General Terms and Conditions
General Terms and Conditions (Update 03/2008)
- Our following Terms and Conditions apply to all current and future offers which we submit to, and contracts which we sign with companies, corporate bodies under public law as well as public sector funds.
- The Customer’s General Terms and Conditions do not become part of the agreement even upon acceptance of the order. No later than upon receiving the performance are our Terms and Conditions deemed to have been accepted.
II. Formation of Agreement
- Agreements are exclusively brought about by way of our written confirmation of order or by the performance of the order (Formation of Agreement). Amendments, supplements and additional agreements are only effective if we confirmed them in writing.
- The service we are to render for the Customer is determined by our written confirmation of order, order-related product information (e.g. plans, drawings, illustrations, weight and dimensions) as well as by our written, special and general Terms and Conditions. We reserve the right to technical as well as design variations of descriptions and details stated in brochures, offers and written documents as well as modifications in the performance, design and material due to technical progress or amended official or statutory stipulations within the framework of customary tolerances.
- Any details about our products (especially technical data and dimensions) are only approximate and in this regard are non-binding for us. They do not constitute a warranted property unless expressly guaranteed in writing.
We reserve all property rights and copyrights to any and all of our written or electronically-stored working papers (especially cost estimates, drafts, drawings, samples and calculations). They may only be made accessible to third parties with our written approval and upon request are to be returned without delay.
IV. Prices; Payment Modalities
- Our prices are quoted ex works including loading, exclusive of packaging, transport insurance and offloading and are subject to the respectively applicable rate of statutory turnover tax.
- If the delivery period exceeds four months as from the moment of placing the order and if no fixed price has been agreed, we are entitled to adjust the agreed prices to any price increases of our suppliers which may have arisen in the meantime.
- Unless differently agreed in writing, payments are payable net (no deduction) within 30 days as of the date of invoice.
- Offsetting and retention rights on behalf of the Customer, even from other business of a current commercial relationship, are excluded unless the counterclaim is undisputed or has been legally finalised.
V. Time Periods; Performance
- Time periods for deliveries or assembly work (performance periods) are only approximate unless expressly agreed to as binding. They are suspended until the Customer supplies us with the documents, authorisations, approvals and down payments to be made by the Customer as well as for such period of any delay for which the Customer is responsible.
- In case of shipment to the customer our service is deemed performed as soon as the subject of the agreement leaves our factory or depot, in case of collection by the Customer – as soon as we have notified the Customer that the item is ready for shipment or, if agreed, upon assembly at the Customer’s.
- If the delays are not our fault (such as especially due to a lack of power, import issues, operational and transport interruptions, industrial action, Force Majeure or default on behalf of our suppliers), the performance period extends accordingly. If we are unable to deliver even following an appropriate period of extension, then the Customer and we, too, are entitled to rescind the contract. Compensation claims of the Customer are excluded.
- If shipment or assembly is delayed due to reasons for which the Customer is at fault, or if the Customer, in spite of receiving notification that the item is ready for shipment, does not instantly collect the subject of the agreement, the Customer shall reimburse all expenses and damage arising as a result, however at least a total in the amount of 0.5% of the agreed price for every new month of the delay. The Customer is free to submit proof that we did not incur any damage or that a lower amount than the fixed sum has been incurred.
VI. Passing of Risk, Insurance
- The risk passes to the Customer as soon as the product has left our factory or depot. This also applies if we assume further services on the grounds of special written agreements, such as in particular the cost of shipping or delivery. If an acceptance has to be carried out, then the risk passes upon acceptance.
- If shipment or acceptance is delayed or is not performed as a result of circumstances for which the Customer can not be held responsible, the risk shall pass to the Customer as soon as we indicated to the Customer that the subject of the agreement is ready for shipment or acceptance.
- We are entitled to insure the subject of the agreement at the Customer’s expense against theft, breakage or damage caused by fire or water or during transport or otherwise, unless the Customer submits proof that the Customer has taken out a respective policy.
