General terms of business and conditions of supply (T&C)
I. Scope of application
These General Terms and Conditions apply to the sale of the equipment of EWM AG as well as the services offered by EWM AG. The GTCs of the customer are expressly rejected unless they have been expressly recognised. This also applies if EWM AG expressly fails to reject them again when submitted.
II. Quotations and orders
Quotations of EWM AG are subject to change without notice. A contract is only formed as a result of written order confirmation. Written and oral agreements only become effective as a result of written confirmation by EWM AG. Amendments and additions to the written contract documentation of EWM AG must also be made in writing.
III. Delivery and performance
All deliveries, sales transactions and services rendered in the context of business relationships shall take place under the GTCs of EWM AG. The quotations of EWM AG are non-binding and subject to change without notice and require written order confirmation. Deliveries are made, insofar as legally prescribed and contractually agreed, subject to the proviso of approximate delivery times. Delivery times are met if EWM AG is unable to dispatch on time without fault on its part. EWM AG reserves absolute rights of exploitation in respect of legal title and copyright law to cost estimates, drawings and other documents. Documents may only be made available to third parties with the prior consent of EWM AG. If the order is not placed, drawings and other documents which are part of quotations must be returned on demand. This applies in a corresponding manner to the documents of the purchaser. These may only be made available to third parties, however, if EWM AG has permissibly assigned the delivery/performance.
The prices quoted by EWM AG are valid for delivery, not including set-up or assembly, ex works, plus value added tax as amended from time to time and freight charges. The prices specified in the quotation are subject to change without notice, whereas the prices set out in the version of the price list of EWM AG applicable at the time and valid on the day of the delivery are definitive. Turnover tax, freight, insurance and other ancillary costs are charged separately. EWM AG is entitled to make price adjustments. The goods shall be dispatched in appropriate packaging. The commercial customer must take out separate transport insurance. EWM AG complies with the regulations of the VDE (Association for Electrical, Electronic and Information Technologies) which, where admissible, become an integral part of the contract.
The invoices of EWM AG are due and payable immediately, except where otherwise agreed. In the event of delay in payment, EWM AG is entitled to charge interest on arrears. Claims for damages above and beyond this by EWM AG on account of default remain unaffected. Delay in payment by the customer entitles EWM AG to refuse a further delivery.
VI. Retention of title
The goods of EWM AG remain the property of EWM AG until full and final payment.
In the absence of written consent the customer is not entitled to sell goods supplied to him before full and final payment has been made.
In the event of processing, the acquisition of ownership by the customer is not allowed until full and final payment. If goods in the ownership of EWM AG become an essential component part of another article as the main article, ownership shall remain with EWM AG in the amount of the proportion of co-ownership in the newly manufactured article. In the event of processing with other goods likewise supplied by EWM AG and subject to retention of title, EWM AG is entitled to co-ownership in the new article in the ratio of the value of the conditional goods to the total value. The claim of the customer arising from any resale of the goods of EWM AG shall be assigned to EWM AG and serves to secure the claim. These rights include all ancillary rights and collateral. At the request of EWM AG, the customer is obliged to assign assignments to purchasers and to pass on all necessary information to EWM AG for the assertion of its rights against the purchaser and to surrender the documents. Pledging or transfer by way of security of goods supplied conditionally is prohibited. EWM AG must be informed immediately about levies of execution, including details of the garnisher. The goods supplied conditionally shall be stored free of charge. The customer must insure them against the usual risks such as fire, theft and water damage. The purchaser assigns his claims for compensation in respect of insurance companies to which he is entitled arising from damage to the goods supplied conditionally to EWM AG in the amount of its claim.
VII. Passage of risk of delivery and performance
Delivery ex works is deemed to be agreed, except where otherwise agreed.
