General Terms and Conditions of
NUCLEUS GmbH Gerresheimer Str. 99a, 40233, Dusseldorf
– hereafter also referred to as “Nucleus” –
1. Sphere of Applicability
These Allgemeinen Geschäftsbedingungen [General Business Terms and Conditions] (“AGB”) shall be valid only for the contractual agreements concluded by Nucleus with entrepreneurs in accordance with § 14 BGB [German Civil Code], juridical persons under public law and special foundations under public law (“Customer”).
Subject to the integration of amended AGB from Nucleus, these AGB shall also be valid for future contractual agreements concluded between Nucleus and the Customer which form the basis for the delivery of machines without it being necessary to include them once again.
The contractual relationship between Nucleus and the Customer shall be based exclusively on these General Business Terms and Conditions. The Customer shall acknowledge them upon the issuance of the order, but nonetheless by no later than the acceptance of the machines. Any deviating Business Terms and Conditions of the Customer are expressly rejected. Nucleus is not willing to implement orders upon the basis of the Customer’s deviating General Business Terms and Conditions; this shall also then be valid if Nucleus renders services without expressly referencing this proviso.
3. Contractual Declarations
Insofar as nothing to the contrary is derived based upon the respective circumstances, offers from Nucleus shall constitute only requests made to the Customer to submit binding contractual offers to Nucleus (“invitatio ad offerendum”). Nucleus shall be entitled to accept the Customer’s contractual offers within two weeks’ time. During this timeframe, the Customer shall be bound to his contractual offer. Confirmations of the receipt of the Customer’s offer as such shall not yet constitute an acceptance of the contractual agreement by Nucleus.
In the case of the acceptance of the Customer’s orders, Nucleus shall require the Customer’s creditworthiness and reserves the right in the individual case to make the acceptance of the Customer’s order contingent on the provision of a bank guarantee or other security in the amount of the anticipated invoiced payment claim. Otherwise, § 321 BGB shall be valid (defence of uncertainty).
All agreements, which are concluded between Nucleus and the Customer, must be documented in writing for documentation purposes.
Any belated contractual changes must be in writing in order to be effective.
II. Customer’s Cooperative Actions
1. Customer’s cooperation obligations:
a) The Customer shall cooperate during the clarification of all required preliminary technical issues. The Customer shall promptly respond to Nucleus’ inquiries.
b) The Customer shall provide Nucleus with the materials that he intends to process with the machine to be manufactured by Nucleus.
c) The Customer shall provide Nucleus with the materials of the type and quality which will be later processed by the Customer.
d) The Customer shall provide the materials upon a free-of-charge basis. The Customer shall assume any transport costs.
e) The Customer shall provide the materials promptly, but nonetheless by no later than immediately after the request to do so is made by Nucleus.
f) The Customer shall provide Nucleus with the materials in a sufficient quantity.
g) The Customer shall specify the precise key data for any material welding seams to be rendered. If this should not occur, no quality claims regarding these seams may be asserted. Nucleus shall then, in its own discretion, design the seams, but shall assume no liability for any claims for defects.
h) The Customer shall notify Nucleus of what quantity he intends to use to process the materials. The Customer shall notify Nucleus if he operates the Nucleus machines for longer than 5 days per week and/or overall more than 40 hours per week; in particular, if he intends to use multi-shift operations.
i) The Customer shall obtain any required governmental permits or other third-party approvals that are required for the implementation of the contractual agreement. The costs incurred in this regard shall be assumed by the Customer.
2. Failure to Fulfil the Cooperative Actions
If the Customer fails to render the cooperative action despite having been requested to do so, Nucleus may terminate the contractual agreement after the lapsing of an appropriate notice period. The Customer shall assume the damages incurred by Nucleus as the result of the termination.
III. Performance Target Goals, Performance Timeframe, Performance Location, Release from Liability
1. Performance Target Goals
a) Nucleus shall manufacture special machines. The standards prescribed by the Customer regarding the quality and speed of the processing as well as the cost estimate from Nucleus shall thus initially be considered to be non-binding target goals of the parties.
