General Terms and Conditions
I. General 1. These General Terms and Conditions have exclusive application to all business relationships between GLOMACHT and its buyers and prospective buyers. If there is a frame agreement between GLOMACHT and the buyer, then these General Terms and Conditions apply to both the frame agreement and the individual order. They shall also apply to the online platform operated by GLOMACHT under the web address www.glomacht.com.These conditions also apply to future transactions with the buyer, to the extent that these transactions are of a related nature. 2. GLOMACHT does not recognise contradictory conditions or conditions from the buyer that deviate from these sales conditions, unless GLOMACHT has explicitly agreed to their validity in writing. GLOMACHT General Terms and Conditions also apply, even when GLOMACHT executes the delivery to the buyer without reservation, despite having knowledge of contradictory or deviating conditions from the buyer. 3. GLOMACHT General Terms and Conditions are an integral part of the contract. All agreements made between GLOMACHT and the buyer for purposes of executing this contract are recorded in this contract in writing.
II. Contract Conclusion, Client Protection 1. Offers from GLOMACHT are non-binding and subject to alteration. They can be revoked by GLOMACHT at any time up to the receipt of the written declaration of acceptance or up to the dispatch of the delivery object. The presentation of goods in the online platform does not represent a binding offer for the conclusion of a purchase contract either, but merely a non-binding request for the order of the relevant object of purchase in the online platform. 2. With an order via the online platform the customer submits a binding purchase offer by clicking on the button "order liable to payment". After the receipt of the purchase offer the customer will receive an automatically generated e-mail, with which GLOMACHT confirms the receipt of the order to him. This confirmation of receipt is, however, not yet an acceptance of the purchase offer so that a contract is not yet concluded by the confirmation. 3. Documentation belonging to the offer or order confirmation, such as images, drawings and weight and measurement specifications, are only approximate values, to the extent that they have not been explicitly declared as binding. If GLOMACHT provides the buyer with drawings or technical documentation about the purchased technical item(s) contained in the delivery, these drawings and technical documentation remain the property of GLOMACHT. 4. Orders from the buyer are binding for the buyer. Unless GLOMACHT provides a written confirmation to the contrary, the delivery or invoice represent confirmation of the order. If an order from the buyer is to be treated as an offer, then GLOMACHT can accept this offer within a period of four weeks. The time limit begins from the point when the order is received. If GLOMACHT dispatches the good(s) before expiration of this time period, then, as an exception to the rule, the contract is concluded even without a written order confirmation. 5. If the buyer is a merchant, then the written confirmation from GLOMACHT has sole relevance for the content of orders and agreements in connection with the contract conclusion, provided the buyer does not promptly contradict this in writing. This applies particularly to orders and agreements made orally or by telephone during contract conclusion. In all cases, a notification to GLOMACHT is no longer considered prompt when it has not been received by GLOMACHT within seven days. 6. If a machine is not offered by GLOMACHT ex works, and if the location and address are provided to or verified for the prospective buyer, the prospective buyer pledges neither to pass the address on to third parties nor to purchase the verified machine directly or via third parties from anyone other than GLOMACHT. 7. Information provided by GLOMACHT about machine locations and prospective buyers is for the exclusive use of the recipient alone and may not be passed on to third parties without the written consent of GLOMACHT. The prospective buyer also pledges to conduct all price negotiations and concluding negotiations solely via GLOMACHT. In the case of culpable non-compliance, the prospective buyer is to reimburse GLOMACHT for lost profits in the full amount of the difference between GLOMACHT’s verified procurement price and the price offered by GLOMACHT to the prospective buyer. The orders, purchase transactions and deliveries arising subsequent to verification of machines for purchase or sale and the resulting initiation of business relationships are to be considered as having been brokered by GLOMACHT.
