon as the contract is concluded, all official formalities such as import and payment permits have been obtained, and the essential technical points have been clarified. The delivery period or, if applicable, the delivery date is deemed to have been met if the delivery is made available for shipment upon expiry of the period or occurrence of the date.

10.2 The delivery obligation is subject to the following reservations, i.e. the delivery period will be reasonably extended or the delivery date postponed:

a) if Orbitalum Tools does not receive information required for the execution of the order in time or if the Purchaser subsequently changes it and thus causes a delay in delivery;

b) if Orbitalum Tools is prevented from delivering by force majeure. Force majeure is equivalent to unforeseeable circumstances for which Orbitalum Tools is not responsible and which make delivery unreasonably difficult or impossible for Orbitalum Tools, such as delivery delays or faulty deliveries from the intended sub-suppliers, industrial action, official measures, raw material or energy shortages, significant operational disruptions, for example through destruction of the plant as a whole or important departments or through the failure of indispensable production facilities, serious transport disruptions, e.g. through road blockades. If these circumstances last for more than six months, both parties have the right to withdraw from the contract. Claims for damages by the Purchaser are excluded;

c) if the Purchaser is in arrears with the fulfillment of its contractual obligations, in particular if it does not comply with the terms of payment or does not provide agreed securities in time.

10.3 If Orbitalum Tools is responsible for exceeding the agreed or reasonably extended delivery period, Orbitalum Tools shall only be in default if the Purchaser has set Orbitalum Tools a reasonable grace period in writing, which must be at least one month, taking into account the statutory exceptional cases, and this has also expired unused. Further claims arising from delay in delivery are determined exclusively according to Section 17.

10.4 Partial deliveries are permitted. Orbitalum Tools may issue partial invoices for partial deliveries.

10.5 If the Purchaser does not accept goods reported as ready for shipment in time, Orbitalum Tools is entitled to store the goods at the expense and risk of the Purchaser and to invoice them as delivered. If the Purchaser does not pay for the goods, Orbitalum Tools is in particular entitled to dispose of them otherwise.

10.6 In the event that the Purchaser cancels an order and Orbitalum Tools does not insist on the fulfillment of the contract, Orbitalum Tools is entitled to damages in the amount of 10% of the value of the order in question (liquidated damages) and to the proven damage exceeding this amount. The Purchaser is permitted to prove that Orbitalum Tools has suffered no damage or only a significantly lower damage than the amount of the liquidated damages claim.

10.7 In the event of partial impossibility, the Purchaser can only withdraw from the contract if the partial performance is demonstrably of no interest to the Purchaser. If this is not the case, the Purchaser must pay the contract price attributable to the partial performance. Otherwise, Section 17 applies. If impossibility occurs during the delay in acceptance or through the sole or predominant fault of the Purchaser, it remains obliged to provide consideration, taking into account any saved expenses on the part of Orbitalum Tools. If neither contracting party is responsible for the impossibility, Orbitalum Tools is entitled to a part of the remuneration corresponding to the work it has performed.

10.8 In the event of termination of work services by the Purchaser in accordance with § 649 BGB, Orbitalum Tools shall be entitled, in addition to the claim for remuneration for any services already rendered, to payment of the remuneration for services not yet rendered by the Purchaser in the amount of at least 10% of the net price of the total remuneration. Orbitalum Tools remains free to prove that a higher damage has actually occurred and/or higher expenses have been made and to demand that these be replaced by the Purchaser instead of the lump sum. The Purchaser remains permitted to prove that actually no or only a significantly lower damage and/or significantly lower expenses than the amount of the lump sum have occurred.

11. Packaging

11.1 If the products are additionally packaged beyond the standard packaging, the packaging in question will be charged separately. Orbitalum Tools reserves the right to choose the type of packaging.

11.2 Insofar as the Purchaser returns the packaging used for the transport of the delivered goods to Orbitalum Tools in accordance with the Packaging Ordinance, it shall bear the costs of recycling and transport to the recycling site designated by Orbitalum Tools.

12. Transfer of Risk, Acceptance

12.1 The risk passes to the Purchaser ex works (EXW) in accordance with the Incoterms of the ICC (current edition), even if the delivery is made carriage paid, under similar clauses or including assembly or if the transport is organized and managed by Orbitalum Tools.