The target goals shall only then be considered to be binding insofar as this has been expressly agreed, assured or guaranteed in writing.
b) If Nucleus recognises during the course of the development that the Customer’s standards regarding the quality and/or speed of the processing cannot be fulfilled or fulfilled only at higher costs, it shall promptly notify the Customer of this in writing. In the same letter, Nucleus shall also notify the Customer that the indicated deviations shall be considered to have been approved by the Customer if the Customer should not promptly object in writing to the announced deviations.
c) The Customer may lodge an objection in writing within 21 working days after the receipt of the notification regarding the deviation. The parties shall then consult with each other and endeavour to reach an agreement in this regard.
If the Customer does not object in a timely manner, the announced changes shall be considered to be new target goals.
If the parties cannot reach an agreement in this regard, the Customer may terminate the contractual agreement in writing insofar as the anticipated results regarding the quality and/or speed of the processing or the anticipated costs deviate substantially from the previous target goals.
Nucleus may, upon its part, terminate the contractual agreement in writing if the Customer does not approve the deviations announced to him with regards to the quality and/or speed of the processing or the anticipated costs and an attainment of the previous target goals appears to be genuinely impossible.
If the anticipated speed of the processing fails to meet the target goals by 25% and/or the anticipated manufacturing costs exceed the original cost estimate by 25%, a substantial deviation shall be assumed.
a) Subject to any expressly-binding agreements, any stated delivery timeframes shall be considered to be approximate. The delivery timeframe shall be considered to have been fulfilled if, by the lapsing of the timeframe, the delivery object has left the factory or the notification has been sent regarding the readiness for shipment.
Without any additional agreement being required, the implementation timeframes shall be appropriately extended in cases of force majeure, terrorist attacks or in the case of other sets of circumstances for which Nucleus is not responsible, e.g. labour struggles, sabotage, demonstrations and third-party interventions as well as in the case of a delay which has been caused by the public authorities. Thus, the liability of Nucleus in accordance with the aforementioned provision must not thus be solely assumed because it is late with the delivery upon the occurrence of the respective events.
Notwithstanding any other rights, both the Customer and also Nucleus shall have the right to rescind the agreement if the duration of the performance hindrance exceeds a timeframe of two months or the performance is not possible for an indeterminate timeframe.
b) Insofar as the Customer or Nucleus becomes aware of events in accordance with III. 2a, the contractual partner shall promptly notify the other contractual partner of this.
c) If, upon the Customer’s request, the shipment is delayed, the Customer shall be charged the costs incurred through the warehousing beginning one month after the notification of the readiness for shipment.
3. Delivery, Assumption of Risk, Change in the Delivery Destination, Cooperation Obligation, Delivery Acceptance Default
a) Insofar as nothing to the contrary has been agreed, Nucleus shall deliver the machine to the respective contractual partner’s commercial residence.
b) A change in the contractually-agreed delivery destination shall require a written agreement between the contractual parties. If this agreement is not concluded, Nucleus shall neither be obliged to send nor to install the machine at the delivery destination deviating from the contractual agreement. Nucleus may send the machine and set it up at the originally-agreed delivery destination in order to fulfil the contractual agreement.
Any additional costs that are incurred through a belated change in the delivery destination shall be assumed by the Customer. The agreement regarding the amount of the costs must likewise be in writing.
c) If the Customer only then stipulates a delivery destination after the conclusion of the contractual agreement and this delivery destination is situated in a country outside of the European Union, Nucleus shall neither be obliged to send nor to install the machine there. Nucleus may send the machine to the respective contractual partner’s commercial residence and install it there in order to fulfil the contractual agreement.
If Nucleus nonetheless sends the machine, it shall also then not be obliged to install the machine at the changed delivery destination.
Nucleus shall have the right of choice.
Any additional costs that are incurred through a belated change in the delivery destination shall be assumed by the Customer. The agreement regarding the amount of the costs must likewise be in writing.
d) Insofar as nothing to the contrary is agreed, the goods shall be sent at the Customer’s expense and risk. The risk of the accidental destruction and the accidental deterioration of the goods shall be transferred to the Customer upon the handover, for a sales shipment–with the surrendering of the goods to the shipper, the freight forwarder or any other person or institution commissioned to implement the shipment. Nucleus reserves the right to choose the transport route and the transport method.