III. Delivery Deadline, Scope of Delivery, Delivery Delay 1. Delivery appointments and periods are to be considered as only approximately fixed, unless GLOMACHT has provided a written assurance at the time of contract conclusion specifying them explicitly as binding. The start of a delivery period specified by GLOMACHT presupposes the timely and proper fulfilment of the buyer’s obligations, particularly the clarification of all technical questions; should this not be the case, then the delivery dates are extended accordingly. The right of objection to the unfulfilled contract remains reserved. The delivery period has been complied with when the delivery object has been loaded by the time of the period’s expiry or when GLOMACHT (or an agent) has prepared the delivery object for dispatch and notified the buyer of its readiness for delivery. 2. GLOMACHT is entitled to make partial deliveries, provided they do not fall short of a
reasonable minimum size. 3. The buyer is to examine and acknowledge the transportation document(s) and/or bill of lading. Any objections are to be reported to GLOMACHT promptly in writing. Otherwise, the acknowledged quantity delivered is considered verified. 4. The delivery deadline is extended reasonably for circumstances connected with labour disputes, particularly strikes and lockouts, force majeure, governmental measures, the non-appearance of deliveries from GLOMACHT’s suppliers, as well as in the event of unforeseeable, unavoidable impediments lying outside GLOMACHT’s sphere of influence, to the extent that such impediments impact the production or delivery of the delivery object. This also holds when the circumstances affect subcontractors or agents. In important cases, GLOMACHT will inform the buyer promptly of the beginning and ending of such impediments. 5. Force majeure also exists in the case of labour dispute measures, including strikes and lawful lockouts, in the operations of GLOMACHT or its sub-suppliers or agents. In these cases, buyer claims to loss reimbursement are excluded. 6. Should GLOMACHT fall behind schedule, the buyer must give GLOMACHT—to the extent provided by law—a reasonable extension. After expiry of this extension, the buyer can withdraw from the contract if he has not received word that the good(s) are ready for dispatch by this time. 7. GLOMACHT is liable if, as a consequence of a delivery delay for which GLOMACHT is responsible, the buyer is entitled to assert that his interest in continued fulfilment of the contract has ceased. 8. GLOMACHT is also liable according to the statutory provisions if the delivery delay results from an intentional or grossly negligent contract violation for which GLOMACHT is responsible; culpability on the part of GLOMACHT’s representatives or agents is to be ascribed to GLOMACHT. If the delivery delay results from an intentional or grossly negligent contract violation for which GLOMACHT is responsible, then GLOMACHT’s damage compensation liability is limited to the foreseeable, typically occurring loss. 9. If the buyer suffers a loss through a delivery delay for which GLOMACHT is culpable, then the buyer, under exclusion of further compensation claims, can demand reimbursement in the amount of 0.5% of the value of the affected part of the total delivery, for each week of delay, with an upper limit of 5%. Further claims pertaining to delivery delays are excluded, particularly claims for loss compensation, provided no other consequence results from the above-mentioned stipulations in numerals 6., 7. and 8. 10. If the buyer falls behind in the acceptance procedure or culpably violates any other cooperation obligations, then GLOMACHT is entitled to demand reimbursement for any losses arising as a consequence, including any additional expenditures. The right to further claims remains reserved. Provided the above-mentioned conditions prevail, the risk of accidental loss or deterioration of the purchased good is transferred to the purchaser at that point in time when the purchaser enters into acceptance delay or debtor’s delay.
