I. General information
- Our sales and deliveries are only done according to the conditions below, which are the sole authority for the contract unless expressly otherwise agreed in writing. These conditions supersede the validity of all previous contractual terms. The contracting party’s differing contractual terms shall not apply under any circumstances. They shall also not be recognised, even if we do not immediately reject them upon receipt. Acceptance of our order confirmation and receipt of deliveries or partial deliveries shall be considered to be recognition of these general terms and conditions, even if the customer has submitted a tender taking its own general terms and conditions as a basis. Amendments and additions to a contract shall only be binding if they are confirmed by us in writing.
- These terms and conditions shall apply, even without express reference, to all future transactions with the same customer, even in the event of verbal orders or orders over the phone which, in principle, are also legally binding.
II. Conclusion of contract
- Our quotes are subject to change and non-binding. The contract shall arise through our written order confirmation.
- Deviations, ancillary agreements and verbal agreements, as well as agreements with representatives and agents shall require the written form to be effective.
- The information which we provide in quotes, order confirmations, catalogues, price lists or other printed materials such as descriptions, drawings, illustrations, dimensions, weights, etc. are only approximate unless expressly indicated to be binding. We reserve ownership and copyright for estimates, drawings and other documents; they may not be disclosed to third parties.
III. Prices and payment
- The prices and delivery options indicated in our catalogues, printed materials, letters, etc. are subject to change; estimates are non-binding. All prices are net prices and, unless otherwise agreed, are ex works per unit in EUROS plus packaging, shipping, loading, customs duty and disposal costs (where incurred) and value added tax at the applicable legal rate. If there is no express price agreement, then our list prices as valid on the date of delivery plus the ancillary costs and VAT specified above shall be agreed.
- In the absence of a specific agreement, payment shall be made, calculated after the invoice date in cash with no discount, free of charge to our bank, namely: Standard devices: immediately net. Systems over EUR 100.000.– 1/3 upon ordering. 1/3 upon delivery and 1/3 upon acceptance, and 60 days after delivery at the latest. Spare parts: immediately net.
- The granting of discounts shall require prior written agreement. For a discount to be granted, all previous invoices – with the exception of invoices which are subject to justified objections by the customer – have been settled and, in the event of payment of the invoice amount by cheque, credited within 10 days. The net invoice amount after deduction of reductions, shipping, etc. shall be definitive for the calculation of discounts.
- Bill of exchange, promissory notes, cheques or money orders can only be taken in payment with our approval, they shall be accepted only on account of payment. Costs and expenses incurred through discounting shall be borne by the customer. The discount shall be based on our bank rate and shall be calculated from the due date of our invoice. We assume no liability for prompt payment and protest. All costs, fees and taxes associated with this shall be borne by the customer and shall be paid immediately in cash.
- Objections to invoices must be raised immediately, and two weeks after receipt of the invoice at the latest, in writing. If the customer does not provide notice of objection in the appropriate form and time frame, then the invoice is considered to be accepted.
- The customer’s right of retention is excluded, insofar as it is not based on the same contractual relationship. Offsetting of counterclaims is only permitted insofar as this is undisputed or has been determined by a court of law.
- We shall be entitled to charge interest to customers who are merchants within the meaning of Sec. 1 of the HGB (German Commercial Code) from the due date and to customers who are not merchants from the time of default in the amount of the credit costs which we ourselves must pay, and at least 8 percent (5 percent for private consumers) about the base rate, plus the statutory VAT; the assertion of additional damages remains reserved.
- If the customer is late with a payment which is due or with a significant proportion, then we shall be entitled to request immediate payment of all outstanding invoices, including those which are not yet due, to request advance payment for all outstanding deliveries, to request appropriate securities or to withdraw from the contract after a reasonable period subject to our other rights. The customer may defer the obligation to provide advance payment through the assignment of a security of an appropriate value. Kommt der Besteller bei Vereinbarung von Teilzahlungen mit einer Rate ganz oder teilweise länger als 7 Tage in Rückstand, so ist die jeweilige Restforderung unbeschadet unserer Rechte aus Abschnitt VI. (Eigentumsvorbehalt) zur sofortigen Zahlung fällig. We shall also be entitled to the above rights if the customer’s company is dissolved or liquidated or if execution measures are instigated against significant portions of the customer’s assets. The customer shall not be entitled to counterclaims owing to the assertion of the above rights. In such a case, we shall also be entitled to immediately withdraw all circulating cheques and bills of exchange from circulation. The expenses incurred as a result of this shall be borne by the customer.