EWM AG is entitled to make partial deliveries, insofar as they are reasonable for the purchaser. The risk of accidental perishing shall pass to the commercial customer as soon as the goods have left our factory. Compliance with agreed deadlines presupposes the timely receipt of all documents, required permits, plans and other obligations to be supplied by the customer. The deadline is deemed to be met in the event of delivery, not including set-up or assembly, of the ordered consignment within the agreed delivery deadlines. If the delivery is delayed for reasons for which the customer is responsible, the deadline is deemed to be met when the fact that readiness for dispatch has occurred has been notified. If EWM AG is not culpably prevented from meeting the delivery date, the date of performance shall be postponed by a reasonable period, particularly in the case of force majeure and other circumstances for which EWM AG is not at fault. If shipment is delayed at the wish of the customer, EWM AG may demand reasonable storage charges. Claims for compensation due to delay in the delivery are excluded, insofar as they are not mandatorily prescribed by law. EWM AG may require the customer to be obliged to declare, within a reasonable period of time, whether the latter will withdraw or insist upon delivery.
VIII. Set-up and assembly
When setting up and assembling the goods of EWM AG, the customer must assume the costs of the required support personnel. In addition, he must undertake all extra work such as construction, caulking, scaffolding, plastering and painting work. The customer must provide the equipment and hardware required for assembly and operation such as, for example, chocks, cement, mats, plaster, lubricants and fuels, trestles and chain hoists. He must see to it that all required connections for electricity and water exist and that protective clothing and safety devices are available. Before the start of assembly work, the customer must provide the necessary information regarding concealed electricity, gas and water mains/pipes. EWM AG is not liable for work which is not connected with the work ordered. If EWM AG has undertaken set-up or assembly at extra charge, the fee rates of EWM AG shall apply.
IX. Warranty/defect liability
In the event of defects, EWM AG is liable in accordance with the statutory provisions with the following distinctive features: all those parts and services are subject to the obligation to remedy defects which have become defective within the statutory time limits calculated from the date of the passage of risk as a result of a circumstance occurring before the passage of risk, or the usefulness of which has been impaired. The identification of such defects must be asserted to EWM AG by the commercial customer immediately in writing. EWM AG is liable only in the event of intent and gross negligence and rules out further liability where admissible. In the event of ordinary negligence further losses, in particular for lost profits and other losses, are excluded. The above limitation of liability and the above exclusions of liability do not apply to claims which have caused personal injury and damage to property due to defective products.
Rights of the customer are excluded if the purchaser has not, or has not fully, observed the directions for use and operating instructions or if there is any other form of improper operation. If the commercial customer has notified a defect in writing within the warranty period, his claims to warranty shall lapse one year following the dispatch of the notification.
X. Applicable law and place of jurisdiction
For traders, the following is added:
The contractual relationship is subject to the law of the Federal Republic of Germany, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law. The exclusive place of jurisdiction for all contractual claims and claims in connection with this contract is Koblenz.
XI. Severability clause
If individual provisions of these terms and conditions or the other elements of the contract are or become ineffective, the remaining provisions shall remain in effect. This shall not apply if adherence to the contract would constitute an undue hardship for one of the parties to the contract.
5-year warranty on the following components*:
- Main transformer
- Output choke
- Secondary rectifier
3-year warranty on all new EWM machines*:
- Power sources
- Wire feeds
- Cooling units
1-year warranty on:
- EWM torches**
- Used EWM machines
- Automation and mechanisation components
- Remote control
- Intermediate tube packages
6-month warranty on:
- Spare parts supplied separately (such as circuit boards, ignition units)
Manufacturer/supplier warranty on:
- All additional parts that are used by EWM, but manufactured by other companies (e.g. motors, pumps, fans, torches, etc.)
Non-reproducible software errors and parts subject to mechanical ageing are excluded from the warranty (e.g. wire feed unit, wire feed rollers, replacement and spare wire feed parts, wheels, solenoid valves, workpiece leads, electrode holders, connection tubes, replacement torches and spare torch parts, mains and control leads, etc.).
These terms shall apply without affecting the customer's legal rights to a warranty and subject to our General Terms and Conditions of Business and our terms on the warranty declaration. Agreements to the contrary must be confirmed by EWM in writing.
* 5-year warranty on material costs, 3-year warranty on wage costs.