If Nucleus follows the shipping instructions issued by the Customer, this shall occur at the Customer’s expense and risk without Nucleus incurring any costs or risk in this regard.
e) If Nucleus sends the product to be manufactured to the Customer’s designated location, then the risk shall be transferred to the Customer as soon as Nucleus has surrendered the machine to the carrier, the freight forwarder or any other persons or institutions commissioned to implement the shipment.
f) If the employees of Nucleus deliver the machine, the Customer must actively participate during unloading and offloading measures with his personnel. The same shall be valid for measures for the precise placement of the machine on the Customer’s premises.
If the Customer fails to fulfil this cooperation obligation, he shall be considered to enter into delivery acceptance default if the delivery has been promptly announced or is made by the contractually-agreed delivery deadline. Alternatively, Nucleus may commission third-party assistance in this regard. Nucleus shall have the right of choice.
Costs which are incurred as the result of the failure to fulfil the cooperation obligation upon the part of the Customer shall be assumed by the Customer if the delivery has been promptly announced or is made by the contractually-agreed delivery deadline.
g) If the Customer does not accept the machine that is offered to him, Nucleus shall be liable during the default period only for intentional wrongdoing and gross negligence if the delivery was promptly announced or is made by the contractually-agreed delivery deadline.
h) The performance risk shall be transferred to the Customer by no later than when the Customer enters into delivery acceptance default. The Customer shall be obliged to reimburse the expenditures, e.g. for preparatory work in vain, delivery and warehousing.
4. Release from Liability
The Customer shall respect any embargos issued by the Federal Republic of Germany and the European Union.
If the Customer relocates, sells or delivers Nucleus’ machine to another country that the country of the original delivery destination, he shall indemnify Nucleus from liability and third-party claims which are created as the result of this relocation, sale or delivery to the other country.
In particular, he shall indemnify Nucleus from any liability owing to the violation of any transport or export embargos.
If Nucleus is subjected to sanctions (e.g. from the German Federal Agency for Business and Export Controlling) as the result of this relocation, sale or delivery of the machine, the Customer shall be liable for the resulting damages.
IV. Reservation of Ownership, Copyright, Protection of Legitimate Expectations
1. Reservation of Ownership
a) All deliveries shall be made subject to the reservation of ownership. The delivered goods shall remain Nucleus’ property until full payment has been made of the purchase price. Moreover, Nucleus reserves the right of ownership to the delivered goods until full satisfaction has been made of all payment claims already created at the time of the conclusion of the contractual agreement (“Current Payment Claims”) arising from the business relationship with the Customer as well as all additional payment claims of Nucleus against the Customer (“Overall Payment Claim”) created before the full satisfaction of the Current Payment Claims arising from the business relationship. The Customer shall be obliged to separately warehouse the goods subject to the reservation of ownership and to appropriately insure them against all customary risks–particularly against burglary and fire. The Customer shall already now assign all claims against the insurance companies to Nucleus and make notification of this assignment in the case that he submits an insurance claim.
b) The Customer shall be revocably permitted to resell the delivered goods in accordance with the following provisions during the course of proper business dealings:
If the reserved goods are combined or mixed with other goods not belonging to Nucleus, Nucleus shall become the co-owner in accordance with the statutory directives. If the combining is done in such a manner that the goods not belonging to Nucleus must be regarded as being the main goods, it shall be agreed that the Customer shall assign proportional co-ownership to Nucleus. For the new movable goods created through the processing, the same shall otherwise be valid as for the supplied goods subject to the reservation of ownership.
For the case of the resale of the reserved goods, the Customer shall already assign the payment claims to which he is entitled from the resale in the invoiced final amount including VAT and indeed regardless of whether the supplied goods have been resold without or after processing. Nucleus shall hereby accept the assignments. If the resold reserved goods are co-owned by Nucleus, the assignment of the claim shall be restricted to the amount which corresponds to the proportional value of Nucleus’ co-ownership.
If it is not possible for the Customer to make an assignment in accordance with the aforementioned provisions–particularly owing to priority assignments to third parties, the resale shall not be made during the course of proper business dealings in accordance with this provision.