- In the absence of other provisions by the customer, payments will always be used to settle the oldest invoice still open including the associated ancillary costs. For each written reminder after occurrence of default, the customer shall owe a flat rate fee of EUR 5.–.
- If the customer withdraws from an order which has been placed without justification, then we may claim 10% of the sale price for the costs incurred for processing of the order and for the lost profits, without prejudice to the possibility of claiming further damages. The customer retains the right to provide proof of reduced damages.
- We shall be entitled to withdraw from the purchase contract in the event of behaviour by the customer which violates the contract, in particular in the event of default of payment.
- Delivery deadlines or delivery periods which can be bindingly or non-bindingly agreed apply as soon as all details of execution have been clarified and both parties are in agreement on all conditions of the transaction. Information concerning delivery times shall be provided to the best of our knowledge, is approximate and non-binding, and may differ from the actual delivery. Under no circumstances are delivery dates or delivery periods to be regarded as fixed. Compliance with the delivery period assumes that all commercial or technical questions between us and the customer have been clarified, we have received all documents, approvals, releases and auxiliary materials or tools which the customer should be providing, and the customer has fulfilled all other obligations to which it is subject, in particular its payment obligation. If this is not the case, then the delivery time shall be extended appropriately.
- The delivery period is satisfied if the delivery item has left the factory or readiness for shipping has been communicated upon its expiry.
- An obligation to comply with the agreed delivery periods is only assumed on the condition of undisrupted operation. In particular, we shall not be liable for even bindingly agreed periods and deadlines in the event of force majeure and other disruptive events on our part, on the part of our suppliers and sub-suppliers or on the part of transport companies, for example operating or traffic delays, fire, flooding, strike, lockout, shortages of labour, energy or raw materials, official measures. They shall entitle us to delay delivery by the duration of the hindrance plus a reasonable initial period or to withdraw from the contract in full or in part owing to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, then the customer may not derive any claims for damages for this if it was notified in good time of the underlying circumstances. Partial deliveries on the total order are permissible. They shall be invoiced separately from the remaining delivery immediately upon shipping.
- The customer’s special delivery instruction shall only be observed in the event of prior written agreement. The expenses associated with such instructions shall be borne by the customer.
- In principle, goods which have been sold may not be returned. If goods must be taken back by way of an exception, then the net price valid on the date they are taken back shall be credited. If the net price on the date of delivery is lower than the net price upon return, then the net price valid on the date of delivery shall be credited.
- If shipping is delayed upon request by the customer, then it shall be invoiced for the costs arising for storage, and at least 50% of the invoice amount per month in the event of storage at the factory, beginning one month after notification of readiness for shipping.
- Compliance with the delivery period requires fulfilment of the customer’s contractual obligations.
V. Shipping, transfer of risk and receipt
- Shipping shall always be done at the customer’s expense and risk, even if free delivery is agreed. In the absence of precise shipping instructions from the customer, the goods shall be shipped at our reasonable discretion and with no obligation with regard to the delivery method.
- We will only insure the shipment against theft, breakages, transport, fire and water damage and other insurable risks upon written request by the customer and at its expense.
- The risk shall be transferred to the customer when the shipment is handed over to the forwarder, the railway company, the postal service or the carrier, even for free delivery. The same applies for the loading of our vehicles for the purposes of delivery and, in the event of collection by the customer, when the goods are handed to them. The risk shall be transferred upon leaving the factory or warehouse at the latest, even where partial deliveries are made or we have undertaken to provide other services, e.g. shipping costs, delivery, installation or other.
- If shipping is delayed as a result of circumstances for which the customer is responsible, then the risk shall be transferred to the customer on the date of readiness for shipping. However, we shall be obliged to provide the insurance coverage required by the customer upon request by and at the expense of the customer.