12.2 If shipment is delayed for reasons for which Orbitalum Tools is not responsible, the risk passes to the Purchaser upon notification of readiness for shipment.

12.3 Insofar as a declaration of acceptance by the Purchaser is legally required or agreed for the transfer of risk, the following applies:

a) The work services of Orbitalum Tools are deemed to have been accepted two weeks after notification of readiness for acceptance, unless the Purchaser complains in writing to Orbitalum Tools about existing significant defects within this period.

b) The Purchaser is only entitled to refuse acceptance if the defect cancels or significantly reduces the usual and/or contractually intended use of the work and/or its value. If the work is afflicted with defects that do not entitle the refusal of acceptance, acceptance must take place subject to the rectification of defects.

c) Refusals of acceptance or reservations against acceptance must be made immediately in writing, stating and describing the complained defect.

d) The use of the delivery item by the Purchaser for its intended purpose is deemed to be acceptance.

13. Transport and Insurance

13.1 Unless otherwise agreed, shipment is at the expense of the Purchaser. The shipping costs will be invoiced with the goods. Specified special types of shipment (e.g. express, scheduled freight) are at the expense of the Purchaser.

13.2 Insurance against damage of any kind is the responsibility of the Purchaser. Even if it is to be arranged by Orbitalum Tools, it is deemed to have been concluded on behalf of and for the account of the Purchaser.

13.3 Special wishes regarding shipment and insurance must be communicated to Orbitalum Tools in good time. Otherwise, shipment will be carried out at the discretion of – but without responsibility of – Orbitalum Tools as quickly and cost-effectively as possible. In the case of carriage paid deliveries, the shipping processing is left to Orbitalum Tools. If special instructions are given by the Purchaser, any additional costs shall be at its expense.

13.4 In the event of damage or loss of products during transport, the Purchaser must make a corresponding reservation on the receipt documents and immediately arrange for a statement of facts to be recorded with the carrier. The notification of transport damage that is not readily identifiable must be made to the carrier no later than six days after receipt of the products.

14. Inspection, Notification of Defects, Damage Reports

14.1 The products are inspected by Orbitalum Tools within the usual scope during manufacture. If the Purchaser requests further inspections, these must be agreed in writing and paid for by the Purchaser.

14.2 The foregoing does not release the Purchaser from its obligation to inspect and notify defects in accordance with § 377 HGB.

14.3 Defective parts must in any case be kept until the final clarification of the warranty or damage claims and made available to Orbitalum Tools upon request.

14.4 Upon its request, Orbitalum Tools must be given the opportunity to inspect the defect or damage itself or through third parties before the start of repair work.

15. Return of Goods to Orbitalum Tools as a Gesture of Goodwill

15.1 Orbitalum Tools is not obliged to take back products that have been properly delivered in accordance with the contract.

15.2 Returns are made as a gesture of goodwill and will only be accepted by Orbitalum Tools if they have been requested and approved in advance and the products are delivered in as-new condition, in original packaging, and carriage paid. Unauthorized returns will be returned at the customer’s expense.

15.3 Consumables, custom-made products or discontinued products will not be taken back under any circumstances.

15.4 No credit note will be issued for returns with a goods value of less than EUR 150.00.

15.5 The value of each item must be at least EUR 50.00.

15.6 For every return, a processing fee of 25% of the value of the goods, in any case at least EUR 50.00, will be deducted.

16. Liability for Material Defects, Infringement of Proprietary Rights and Copyrights

16.1 Orbitalum Tools undertakes, upon written request of the Purchaser, to repair or replace free of charge as quickly as possible at its discretion all defective parts of its delivery, in particular those that demonstrably become defective or unusable as a result of poor material, faulty design or execution, provided they were not manufactured according to the Purchaser’s specifications or modified by the Purchaser, or due to defects in the operating or assembly instructions. Replaced parts become the property of Orbitalum Tools.

16.2 If a reasonable period set by Orbitalum Tools for supplementary performance due to a defect expires fruitlessly, the Purchaser is entitled – taking into account the statutory exceptional cases – to withdraw from the contract or to a reasonable reduction in the price. If there is only an insignificant defect, the Purchaser only has a right to a reasonable reduction of the contract price.