IV. Prices, Payment Conditions 1. The prices shall apply to the scope of services and delivery listed in the offer and/or order confirmation, which ever apply. Additional or special services will be charged separately. The prices are deemed in EURO. Price details given in local currency or EURO on the website and/or in written correspondence, e.g. in the form of a conversion at the daily rate, are merely of an informational character. 2. The prices do not include value added tax, freight, customs duties, postage, packaging, assembly, set-up, insurance or other expenses. These shall represent separate services, for which an individual order confirmation of GLOMACHT is to be obtained. The calculation of brand-new machine prices is based on the prices in effect on the delivery day. Redemption is excluded. 3. Barring special agreements, invoice payments are due immediately, without deductions. The deduction of an early payment discount is only permitted on the basis of a special written agreement. 4. GLOMACHT sends its invoice in advance of dispatching the good(s). Dispatching takes place only against pre-payment, unless otherwise stipulated. If, in special instances, it has been agreed that the delivery should not take place against pre-payment, the invoice will nonetheless be sent. The invoice payment is still due if the delivery of dispatch-ready goods should be impossible due to reasons within the buyer’s scope of risk. 5. If the buyer is in default with a payment he shall be obliged to pay the statutory interest on default in the amount of 9 percentage points above the base lending rate. In addition, a rate of 5% of the total amount of the transaction, corresponding to collection costs, shall exist for the benefit of GLOMACHT. GLOMACHT explicitly reserves the right to assert further damages. 6. If the buyer enters payment arrears, the statutory provisions pertaining to the consequences of payment arrears shall apply. The right to assert a specific arrears damage claim is reserved. 7. The buyer is only entitled to offset rights if his counter claims are legally binding, uncontested or recognised by GLOMACHT. Moreover, the buyer is only authorised to exercise a right of retention inasmuch as his counter claim is based on the same contractual relationship. 8. If GLOMACHT is obligated to an advance performance and if, after concluding the contract, a substantial risk arises to GLOMACHT’s payment claim due to a significant deterioration in the financial circumstances of the buyer, then GLOMACHT can demand pre-payment or security within a reasonable time period and refuse performance until fulfilment of this demand. If the buyer refuses or if the time period expires without effect, then GLOMACHT is entitled to withdraw from the contract. Moreover, GLOMACHT can prohibit the resale of goods delivered under retention of ownership, demand their return or the transfer of immediate possession at the buyer’s own expense and revoke a direct debit authorisation.
V. Risk Transfer, Acceptance 1. The risk of accidental loss or deterioration of the good(s) is transferred to the purchaser at the start of the loading of the delivery object or with the handover to the freight carrier, haulage contractor or shipping agent, at the latest upon departure from the facility/warehouse. This also applies for partial deliveries or when GLOMACHT undertakes further performances, for example, payment of shipping costs or delivery and setup and/or commissioning. 2. If the delivery object must be inspected and approved, then this acceptance procedure is the definitive criterion for the risk transfer. The acceptance procedure must be executed promptly at the time of the acceptance appointment or, alternatively, after the announcement from the deliverer about the acceptance readiness, and may not be refused by the buyer on the basis of the mere existence of an insubstantial deficiency. 3. If the good is ready for dispatch and the dispatch is delayed for reasons for which the buyer is responsible, then the risk is transferred to the buyer at the time the announcement of the dispatch readiness is received by the buyer. The same holds for delays in the acceptance procedure and the receipt of the announcement of acceptance readiness. 4. GLOMACHT is obligated to obtain a transport insurance policy only when the buyer
explicitly demands it. The buyer bears the costs.
VI. Notice of Defects, Warranty 1. Defect claims on the part of the buyer presuppose that the buyer has properly fulfilled his obligatory inspection and defect notification obligations. The inspection and notification obligations also extend to the assembly instructions. GLOMACHT is to be promptly notified of objections in writing and the defective parts in question are to be sent back to GLOMACHT when GLOMACHT so demands. Here, GLOMACHT assumes the transport costs when the defect claim is justified. If the buyer fails to fulfil these obligations or undertakes changes to the part in question without the consent of GLOMACHT, then the buyer loses the right to any possible material defect claim.