- If the customer culpably defaults on acceptance for longer than ten days as from receipt of the delivery notification, we shall be entitled to withdraw from the contract or to claim compensation for damages including any additional costs after setting a grace period of a further fourteen days. If we claim compensation for damage from the customer in the event of non-acceptance by the customer of the object sold, then this shall be 30% of the purchase price. The amount of damages shall be set higher or lower if we prove increased damage or the customer proves reduced damage. If we become unable to provide performance during the customer’s default on acceptance and we are not responsible for this, or if the customer is solely or predominantly responsible for these circumstances, it shall remain obliged to provide consideration.
VI. Retention of title
- The delivery items remain our property until fulfilment, including all claims by us against the customer, regardless of the transaction. This applies in particular for all future claims arising from the continuing business relationship including future claims arising from contracts which are later concluded and including any recourse and indemnification claims resulting from bills of exchange and cheques (reserved goods) until the settlement of all claims which arise from the business relationship. This also applies if the purchase price for a specifically indicated claim has been paid. For a current invoice, the retention of title is considered to be security for our total claim (current account reservation).
- Assertion of the retention of title and seizure of the delivery items by us, which must be declared by us in writing, shall be considered to be withdrawal from the contract.
- The processing or transformation of the goods by the customer shall always be done for us free of charge and without obligation such that we are considered to be the manufacturer pursuant to Sec. 950 of the BGB (German Civil Code), i.e. we retain ownership of the products at all times and stages of processing. If the delivery items are processed with other items which do not belong to us, then we shall obtain joint ownership of the new item – including in the case of Sec. 947 Para. 2 of the BGB – in proportion to the value of the delivery items in relation to the other processed items at the time of processing. The customer shall store the joint property, which is considered to be property with retention of title, for us free of charge. The joint ownership rights resulting from this are considered to be retention of title. In general, the same applies for the item resulting from processing as for the reserved goods.
- In order to secure our claims against the customer, it shall also assign the claims which arise for it against a third party owing to connection of the delivery items with a property to us.
- The customer is entitled to process or resell the delivery items during the ordinary course of business; however, it shall hereby assign all claims against its customers, including all additional claims and statutory VAT, resulting from a sale to us in order to provide security for all of our claims against it, regardless of whether the delivery items were resold before or after processing. The customer shall be authorised to collect these claims after their assignment. Our authority to collect the claim ourselves remains unaffected by this; however, we undertake not to collect the claim as long as the customer fulfils its payment obligations appropriately and is not in default. If this is the case, however, we may require the customer to disclose the assigned claims and their debtors, provide all information required for collection and hand over the associated documentation. The customer must inform its customers of the assignment upon our request.
- The customer is required to likewise retain ownership of these items until its customers have paid for them in full. The customer is not authorised for other dispositions of the delivery items, in particular to pledging and chattel mortgaging. In the event of pledges and seizures or other dispositions by third parties, the customer must indicate our ownership. It must inform us immediately in writing and provide us with all of the documents and information required for the protection of our rights. Any intervention costs arising as a result shall always be borne by the customer insofar as they are not borne by third parties. Enforcement officers or third parties must be informed of our ownership.
- The good subject to retention of title must be marked as belonging to us; all costs arising from the defence of our rights against third parties shall be borne by the customer.
- Upon request by the customer, we shall be required to waive retention of title if the customer has incontestably settled all claims in connection with the object sold and other appropriate securities exist for the other claims arising from the continuing business relationship. We also undertake to release the securities set up for us by the customer at our option insofar as their value exceeds the value of the claims to be secured, if these have not been settled, by more than 20%.
- If we assert our retention of title, in particular if we reclaim the reserved goods, we shall be entitled to freely sell the goods or have them auctioned. The customer shall be liable for the remaining claim.
- The quality of the delivery items is based solely on the agreed technical properties. However, we assume no warranty within the meaning of Sec. 443 of the BGB. Indication of any technical standards or test reports provides a service description and should not be interpreted as a guarantee of quality or durability within the meaning of Sec. 443 of the BGB.
- The customer is required to immediately inspect the delivered goods for any discrepancies with regard to quality or quantity. The notice of defects must be done in writing specifying the type and extent of the defect and submitted to us 14 days at the latest after receipt of the goods. The defective delivery items must be held for us in the condition in which they were at the time of discovery of the defect, or sent to us at our request and at our expense. Complaints regarding defects which cannot be discovered within this period even with thorough inspection must be submitted in writing immediately upon discovery. Violation of the above obligations shall exclude any liability for material defects against us upon expiry of the statutory limitation period for material defects unless we had maliciously concealed the defect from the customer. The provisions of Secs. 377 and 434 III of the BGB otherwise apply.
