1 Scope of Application
1.1 The conditions set forth hereafter are the contractual basis of our business relationships with the purchasers (“customers”) of our products and become subject matter of the contract upon acceptance of an offer (an order) by us. These general terms and conditions also apply to future business with the customer.
1.2 The customer’s own business conditions are not recognized by us except when we have agreed to them in written form. The customer’s own conditions of business are also not recognized by us even if, in knowledge of them, we unconditionally execute the delivery without again expressly contradicting these.
2 Conclusion of a Contract, Quality, Order Confirmation
2.1 Our offers are without engagement. We are only bound to our offers if they have been expressly designated as binding. Otherwise, they are considered to be an invitation to make an offer. In such cases, the bringing about of a contract requires our written order confirmation.
2.2 Properties of the goods which the customer can expect, based on our public statements in particular in our advertising or labelling of the goods, or which fall under trade usages, shall only be deemed to be covered by the contractual qualities if they are expressly set forth in an offer or an order confirmation. Guarantees are only binding for us if they are designated as such in an offer or an order confirmation and our individual obligations from the guarantee are set down therein.
2.3 Our written order confirmation is the authoritative document defining the scope of the delivery.
2.4 Verbal supplementary agreements and assurances from our employees or representatives require our written confirmation to be legally binding.
3 Conditions of Payment
3.1 Our prices are understood to be net prices plus the respective legal value added tax ex factory or warehouse. Costs for packing and if applicable, installation, are added on at the respective price which is valid at the time of the work. If more than two months have passed between order confirmation and delivery, we are entitled to charge the day’s current price.
3.2 Our prices are due immediately and payable two weeks after invoice and delivery; the receipt of payment by us being the decisive date. Payments are, if there is no other written agreement expressly permitting otherwise, to be paid directly to us without deduction. Payments to third parties only release customer from its debt when such party has been granted written authority by us as collector.
3.3 The customer is considered in default with payment if he receives a reminder after the due date or does not pay at a determined calendar date or a determinable date. This does not affect the statutory provision whereby the customer is considered in default with payment at the latest 30 days after due date and receipt of the invoice or an equivalent payment demand
3.4 In the case of the customer being in default with payment we are entitled to demand interest at the rate of 8 percentage points above the respective applicable basis interest rate without prejudice to our other or further rights.
3.5 If instalment payments have been approved in writing, all outstanding sums fall due as soon as the customer is partially or completely in default with the payment on an instalment for over a month or for the third time.
3.6 Offsetting or application of the right of retention due to counter claims by the customer which are disputed by us and not res judicata is excluded. The application of the right of retention is also excluded as far as the counter claims of the customer are not based on the same contractual relationship.
4 Delivery and Passing of the Risk
4.1 The place of performance of our performance obligations is our place of business and/or the supply warehouse of which the customer is informed of in the order confirmation. Transport costs of the goods are to be paid by the customer. Such costs include taxes and customs duties in connection with the transport of the goods.
4.2 The passing of the risk to the customer takes place, at the latest, at the time of delivery to the transport company or any other transport person. This also applies to cases in which we have, under separate agreement, agreed to bear the shipping costs. If the customer has not specifically stipulated a transport company, we have the right to choose a suitable transport company.
4.3 Given delivery periods are considered to be only approximate agreed upon time guidelines except when they have been expressly stated as binding in our order confirmation. Every delivery period is extended by the length of the interruption of our work operation caused by impediments due to measures in connection with labour disputes in our company or those of our sub-suppliers, in particular strikes and legal lock-outs as well as the occurrence of unforeseen events which do not fall under our responsibilities. The forestanding circumstances do not fall under our responsibility only because they emerge during an already existing default. The customer will be informed of the beginning and ending of these kinds of impediments as soon as possible.
4.4 If delivery periods have not been designated expressly as binding, we come into default with delivery at the earliest 6 weeks after expiration of the delivery period by means of a written demand issued by the customer. In the case of delay in delivery caused by slight negligence the claim for damages which is based on § 280 Para. 1 and Para. 2, 286 German Civil Code is limited to a maximum of 5 %, of the total price of the products concerned by the delay.
4.5 Partial deliveries are permissible as long as they are economically acceptable for the customer.
4.6 We reserve the right to change the outside appearance and the equipment or technical details of our machinery as far as these changes are reasonable for the customer or only unessential deviations are concerned. 4.7 If control by corresponding software forms part of the scope of delivery and performance, ownership in the control shall pass to the customer at the same time as ownership in the other system components. All rights in the software remain with us, in particular the copyright usage and exploitation rights as far as they have not been expressly granted to the customer in these general terms and conditions or by other agreements. The customer shall only be granted the limited right to use the software in accordance with the purpose and scope of the contract based on a specially concluded software license agreement.
