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General Terms and Conditions of Business and Delivery

1. General information

1.1 These terms and conditions are an integral part of all our quotes and contracts for the delivery of goods and provision of services and they apply exclusively to the complete business relationships with our buyers. They shall also apply to all future business with the buyer without explicit agreements. We do not recognise any deviating or supplementary conditions from the buyer unless we have expressly agreed to their validity in writing. Our terms and conditions of delivery and business shall also apply exclusively if we carry out the delivery without reservation despite the buyer's conflicting, deviating or supplementary terms and conditions of business. These terms and conditions replace all previous terms and conditions unless expressly agreed upon otherwise in writing with the buyer.

1.2 These terms and conditions shall only apply to business persons (§ 14 German Civil Code), legal entities under public law and holders of special funds under public law.

 

2. Quotes

2.1 Our quotes are always non-binding, unless expressly stated otherwise in the quote. We have two weeks from receipt of order to accept the order. The buyer remaining silent with regard to the quote does not constitute acceptance.

2.2 The delivery contract is concluded by our confirmation of the written order. If such a confirmation has not been issued, our delivery or the delivery note shall be deemed to be confirmation of the order. We are entitled to make partial deliveries insofar as they are reasonable for the buyer.

2.3 The illustrations, drawings, etc., included in our catalogues, brochures, price lists or estimates and other documents as well as the listed measurement and weight details are only approximate unless they are expressly designated as binding. The same applies to the usage, properties and service life details. Our commercial tolerances remain within the scope of what is reasonable for the buyer.

2.4 We expressly reserve our property rights and copyrights to cost estimates, drawings, samples, brochures, technical descriptions, sketches, catalogues and other documents. The buyer is not to make them accessible to or have them reproduced for third parties without obtaining our prior written consent and they must be returned to us immediately upon request by us, including any copies made if the underlying delivery transaction was not concluded.

2.5 Only persons expressly authorised by us are entitled to give the buyer verbal assurances of any kind and to make or accept declarations in legal transactions. In particular, our travelling staff, commercial agents or authorised dealers do not have a power of attorney to conclude contracts; agreements concluded with them will only become binding after we have issued written confirmation.

2.6 We are entitled to the rights arising from § 321 German Civil Code if, after conclusion of the contract, facts become apparent (especially payment defaults for earlier deliveries) that, after proper commercial judgment, indicate that our claim to payment of the purchase price is at risk due to the buyer's lack of ability to pay. We shall also be entitled to claim payment or a security for all claims arising from any of the existing contracts and to refuse to fulfil all existing contracts until advance payment or a security has been made.

2.7 We will be entitled to terminate the contract in the event of a suspension of payments, inability to pay, application for insolvency proceedings, opening of insolvency proceedings, the ordering of provisional insolvency proceedings or rejection of insolvency proceedings for lack of assets. 

 

3. Prices

3.1 The prices for our deliveries are quoted in EUROS and are ex-works plus VAT, packaging, freight, postal charges and insurance.

3.2 We will charge an appropriate amount for invoice amounts less than 100 euros.

3.3 The prices will correspond to the cost situation at the time the order was placed. In the event of changes to the cost factors, such as material or labour costs that occur after the contract was concluded, we reserve the right to adjust the prices for contracts with an agreed delivery period of more than 4 months from receipt of the order in accordance with the incurred cost changes. The same applies if the delivery or service will be implemented later than 4 months after the contract was concluded for reasons for which the buyer is responsible. 

3.4 If the price increases by more than 10% of the originally agreed price as a result of the change, then the buyer shall be entitled to withdraw from the contract. 

3.5 The prices valid on the day of delivery or on the due date of acceptance will always be charged for orders on call.

 

4. Payment conditions

4.1 The invoiced amount is due immediately. Our invoices are payable within 30 days without any deductions, unless stated otherwise. We grant a 2% discount for payments made within 14 days of the invoice date. The punctual receipt of the money in our account is decisive regarding justified cash discounts. However, the prerequisite for cash discount reimbursement is that the buyer's account does not show any other invoice amounts due and that all payment deadlines, even for partial payments, were met.