- Through negotiations regarding complaints, we do not waive the objection that the customer’s notice of defects is not timely or is insufficient.
- We assume no liability for damage resulting from improper handling or processing of the goods.
- Unless a longer limitation period is agreed on a case-by-case basis, the limitation period shall be 12 months for brand new products as from transfer of risk with regard to the object sold. For private consumers, it shall be 24 months. The customer’s claims owing to material defects in used objects sold are excluded.
- In the event of justified notice of defects, we shall be required, at our option, to provide rectification or replacement of the defective parts in an iterative manner. Replaced parts are our property and shall be surrendered to us in an iterative manner. In the event of defect rectification/delivery of replacement parts, we shall bear the cost only to the amount of the purchase price. If we do not fulfil this obligation within an appropriate period or if rectification fails despite repeated attempts, then the customer shall, at its option, be entitled to a reduction of the purchase price or, in the event of material defects, to cancellation of the purchase. Additional claims, in particular for reimbursement of expenses or claims for damages, in particular for lost profits or other financial losses, owing to damage caused by defects or consequential damages shall only exist within the framework of the provisions and limitations of these contractual terms. In particular, no liability shall be assumed in cases in which the customer or a third party has caused defects through violation of the operation, maintenance and installation instructions, inappropriate or improper use, improper or negligent handling, natural wear and interference with the delivery item. The same applies if our products are incorrectly mounted or commissioned, carelessly handled or stressed beyond the usual limits by the customer or a third party or in the event of faults which can be attributed to unsuitable equipment, replacement materials, faulty construction work, an unsuitable construction site, chemical, electrochemical or electrical impacts or unsuitable modifications or repair work carried out without our prior approval, unless these were caused by at least gross negligence on our part. Claims for defects also shall not exist if our instructions and recommendations in the installation instructions and other documentation provided to the customer at the time of delivery, by whatever means, were not followed precisely. The customer shall be entitled to rectify the defect itself or have the defect rectified by a third party and to require appropriate reimbursement of the costs incurred by it for this only in urgent cases in which operational safety is at risk, in which cases we must be informed immediately, or if we are in default with the rectification of the defect.
- Recourse claims in accordance with Secs. 478, 479 of the BGB shall only exist insofar as the customer has not entered into any agreements with its customers which go beyond the legal claims for defects. Observation of its own obligations by the party entitled to recourse, in particular observation of the obligation to give notice of defects, is a requirement.
VIII. Liability and limitations of liability
- We shall not be liable for damage caused by a defect in the delivery item owing to slight negligence. In all cases in which we are obligated to pay claims for damages or reimbursement of expenses by way of deviation from the above conditions owing to contractual or legal bases for claims, we shall only be liable insofar as our executives or agents are culpable of intent or gross negligence or in the event of injury to life, limb or health. Liability without fault in accordance with the product liability law remains unaffected.
- Except from the default and defect claims regulated above, we accept no liability unless damages are the result of a grossly negligent violation of an obligation or of intentional or grossly negligent violation of an obligation by our legal representatives or agents.
- The limitation of the claims between us and the customer conforms to Clause VII 5. In the event of claims for damages in accordance with the product liability law, the statutory limitation periods apply.
- The above regulations are not associated with a change in the statutory burden of proof.
IX. Final provisions
- If deliveries are done according to the customer’s drawing or other information, then it shall bear responsibility for the accuracy and for the absence of violation of third party property rights; it shall indemnify us from any claims by a property Right
- The place of fulfilment shall be the location of our company headquarters, currently D-68804 Altlussheim.
- German law shall apply for all deliveries and services, with the exception of the UN Convention on Contracts for the International Sale of Goods..
- For all disputes resulting 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 must be brought at the competent court for our respective company headquarters. However, we shall be entitled to bring legal action at the customer’s Headquarters
- If a provision of these terms and conditions is or becomes invalid, in full or in part, this shall not affect the validity of the other conditions. The contracting parties shall be required to replace the invalid condition with a valid provision which is as similar as possible in its economic success.
Version as of 1/2015