Until this right is revoked by Nucleus, the Customer shall be entitled to collect the assigned payment claims. Nucleus’ authorisation to collect the payment claims on its own shall remain unaffected. However, Nucleus shall be obliged to not notify the third-party debtor of the assignment of the payment claim and to not collect the payment claims on its own as long as the Customer fulfils his payment obligations from the proceeds earned, is not in payment default and particularly no petition has been filed for the opening of bankruptcy proceedings or payments have not been discontinued. Already beforehand, Nucleus may at any time demand that the Customer disclose the assigned payment claims and their debtors, provide all data required for their collection and submit the relevant documents.
The Customer must promptly notify Nucleus of compulsory debt enforcement measures or any other third-party claims asserted again the reserved goods or the assigned payment claims subject to the surrendering of the documents required for a procedure. Insofar as the third party is not able to reimburse Nucleus for the court and out-of-court costs, the Customer shall be liable for the financial costs incurred by Nucleus.
Upon the discontinuation of payments, filing of a petition for and opening of court bankruptcy proceedings or out-of-court settlement proceedings, the right shall be extinguished to resell and use the reserved goods and the authorisation to collect the assigned payment claims.
Nucleus shall be obliged, as it so chooses, to release the security to which it is entitled insofar as its estimated value is more than 150 percent of the total of the outstanding payment claims. For payment claims, the estimated value shall be considered to be their nominal value; for goods, the Customer’s purchase price or, if the reserved goods are processed by the Customer, the manufacturing costs of the secured goods in the case of the mere co-ownership by Nucleus and/or, where applicable, the proportional manufacturing costs of the secured goods.
c) In the case of contractual agreements whereby the delivered goods are subject to the reservation of ownership, Nucleus shall be entitled to withdraw from the contractual agreement upon whose basis the reserved goods have been supplied if the Customer does not contractually pay the purchase price for the reserved goods and an appropriate notice period that has been set for him for making payment of the purchase price fruitlessly lapses or if the Customer violates one of his obligations with regards to the reserved goods. The same shall be valid if the Customer does not contractually satisfy any other Total Claim and, in this regard, an appropriate notice period has been set for rendering performance which fruitlessly lapses if this payment claim amounts to more than EUR 500.00.
d) If the right, in whose sphere of applicability the sold goods lie, does not permit the reservation of ownership, but permits Nucleus to reserve other similar rights to the delivered goods, then the Customer shall be obliged to provide Nucleus with other adequate security. The Customer shall be obliged to cooperate during the fulfilment of any required formal guidelines.
Nucleus reserves the copyright to all sketches, illustrations and/or designs of the supplied products.
Without the express written consent of Nucleus, the Customer may not use or alter the copyright-protected sketches, illustrations and/or designs in a manner which violates copyright protection.
The parties shall not disclose confidential information, business transactions and documents, which become known in conjunction with the implementation of the contractual agreement, to third parties or freelance employees.
The parties shall be obliged to maintain confidentiality regardless of whether a contractual agreement is concluded. The confidentiality obligation shall also continue to be valid after the conclusion of a contractual agreement.
V. Prices and Payment Arrangements, Payment Default
a) Nucleus’ prices shall be considered to be net prices. The respectively valid VAT shall also be added.
b) Manufacture of special machines:
Insofar as nothing to the contrary has been agreed in writing, the services/products provided by Nucleus, which are rendered in conjunction with the manufacture of a special machine, shall become payable as follows:
i. 50%: Upon the issuance of the order (max. 14 days after receipt of the invoice)
ii. 40%: 14 days after the receipt of the invoice, the notification of the readiness for shipment and still before the sending of the machine
iii. 10%: 14 days after the receipt of the invoice and receipt of the machine
c) Supplying of replacement part components
Insofar as nothing to the contrary has been agreed in writing, the payment claims for the replacement part components (machine parts, machine accessory parts, wear-and-tear parts, etc.) supplied by Nucleus shall become payable within 10 working days after delivery and receipt of the invoice by the Customer.
d) In the individual case, Nucleus reserves the right to supply replacement parts only against advance payment.
2. Payment Arrangements
The Customer must fulfil Nucleus’ payment claims immediately and without any discounts in euro.