4.2 Payments made by bills of exchange are excluded.

4.3 Payments made to anyone without written authority to collect the money will not discharge the liability to us.

4.4 In the event of a payment default, interest shall be payable at the statutory interest rate of 9 percentage points above the base interest rate applicable at the time when the default occurred (§ 247 German Civil Code). We reserve the right to prove that further damage was caused by the default. 

4.5 The buyer will only be entitled to exercise offsetting if his claims are undisputed, legally established or ready for decision. Exercising the rights of retention by the buyer is only possible if his undisputed or legally binding counterclaim is based on the same legal relationship.

 

5. Delivery and service agreements

5.1 Place of performance is our registered office.

5.2 The delivery period will be determined by the information provided by us in the order confirmation unless agreed upon otherwise. The delivery period begins with the sending out of our order confirmation, but not before clarification of all questions needed for the implementation of the order or the provision of the advance payments to be made by the buyer or before receipt of an advance payment to be made by the buyer. If we have to deliver to the buyer against an advance payment, the stated delivery period will not commence until we receive the advance payment. If the buyer defaults on our services, our delivery period will be extended by the duration of the default.

5.3 The delivery period shall be deemed to have been met if the delivery item has left our works by the end of the delivery period or the buyer has been notified that it is ready for shipment, provided that we are not obliged to bring the delivery item to a location determined by the buyer or to install or assemble it there.

5.4 Subsequent requests from the buyer for changes or additions will extend our delivery period.

5.5 The same applies to delivery and service delays due to force majeure, such as war or natural disasters, important operational concerns and unforeseen events beyond our control and the delivery period will be extended accordingly. This applies in particular to operational disruptions caused by labour disputes, strikes and lock-outs, to operational disruptions in supplier companies, delays in the delivery of essential raw materials and construction materials, insofar as these were ordered by us in good time. If the disruption lasts for more than 10 weeks and if it can be proven that it has a considerable effect on the completion or delivery of the delivery item, then we shall be entitled to withdraw from the contract. We will inform the buyer of the beginning and expected end of such hindrances immediately after they become known to us. Claims for damages against us are excluded in these cases. The regulations listed in Section 5.5 and in this section apply accordingly to the buyer.

5.6 If we are culpably in default due to a breach of our essential contractual obligations (i.e. obligations for which fulfilment is essential for the proper implementation of the contract and the fulfilment of which the contractual partner regularly relies on or has to rely on), the damage to be compensated shall be limited to the foreseeable, typically occurring damage. Otherwise, the compensation for the damage caused by the delay shall be limited to 5% of the value of the total delivery. However, we reserve the right to prove that no delay damage has occurred or that the actual damage caused by the delay is less.

5.7 If shipping, delivery or collection of the delivery item is delayed at the request of the buyer or due to circumstances for which the buyer is responsible, then the costs incurred for storage at the supplier's works shall be charged to the buyer, commencing one month after notification of the readiness for shipment. However, the buyer reserves the right to prove that no damage or lesser damage occurred.

5.8 We may make partial deliveries based on reasonable grounds and to a reasonable extent. We will inform the buyer of any partial deliveries in good time. 

5.9 The deliveries made by us are subject to national or international regulations covering foreign trade law, embargos or other statutory prohibitions. 

 

6. Transfer of risk

6.1 All deliveries shall be "ex works" unless we have expressly agreed upon otherwise. This also applies to partial deliveries. The risk of deterioration or destruction of the goods shall therefore pass to the buyer upon receipt of the notification of readiness for shipment and of separation of the delivery item. This also applies if we have assumed additional services such as loading, transport or unloading as well as in the event of partial deliveries and in the event of acceptance or debtor's delay by the buyer. 

6.2 If shipment is delayed due to circumstances for which the buyer is responsible, we shall be entitled to store the goods at our discretion at the buyer's expense and risk and to invoice them as delivered goods. At the buyer's request, we will insure the respective shipment in his name and at his expense against theft, breakage, transport, fire and water damage. A corresponding power of attorney shall be deemed to have been granted upon the expressing of the request in the aforementioned sense. 