2. Transport damage is to be reported promptly to GLOMACHT. The buyer is to manage the necessary formalities with the freight hauler, particularly regarding the performance of all appraisals needed to permit recourse action against third parties. Provided breakage, loss or the like remain within a customary and reasonable limit, they cannot be objected to. 3. A warranty from GLOMACHT is excluded for the sale of used products, unless some other arrangement is stipulated hereinafter. Used machines and any remaining accessories are delivered by GLOMACHT in the condition they were in at the time the contract was concluded. All liability for apparent or hidden defects is also excluded when the machine has not been inspected in advance by the buyer, unless GLOMACHT fraudulently concealed known defects or assumed a warranty for the quality of the item. 4. Should a defect exist in an item purchased new, GLOMACHT is entitled for purposes of rectification to choose between eliminating the defect or delivering a new, non-defective item. The buyer must always provide GLOMACHT an opportunity for rectification within a reasonable time period. In cases of defect elimination or replacement delivery, GLOMACHT is obligated to bear all expenses associated with the rectification, particularly transport costs, travel costs, labour costs and material costs, up to the amount of the purchase price, provided these do not increase as a consequence of the purchased item being moved to a location other than the place of performance, unless such a movement is in accordance with the item’s normal usage. However, GLOMACHT must only bear removal and installation costs if the prerequisites for fault-based loss compensation liability exist. If the rectification fails, then the buyer is entitled to demand either withdrawal or abatement, as he chooses. If the defect represents an immaterial breach of duty, then the buyer can neither withdraw from the contract nor demand loss compensation instead of the entire performance. 5. Provided the buyer is otherwise entitled to claim reimbursement for loss instead of performance on account of a negligent breach of duty, GLOMACHT’s liability is limited to the foreseeable, typically occurring loss. 6. Provided that something different has not been stipulated above, liability is excluded. In particular, liability is also excluded for defects due to corrosion or typical wear. In particular, the warranty does not extend to wear on consumable parts. a) Consumable parts are all rotating parts, all drive components and tools. For the sale of a machine, its use in single shift operation serves as the basis for these warranty provisions; b) arising from damage due to external factors, improper treatment and/or setup or usage, incorrect assembly and/or commissioning, deficient operating, maintenance, overloading or incorrect and/or negligent treatment by the buyer or his customers; c) as a consequence of the buyer carrying out improper modifications or repair work
without the consent of GLOMACHT; d) if statutory installation and handling regulations or those issued by GLOMACHT are not adhered to by the buyer or his acceptance personnel, unless the defect cannot be traced back to this non-adherence. 7. If the buyer notices a defect, he may not modify or work on the delivery object, nor may
he hand it over to a third party. 8. Instead, he must provide GLOMACHT sufficient opportunity and time to verify the defect and, if necessary, carry out the necessary rectification (defect elimination or delivery of a new, non-defective item); otherwise, all defect claims lapse. Only in urgent cases of endangerment to operational safety and/or to prevent disproportionately extensive damage—and here, GLOMACHT is to be notified immediately—does the buyer have the right to eliminate the defect or have it eliminated by a third party and to demand from GLOMACHT reimbursement of the necessary expenditures. Independent of the existence of a defect, the warranty claims also expire if the buyer or a third party undertakes modifications or repair work without the permission of GLOMACHT. 9. Provided nothing else has been agreed to, the warranty period extends for 12 months after the effected delivery of the goods delivered by GLOMACHT to the buyer. This does not apply to the extent that the good is typically used for a structure and has caused the defect. If the delivery is delayed through no fault of GLOMACHT, the liability lapses at the latest 18 months after its delivery readiness. The statutory warranty periods remain unaffected in case of losses based on an intentional or grossly negligent breach of duty by GLOMACHT, its legal representatives or agents.
Vll. Other Liability 1. A more extensive liability for loss compensation than that stipulated in III. and VI.—regardless of the legal nature of the asserted claim—is excluded. This applies in particular to loss compensation claims due to a fault during contract conclusion, due to other breaches of duty or due to criminal claims for compensation of property damage. 2. The limitation pursuant to Para. 1 also applies if the buyer demands the reimbursement of useless expenditures instead of a claim for reimbursement of losses in place of performance. 3. To the extent that GLOMACHT’s liability is excluded or limited, this applies also to the personal liability of GLOMACHT’s staff members, employees, workers, legal representatives and agents. 4. The statutory regulations concerning burden of proof remain unaffected.
VIII. Retention of Ownership, Securities 1. GLOMACHT retains ownership of the delivery object until all payments arising from the business proceeding with the buyer have been received. In case the buyer fails to conform to the contract, particularly regarding payment arrears and filing for the commencement of an insolvency proceeding, GLOMACHT is entitled to retrieve the delivery object after a warning and the buyer is obligated to relinquish it. The retrieval of the purchased item by GLOMACHT represents a withdrawal from the contract. After retrieval of the purchased item, GLOMACHT is authorised to utilise it; the utilisation revenues—after reasonable utilisation costs have been deducted—are to be offset against the buyer’s accounts payable. The buyer shall hold the purchased item in safekeeping free of charge for GLOMACHT. 2. The buyer is obligated to handle the purchased item carefully; in particular, he is obligated, at his own expense, to adequately insure it against fire damage, water damage, and theft. If the buyer does not provide GLOMACHT with evidence of having concluded such an insurance policy, then GLOMACHT is entitled to conclude such an insurance policy itself at the buyer’s expense. If maintenance and inspection measures are necessary, the buyer must carry these out on schedule at his own expense. 3. In case of pledging or other third-party interventions, the buyer is to promptly notify GLOMACHT in writing so that GLOMACHT can exercise its rights properly. To the extent that the third party is unable to reimburse GLOMACHT for the in-court and out-of-court costs of a suit, the buyer is liable for the loss incurred by GLOMACHT.