The Customer shall be entitled to an offsetting right with regards to the payment he owes only in cases of undisputed or legally-upheld counterclaims.
The deduction of a discount is permissible only based upon special agreements. Bills of exchange and checks shall be accepted by Nucleus only in accordance with special agreements and only for payment satisfaction purposes. All costs incurred in this regard shall be assumed by the Customer. Exchange losses, which are incurred when making payment in foreign currency, must be assumed by the Customer.
3. Payment Default
a) The Customer shall–subject to a prior warning letter–be considered to be in payment default by no later than 14 days after the coming-due of a payment claim and receipt of an invoice or a comparable payment order.
If, despite having received the payment order from Nucleus, the Customer makes no full payment, Nucleus shall be entitled to terminate the contractual agreement.
b) In addition to the statutory rights, in the case of the Customer’s payment default, Nucleus shall be entitled, as it so chooses, to either withhold additional deliveries–even from other agreements–or to make them dependent on the provision of security. The same shall be valid if, after the conclusion of the contractual agreement, Nucleus becomes aware of sets of circumstances which cast doubt on the Customer’s solvency or willingness to satisfy the payment claims.
VI. Letter of Credit, Packaging and Shipping Costs, Lump-Sum Termination Penalty
1. Letter of Credit
Upon Nucleus’ demand, the Customer shall open a confirmed and irrevocable letter of credit with a contractually-agreed financial institution which guarantees Nucleus the pay-out of the gross invoiced amount against the presentation of the letter of consignment or other documents which confirm the receipt of the machine.
The amount of the agreed letter of credit shall be based upon the agreed total purchase price.
If the Customer makes payments in accordance with V.1. of these AGB in the concrete contractual relationship, Nucleus shall utilise the letter of credit only in the amount of the overall purchase price that has not yet been paid.
2. Packaging and Shipping Costs
Packaging and shipping costs shall not be included in the contractual price.
The Customer shall assume the packaging and shipping costs.
3. Lump-Sum Termination Penalty
In the case of a termination, regardless of the reason for which Nucleus is not responsible, Nucleus shall have the right to demand a lump-sum penalty and/or lump-sum damage compensation of 10% of the total price agreed at the time that termination is made insofar as the Customer or Nucleus cannot render other documentation in the individual case.
The penalty and/or damage compensation shall also then include particularly the lost profits suffered by Nucleus if the penalty and/or the damage compensation exceed the lump-sum amount of 10%.
VII. Defect-Related Rights, Liability and Statute of Limitations, Obligation to Make Notification of Defects, Acceptance
1. Defect-Related Rights
a) Nucleus shall eliminate defects in its products upon a free-of-charge basis in accordance with the warranty.
b) Machines manufactured by Nucleus shall be considered to be devoid of defects if they can process the materials supplied by the Customer (cf. III. Clause 1 of these AGB) in accordance with the current target goals (quality and time).
c) If the Customer, during a careful examination of the defect, would have been able to recognise that this defect does not lie in Nucleus’ sphere of responsibility, he shall assume the costs incurred by Nucleus in conjunction with this demand to eliminate the defect.
a) Nucleus’ liability shall in principle be restricted to damages which Nucleus or its vicarious agents have caused through intentional wrongdoing or gross negligence. For simple negligence, Nucleus shall be liable only in the case of the loss of life, physical injury or damage to health as well as the violation of obligations which are essential for the fulfilment of the contractual purpose.
b) If Nucleus is liable owing to contractual violations based upon simple negligence, Nucleus’ liability shall be limited in its amount to the damages that are typical for the agreements in question which were foreseeable during the conclusion of the agreement or by no later than the commission of the contractual violation. This shall not be valid in the case of a loss of life, physical injury or damage to health.
c) Damage compensation claims that require no culpability by law shall remain unaffected by the provisions in VII. Clauses 2 a) and b).
d) The Customer’s damage compensation claims owing to delivery default upon the part of Nucleus shall in principle be excluded insofar as nothing to the contrary has been expressly agreed in writing.
e) It is expressly pointed out that Nucleus shall not be liable to the Customer for financial losses such as the loss of profits, sales or production unless this was agreed in writing beforehand.
f) Nucleus shall not be liable for force majeure, war, civil unrest or other objectively-unavoidable sets of circumstances for which Nucleus is not responsible.
g) Nucleus’ liability shall be excluded insofar as defects or damages are attributable to a relocation, modification, improper operation and improper servicing of the machines in violation of the operational manual and/or the failure to maintain, or flawed maintaining, of the machines by the Customer.
