§ 1 General
- The following terms and conditions are applicable to all offers, supplies and services. They are part of all agreements we conclude with our contractual partners (hereinafter called customers as well) for the supplies or services offered by us . They are also applicable to all future deliveries, services or offers to the customer even if they have not been separately agreed again.
- Customer's or third party's terms and conditions of business shall not be applicable even if we do not object to them separately in individual cases. Even if we refer to a letter containing the customer's or a third party's terms and conditions of business or make a reference to them, this shall not be deemed a consent to the validity of such terms and conditions of business.
§ 2 Offer and conclusion of a contract
- Our offers are unbinding unless they are explicitly identified as binding or contain a certain acceptance term. Conclusions, other agreements and representations shall not be binding without our written confirmation unless both parties sign a contractual document.
- Documents such as figures, drawings, weight or dimensional information shall only be applicable approximately unless their use for the contractual purpose requires an exact conformity. They are not guaranteed quality features but descriptions or identifications of the delivery or service. Deviations customary in trade or deviations resulting from legal regulations or technical improvements as well as a replacement of components by equivalent components shall be admissible unless they affect the use for the contractually intended purpose.
- We reserve the ownership or copyright to all offers and cost estimates submitted by us as well as to all drawings, figures, calculations, brochures, catalogues, models, tools and other documents and aids. The customer shall provide these items neither as such nor their contents for third parties, disclose them, use them themselves or have used them by third parties or reproduce them without our express consent. On our request the customer shall return these items completely to us and destroy possibly existing copies if they no longer need them for normal business or if negotiations do not result in a conclusion of a contract.
- As far as it is a delivery contract which includes several documents, the following priorities are applicable if individual documents contain a contradiction:
- Our order confirmation with all supplements
- Detail drawings
- General arrangement drawings
- Standard sheets
- These General Terms and Conditions of Delivery
- Amendments and modifications to the agreements including these General Terms and Conditions of Delivery shall require the written form to become effective. Except for managing directors or executives holding a power of attorney, our staff members are not entitled to make oral agreements deviating from that. For the observance of the written form a transmission by telecommunication, in particular by fax or e-mail, will suffice if the copy of the undersigned statement is transmitted.
§ 3 Prices and payments
- Unless otherwise agreed, the prices are understood in EURO ex factory including loading but excluding packaging. The value-added tax of the legal amount will be added to the prices for domestic supplies and clearances as well as charges and other public dues in case of export delivery. If, in case of foreign-related business, the goods remain within the country or no evidence on export is provided, we may elect to charge the value-added tax of the legally valid amount and other costs. All other taxes, charges and other dues imposed outside the Federal Republic of Germany shall be borne by the customer.
- If a substantial change of important cost factors such as cost for wages, primary material or trade occurs between the conclusion of the contract and the delivery date, the parties shall agree on a reasonable adjustment of the agreed prices according to the influence the important cost factors.
- Unless otherwise agreed expressly, payments shall be made net cash within 30 days after the date of the invoice without any costs. The reception at our company will determine the date of payment. If the customer does not pay when due, interests of 5% p.a. shall be paid for the outstanding amounts from the due date; this shall not affect the claim for higher interests and other damage in case of a default. Possibly granted price reductions or discounts will be inapplicable in case of a default of payment.
- Payments by drafts which are accepted by us only after an express agreement and on account of payment shall not justify a claim for discount.
- We are entitled to provide outstanding deliveries or services against advance payment or a security if - after the conclusion of the contract - we get to know circumstances which may adversely affect the customer's creditworthiness considerably and endanger the payment of our unsettled claims by the customer from the relevant contractual relationship (including from other individual orders to which the same general contract is applicable).
- The offsetting of customer's counterclaims or a retention of payments because of such claims shall only be allowed if such counterclaims are undisputed or have been established as final and absolute.
- As far as we advise the readiness for shipment of the goods and this is not before the contractually agreed date, we may elect to invoice our service. In case of a readiness for shipment prior to the contractually agreed date the payment term shall start from the time of the contractually agreed date.
§ 4 Delivery times, delivery delays
- The agreed delivery time starts on the dispatch of the order confirmation and shall be applicable on the condition that all details of the contract have been clarified and the customer has met their obligations on time. The reception of an agreed downpayment by us on time shall be another condition for the start of the delivery time. Delivery time shall be deemed complied with if the goods have left the factory by its expiration or readiness of delivery has been reported.
- The delivery time shall reasonably be extended on the occurrence of unexpected events, which we could not prevent despite all reasonable carefulness according to the circumstances and have a considerable influence on our obligations. This especially includes war, official interventions, operational faults, labour disputes and delays in the delivery of operating material or primary material. If the delivery is impossible or unappropriate for us by obstructions, we may withdraw from the contract. We commit ourselves to immediately inform the customer about the occurrence of an unexpected event.
- If the delivery time is extended according to Sect. 2, the customer may withdraw from the contract immediately by a written notification to us if an acceptance is not appropriate for them because of the delay.
