General terms and conditions
§ 1 Conclusion of the contract
- These terms and conditions shall apply exclusively to these and subsequent transactions with the customer. Any other terms and conditions of the purchaser shall not be valid unless they are individual agreements. Conflicting terms and conditions of purchase of the customer shall not apply even if they are contained in a confirmation letter of the customer subsequent to our confirmation of the contract and we do not object to it. Our silence means rejection. Our terms and conditions shall be deemed accepted at the latest upon acceptance of the goods by the customer, in particular in the case of orders placed by telephone. Deviations through individual agreements require the written form.
- Delivery contracts are concluded either by our written order confirmation following a written order or by delivery. All verbal, in particular also telephone, subsidiary and supplementary agreements, including those concerning the execution of the order, require our separate written confirmation in order to be valid.
- The documents belonging to the offer such as illustrations, drawings, weights and dimensions are only approximate unless they are expressly designated as binding. We reserve the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
§ 2 Delivery
- The scope of delivery is determined by our written order confirmation.
- We reserve the right to make changes to the design or form during the delivery period which are due to improvements in technology or to requirements of the legislator, provided that the delivery item is not significantly changed and the changes are reasonable for the customer.
- The scope of delivery and the subject matter of delivery shall be determined - in addition to clause 1 - by additional performance specifications, if any, provided that these have become the subject matter of the contractual agreement.
- We reserve the right to provide a service equivalent in quality and price. We also reserve the right not to provide the promised service in the event of its unavailability.
§ 3 Delivery period
- All delivery dates are non-binding. Subject to correct and timely self-supply, delivery dates will be met by us as far as possible. Should there be difficulties with regard to the availability or the timeliness of this availability in the case of self-supply, we shall be obliged to notify this immediately. In the event of a delay of more than six weeks, both contractual partners shall be entitled in such cases to withdraw from the contract by written declaration to the other contractual partner in each case. In this case, any services already provided shall be refunded. Further claims, in particular claims for damages, do not exist.
- The delivery period shall commence with the dispatch of the order confirmation, but not before the provision of any documents, approvals, releases to be procured by the Purchaser and not before receipt of any agreed down payment.
- The delivery period shall be deemed to have been complied with if readiness for dispatch has been notified or the delivery item has left the factory by the time of its expiry.
- The delivery period shall be extended in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond our control, e.g. operational disruptions, delays in the delivery of essential materials, insofar as such obstacles demonstrably have a significant influence on the delivery of the delivery item. This also applies if the circumstances occur at subcontractors. The delivery period shall be extended in accordance with the duration of such measures and obstacles. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. In important cases, we will inform the purchaser of the beginning and end of such obstacles as soon as possible.
- Compliance with the delivery period shall be conditional upon the fulfilment of the contractual obligations of the purchaser also from other transactions with us.
- If, in the case of a binding delivery period, we exceed this period, the customer may only exercise his right to withdraw from the contract or to claim damages if he has set us a period of grace of at least three weeks and this period expires without result.
§ 4 Packaging, dispatch and cooperation obligations of the customer
- The dispatch of the goods (including any returns) shall be at the expense and risk of the customer. This also applies if we deliver the goods with our own vehicles. In any case, we are entitled to charge delivery costs up to the amount of the fees that would be incurred if another mode of shipment were chosen.
- The choice of shipping method is at our discretion. We do not assume any liability for the cheapest shipping.
- We reserve the right to dispatch the goods not from the place of performance within the meaning of § 12 Clause I, but from another place of our choice.
- Packaging will be charged separately by us.
- The unloading of the delivery items at the truck/unloading point and the transport from there to the place of installation shall be carried out by agents of the purchaser. Any costs incurred for transport equipment, auxiliary personnel, etc. shall be borne by the customer.
§ 5 Prices
- The prices are ex manufacturer's works without cash discount and other discounts. Value added tax at the respective statutory rate is added to the prices.
- List and catalogue prices are non-binding. We always invoice the prices valid on the day of delivery.