16.3 Excluded from the warranty are claims that are not based on fault on the part of Orbitalum Tools, in particular those resulting from natural wear and tear, inadequate storage or maintenance, disregard of operating instructions, excessive stress, unsuitable operating materials, inadequate construction work, unsuitable building ground, improper interventions by the Purchaser or third parties, use of non-original parts as well as due to other reasons for which Orbitalum Tools is not responsible.

16.4 Claims of the Purchaser due to the expenses required for the purpose of supplementary performance are excluded insofar as the expenses increase because the delivery item has subsequently been moved to a location other than the place of delivery, unless the movement to another location corresponds to the intended use of the delivery item.

16.5 If the use of the delivery item within the periods specified in Section 18 leads to an infringement of proprietary rights or copyrights, Orbitalum Tools will, in addition to any damages in compliance with Section 17, fundamentally provide the Purchaser with the right to further use or modify the delivery item in such a way that the infringement of proprietary rights or copyrights no longer exists. If this is not possible under economically reasonable conditions (i.e. with up to a 10% increase in manufacturing costs, including any license fees) or within a reasonable period, the parties are entitled to withdraw with reimbursement of the services received mutually.

16.6 The obligations of Orbitalum Tools mentioned in Section 16.5 are final, subject to Section 17 and for the case of infringement of proprietary rights or copyrights.

16.7 A claim for supplementary performance and damages due to infringement of proprietary rights or copyrights, as mentioned in Section 16.5, only exists if the Purchaser informs Orbitalum Tools immediately in writing, stating and describing the asserted infringements of proprietary rights or copyrights, the Purchaser supports Orbitalum Tools to a reasonable extent in defending the asserted claims or enables Orbitalum Tools to carry out the modification measures in accordance with Section 16.5, Orbitalum Tools reserves all defense measures including out-of-court settlements, Orbitalum Tools is responsible for the infringement of proprietary rights or copyrights, which is not the case, for example, if the infringement is based on an instruction or specification of the Purchaser or if the infringement of proprietary rights or copyrights was caused by the Purchaser changing the delivery item without authorization or using it in a manner not in accordance with the contract.

17. Limitation of Liability

17.1 Unless otherwise stated in these conditions, all claims of the Purchaser against Orbitalum Tools, regardless of the legal reason, in particular due to breach of obligations from the contractual relationship or from tort, are excluded.

17.2 This limitation of liability does not apply insofar as liability is mandatory, e.g. according to the Product Liability Act, likewise not in the case of intent, gross negligence of the legal representatives or senior employees as well as in the case of culpable breach of essential contractual obligations. In the event of a culpable breach of essential contractual obligations, Orbitalum Tools is liable – except in cases of intent or gross negligence – only for the contract-typical, reasonably foreseeable damage. The limitation of liability also does not apply to damages resulting from injury to life, body or health and in the absence of a guaranteed quality, if and insofar as the guarantee is intended precisely to protect the Purchaser against damages that have not occurred to the delivered products themselves.

17.3 Insofar as the liability of Orbitalum Tools is excluded or limited, this also applies to its affiliated companies, as well as to the personal liability of the employees, workers, staff, legal representatives and vicarious agents of Orbitalum Tools and its affiliated companies.

17.4 In particular, when providing services according to the Purchaser’s specifications, liability for the infringement of third-party proprietary rights is excluded. An obligation to inspect on the part of Orbitalum Tools with regard to third-party proprietary rights does not exist.

18. Statute of Limitations for Claims for Damages and Material Defects

Claims for damages and material defects expire 12 months after the transfer of risk. The above provision does not apply insofar as the law prescribes mandatory longer periods; the statutory limitation rules apply to these claims. For claims arising from injury to life, body or health; grossly negligent behavior of organs or senior employees; intentional or fraudulent behavior; the culpable breach of essential contractual obligations; guarantees as well as for claims according to the Product Liability Act, the statutory limitation regulations always apply.

19. Partial Invalidity

Should individual provisions of the contract be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid or void provision with a valid regulation by which the purpose pursued with the invalid or void provision is achieved as far as possible.

20. Place of Performance and Jurisdiction

20.1 The place of performance is Singen, Germany.

20.2 In the event of disputes arising from the contractual relationship, the action must be brought exclusively at the court responsible for Orbitalum Tools. However, Orbitalum Tools is also entitled to call upon any other competent court.

20.3 The contractual relationship is subject exclusively to German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and all conflict of law rules.