TERMS AND CONDITIONS OF SALE

1. GENERAL POINTS 1.1. The present General Terms and Conditions of Sale ( “Terms”) govern the relationship between WEST BAUMASCHINEN GMBH and/or its subsidiaries (“WEST BAUMASCHINEN GMBH”) and any other natural or legal persons (“the Client”), unless otherwise agreed in writing, both for all sales of products manufactured by WEST BAUMASCHINEN GMBH, for the supply of spare parts and the refurbishment of machines (hereinafter collectively referred to as “the Goods”) and for the interventions of its technicians to the machines or for providing training (hereinafter collectively referred to as “the Services”). 1.2. The Terms may be supplemented by the Special Terms and Conditions, contained exhaustively in our offer and its annexes (the “Offer”), our purchase order, our Order acknowledgement and our invoice. The Contract concluded between WEST BAUMASCHINEN GMBH and the Customer is comprised, in order of prevalence, of the Special Terms and Conditions, the Terms and the Order(s). The placing of an Order implies full acceptance of the Terms, which may be changed only by an amendment signed between WEST BAUMASCHINEN GMBH and the Customer. Only those with the power to bind WEST BAUMASCHINEN GMBH are empowered to sign amendments to the Terms. Any written document of the Customer that is contrary to or not covered by the Terms is unenforceable against WEST BAUMASCHINEN GMBH. The fact that WEST BAUMASCHINEN GMBH does not take advantage of a clause of the Terms does not constitute waiver of its right to invoke it at a later date. 1.3. WEST BAUMASCHINEN GMBH reserves the right to modify these general terms and conditions at any time. The new general terms and conditions shall come into effect immediately upon notice to the Customer. They shall be published on the website “www.West Baumaschinen GmbH.com”. 1.4. Notifications or communications sent under the Contract must be made in writing to the registered office of WEST BAUMASCHINEN GMBH. 1.5. An English, Dutch and German version of these Terms may be issued to the Customer for information purposes. In case of conflict between the French version and another version, the French version shall prevail. 1.6. Under no circumstances does WEST BAUMASCHINEN GMBH provide plans and details of its products. 2. OFFERS/ORDERS 2.1. The Contract is made on the date and under the conditions of the acknowledgement of receipt of the Order issued by WEST BAUMASCHINEN GMBH. Any Order is binding and irrevocable. 2.2. In case of total or partial cancellation of the Order by the Customer, and notwithstanding the agreement of WEST BAUMASCHINEN GMBH, compensation shall be payable by the Customer. The amount of this compensation shall not be less than 20% of the total net amount of the Order, WEST BAUMASCHINEN GMBH not being under any obligation to prove the loss suffered. 2.3. The Customer may not modify an Order without the prior written consent of WEST BAUMASCHINEN GMBH and the renegotiation of the initial economic conditions of the Contract to indemnify the entire loss caused to WEST BAUMASCHINEN GMBH by this modification. If the Customer does not agree to the new conditions WEST BAUMASCHINEN GMBH may consider the Order as having been cancelled by the Customer, and require payment of compensation defined above in paragraph 2.2. 2.4. All offers by our agents, whatever their form, shall not be binding, unless otherwise agreed in writing. 3. PRICE – PAYMENT TERMS 3.1. Prices are stated and payable in the currency specified in the Special Terms and Conditions or otherwise in Euro. They are understood to be net, excluding taxes and shipped from the WEST BAUMASCHINEN GMBH factory (EX-WORKS, Incoterms ICC 2020) and do not include packaging, transport and insurance. Taxes, levies and import and export duties shall be payable by the Customer. All increases in taxes, levies and/or charges that may encumber the raw materials of the product sold or the product itself, shall be payable by the Customer from the date of their entry into force. 3.2. The prices shall be valid for the period of validity of the prices specified in the Special Terms and Conditions. The prices of the Goods are calculated based on the economic conditions at the time of the offer and in particular on the basis of the steel price (LME steel HRC FOB China index, converted into EUR at the FX rate of the day). In case of increase of the steel price above 10% between the receipt of the purchase order and the Goods delivery, WEST BAUMASCHINEN GMBH is entitled to invoice to the Client 80% of this steel price increase. 3.3. The terms and conditions of payment for the sales of goods (except for spare parts) are detailed in the Quote and, unless otherwise specified in the Quote, are as follows: a) deposit on Order: 30% of the total net amount of the Order b) the remaining 70% at the time of availability at the factory. The terms and conditions of payment for the Services and the spare parts are set out in the Quote and, unless otherwise specified in the Quote, are as follows: a) deposit on Order: 0% if the amount of the intervention or of the parts ordered is between 0 EUR and 5.000 EUR / 30% if the amount of the intervention or of the parts ordered is between 5.000 EUR and 20.000 EUR / 50% if the amount of the intervention or of the parts ordered is greater than 20.000 EUR. b) The remaining balance is to be paid at the time