** in the event of manufacturing faults
Regardless of statutory warranty rights and based on our General Terms and Conditions, EWM HIGHTEC WELDING GmbH provides a 3-year warranty on its welding products starting on the date of purchase and a 5-year warranty on main transformers, output chokes, secondary rectifiers (material warranty). Different warranty periods apply to accessories and spare parts; please see the "General Validity" section for these periods. Parts subject to wear are naturally exempt from the warranty.
EWM guarantees the error-free condition of the products in terms of materials and manufacture. If the product proves to be defective in terms of materials or manufacture within the warranty period, you have the right to free repair or to replacement by an appropriate product, at our discretion. On receipt by EWM, the returned product becomes the property of EWM.
The prerequisite for receiving the full 3-year warranty is simply to operate the products in accordance with the EWM operating instructions observing the relevant legal recommendations and guidelines and having annual maintenance work and testing conducted by an EWM sales partner (see "Maintenance and testing" chapter). This is because only machines that are maintained regularly function correctly in the long term.
Making a claim
When making a claim under the warranty, please contact your authorised EWM sales partner only.
No warranty claims can be accepted if the EWM products in question are not operated using genuine EWM accessories (such as intermediate hose package, remote control, remote control extension cable, coolant, etc.). The warranty does not apply to products that are damaged due to accidents, misuse, improper operation, incorrect installation, use of force, disregard of the specifications and operating instructions, inadequate maintenance (see chapter "Maintenance and testing"), exterior influences, natural disasters or personal accidents. Furthermore, the warranty shall not be valid in the case of improper changes, repairs or modifications. In addition, a claim for warranty does not exist in the case of partially or completely dismantled products and interventions by persons who are not authorised by EWM, as well as in the case of normal wear.
All claims regarding fulfilment or non-fulfilment on the part of EWM from this declaration in connection with this product are limited as follows to the replacement of the actual damages. EWM's liability stemming from this declaration in connection with this product is fundamentally limited to the amount that the purchaser originally paid for the original purchase. This limitation does not apply to personal injuries or damage to property caused by negligent behaviour on the part of EWM. In no way will EWM be responsible for lost profits, indirect or subsequent damage. EWM is not liable for damages based on the claims of third parties.
Place of jurisdiction
If the orderer is a dealer, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is that of the supplier's head office or branch. The purchaser gains ownership of the products supplied as replacements within the framework of the warranty adjustment at the time of the exchange.
Special Provisions for Software Delivered at the Same Time or Separately
This software clause applies exclusively to standard software which is transferred together with other deliveries or as part of a delivery. The General Terms and Conditions of Delivery and Payment only apply if the following provisions are not deviated from in any way.
The supplier does not assume any obligation to provide software services. These require a separate agreement.
Right of use
1. The customer may use the program concurrently on one appliance (individual licence). Unless the customer has been granted a multiple licence. The same applies when using the software on networks even if in this instance the software is not duplicated. Use is understood to include any permanent or temporary, total or partial duplications of the program as a result of storing, loading, running or displaying for the purposes of executing the program and processing the data contained in the program. The customer is not authorised to duplicate the user handbook.
1.1 The customer may only change or revise the program to the extent that, when using it in accordance with the provisions, this is required for it to be connected to other programs or for correcting errors. Reverse engineering of the program code (decompilation) that goes beyond the statutory provisions are not allowed. The customer must not remove alphanumeric and other answer-back codes from the data carriers and must transfer them unchanged to any back-up copy.
1.2 The customer may only use the software with the hardware referred to in the contractual documents and in the absence of such a referral only with the accompanying hardware which is supplied with the software. Using the software with another appliance requires the express written agreement of the supplier and, when using the software, gives rise to a reasonable additional payment; this does not apply if and so long as the customer temporarily uses a replacement appliance within the agreed scope on account of a defect in the agreed appliance.
The customer may produce a back-up copy of the software if this is required to safeguard future use. Moreover, the customer may only duplicate the software within the context of a multiple licence.