§ 6 Retention of title
- We reserve title to the delivered goods for all claims arising from the current and future business relationship with the purchaser (current account reservation). The inclusion of individual claims in a current account or the balancing and recognition thereof shall not cancel the retention of title. The customer shall store the goods subject to retention of title in a special place and mark them as such.
- We are entitled to take away our goods subject to retention of title during the usual business hours of the customer if the latter does not fulfil his obligations towards us, in particular in the event of default in payment, and to enter all storage and business premises of the customer for this purpose. The removal shall not be deemed to be unlawful interference.
- In the event that our goods are processed or combined with other products, we shall acquire co-ownership of the objects resulting from the processing or combination, which the owner shall hold in safe custody for us free of charge with the diligence of a prudent businessman. Our co-ownership share shall be determined by the fraction corresponding to the value of our goods in relation to the value of the object created. If the customer acquires sole ownership through the combination, he hereby transfers co-ownership to us in proportion to the value of the goods subject to retention of title to the value of the object created. The following clause 4 shall apply to the resale; the claim arising from the resale or other legal grounds shall already now be assigned to us in the amount of the above-mentioned fraction.
- If the reserved goods are sold by the purchaser alone or together with goods not belonging to us, the purchaser hereby assigns the claim arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest. We accept the assignment. The value of the reserved goods is our invoice amount.
- The customer is only entitled to resell, use or install the goods subject to retention of title in the ordinary course of business. The customer is not entitled to dispose of the reserved goods in any other way, in particular not to pledge or assign them as security. In the event of payment by cheque/bill of exchange, the retention of title shall only expire upon encashment of the bill of exchange/cheque and crediting of the invoice amount.
- The authorisation to resell, use or install the goods subject to retention of title shall not apply if the customer concludes contracts on the terms of a third party according to which he is not permitted to assign claims against third parties to us.
- The customer authorises us to collect the assigned claims subject to revocation. We shall not make use of our own right of collection as long as the customer meets his payment obligations. At our request, the customer shall provide all necessary information on the stock of goods owned by us and the claims and rights assigned to us and shall inform his customers of the assignment. We are entitled, but not obliged, to notify the purchaser's customers of the assignment at any time and to assert assigned claims in our own name. The enforcement of the assigned rights shall be carried out at the expense and risk of the customer, without us being obliged to do so or being held liable by the customer as a result.
- The customer must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title or the assigned claims, handing over the documents necessary for the objection.
- We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of their claims to be secured, insofar as these have not yet been settled, exceeds
- Pledging, transfer by way of security and assignment by way of security of the goods subject to retention of title as well as the rights to which we are entitled and other dispositions by the customer affecting our rights are not permitted.
- In the event of access by third parties to the goods subject to retention of title to the claims assigned by us or the rights established in accordance with the above paragraphs, the customer shall point out our ownership and notify us immediately, sending us all documents necessary for an intervention. The taking back of the goods subject to retention of title as well as their seizure by us shall not constitute a withdrawal from the contract; such measures shall only be taken to secure our claims. We do not agree to a resale of the goods subject to retention of title in the event of the opening of judicial composition or insolvency proceedings.
- We reserve the property rights and copyrights to sketches, illustrations, drawings, plans and other documents. They may not be copied, reproduced or made accessible to third parties without our express written consent. Models, tools, moulds and the like, insofar as they are manufactured by us, shall remain our property unless a separate agreement is made in individual cases according to which the ownership and the rights to these items are to be transferred to the respective client against separate remuneration.
§ 7 Payments / Acceptance
- Invoices are payable net within 10 days of the invoice date at the latest as follows.
- All payments shall be made free of charges to our registered office. The prerequisite for claiming a discount is the prior contractual settlement of all invoice amounts due. In the case of partial deliveries, discounting of the total invoice is only permissible if corresponding partial amounts of the partial deliveries are paid on time.
- Payment by bill of exchange is excluded unless expressly agreed otherwise in writing. An exceptional acceptance of bills of exchange shall only be deemed to be a deferral of the purchase price as long as no disadvantageous changes occur or become known in the economic circumstances of the customer. Payments by bill of exchange are not cash payments. Discount and other bill charges are to be paid by the customer immediately with the bill of exchange in any case. We do not assume any liability for timely transfer, protest and/or return of bills of exchange. Cheques are not accepted in lieu of performance, but on account of performance.