4.8 If the customer does not collect goods intended for collection by an agreed upon binding delivery date, the customer is in default of acceptance. In the case of an approximate agreed upon time of guidance, we are entitled to inform the customer beforehand of the possibility to collect the goods with a 2-week period; if the customer does not collect the goods within this time, he comes into default of acceptance. The collection of goods to be collected is a principle performance obligation. Any claim for damages is set at a lump sum of 15 % of the order value; we retain the right to prove lower or higher damages.
5 Claims in case of Defects
5.1 The customer is obliged to give written notice of a defect at the latest within one week of taking delivery of the goods for recognizable defects and at the latest within one week of their discovery for hidden defects. These deadlines are preclusion period.
5.2 If there is a defect in the stated delivery, we are entitled at our choice to either rectify the defect or provide a replacement delivery (subsequent performance).
5.3 If subsequent performance is not successful, the customer is entitled, at his choice, to either withdraw from the contract or to demand an appropriate reduction of the purchase price.
5.4 The limitation period for claims for defects is 12 months starting at the date of the passing of the risk.
5.5 Replaced parts become our property and are to be handed over to us.
5.6 No liability is accepted for defects, as long as they are not attributable to our negligence, caused by unsuitable or improper handling and/or defective installation or commissioning by the customer or by third parties not instructed or authorized by us (also in reference to intervention in the software), natural wear and tear, false or careless treatment, unsuitable equipment, replacement materials, faulty construction, creation of chemical, electromechanical or electrical influences. Also excluded from claims for defects are changes to the goods or unskilled repairs to the goods which are attributable to the customer or third parties authorized by the customer to do so.
5.7 The subsequent performance is effected without recognition of a legal obligation and does not cause the limitation period to start anew. This also applies when spare parts have been installed in the course of rectification of a defect.
5.8 Further reaching claims for defects of the customer are excluded without prejudice to any restricted claims for damages according to Section 6.
5.9 If an inspection of the claimed defects shows that no claim, for defects exists, the customer is obliged to bear the costs brought about by the inspection.
5.10 If used objects (incl. demonstration units) are subject of the contract, all liability for defects is excluded, as far as we are not guilty of fraudulent behaviour.
6 Limitation on Liability (Liability Exclusion and Limitation)
6.1 We are not liable for damage caused by slight negligence except in the case of a breach of a material contractual obligation or a cardinal obligation in a manner endangering the purpose of the contract or in the case we have assumed of a guarantee.
6.2 In the following cases our liability is limited to the foreseeable damages typical of the contract:
a) The case of slightly negligent breach of material contractual obligations or cardinal obligations in a manner endangering the purpose of the contract,
b) In the case of grossly negligent breach by a vicarious agent (not an officer or executive staff) or
c) If we assume a guarantee as long as we, as seller, have not expressly given, to the customer as buyer, a guarantee for the quality of the goods.
6.3 In the cases described in Section 6.2 our liability is limited up to the triple amount of the price of the respectively affected good, at the most € 200.000,00, and/or in case of mere pecuniary loss to twice the amount of the order value, at the most € 150.000,00, of this price.
6.4 The limitation period for claims for damages in the cases described in Section 6.2 is two years from the point of time in which the customer has obtained knowledge of the damage, and/or without taking this knowledge into consideration three years from the damaging event. The limitation period for claims due to defects of the goods is as set forth in Section 5.4.
6.5 Sections 6.1 to 6.4 also apply, when the goods are only specified in kind.
6.6 Except in the case of liability based on the Product Liability Act, injury to life, body and health, for the granting of a guarantee for the quality of a good or for fraudulent concealment of defects, the foregoing liability limitations apply to all claims for damages regardless of their legal ground including claims in tort.
6.7 The foregoing liability limitations also apply in the case of damage claims by the customer against our employees or agents.
7 Reservation of Title
7.1 We retain title in the goods (reserved goods) until the purchase price has been completely paid as well as all other claims due arising from the ongoing business connections with the customer at the time of the contract conclusion (§ 449 German Civil Code).
7.2 We authorize the customer to, in the ordinary course of business, dispose of the goods. He, however, already assigns to us all claims equal to the final invoice amount (including Value Added Tax), accruing to him for the resale against his buyer or a third party, regardless of whether the delivery object is resold without or after re-working. The customer remains entitled to collect such claim even after the assignment. Our right to collect such claim ourselves, remains unaffected thereby. We, however, commit ourselves not to collect the debt as long as the customer is meeting his payment obligations from the collected proceeds, the financial status of the customer does not deteriorate substantially, the customer is not in default with payment and in particular the customer has not filed an application to commence insolvency proceedings or is unable to pay his debts. If such is the case or there is some other important reason, we can demand that the customer make the assigned claims and their debtors known to us, provide all information needed for collection, hand over all corresponding documents and notify the debtors (third parties) of the assignment. This preliminary assignment includes the acquired claim as well as the securities provided and possible debt surrogates. Other disposals of the goods are not permitted and give rise to damages.