 

7. Return of goods

If we agree to take back delivered goods as a gesture of goodwill but without any legal obligation, we shall charge a flat rate of 20% of the net purchase price of the goods concerned as reimbursement for the re-storage and associated contractual costs and administrative expenses. 

 

8. Retention of title

8.1 Goods belonging to the deliveries (hereinafter referred to as "reserved goods") will remain our property until all of our invoices receivable against the buyer based on the business relationship have been fulfilled. If the value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 15%, then we shall release a corresponding part of the security rights at the buyer's request. 

8.2 The buyer may not pledge the reserved goods or use them as security for the duration of the retention of title period. 

8.3 Any processing or modification of the reserved goods by the buyer must always be made in our name and on our behalf as the manufacturer and we shall immediately acquire ownership of the newly produced goods. If the reserved goods are processed together with other goods that do not belong to us or if the value of the processed goods is higher than the value of the reserved goods, then we will acquire co-ownership of the new goods in proportion to the value of the reserved goods to the value of the new goods. In the event that no such acquisition of ownership (rights) by us becomes effective, the buyer must assign his future ownership or co-ownership of the newly created goods (co-ownership in accordance with the ratio defined in the second sentence) as security to us; we will accept the assignment.

8.4 The buyer is only permitted to resell the reserved goods in the normal course of business. Permission to resell will only be granted on the condition that the buyer has already effectively assigned to us all claims against the buyer based on the resale of the reserved goods with all ancillary rights and priority over other claims. We will then accept the assignment. The buyer is still entitled, subject to revocation, to assert the claim even after making the assignment. If the buyer asserts the claim, he is obliged to keep it separate from all funds or assets belonging to the buyer and third parties. This will have no effect whatsoever on our right to assert the claim. However, we will not assert any claims whatsoever as long as the buyer meets his financial obligations from received revenue, does not defer payments or is not in default with payments and no petition for the opening of insolvency proceedings has been filed or payments have been stopped. The buyer must name the debtors of the assigned claim and report this assignment at our request. We are authorised to notify the debtors of this assignment. The buyer shall hold the reserved goods as a trustee and ensure that the goods are properly stored, protected and insured until such time as ownership of the reserved goods passes to the buyer.

8.5 If the reserved goods are combined, inseparably mixed or blended with other goods that do not belong to us in such a way that the buyer's goods are regarded as an essential component, then the buyer shall transfer co-ownership to us in accordance with the ratio defined in the second sentence of Section 8.3.

8.6 If reserved goods are installed by the buyer as an essential component in the property, ship, ship under construction or aircraft belonging to a third party, then the buyer must assign to us the claims arising against the third party or the party concerned in the amount of the value of the reserved goods with all ancillary rights including the rights to the granting of a security mortgage with priority over the remaining claims; we will accept the assignment.

8.7 After withdrawing from the contract, we have full authority to repossess, sell or otherwise use or dispose of the reserved goods in whole or in part and the buyer is obliged to return them. The buyer must continue to ensure that the reserved goods are properly stored, protected and insured up to this point in time.

8.8 The buyer must immediately inform us of any confiscation, seizure, possession or other intervention by third parties so that we can lodge a third party action against the goods in accordance with § 771 German Code of Civil Procedure. If the buyer does not comply with this requirement, then he is liable for all damages caused.

8.9 If the law, in whose area of application the delivery item is subjected to, does not permit retention of title, but permits the reservation of similar rights to the reserved goods, then these similar rights shall apply as if agreed between the buyer and us. The buyer is obliged to cooperate in measures that we want to take to protect our property or similar security rights regarding the reserved goods. 