- We charge interest on arrears at 8% p.a. above the respective base rate of the European Central Bank. They are to be set higher if we can prove a charge with a higher interest rate.
- If the terms of payment are not complied with or if facts become known which indicate that the purchase price claims are at risk as a result of liquidity difficulties on the part of the customer, we shall be entitled to make further deliveries dependent on advance payment or the provision of securities.
- If the customer does not accept the delivery item for more than 14 days after a written request to do so or if he withdraws from the contract before delivery without a reason within our sphere of responsibility or if the contract is not executed for another reason within the customer's sphere of responsibility, we shall be entitled to withdraw from the contract after setting a further grace period of 14 days and to claim damages. The setting of the aforementioned grace period shall not be required if the client finally and seriously refuses acceptance or is obviously unable to pay the price even within a grace period. In the aforementioned cases, we are entitled to demand 25% of the order value as compensation for damages. The customer is entitled to prove that we have not actually incurred any damage or that the damage is lower than the aforementioned lump sum. We are entitled to prove that the damage incurred is higher than the aforementioned lump sum.
§ 8 Transfer of risk
The risk shall in any case pass to the customer when the consignment leaves our registered office or the dispatch is postponed at the request of the customer after notification of readiness for dispatch. Transport damage or loss of the goods shall not be covered by us. Insofar as claims can be asserted against liable third parties and/or against insurers (insurance only at the request and expense of the ordering party), a claim of the ordering party against us is exhausted with the assignment of the claim to the ordering party.
§ 9 Warranty
- Insofar as we have not manufactured the goods delivered to the purchaser ourselves, but have purchased them from the upstream supplier, we fulfil our warranty obligations by hereby assigning to the purchaser all our own warranty claims against our upstream supplier. The purchaser accepts this assignment on account of performance. In the event of unenforceability or failure, the subsidiary warranty claims against us shall be governed by the provisions of the following clause 2.
- The delivered goods shall have the quality evident from the product description, otherwise the quality customary in the trade. Declarations about the quality do not constitute a guarantee unless they are expressly designated as such. In general, no guarantee is assumed beyond the guarantee according to these conditions or according to the law. The customer shall immediately inspect the received goods for defects and quality. Defects must be notified to us in writing within one week of delivery. Further legal provisions remain unaffected. Hidden defects must be notified to us in writing within one week of their discovery at the latest. In the event that defects are discovered, the customer shall be obliged to make the goods complained about available to us for inspection. In the event of culpable refusal, all claims shall lapse. The aforementioned duty of notification shall also apply if defects in the goods or parts delivered by us are disclosed to the purchaser by his customer. If the complaint by the purchaser is justified, he shall be entitled to demand subsequent improvement or replacement delivery within the framework of subsequent performance. We shall be entitled to reject the chosen type of subsequent performance if it is only possible at disproportionately high cost or if the chosen type of subsequent performance is more costly than the other and does not involve any significant disadvantages for the customer in relation to the other subsequent performance option. In the event of subsequent performance by means of rectification of defects, our right to rectify defects shall be limited to three attempts with regard to one and the same defect and to a total of six attempts with regard to all defects. If, after subsequent performance, the object of sale has to be transported to a place other than the original place of delivery, the additional costs incurred in this respect shall be borne by the customer. The same shall apply if the customer sends the defective item back to us from a place other than its registered office / the place of delivery for the purpose of subsequent performance. The customer shall only be entitled to assert further warranty claims if he has set us a reasonable period of time to carry out the rectification or replacement delivery and this period has expired without success. If the defect is only insignificant, the customer's right to withdraw from the contract is excluded. The right to reduce the purchase price remains unaffected.