- We shall be entitled to partial deliveries, if
- the partial delivery can be used by the customer within the scope of the contractual purpose;
- the delivery of the remaining ordered goods is ensured;
- there are no considerable extra expenses or extra costs for the customer (unless we agree to bear these costs
- If we are in default with delivery or a service or a delivery or service will become impossible for us whatever the reason may be, our liability for damages shall be limited according to § 9 of these General Terms and Conditions of Delivery.
- If a delivery is delayed by a reason the customer is responsible for, we may elect to store the goods at our reasonable discretion and take all measures for the preservation of the goods at our reasonable discretion and at the expense of the customer.
§ 5 Risk transfer, shipment
- Risk shall be transferred to the customer not later than on the handing-over of the delivery item (where the start of loading is decisive) to the forwarder, carrier or a third party entrusted with the shipment. This shall also be applicable if partial deliveries are made or we accepted other services (e.g. shipment or installation).
- In case of delivery free destination the unloading and removal of the packaging material shall not be included in our services.
- If the dispatch is delayed for reasons the customer is responsible for, the risk will be transferred to them from the day of readiness for shipment as far as we advise the customer of the readiness for shipment.
- The customer shall bear the storage costs after the risk transfer. If we have to store the goods, the storage costs amount to 0.25% of the invoice amount for the delivery items to be stored for each completed week. The claim for and evidence of other or lower storage costs is reserved.
- We will insure the shipment against theft, breakage, transport, fire or water damage or other insurable risks only on the express request of the customer.
- The customer shall accept the goods event if they have minor defects, regardless of the rights from §7.
- If an acceptance has been agreed between the parties, a report shall be prepared and signed by the parties on the last day of acceptance. Minor defects shall not entitle the customer to refuse an acceptance. If the contract provides for an acceptance of the goods prior to a dispatch, we will send a notification of the acceptance date on time. If the customer is responsible for a non-compliance with the acceptance date, the goods shall be deemed accepted.
§ 6 Reservation of ownership
- The following agreed reservation of ownership is designed for securing all existing current and future claims against the customer from the supplier relationship with respect to plant equipment products (including balance claims from mutual accounts limited to this supplier relationship).
- The goods delivered by us to the customer shall remain our property until the complete payment of all secured claims. The goods as well as the goods substituting them and covered by the reservation of ownership according to the following provisions are hereinafter called "reserved goods".
- The customer may process and sell the reserved goods up to the point of instigation of recovery (Section 9) in normal business operation. Pledges and collateral assignments shall no be allowed.
- If the customer processes the reserved goods, it is agreed that the goods shall be processed on our behalf and for our account as a manufacturer and we immediately acquire the property or - if processing is effected for materials of several owners or the value of the process item is higher than the value of the reserved goods - the co-ownership (fractional ownership) to the newly created item in proportion of the value of the reserved goods to the value of the newly created item. If no such acquisition of ownership occurs, the customer shall assign their future property or - in the above-mentioned relation - co-ownership to the newly created item as a security to us already now. If the reserved goods are connected or inseparately mixed with other items to form a uniform item or are to be regarded as a main item, we shall - as far as main item belongs to us - assign the co-ownership to the main item in the proportion as mentioned in Sentence 1 to the customer proportionally.
- If the reserved goods are resold, the customer shall assign claims arising from this against the buyer - in case of our co-ownership to the reserved goods proportionally according to the co-ownership fraction - to us as a security. The same shall apply to other claims which replace the reserved goods or arising otherwise with respect to the reserved goods such as rights to insurance benefits or claims from unlawful acts in case of a loss or destruction. We authorize the customer revocably to collect the claims assigned to us on their own behalf. We may revoke this direct debiting autorization only in case of a utilization.
- If third parties take hold of the reserved goods, in particular by pledging, the customer shall immediately inform them about our property and inform us about this so that they can exercise their property rights. If the third party cannot pay the judicial and extra-judicial costs incurring in this connection, the customer shall be liable to us for that.
- If the value of the existing securities (reserved goods as well as the items or claims replacing them) exceeds our claims by a total of more than 20%, we shall be obliged to release securities at our choice on the customer's request.
- As far as the validity of the reservation of ownership requires special conditions outside the Federal Republic of Germany, the customer shall make sure that a corresponding security is granted to us.
- If we rescind the contract (utilization) because the customer is in breach of contract - in particular payment delay - we are entitled to request the restitution of the goods.
§ 7 Defects of the goods, warranty
- The warranty period shall be one year from the transfer of risk or - if an acceptance is required - from acceptance. Once an agreed acceptance has been completed, a complaint of defects identifiable during the acceptance shall be excluded.