1.4 The prerequisite for a multiple licence is an express written confirmation from the supplier as regards the number of permissible software duplications which the customer may make and the number of appliances or workplaces where the software may be used.
2. Transfer of Risks
When transferring the software by means of electronic communications media (for example via the Internet), the risk is transferred when the software leaves the supplier's sphere of influence (for example, when downloaded).
3. Passing on the Program Package
3.1 The customer, to whom the software is not transferred for the purposes of commercial resale, may pass on to a third party the right to use the software but only together with the appliance which he has acquired from the supplier together with the software. He must however also contractually impose on this third party the obligations vis-à-vis us which ensue from the transfer of the program package. The right to pass on does not extend to the passing on of copies and partial copies or amended or revised versions or copies and partial copies made of these.
The customer is not entitled to grant sub-licences.
If the customer transfers the software to a third party, then the customer is responsible for the compliance with any possible export requirements and in this respect he must release the supplier from any obligations.
When the program package is passed on, the right to use it passes over to the third party who then contractually replaces the customer whose right of use expires at the same time.
3.3 Multiple licenses may only be transferred to a third party if they are transferred in total together with all the appliances on which the software may be used.
3.4 When passing on the program package, the customer must immediately and completely destroy all copies, partial copies and also all back-up copies as well as amended or revised versions of the program and copies, partial copies and back-up copies made of these.
3.5 Hiring out the program package or parts thereof is not allowed.
4.1 The customer should note that it is not possible to develop computer programs in such a way that they are faultless when used under any circumstances.
4.2 We assure that the transferred program will carry out the agreed functions and will demonstrate the agreed qualities and attributes. The prerequisite for any warranty is that the program is used in accordance with the contract.
4.3 We also guarantee that the original program has been duly recorded on a tested data carrier. With the exception of preinstalled programs.
4.4 You must inform us immediately in writing of any program defects. The defect must be described in as much detail as possible. Only deviations from the specification which are proven and reproducible by the customer are deemed to be material defects in the software. The warranty always covers twelve months. The period starts on the date that the risk is transferred over.
4.5 If the software is showing a material defect, the supplier must first of all be given the opportunity to subsequently comply with the warranty agreement in respect of reparations within a reasonable period of time, at least however within four weeks. The supplier has the right to choose between the types of subsequent compliance. We do not refund costs for the removal of a defect by the buyer or a third party.
Material defect claims do not exist
- if the deviation from the agreed condition is only trivial,
- if use is only impaired in a minor way,
- in respect of damages which ensue from incorrect or negligent handling,
- in respect of damages which ensue due to particular external influences which are not provided for under the contract,
- for changes made by the customer or a third party and the ensuing consequences,
- in respect of software expanded by the customer or a third party via an interface not provided by the supplier,
- so that the transferred software is compatible with the data processing environment used by the customer.
4.6 This is the scope of our warranty. In particular we do not assure that the transferred program corresponds to the special requirements of the customer or user and we also do not provide a warranty for changed or revised versions of the program unless the customer proves that the defects are not in any way connected with the changes or revision. The customer is solely responsible for the selection, installation and use of the programs and for the intended results.
5. The Customer's Additional Duties to Cooperate and Liability
The customer must take any reasonable and necessary action in order to prevent or to limit damages caused by the software. In particular the customer must ensure that the programs and data are backed up regularly. If the customer culpably violates this obligation, the supplier is not liable for any ensuing consequences and in particular not for the replacement of lost or damaged data or programs. An amendment to the burden of proof does not affect the regulation.
6. Compensation for Damages
6.1 Any additional claims by the customer or third party, especially any claims for compensation for damages, particularly for indirect or consequential damages, are ruled out unless the injured party proves that the damage was caused by us intentionally or as a result of gross negligence; we are however even then not liable for indirect damages.
6.2 In addition, our General Terms and Conditions of Business apply accordingly.
7. Additional Rights
7.1 All additional rights are reserved by us. The rights of the customer to use his own programs which are developed or operated when using the transferred program in accordance with the provisions are not affected by this and his rights to use any other results of his work which he achieves through using the transferred program are also not affected by this.