VII. Reservation of Title, Rescission of Contract
- 1. The subject of the agreement which we supplied remains our property (“Retention of Title”) until all claims resulting from the business relationship with the Customer have been settled. The reservation of title towards the Customer remains in force even if we include the claims in a current invoice of ours and the balance has been struck and recognised (“Account Retention”). In the event of a resale of the subject of the agreement, the Customer’s claims against the buyer pass to us. If the value of existing securities exceeds the estimated value of our secured claims in total by more than 30%, then upon request of the Buyer we are obligated to release securities at our discretion.
- If the goods subject to a retention of title are processed or mixed with goods to which we do not hold a title, we acquire co-ownership in the new chose in proportion of the value of the reserved goods to the other finished items.
- The Customer already transfers by way of payment all claims from the insurance of the subject of the agreement to us now. Such transfer is hereby accepted.
- If the Customer defaults a due part payment or final payment either in full or substantially by more than ten days and if a payment deadline which we stipulated passes fruitlessly, we are entitled to rescind the contract and upon declaring such rescission may demand the return of the reserved goods. The same applies if insolvency proceedings have been instigated against the assets of the Customer and are not withdrawn within ten days. If the customer does not comply with the request to return the goods, or if the loss or demise of the reserved goods is impending, we are entitled to appropriate the reserved goods. To do so, we are entitled to access the location where the reserved goods are being held. The costs of such return collection are for the Customer. We may use reserved goods that we take back freely and as best as possible. If the resulting proceeds exceed our secured claim, the Customer is entitled to these.
VIII. Liability for Material Defects; Duty to Examine and Notification of Defect
- Our liability extends to the perfect condition of our products according to the state of technology.
- Our liability is excluded:
- if our products are not properly stored, fitted, operated or used by the Customer or third parties;
- in cases of natural wear;
- in cases of improper maintenance;
- in cases of using improper utilities;
- in cases of damage caused by repairs or other work of third parties which we did not expressly authorise.
- The Customer shall indicate in writing any material defects of the products with immediate effect, however no later than one week following their receipt/delivery. The same applies to material defects which could not be detected even after careful examination, once they are detected. If not indicated accordingly, the product is deemed accepted upon expiration of this period.
- The claims for defects are initially limited to the supplementary performance at our discretion (remedy of defect or replacement). The Customer must immediately and to a tolerable degree grant us the opportunity for supplementary performance. Otherwise, we are exempt from liability for the resulting consequences. Only in urgent cases, such as to maintain operational safety or to prevent unreasonably large damage may the Customer remedy the defect himself or have it remedied by third parties and demand that we refund the required expenses. In any event the Customer must return the exchanged parts. Claims of the Customer for expenses required for the supplementary performance, especially the cost of transport, way, labour and material, are excluded if expenses increase because the products we supplied were belatedly taken to a location other than the agreed destination, unless the delivery corresponds with their intended use.
- If the supplementary performance failed, the Customer is entitled to reduce the compensation or – in the event of substantial defects -to rescind the contract.
- For newly produced items or work performance including the respective planning and supervisory services, we are liable for a period of one year as from the beginning of the standard limitation period.
- When selling used products, our liability for defects is exempt. Claims for compensation are not affected pursuant to IX.
IX. Limitation of Liability
- In the event of violating a major contractual duty for which we are responsible we will be liable in accordance with the statutory regulations. To the extent that we are neither responsible for intent nor gross negligence, we are solely liable for the typically arising foreseeable damage.
- For all other violations of duty we are solely liable if the damage was induced by one of our legal representatives or vicarious agents with intent or gross negligence. This does not apply to damage resulting from death and injury to body or health for which we are liable in accordance with statutory regulations.
- This does not affect liability in compliance with the Product Liability Act.
- In other respect claims for damages resulting from the violation of duties against us are exempt.
- Should one or several of the above provisions be invalid, then this does not affect the remaining provisions.
- The place of fulfilment and the exclusive venue for all disputes arising from this agreement is our registered office. However, at our discretion, we are entitled to sue at the Customer’s main domicile. All legal relations of the parties are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on the International Sale of Goods.