when the machine ordered is delivered to the factory, upon completion of the intervention of the technician(s) or on the day when the parts are ready to be dispatched. WEST BAUMASCHINEN GMBH reserves the right to refuse to deliver the Goods and/or provide services until the Customer has paid. 3.4. Any default in payment at maturity, even partial, shall allow WEST BAUMASCHINEN GMBH automatically and without notice:  (I) to demand immediate early payment, without notice, of any amount due, including in respect of commercial papers, for any reason whatsoever, and (ii) to immediately suspend, without notice, the performance of all Orders and ongoing services, including warranty and (iii) to charge the Customer a default interest at the rate of 14% per annum and payable automatically as from the payment deadline without notice or other formality. 3.5. Notwithstanding the transfer of the risks to the Customer at the time of Delivery, WEST BAUMASCHINEN GMBH shall retain ownership of the Goods sold until actual payment of the full price and its accessories. The claim shall automatically constitute cancellation of the sale, WEST BAUMASCHINEN GMBH retaining any deposit paid as initial compensation. 3.6. WEST BAUMASCHINEN GMBH also reserves the right to demand payment, without prior notice of default, of a flat rate sum in compensation to cover the internal collection costs of the debt (such as staff and  administration expenses, case management and follow-up expenses, the impact on financial management, etc.) equal to 10% the sums left unpaid, without prejudice to its entitlement to the reimbursement of the recovery expenses, legal costs and other enforcement expenses to be paid by the defaulting debtor. Where WEST BAUMASCHINEN GMBH should be in default of its obligations, WEST BAUMASCHINEN GMBH shall be required to pay the Client a sum in compensation of the same order. Failure to specify the applicable interest rate or the flat rate sum in compensation in any notice of default shall not imply any waiver of rights on the part of WEST BAUMASCHINEN GMBH to claim interests and/or the flat rate sum in compensation. 3.7. Unless otherwise agreed, the Customer may not claim any compensation or right of retention with regard to WEST BAUMASCHINEN GMBH. 3.8. The parties are mutually obliged to communicate their correct VAT registration number and to immediately report any changes to it. 3.9. If the Customer does not fulfil the obligations referred to in Article 3.8, the invoice price shall be automatically increased by the VAT and other amounts that WEST BAUMASCHINEN GMBH may be owed due to non-compliance with these obligations. The retention of title referred to above in section 3.5 shall also extend to the payment obligation. 4. DELIVERY 4.1. Delivery times are provided for information only. They shall begin only once the buyer has met the obligations regulating the performance of the Order. Any delay due to force majeure shall entitle WEST BAUMASCHINEN GMBH to either cancel the order or to consider delivery as suspended for the duration of the occurrence of the event considered as force majeure.   4.2. WEST BAUMASCHINEN GMBH shall notify the Customer by e-mail, by post or by fax that the Goods are available. The day following the date of this letter shall be the starting point of all deadlines referring to the delivery of the Goods. The merchandise must be removed within 28 days of their provision. 4.3. The risks shall only be covered by insurance at the express request of the Customer and at its own expense. 4.4. If the Customer does not take possession of its equipment, it shall be charged storage costs at a rate of 1% per month of the price of the order without prejudice to WEST BAUMASCHINEN GMBH’s right to require the payments scheduled on the agreed dates and to terminate the Contract. If the Customer does not take delivery of the Goods within 28 days of notification by WEST BAUMASCHINEN GMBH informing it that the Goods are ready, WEST BAUMASCHINEN GMBH reserves the right to terminate the Contract to the Customer’s detriment, reserves the right to sell the Goods to a third party and claim from the Customer the amount of its loss, corresponding at least to the compensation anticipated in section 2.2. 5. FAT/APPROVAL/ACCEPTANCE OF THE GOODS The Customer must notify WEST BAUMASCHINEN GMBH of any apparent non-compliance of the Goods within 7 days of Delivery, which WEST BAUMASCHINEN GMBH shall remedy in accordance with the terms and conditions of the warranty under Article 6. The Customer may not bring a FAT/approval or acceptance procedure for the Goods against WEST BAUMASCHINEN GMBH to defer or be relieved of the performance of its obligations that has not been previously approved by WEST BAUMASCHINEN GMBH. In case of complaint by the Customer, documented examples of the alleged subject of the complaint, pictures/photographs, a record of production numbers, etc. must be communicated to WEST BAUMASCHINEN GMBH along with the complaint. All complaints must be in writing. 