General Terms and Conditions
I Validity
1. Our General Terms and Conditions are exclusively applicable. We do not recognise any terms and conditions of the purchaser that are contrary to or deviate from our Terms and Conditions, unless we have expressly agreed to their applicability in writing. Our Terms and Conditions of Sale shall also be applicable if we make delivery to the purchaser without reservation in the knowledge that the purchaser’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
2. All agreements made between us and the purchaser for the purpose of executing the order shall be set down in writing in this contract.
3. Our Terms and Conditions of Sale shall also be applicable to all future business transactions with the purchaser.
4. The supplier’s previous terms of delivery and payment shall lose their validity.
II Offer – Offer documents
1. Our offers are free of charge only in the event of the conclusion of a contract.
2. We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. These may not be reproduced or made accessible to third parties.
3. Insofar as the purchaser designates plans provided to us as confidential, these shall only be made accessible to third parties with the purchaser’s express consent.
4. Illustrations, drawings, weights and dimensions contained in our documents are only approximate unless they are expressly designated as binding.
5. Our offers are subject to change and non-binding unless they are expressly designated as a binding offer. Offers of the purchaser (order) require our express written confirmation in order to be accepted.
6. The binding period of our binding offers is one week, unless otherwise stated in the offer. Orders can be accepted by us with a notice period of 4 weeks.
III Scope of delivery
1. Our written order confirmation shall be decisive for the scope of delivery; in the case of a binding offer which has been accepted in due time, this offer shall be decisive.
2. Subsidiary agreements and amendments require our written confirmation.
IV Prices – Terms of payment
1. Unless otherwise stated in the order confirmation, our prices are applicable “ex works” excluding packaging; this will be invoiced separately.
2. Unless otherwise agreed, additional costs for loading, setup and commissioning, obtaining special official permits and compliance with official requirements shall be borne by the purchaser.
3. The statutory VAT is not included in our prices, it will be shown separately in the invoice at the statutory rate on the day of invoicing.
4. The deduction of a discount shall require a special written agreement.
5. The purchaser is obliged to pay for the goods before they are dispatched. The goods will not be dispatched before payment has been received. The place of performance for payment is our registered office. The purchaser shall be in default of payment no later than 30 days after receipt of our invoice. If the dispatch of the goods is delayed at the request of the purchaser, the due date for payment shall not be affected.
6. If the purchaser defaults on payment, we shall be entitled to demand interest on arrears at a rate of 8% above the base rate in accordance with § 247 of the German Civil Code (BGB). If we are able to prove a higher damage caused by delay, we shall be entitled to claim it. However, the purchaser shall be entitled to prove to us that we have not incurred any damage or significantly less damage as a result of the delay in payment.
7. The purchaser shall only be entitled to offset and retention rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, the exercise of a right of retention shall be dependent on the counterclaim being based on the same contractual relationship. The absence of non-substantial parts of the delivery does not entitle the customer to withhold payment or part thereof.
V Delivery period
1. A delivery period specified by us shall commence with the dispatch of the order confirmation, but not before the purchaser has provided the documents, approvals and authorizations to be obtained by him and not before receipt of the agreed down payment.
2. This delivery period shall be deemed to have been met if the delivery item has left the factory or notification of readiness for dispatch has been given by the time of its expiry.
3. Delivery periods shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of the occurrence of unforeseen obstacles which are beyond the Supplier’s control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur at our sub-suppliers. The same shall apply if the aforementioned circumstances occur during an already existing delay in delivery. The purchaser will be informed of the beginning and end of such obstacles as soon as possible. Liability for damage caused by delay shall be limited to the damage typical for the contract.
4. If, after we have already defaulted, the purchaser sets us a reasonable period of grace with a notice of repudiation, he shall be entitled to withdraw from the contract after the period of grace has expired without result. Claims for damages due to non-fulfilment shall be limited to the purchaser’s foreseeable damage; otherwise, liability for damages shall be limited to the value of the delivery.