- Warranty obligations do not exist if:
a) the defect is due to improper use, operation or care or defective maintenance, faulty assembly and commissioning, non-observance or infringement of our assembly and operating instructions or to the effects of force as well as other external influences (e.g. chemical, electromagnetic, electrical etc.), insofar as we are not responsible for them,
b) the defect is due to improper modification of the delivery item, in particular the use of unsuitable, in particular third-party spare parts, and the damage is causally connected with the modification or use.
c) the defect is due to circumstances on the part of the customer. Natural wear and tear or damage caused by negligent or improper operation or handling are excluded from the warranty. If, in the case of wear parts, the usual period of wear, measured in terms of the intensity and duration of use, is shorter than the aforementioned limitation period, the warranty shall be limited to this period.
- The rejected goods must be sent to us with the original delivery note or a photocopy thereof. By negotiating complaints, we do not waive the objection of untimely or improper notification of defects.
- The Purchaser shall only be entitled to withhold payments and to invoke claims based on defects to the extent that it is proportionate in good faith with regard to the defect complained of, i.e. at most only up to the partial purchase price amount of the items specifically complained of as defective.
- If the customer or a third party carries out improper repairs, we shall not assume any liability for the consequences resulting therefrom. The same applies to changes made to the delivery item without our prior written consent.
- Section 10 shall apply additionally to claims for damages.
- Insofar as software or other copyrightable goods and rights are included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including the associated documentation. The Purchaser may only use and process the software to the extent permitted by law and is obliged not to remove manufacturer's specifications or to change our prior written consent. The customer is not entitled to transfer the software or the rights thereto to third parties - e.g. by means of a licence - without our prior written consent.
- The warranty period for material defects is one year from delivery of the goods. This shall not apply insofar as we are liable due to intent or due to fraudulent concealment of a defect known to us; in these cases we shall be liable in accordance with the statutory provisions. In the case of parts subject to wear and tear whose usual shelf life, measured by the type, duration and intensity of use, is on average shorter than the one-year period, the warranty shall be limited to the usual shelf life.
- The purchaser is not entitled to use advertising not approved by us in the context of the distribution of the goods manufactured by us. If customers of the purchaser assert claims for liability for defects which they base on deviations of the purchased goods from the advertising statements of the sales partner, the latter shall not be entitled to derive claims against us from this circumstance.
§ 10 Liability
- We shall only be liable for damages to the customer, irrespective of the legal grounds, in particular for breach of obligations arising from the contract and from tort, in the event of intent or gross negligence, unless:
a) there is liability for injury to life, limb or health
b) there is liability for breach of essential contractual obligations.
- However, the claim for damages due to breach of material contractual obligations shall be limited to the regularly foreseeable damage typical for the contract.
- This shall also apply in cases of liability for defects.
- The limitations of liability in §§ 9 and 10 also apply with regard to any liability due to faulty advice, faulty assembly instructions and other breaches of secondary obligations.
- Further claims for damages are excluded.
- For the limitation of the aforementioned claims, § 9 No. 9 shall apply accordingly.
§ 11 Offsetting / right of retention
- The customer may only offset counterclaims against our claims if the counterclaims are undisputed or have been legally established by a court of law.
- Unless otherwise stipulated in these terms and conditions, this shall also apply to the assertion of rights of retention.
§ 12 Place of Performance and Jurisdiction
- The place of performance of all contractual obligations is the location of our supplying plant.
- In the case of all disputes arising from the contractual relationship, if the customer is a registered trader, a legal entity under public law or a special fund under public law, the action shall be brought before the court which has jurisdiction for our head office. We are also entitled to take legal action at the headquarters of the customer.
§ 13 Applicable law
German law shall apply exclusively, to the exclusion of the laws on the international purchase of movable goods, even if the Purchaser has its registered office abroad.
§ 14 Formal agreements
- Amendments, supplements and ancillary agreements to these General Terms and Conditions and to individual contracts must be made in writing to be effective. This also applies if the written form is to be waived in the case of amendments.
- No oral ancillary agreements have been made.
§ 15 Miscellaneous
- Transfers of rights and obligations of the customer arising from the contract concluded with us require our written consent in order to be effective.
- Should individual provisions of the above GTC be or become void, voidable or ineffective in whole or in part, this shall not affect the validity of the remaining provisions and the contract as a whole. The contracting parties shall then implement the contract with an effective replacement provision that comes as close as possible to the economic purpose pursued by the omitted provision.
Valid from 01 June 2017