7.3 If the customer is in default with payment, we are entitled, after unsuccessfully setting a one-week grace period, to take back the reserved goods. This measure does not constitute a withdrawal from the contract, so that our claims remain unaffected. The right to withdraw from the contract remains unaffected and can only be effected by express declaration.
7.4 If the customer is in default with the payment for the reserved goods, we can withdraw from the contract, without having to grant the customer another grace period for payment.
7.5 The customer is obliged to draw attention to our rights in case of seizure by third parties and to notify us without undue delay. As far as the third party is not in a position to reimburse us for the court and out-of-court costs of a law suit based on § 771 ZPO, the customer is liable for costs accruing to us.
7.6 The customer is obliged to treat the delivery item with care, in particular to sufficiently insure these at value when new at his cost, against damage caused by fire, water and theft. If maintenance and inspection work is necessary, the customer must conduct these on time at his cost.
8 Installation and Repair Conditions
8.1 As far as we are to conduct installation and repair work based on an order confirmation, the following rules apply in addition:
8.2 The commencement of our work is dependant upon the customer having fulfilled all preliminaries as set forth in the order confirmation completely and properly. This applies in particular to earth, foundation, construction and scaffolding work including the laying of in- and outlines needed for installation or repair work according to the combination foundation plans provided by us with the order confirmation or within an appropriate time period before the start of the work.
8.3 The transport and unloading of installation parts is not normally a part of our standard delivery and the customer is therefore responsible for carrying out the same at his expense. This also applies to the unpacking of the objects needed for installation.
8.4 During the duration of the installation, the customer is responsible for providing us with dry, heated and lockable rooms and any power supply which may be needed for installation or repair work.
8.5 Exchanged parts become our property. A credit for the remaining value of the exchanged part is only possible if expressly agreed in writing.
8.6 Invoicing is done on the basis of the time worked and material used as long as no other agreement has been made with the customer. We are allowed to charge the valid daily rate for work, travel and waiting time applicable on the day of the execution of the services. The customer also has to bear the additional costs named in the order confirmation such as daily allowance, overnight stays and driving expenses.
8.7 As far as installation or repair work is to be done on a computer system, we are only obliged to start the work once the customer has saved all data which could be affected by this work on separate data carriers and this is confirmed in writing to our competent worker. If we demand this written explanation from the customer, it must be provided within a week otherwise the backup is considered to have been completed.
8.8 The customer shall declare acceptance of the installation or repair work. Acceptance shall be deemed effected if the customer does not accept installation or repair within a two week period following a respective demand from us. If we do not set such period, installation or repair work requiring acceptance is considered accepted three weeks after completion of the work.
8.9 The customer is required to report obvious defects in the installation or repair work within a preclusion period of two weeks. Hidden defects in the installation or repair work must be reported within two weeks after their discovery; this period is no preclusion period and does not affect the statutory limitation periods for claims for defects.
8.10 Claims for defects are initially limited to subsequent performance (rectification of defects or replacement delivery). As long as we provide subsequent performance, the customer has no right to withdraw from the contract dealing with installation or repair work or to demand a reasonable price reduction, except where subsequent performance has finally failed.
9 Deterioration of Customer’s Assets, Contract Termination
9.1 If the customer becomes unable to pay his debts after contract conclusion, if an application is filed to open insolvency proceedings regarding customer’s assets or if conditions arise after contract conclusion which essentially influence the creditworthiness of the customer, we can refuse our delivery until the consideration is performed or the customer has provided security for it. The same applies, if the supporting facts for the material deterioration of the customer’s assets become known only after contract conclusion without fault, even if they already existed before contract conclusion.
9.2 If the customer does not perform the consideration within an adequate time period and does not provide security for it within an adequate time period, we are entitled to withdraw from the contract or to claim damages. If we select to claim damages, we can charge a lump sum damages in the amount of 15 % of the value of the order (incl. Value Added Tax). The right of proof of a lower or higher damage is reserved.
10 Order Change or Cancellation
If the customer cancels or changes an order accepted by us or desires to change a confirmed delivery date, up to 4 weeks before the designated delivery date, and we accept this cancellation or change, we can demand a lump sum expenditure reimbursement of 10 % of the value of the order. A cancellation or order change less than 4 weeks before the designated delivery date is generally excluded.
11.1 German Law applies with the exclusion of eventual referral rules of German International Private Law. The UN Convention on Contracts for the International Sale of Goods is excluded (CISG).
11.2 Exclusive place of jurisdiction for disputes arising from our business relationships with the customer is the seat of our company. The parties can also commence court and out-of-court proceedings at the general place of jurisdiction of the other party
11.3 When individual provisions are invalid, the invalidity shall be limited to such provision. The parties are obligated to replace the invalid provision with one that comes closest, in a valid manner, to the economic meaning and purpose of the invalid provision; the same applies to eventual gaps in the contract.
11.4 The English version of these general terms and conditions is provided for convenience purposes only. In case of conflict the German version shall prevail