 

9. Warranty, obligations of the buyer in the event of notification of defects by his customers, reimbursement of expenses, liability

9.1 Warranty claims made by the buyer depend on him having properly fulfilled his legal duties of inspection and reporting. This also applies if the buyer resells the delivery item. In the event of an obvious defect or incompleteness of the goods, complaints must be immediately reported to us in writing in accordance with § 377 German Commercial Code after arrival of the delivery at the place of destination, giving an exact description of the defect and the invoice number. Documents, samples, packing slips and/or the defective goods must be returned to us for appropriate inspection upon our request. Claims lodged by the buyer because of defectiveness or incompleteness of the service are excluded if he does not comply with this obligation.  Hidden material defects must be reported immediately after their discovery. The notification of defects that might have been detected during the acceptance procedure will be excluded after an agreed acceptance procedure has been carried out.

9.2 -1 If the goods show defects, we will, at our discretion, either remedy the defects or make a defect-free replacement. The delivery of a replacement item within the scope of subsequent performance shall not be deemed to be an acknowledgement of a claim by the buyer regarding this. The rectification of defects will take place at our registered office in the case of items that are to be sent to us without disproportional expense. The buyer must pack the goods correctly and deliver them together with any necessary accessories. If the item is not at the place of intended use, then the buyer must bear any additional costs incurred - especially the travel and transport costs.

9.2 -2 The buyer is only entitled to withdraw from the contract or reduce the purchase price in accordance with the statutory provisions if the subsequent performance repeatedly fails or proves to be unreasonable and it is not just insignificant defects that are involved.  The buyer is only entitled to claims for damages in accordance with Sections 9.15 - 9.20. A warranty period of 3 months will apply to any replacement services and repair work as from delivery or performance of the service, which shall run at least until expiry of the warranty period for our original service (see Sections 9.13 & 9.14).

9.3 The buyer must give us the necessary time and opportunity, after consultation with us, to carry out all necessary repairs and replacement deliveries. Otherwise we will be released from our liability for the resulting consequences. The buyer is prohibited from disposing of the goods complained of until our inspection of the defective goods has been completed. If the buyer wishes to have a technician dispatched urgently or to carry out work outside normal working hours, which will involve additional costs for us, he must bear the additional costs that will be incurred by this (e.g. overtime surcharges, longer journeys, etc.). 

9.4 Parts replaced as part of the subsequent performance will become our property. We will only be liable for spare parts in accordance with the present terms and conditions of delivery and business, especially Section 9.2.

9.5 Liability for a specific purpose or suitability will only be assumed by us if this has been expressly agreed upon in writing. Otherwise, the risk of suitability and use is to be borne exclusively by the buyer, provided that the delivery item is free of defects. The buyer is obliged to ensure compliance with the technical conditions stipulated in the documentation and/or in the supplementary documents. Any other use that deviates from this is prohibited. The buyer must also impose this restriction and any other usage restrictions stipulated by the seller on his customers. 

9.6 Defect claims for used delivery items are fundamentally and completely excluded, unless liability for defects has been expressly agreed upon in writing.

9.7 A delivery item malfunction will not be deemed to exist if the products delivered by us are used in the buyer's plant in a functional connection with existing or third party product components, provided that the malfunction was caused by components not delivered by us or their lack of compatibility. If we have expressly guaranteed compatibility with third-party products in writing, this will only apply to the product version current at the time the guarantee was given, but not to older or future product versions. A delivery item defect will not be deemed to exist if and to the extent that a malfunction was due to the fact that the buyer did not ensure compliance with the technical conditions stipulated in the documentation and/or in the supplementary documents. If, in such a case, we are called upon to rectify a malfunction, the buyer shall bear the costs incurred in accordance with our applicable cost rates. The buyer must also indemnify us from claims for damages by third parties in such a case. In any case, the buyer must bear the burden of proof that the damage was not caused by the products delivered by us being used in violation of the contract.

9.8 In particular, the buyer remains solely responsible for natural wear and tear of the delivery item, incorrect or negligent handling, alterations, assembly or operation, as well as incorrect advice or instruction given by the buyer or third parties, excessive strain, unsuitable operating materials, an unsuitable installation site, especially the ground at the installation site, lack of stability or unsuitable power supply fusing, chemical, electrochemical or electrical effects, weather and other natural influences.

 9.9 In the case of consumables and upon discovery of a defect, the materials must be separated immediately in the state in which the defect was discovered and kept ready for inspection by us. Otherwise they shall be considered as having been approved in the condition in which they were delivered without any further liability on our part. 