6. WARRANTY. LIMITATION OF LIABILITY 6.1. Warranty covering the Goods (except for spare parts): WEST BAUMASCHINEN GMBH shall ensure that the Goods have no malfunction due to faulty materials, workmanship or design. The duration of this warranty is defined in the Special Terms and Conditions, or otherwise for new machines, the warranty is 2000 hours of operation or 12 months, depending on the first threshold reached. The said warranty covers the hidden structural defects or hidden material flaws and starts running on the day when the machine is collected. WEST BAUMASCHINEN GMBH draws the Client’s attention to the fact that the Goods must be duly maintained on a daily basis in compliance with WEST BAUMASCHINEN GMBH’s recommendations and that it will not intervene under the cover of the warranty where a breakdown or malfunction is the result of the Client’s failure to ensure appropriate maintenance. Warranty covering the Services and spare parts: WEST BAUMASCHINEN GMBH offers a 3-month warranty on the parts fitted / supplied and on the labour. 6.2. This warranty shall be strictly limited to the replacement, refund or the free repair, in the WEST BAUMASCHINEN GMBH workshops, of parts or components acknowledged as being defective. 6.3. Returns under warranty to the WEST BAUMASCHINEN GMBH premises shall be performed at the expense and risk of the Customer, the transport costs shall be borne by WEST BAUMASCHINEN GMBH if the parts are acknowledged as faulty and the return to the Customer shall be carried out at the expense (excluding import duty) and risk of WEST BAUMASCHINEN GMBH. The Customer agrees to the unilateral arbitration of WEST BAUMASCHINEN GMBH to determine the defective nature of the parts. No returns shall be accepted without the prior written permission of WEST BAUMASCHINEN GMBH. Any intervention under the warranty cannot extend the duration of the warranty. 6.4. The warranty and liability of WEST BAUMASCHINEN GMBH shall be excluded if the Goods are unpaid by the due date, are not stored, installed, used or maintained in accordance with the rules of the art or their specification, or have been modified or repaired by an unauthorised third party, or if the failure is due to the hardware, electronic or computing environment in which the Goods were placed/installed or for all accidents, breakage or damage resulting from an overload, an error of lubrication, from carelessness, lack of care or in general a known or unknown cause that cannot be ascribed to the construction of the equipment manufactured by WEST BAUMASCHINEN GMBH. The WEST BAUMASCHINEN GMBH warranties and liabilities for the hardware components may not exceed the undertakings that WEST BAUMASCHINEN GMBH is given by its own suppliers. 6.5. WEST BAUMASCHINEN GMBH’s liability shall be limited to direct damage caused to the Customer and resulting from WEST BAUMASCHINEN GMBH’s failure to perform the Contract. Under no circumstances shall WEST BAUMASCHINEN GMBH be required to indemnify consequential loss, indirect or consequential losses or loss of operation profit, data, image, customer, goodwill, or any shortfall. Barring gross negligence or personal injury, WEST BAUMASCHINEN GMBH’s civil liability, regardless of cause, shall be limited to the price paid by the Customer for the Goods concerned, excluding taxes, fees, import duties, costs of packaging and transportation. 6.6. Without prejudice to the foregoing, in the event of third party claims in respect of Goods delivered by it, WEST BAUMASCHINEN GMBH shall be permitted to take any action it deems necessary to protect its reputation and that of its brands. 6.7. If one party is aware of a defect in the delivered Goods likely to render it unsafe, this party shall immediately notify the other Party, specifying: a) the type of defect, b) the parts or components concerned, c) any other information that may be important. The parties shall take all measures necessary in the circumstances. Only WEST BAUMASCHINEN GMBH is authorised to decide whether measures will be taken, what measures will be done and how they will be executed. The Customer must provide all reasonable cooperation in the framework of the implementation of these measures. In the absence of any contrary instruction or recommendation from WEST BAUMASCHINEN GMBH, the Customer shall be obliged to maintain secrecy with regard to all information about the possible or actual measures. 7. INTELLECTUAL PROPERTY 7.1 The performance of the Contract does not entail any transfer of intellectual or industrial property rights to the Goods, which shall remain the exclusive property of WEST BAUMASCHINEN GMBH. All of the drawings, pictures or information transmitted by WEST BAUMASCHINEN GMBH in connection with the performance of the contract shall remain its property and the Customer has no permission to copy them or disclose them to other parties. The Customer shall not take any action likely to harm the reputation of the WEST BAUMASCHINEN GMBH brands. 7.2 Any information of a technical, financial, commercial or other nature communicated by WEST BAUMASCHINEN GMBH visually, orally or in writing, shall be done at its sole discretion, shall remain the property of WEST BAUMASCHINEN GMBH, is confidential and may not be disclosed or used by the Customer for purposes other than performance of the Contract without the express permission of WEST BAUMASCHINEN GMBH. 8. TERMINATION AND FORCE MAJEURE 8.1. WEST BAUMASCHINEN GMBH may automatically terminate the Contract in whole or in part by registered letter with acknowledgement of receipt with 30 days’ notice if the Customer breaches any of its obligations, without WEST BAUMASCHINEN GMBH being liable to pay any compensation to the Customer, and to take back the Goods delivered if: a) the Customer is in arrears with payment of the purchase price and any other amounts owed by it to WEST BAUMASCHINEN GMBH; b) the Customer is declared bankrupt or is undergoing reorganisation (judicial or not); c) the Customer is in a case of liquidation, the complete or partial sale of its business, seizure of goods or abandonment. 