IX. Fulfilment Obligations, Impossibility 1. GLOMACHT’s delivery obligations are subject to the reservation of GLOMACHT being properly, completely and promptly delivered itself. In case of improper or untimely delivery by suppliers or previous owners of goods, GLOMACHT is not liable for the impossibility of delivery or delivery delays for which GLOMACHT bears no responsibility. If such an improper or untimely delivery makes it significantly more difficult or impossible for GLOMACHT to deliver or perform its obligations and if the impediment is not merely temporary, then GLOMACHT is entitled to withdraw from the contract. If the impediment is merely temporary, then the delivery or performance periods are extended and/or the delivery or performance dates are shifted a length of time equivalent to the duration of the impediment plus a reasonable start-up period. If, as a consequence of the delay, the acceptance of the delivery or performance represents an intolerable burden for the buyer, then he can withdraw from the contract by informing GLOMACHT via a prompt written declaration. 2. If GLOMACHT’s entire performance becomes impossible before the transfer of risk, the buyer can withdraw from the contract. If it becomes partly impossible, this provision applies only to the affected part. In this case, however, the buyer can withdraw from the entire contract if he can provide evidence of a legitimate interest in refusing the partial delivery. 3. If the impossibility arises during a delay in acceptance on the part of the buyer or if the buyer is solely or overwhelmingly responsible for the circumstance that makes GLOMACHT’s performance unnecessary, then the buyer remains bound to compliance. 4. After GLOMACHT’s withdrawal from the contract and/or after issuing a deadline with
threat of refusal, GLOMACHT is entitled to freely utilise retrieved goods.
X. Place of Performance, Jurisdiction, Applicable Law 1. Unless otherwise contractually agreed to, the place of performance for payment and
delivery of goods is the business headquarters of GLOMACHT. 2. The exclusive jurisdiction for all disputes is GLOMACHT headquarters. GLOMACHT is also entitled to sue the buyer at his headquarters. Moreover, the jurisdiction for all claims of the contractual partners arising from the business relationship is GLOMACHT headquarters, when the buyer has no domestic place of general legal jurisdiction. 3. The law of The Netherlands, under exclusion of the UN Convention on the International Sale of Good (CISG), applies to these sales and delivery conditions and to the legal relationships between GLOMACHT and the buyer resulting from this contract.
XI. Legal Validity, Data Protection 1. Should one of the provisions of these general sales and delivery conditions be or become invalid, it shall have no effect on the validity of the remainder of the contract. National regulation shall apply in its place. 2. Under no circumstances is the affected provision in these general sales and delivery
conditions to be replaced by the buyer’s conditions of business. 3. Legally relevant declarations of intent, such as cancelations, declarations of withdrawal, demands for reduction of purchase price or loss compensation, are only valid when made in writing. 4. The buyer acknowledge that GLOMACHT stores data that has been received in connection with the business relationship—including data originating with or by third parties—, and has the right to process and/or store such data by third parties commissioned by GLOMACHT.
XII. Assignment 1. GLOMACHT is entitled to an unlimited extent to assign all current and future claims from the contractual relationship against the buyer to a third party, e.g. within the framework of a factoring contract. With the existence of a current account relationship between GLOMACHT and the buyer, the assignment shall also comprise the balance claim of GLOMACHT. 2. The buyer is not entitled to assign its claim from the contractual relationship, without the
prior written consent of GLOMACHT, to third parties.
VAT ID No: NL860898635B01
Register numnber of CC in the NL: 77096002