If the maintenance work has been commissioned by Nucleus to third parties in accordance with the contractual agreement, this liability exclusion shall not be valid with regards to the maintenance work to be rendered by Nucleus.
h) If, during the operation of the machine, the Customer uses other materials than the materials that he provided to Nucleus, the Customer increases the processing speed or otherwise makes arbitrary modifications of the machine (cf. II. Clause 1 of these AGB), he may assert claims against Nucleus only insofar as the defects and the deviations are not attributable to the other materials or the modifications by the Customer.
a) Insofar as nothing to the contrary has been expressly agreed, the preliminary acceptance of the machine shall be made on Nucleus’ operational premises in Dusseldorf, Germany.
b) If Nucleus demands the preliminary acceptance after the production of the machine is completed, then the Customer must implement the acceptance within 12 working days.
It shall equate to the preliminary acceptance if the Customer has not accepted the machine within the prescribed timeframe although he was obliged to do so.
c) Insofar as the Customer has no commercial residence in Germany, he must implement the preliminary acceptance within 24 working days instead of 12 working days. The rest of the provisions shall remain unaffected.
d) The final acceptance shall be made at the Customer’s commercial residence or at the delivery destination that has been deviatingly agreed.
e) If Nucleus demands the final acceptance after the machine is delivered, then the Customer must implement the acceptance within 12 working days.
It shall equate to the final acceptance if the Customer has not accepted the machine within the prescribed timeframe although he was obliged to do so.
4. Statute of Limitations
a) The Customer’s defect-related rights shall become statute-barred by no later than within 12 months after acceptance is made.
The provisions of §§ 338 Para. 1 No. 2 and 634a Para. 1 No. 2 BGB shall remain unaffected.
b) The statute of limitations for the contractual defect-related rights shall be extended during the elimination of the defects respectively by the timeframe which was required for the elimination of the respective defect.
5. Customer’s Obligations to Inspect and Make Notification of Defects
a) The Customer shall inspect the machine insofar as this is feasible within the parameters of proper operational processes.
b) Obvious defects must be reported immediately, but nonetheless by no later than within seven working days, after the Customer becomes aware of the defect.
In this regard, it shall be immaterial whether the defect was already discovered during the joint test runs or during the preliminary acceptance on Nucleus’ premises or only then during the final acceptance by the Customer.
If the Customer fails to make the timely notification of defects, the machine shall be considered to have been accepted unless this concerns a defect which was not recognisable during the inspection.
c) Any hidden defects must be reported within 7 working days after their discovery. If the Customer fails to make the timely notification of defects, the machine shall be considered to have been accepted.
VIII. Right of Termination
Nucleus may terminate the contractual agreement if the Customer discontinues his payments, in whole or in part, a petition is filed to open bankruptcy proceedings (§§ 14, 15 InsO [German Insolvency Code]) and/or similar legal proceedings by the Customer or permissibly by Nucleus or another creditor, such proceedings are indeed opened or their opening is rejected owing to a lack of assets or Nucleus becomes aware of compulsory debt enforcement measurements being commenced against the Customer.
The implemented services shall be billed. Nucleus may demand damage compensation owing to the non-satisfaction of the residual payment claim amount.
1. The Customer may correspondingly use the software supplied by Nucleus only in conjunction with the usage of the machine and the usage purpose insofar as another usage has not been expressly agreed in writing.
2. The Customer shall have no claim to the publication of the software’s source code.
X. Legal Venue, Applicable Law
1. The legal venue for all legal disputes arising between Nucleus and the Customer in conjunction with this contractual agreement shall be Dusseldorf, Germany.
2. For all legal relationships between Nucleus and the Customer from or in conjunction with this contractual agreement, the law of the Federal Republic of Germany shall be prevailing subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
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