8.2. In the event of contract termination on the grounds mentioned in the previous article, any claim that WEST BAUMASCHINEN GMBH has on the Customer shall become immediately payable in full. 8.3. The provisions of this Article shall not affect the right of WEST BAUMASCHINEN GMBH to be fully compensated for the damages suffered. 8.4. Neither party shall be held liable to the other for any breach of any of its obligations (except payment obligations) under the Agreement binding them during any period when the breach in question is due to circumstances beyond the reasonable control of either party, including, without limitation, fire, flood, war, revolution, embargo, strike (in any form whatsoever), riot, pandemic, (cyber)terrorism, the intervention of a governmental authority, failure by WEST BAUMASCHINEN GMBH’s suppliers to perform their contract, defects or damage to machinery and any other outage in the WEST BAUMASCHINEN GMBH facilities, provided that the defaulting party submits as soon as possible to the other party written notice of the force majeure event. The delay by the defaulting party shall be excused for the duration of the force majeure event, but if it exceeds 30 days, the other party may terminate, immediately and without judicial intervention, the contract for the unfulfilled part, by written notice to the defaulting party 9. DISPUTES German law shall apply exclusively to all offers, orders and contracts to which these general terms and conditions of sale apply, and all contracts relating thereto.  

Within this clause, the terms “Personal Data”, “Data Subject”, “Controller”, “Processor” and “Processing” have the same meaning as under the GDPR.

During the term of the Agreement, the Parties may share Personal Data of their employees, collaborators, agents, representatives (including corporate representatives), beneficial owners (if any) or any other natural person responsible for representing a Party in its communications with another Party  (all of these persons being hereinafter referred to as “Employees”).

The (types of) Personal Data that the Parties may share are Personal Data relating to the Parties’ Employees processed in the context of the conclusion of the Agreement and/or its execution and include surnames, first names, addresses, e-mails, telephone numbers, if any, copies of credentials, invoice data and any other data relevant to the business relationship between the Parties  (the “Shared Personal Data”).

In view of the above, the Parties agree as follows:

1. Each Party is able to determine the purpose and means of processing the Shared Personal Data under its control in accordance with its privacy policy. The Parties are therefore considered separate data Controllers, with each Party required to comply with all obligations imposed on a Controller under the Data Protection Laws.
2. The Parties agree to comply with their obligations to respond to Data Subjects’ legal requests and to give effect to Data Subjects’ other rights in accordance with the Data Protection Laws.
3. Each Party will inform its Employees concerned to the extent required by the GDPR. Each Party will, in addition, make its privacy policy available to the other Parties to enable each Party to inform its Employees to the extent required by the GDPR.
4. Each Party undertakes to ensure or cause to be ensured the security and confidentiality of the Shared Personal Data in accordance with the Data Protection Laws.
5. The Parties agree that the Shared Personal Data will only be used by the internal departments of each Party and their technical service providers insofar as these internal departments are concerned with the execution of the Agreement.
6. The Parties will not retain the Shared Personal Data for longer than is necessary to fulfil the purposes and obligations as set out in the Agreement. Contact data such as business email addresses, business telephone numbers, job titles, name of employer may, however, be retained for a longer period of time insofar as this is not contrary to Data Protection Laws and in order to enable the continuation of the business relationship between the Parties.
7. Each Party shall be liable for any damage it causes by any breach of its obligations under this clause and/or the Data Protection Laws.
8. In the event that a Party is engaged as a Processor of another Party, processing Personal Data on the instructions and on behalf of the latter, a separate written Personal Data Processing Agreement shall be concluded, in accordance with Article 28 of the GDPR.
9. The Parties will not transfer the Shared Personal Data outside the European Economic Area unless such processing takes place in accordance with the principles set out in the GDPR and this Agreement. In particular, an international transfer of Personal Data may only take place for the following reasons:
   1. There is an adequacy decision of the European Commission;
   2. There are appropriate safeguards within the meaning of the GDPR, including the existence of Standard Contractual Clauses (SCCs) adopted by the European Commission.