- The delivered items must carefully be inspected immediately after delivery to the customer or the third party designated by the customer. With respect to obvious defects or other defects which could have been identified in an immediate and careful inspection, they shall be deemed accepted by the customer if we do not receive a written complaint within seven business days after delivery of a written complaint by the customer. As far as other defects are concerned, the delivery items shall be deemed accepted by the customer unless we receive the complaint within seven workdays after the point of time when the defect appeared; if the customer could have identified the defect at an earlier point of time during normal use, this earlier point of time shall be applicable to the start of the complaint period. A complained delivery item shall be returned to us c.p. (carriage paid) on our request. If the complaint is justified, we will reimburse the costs of the most favourable forwarding route; this shall not apply if costs are increased because the delivery item is in another place than the place for the intended use.
- In case of material defects we may first elect to rectify the defects or provide a substitute delivery within a reasonable period of time. In case of failure, e.g. the impossibility, inappropriateness, refusal or unreasonable delay of the rectification or the substitute delivery, the customer may withdraw from the contract or reduce the purchase price reasonably. The customer shall not remedy the defects themselves or have them eliminated by third parties and claim a reimbursement of the required costs with the exception of urgent cases when the operational safety is endangered or unproportionally large damage has to be avoided - of which we have to be informed immediately - or if our rectification of the defect is delayed.
- Warranty shall be null and void - subject to Section 3, sentence 3 - if the customer modified the delivery item or has it modified by third parties without our consent, thus making a rectification of the defects impossible or aggravating it unreasonably. In any case, the customer shall bear the extra costs for the rectification of the defect arising from the modification.
§ 8 Protective rights
- Subject to this §8, the delivery item shall be free of industrial property rights or copyrights of third parties. Every contractual partner will immediately inform the other contractual partner in writing if claims are lodged against them because of a violation of such rights.
- If the delivery item violates an industrial property right or copyright of a third party, we may elect to modify or replace the delivery item at our expense such that rights of third parties are no longer violated and the delivery item continues to perform the contractually agreed functions or procure the right of use for the customer by concluding a license contract. If we fail to do so within a reasonable period of time, the customer may elect to withdraw from the contract or reduce the
purchase price reasonably. Possible damage claims of the customer shall be subject to the restrictions of § 9 of these General Terms and Conditions of Delivery.
- In case of rights violated by products of other manufacturers delivered by us we may elect to assert our claims against the manufacturer and subsupplier for the customer's account or assign them to
the customer. Subject to this §8, claims against us shall exist in these cases only if a judicial enforcement of the above-mentioned claims against the manufacturer or subsupplier was unsuccessful or is hopeless, e.g. in case of an insolvency.
§ 9 Liability
- Subject to this §9, our liability for damages shall be limited whatever the reason may be, in particular from impossibility, default, defective or wrong delivery, violation of the contract, violation of obligations during contract negotiations and unlawful acts, as far as this depends on a fault.
- We shall not be liable for slight negligence of our executive body, legal representatives, employees or other agents unless essential obligations are violated. Essential are: the obligation with respect to a timely delivery and installation of the delivery item, the absence of defects which affect its functionality or usefulness more than only insignificantly as well as consultation, protection and duties of care which are to make sure that the customer can use their delivery item as contractually agreed or protect life and limb of the personnel of the customer or the property from considerable damage.
- As far as we are basically liable for damages pursuant to §9, Section 2, this liability shall be limited to damage which we expected as a possible consequence of a violation of the contract during its conclusion or should have expected by using customary carefulness. Indirect damage and consequential damage as a consequence of defects of the delivery item shall additionally be eligible for compensation only as far as such damage can typically be expected during the intended use of the delivery item.
- In case of liability for ordinary negligence, the duty to pay compensation for property damage and other property damage resulting from it shall be limited to an amount of EUR 50,000 for each case of damage even if a violation of material duties exist.
- The above-mentioned exclusions from and limitations of liability shall apply in favour of our executive bodies, legal representatives, staff members and other agents to the same extent.
- As far as we provide technical information or give advice and this information or advice is not included in the owed scope of services as a contractually agreed, this shall be free of charge, excluding any liability.
- The limitations of this §9 shall not be applicable to our liability for wilful conduct, guaranteed quality features, injuries to the life, body or health or according to the Product Liability Act.
§ 10 Place of performance, place of jurisdiction, governing law
- Bergisch Gladbach shall be the place of performance for all liabilities from this contract.
- Bergisch Gladbach shall be the place of jurisdiction for all disputes arising from the relationship between us and the customer – even for suits upon bill or check-based summary actions - if the customer is a general merchant, a legal person under public law or public special assets or has no general place of jurisdiction within their country. We shall also be entitled to file action at the customer’s headquarters. Mandatory legal provisions regarding exclusive places of jurisdiction shall not be affected by this provision.
- The contractual relationships shall exclusively be subject to the legislation of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods as of 11 April 1980 (CISG) shall not be applicable.
- If the contract or the General Terms and Conditions for Delivery have loopholes, those legally effective provisions shall be deemed agreed for eliminating those loopholes which the parties to the contract would have agreed according to the economic objectives of the contract and the purpose of the General Terms and Conditions for Delivery, if they had known the loophole.