5. Compliance with our delivery obligation presupposes the timely and proper fulfilment of the purchaser’s obligations. In particular, late payments by the purchaser lead to delays in the operational process which inevitably affect the delivery date and result in a reasonable extension of the delivery period. If dispatch is delayed at the customer’s request, he shall be charged for the costs incurred by storage in our works, but at least ½% of the invoice amount for each month, starting one month after notification of readiness for dispatch.
6. If the purchaser is in default of acceptance, or if he violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. Subject to higher, verifiable claims for compensation, we may claim a flat rate of 2% of the invoice amount per month as damages. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the purchaser at the point in time at which the purchaser is in default of acceptance. In addition, we shall be entitled to dispose of the delivery item otherwise after the occurrence of default in acceptance and to supply the purchaser within a reasonably extended period of time.
VI Transfer of risk
1. The risk shall pass to the purchaser at the latest when the delivery is dispatched. This shall also apply if partial deliveries are made or if we have assumed services such as shipping costs or delivery and set-up.
2. If the purchaser so wishes, we shall insure the delivery against theft, breakage, transport, fire and water damage and other insurable risks. The purchaser shall bear the costs incurred in this respect.
3. If dispatch is delayed as a result of circumstances for which the purchaser is responsible, the risk shall pass to the purchaser from the date of notification of readiness for dispatch. At the request and expense of the purchaser, we will cover the delivery with the insurance policies requested by the purchaser.
4. Delivered items shall be accepted by the purchaser without prejudice to the warranty rights, even if they show minor defects.
5. Partial deliveries are permitted.
VII Rights of withdrawal of the supplier
1. In the event of industrial disputes in our company or in a supplier company, force majeure, natural disasters, shortage of raw materials, subsequent impossibility for which we are not responsible, we shall be entitled to withdraw from the contract. This right of withdrawal shall also apply in the event of incorrect or delayed self-delivery. Withdrawal may be limited to parts of the contract unless the partial performance is of no value to the purchaser, which the purchaser must prove. Rights of withdrawal must be exercised within 2 weeks of becoming aware of the reason for withdrawal. Our right of withdrawal shall not be excluded by the fact that an extension of the delivery time has been agreed beforehand.
VIII Warranty for defects – General liability
1. We shall be liable in the event of intent and gross negligence, in the event of culpable injury to life (body) and limb, health, in the event of defects which we have fraudulently concealed or for which we have given a guarantee of quality. We shall be liable without limitation within the scope of product liability and on the basis of other mandatory statutory provisions. In the event of culpable breach of material contractual obligations, we shall also be liable in the case of simple negligence, however limited to 10% of the respective order value. Insofar as this limitation is not permitted for legal reasons, in the case of simple negligence liability shall be limited to the damage typical for the contract and reasonably foreseeable at the time of conclusion of the contract. Material contractual obligations in this sense refer either to specifically described material obligations, the breach of which jeopardises the achievement of the purpose of the contract, or to abstract obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the purchaser may regularly rely.
2. Any further liability for damages, in particular pecuniary loss, is excluded. Liability for all consequential damages, in particular loss of profit, is excluded.
3. The above limitations of liability shall also be applicable in terms of reason and amount in the event of any claims for damages by the purchaser against legal representatives of the supplier, its employees or its vicarious agents.
4. The above limitations of liability shall also be applicable in terms of reason and amount for the breach of ancillary contractual obligations, in particular for the breach of obligations to provide information and advice before and after conclusion of the contract.
5. We grant a warranty period of twelve months on all our new products. The warranty period shall commence with the delivery of the goods; if we deliver a system and install it, the period shall commence with the first trial operation. No warranty shall be granted for used products.
6. The assertion of warranty rights by the purchaser is subject to the purchaser having notified us of the defects in writing without delay and thus having duly fulfilled its examination and complaint obligations. In the event of a breach of these obligations, the warranty shall be excluded.