9.10 The buyer must immediately inform us of any notification of defects by his customer with regard to our services. The buyer has no claims for defects against us if he does not comply with this obligation. The buyer must also secure evidence in a suitable form and allow us to examine it upon request.

9.11 Advertising statements made by the buyer to his customers or in his advertising materials that are not authorised by us do not justify claims for defects against us.

9.12 If the buyer sends us the delivery item to rectify the defect and we determine that the notice of defect is unjustified and warranty claims do not exist, the buyer must reimburse us for the costs incurred if the buyer has not realised that the cause of the apparent complaint made by him lies within his own area of responsibility.

9.13 Claims due to defects will lapse within 12 months of the passing of risk. The same applies accordingly to defects of title. This does not apply if and insofar as longer periods apply pursuant to § 438 Para. 1, No. 2, § 438 Para. 3, § 445b Para. 1 and 634a Para. 1, No. 2 of the German Civil Code.

9.14 An exclusion period of 6 months applies to all claims that are not subject to the statute of limitations due to a material defect. It begins with gaining knowledge about the damage and the liable party. This does not apply to claims for damages based on deliberate or grossly negligent actions on our part.

9.15 Recourse claims according to §§ 445a & 478 German Civil Code will only exist if the buyer'sclaim was justified and only to the legal extent, not against it, with regard to settlements that the buyer has not agreed with the seller. Furthermore, they presuppose that the party entitled to recourse has fulfilled its own obligations, especially the obligation to notify us about any defects.

9.16 We shall be liable for damages in cases of the explicit assumption of a guarantee or a procurement risk as well as for intentional or grossly negligent breaches of duty. In the event of gross negligence, the liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health as well as mandatory liability under the Product Liability Act shall remain unaffected. We shall only be liable for material damage and financial loss caused by slight negligence in the event of an infringement of the contractual obligations (i.e. obligations for which fulfilment is essential for the proper implementation of the contract and the fulfilment of which the contractual partner regularly relies on or has to rely on), however this is limited to typical contractual damage that was foreseeable at the time the contract was concluded. This does not imply a change in the burden of proof to the detriment of the buyer.

9.17 If the buyer is entitled to claim damages instead of the service or to withdraw from the contract, he must declare, at our request, within a reasonable period of time whether and how he will make use of these rights. If he does not declare himself in due time or if he insists on the service, he shall only be entitled to exercise these rights after the fruitless expiry of a further reasonable grace period.

9.18 Any further liability for damages other than those provided for in the preceding paragraphs of Section 9 shall be excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from negligence on conclusion of the contract, other breaches of obligation or tortious claims for compensation for property damage (in the application of German law within the meaning of § 823 German Civil Code). This restriction also applies if the buyer demands replacement expenses instead of a claim for damages in place of the service. Further liability due to fraudulent concealment of a defect remains unaffected.

9.19 The above provisions shall also apply to a breach of the product monitoring obligation. The normal service life of the products supplied by us is determined by the information given in the documentation and/or in the supplementary documents.

9.20 The above limitations of liability shall also apply in reason and amount to the benefit of our legal representatives, employees, workers, staff, commercial agents and other vicarious agents.

 

10. Choice of law, place of fulfilment and jurisdiction

10.1 For all disputes arising directly or indirectly from a contractual relationship, the exclusive place of jurisdiction shall be the local court responsible for our registered office, unless the law stipulates a different exclusive place of jurisdiction. However, we are also entitled, at our discretion, to sue the buyer at the location of his registered office.

10.2 The law of the Federal Republic of Germany applies; the validity of the UN Sales Convention is hereby excluded.

10.3 Should individual provisions of the contract or of these terms and conditions be wholly or partially invalid or ineffective, this will not affect the remaining provisions of the contract or these terms and conditions. The invalid provision shall then be replaced by a valid provision whose economic purpose is the closest to that of the invalid provision. The same applies accordingly to any regulatory loopholes. 

 

Issued: 01.10.18

 

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