7. In the case of the processing of essential third-party products, the purchaser may, insofar as defects or damage are attributable to the third-party products, be referred to assert claims first against the third-party supplier (third party). Liability claims against the third-party supplier shall be assigned to the purchaser. Our liability shall only be revived when it has been legally established that the liability of the third party does not exist or when it has been established that claims against the third party are not enforceable. This is to be assumed if insolvency, bankruptcy or composition proceedings have been applied for with regard to the assets of the third party or if the third party has made a statutory declaration in lieu of an oath in the past year. In such cases, the purchaser shall be reimbursed for the costs of legal action. However, we may waive the priority claim against the third party.
8. The warranty does not cover damage caused by unsuitable or improper use, non-observance of the technical documentation and operating manual, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating or replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless the use in question is attributable to fault on our part. Furthermore, the warranty shall be excluded in cases where the purchaser or third parties have carried out modifications and servicing work on the delivery item without our prior approval. Only in urgent cases of danger to operational safety and to prevent disproportionately extensive damage shall the purchaser have the right and the obligation to have the defect remedied by third parties himself, after we have been notified in advance. Reimbursement of necessary costs shall only be granted in these cases.
9. Insofar as there is a defect in the delivery for which we are responsible, we shall be entitled, at our discretion, to remedy the defect or to make a replacement delivery. In the event of rectification of defects, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the delivery was taken to a place other than the place of delivery.
10. The purchaser shall give us the necessary time and opportunity to carry out all rectification of defects and replacement deliveries which are reasonably necessary. In the event of breaches of this obligation, we shall be released from liability for defects.
11. If we are not prepared or not in a position to rectify the defect or make a replacement delivery, in particular if this is delayed beyond reasonable periods for reasons for which we are responsible, or if the rectification of the defect or replacement delivery fails in any other way, the purchaser shall be entitled to demand a reasonable reduction in the purchase price after the fruitless expiry of a period of grace to be determined by him. The right to demand rescission of the contract shall only exist if the purchaser proves that the delivery is unusable for his purposes due to the defect.
12. The warranty period for the replacement item or the repair shall be 3 months, but shall run at least until the expiry of the original warranty period for the delivery item. The period of liability for defects in the delivery item shall be extended for the duration of the interruption of operations caused by the rectification work.
IX Retention of title
1. We shall retain title to the entire delivery until receipt of all payments under the delivery contract. In the event of conduct by the purchaser in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the purchased goods. The taking back or seizure of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. After taking back the purchased goods, we shall be entitled to make use of them; the proceeds of use shall be set off against the purchaser’s liability (less reasonable costs of use).
2. The purchaser is obliged to treat the purchased goods with care, in particular he is obliged to insure them at his own expense against fire, water and theft at their replacement value. If maintenance and inspection work is required, the purchaser must carry this out in good time at his own expense.
3. In the event of seizures or other interventions by third parties, the purchaser must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the purchaser shall be liable for the loss incurred by us.
4. The purchaser shall be entitled to resell the delivery in the ordinary course of business, however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) accruing to him from the resale against a purchaser or third party, irrespective of whether the purchased item has been resold without or after processing. The purchaser shall remain authorised to collect this claim even after assignment. Our authority to collect the claim ourselves shall remain unaffected by this. However, we will undertake not to collect the claim as long as the purchaser meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no petition for the institution of bankruptcy or composition proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the purchaser informs us of the assigned claim and its debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5. The processing or transformation of the delivery by the purchaser is always carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. For the rest, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
6. If the delivery is inseparably combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other combined objects at the time of combination. If the combination takes place in such a way that the purchaser’s item is to be regarded as the main item, it shall be deemed that the purchaser transfers co-ownership to us on a pro rata basis. The purchaser shall hold the sole ownership or co-ownership thus created in safe custody for us.
7. The purchaser shall also assign the claims to secure our claims against him which accrue against a third party through the connection of the object of sale with the property.
8. We will undertake to release the securities to which we are entitled at the purchaser’s request insofar as the value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released is ours.
X Place of jurisdiction – Place of performance
1. If the purchaser is a registered trader, a legal entity under public law or a special fund under public law, our registered office shall be the place of jurisdiction. However, we shall also be entitled to sue the purchaser at his place of residence.
2. Unless otherwise stated in the order confirmation, our registered office shall be the place of performance for all claims arising from the contractual relationship.