I. General
1. All transactions within the scope of our business operations are exclusively subject to our general terms and conditions. The buyer’s conditions diverging from or contradicting our terms and conditions shall not be binding, even if we have not expressly objected to them.
2. All offers are nonbinding in regard to price and delivery possibilities. Verbal or telephone agreements and any agreements made by our representatives will not become valid until accepted by us in writing. This is particularly applicable for the assurance of any features. All documents appended to our offers such as illustrations, drawings etc. are only approximately authoritative, unless expressly indicated as binding. They remain our property and may not be made accessible to third parties, in particular to competing companies. Drawings and other documents that are part of the offer shall be promptly returned upon request or if no order is awarded, returned to us at the buyer’s expense.
3. The minimum order value is 250,00 Euro net. Lower order values will be charged with this minimum order value.
The ordering party shall check the correctness of the order confirmation in compliance with his order especially the technical data thereof.
4. Technical alterations, in particular improvements of a minor nature, shall be reserved to the extent that it is reasonable to the customer.
II. Prices and payment terms
1. Our prices shall be in Euro (€) always ex-works and value added tax (by domestic business only) at the rates prevailing. The costs for insurance, packaging and customs fees will be invoiced to the purchaser separately. In this connection it is up to us if we charge either an all-inclusive rate or the effective costs. In the case of apportioned contracts the prices in effect on the delivery date shall apply. An increase in the fee for payments shall be excluded if the buyer is not a merchant and the delivery or service shall be provided within 4 months after conclusion of the contract.
2. We are entitled, to charge 30 % of the agreed price upon conclusion of the contract, further 60% with the notice of readiness for dispatch and the residual payment upon delivery.
3. Our invoices are payable within 30 days after invoice date without deduction or within 8 days after invoice date with a discount of 2% with invoice values up to € 5000,- net; this does not apply to invoice values above € 5000,- net as well as repair and installation services.
Bills of exchange and cheques shall only be accepted on account of payment and also after special written agreement. Bill collection charges and discount charges are for debits of the buyer. We do not accept any liability for the timely presentation of the bill or for the timely lodging of a protest. Payments shall only be deemed made as of the day on which we can dispose of the amount.
4. If, after conclusion of the contract, we gain knowledge of circumstances which cast serious doubt on the creditworthiness of the Buyer, we are entitled, deviating from the agreed payment conditions, to demand at our option, advance payment or provision of security or rescind from the contract.
5. In the event of default of payment the buyer has to pay default interest at the same rate as our bank interest rate, notwithstanding our legal claims for interest payable from the due date. The default interest to be paid by the buyer shall be in the amount of at least 8% above the base interest rate of the Deutsche Bundesbank without proof of the bank interest to be paid by us, unless, the buyer proves to us that the damage incurred by us do not exist or are significantly lower. In the latter case, the buyer is requested to compensate the actual damage. If the customer defaults on payment of an invoice, all his liabilities shall become immediately due. We may suspend the target payment date and demand cash prepayment for outstanding deliveries. The same applies in cases of dishonour of drafts or cheques, suspension of payment, insolvency as well as enquiry of insolvency or composition proceedings on the part of the seller.
6. In the case of foreign orders we only need to act after opening of an irrevocable, free of costs letter of credit at a bank designated by us. The issuance of the letter of credit has to be under the provision that payment will be executed upon delivery or by presentation of the shipping documents.
5. Our agents, representatives and travelling salesmen shall be entitled to accept cash payments and cheques only after written authorization. Offsetting with counter-claims of the purchaser is excluded, unless, they are undisputed or have been recognized by declaratory judgment. If the customer is a merchant, he does not have the right of retention of payment due to counterclaims.
6. Partial deliveries shall be invoiced separately. The above mentioned conditions apply.
III. Delivery and delivery time
1. The method of shipping determines the seller at his sole discretion, but without any warranty for the cheapest shipping. Shipment is carried out at the expense and risk of the customer. We will only insure the goods for dispatch at the request and expense of the purchaser.
The goods shall be stored at the customer’s cost and risk if the shipment becomes delayed without any fault of the Seller or his agents and subcontractors. In any case are the effects of the shipping with the ready for dispatch note on the part of the seller. If the delivery is carried out directly to the end user respectively end customer, the corresponding extra costs have to be paid by the customer. We reject any liability for damages of any kind in regard to such transports, even if transports are made by supplier’s own personal, except in cases of intent or gross negligence on the part of the seller or his agents.
2. Delivery dates are not binding, unless expressly otherwise agreed upon in writing. Partial deliveries shall be permitted. Unforeseen delivery difficulties, especially force majeure, strikes, operational breakdowns in the contractor’s own works or sub-suppliers, transport difficulties, difficulties in the supply of raw material etc. will entail a corresponding delay of the delivery time.
Particular claims for damages are excluded, except the seller or his agents is/are guilty of the delay and the circumstances leading to delay due to intent or gross negligence
The delivery period shall be prolonged accordingly in the event of subsequent amendments to the contract which could have an effect on the delivery time, unless there is no special agreement made between the contracting parties.
IV. Default of acceptance
1. For the duration of the delay in acceptance we shall be entitled to store the delivery items at the customer’s expense. We can also use our shipping agents for storage purposes. The purchaser has to bear the storage costs for the period of any delay of acceptance.
2. We reserve the right to withdraw from the contract and demand compensation for damages for nonperformance. In case that the purchaser continues to refuse acceptance following the expiry of a reasonable deadline set for it, or previously declares seriously and finally that he will not accept delivery, we may withdraw from the contract and demand compensation for nonperformance. Without prejudice to additional claims, we shall without proof of damage, be entitled to claim 25% of the contract price, plus value added tax, as compensation, unless the purchaser proves that the supplier has not incurred any damages or significantly lower damages. In the latter case, the purchaser shall compensate the actual damages incurred.
V. Reservation of title
1. The delivered goods remain our property until full settlement of all claims arising out of the business relationship.
2. Any processing of conditional commodities shall be undertaken by the purchaser for us without any obligations for us resulting therefrom. When processing with other goods, which are not our property, by the purchaser, we are entitled to have the co-property of the good being manufactured in proportion to the invoiced price of the conditional goods to the other goods at the time of processing.
3. The purchaser shall only be entitled and authorized to process the conditional commodity within the scope of ordinary business, a pledging or a chattel mortgage is not permitted. The customer shall immediately notify us in writing of any encroachment on our rights, in particular liens, by third parties. The purchaser shall bear the costs of any intervention, including legal action, to the extent that these are not borne by the third party.
4. Claims by the ordering party due to resell or processing of conditional goods are automatically transferred to us, we hereby accept this assignment. The purchaser has the revocable right to collect these debts as long as he fulfills his obligations to us. The purchaser has to keep the collected amounts separately from his other assets. In the event that our interests are thereby over-secured by more than 20% we undertake to provide an appropriate release. The collection authorization of the purchaser is also cancelled upon occurrence of certain facts that provide sufficient grounds to suspect that the customer is likely to get into financial difficulties or if his assets are otherwise in deterioration. On our demand the purchaser has to provide all necessary details for collection of the debt regarding the assigned claim and to inform the debtors about the assignment.
5. The delivered item must be kept in proper condition for the duration of the reservation of title. Necessary repairs have to be done by the purchaser at the supplier’s workshop or at a workshop named by the supplier, unless this is not possible due to the individual circumstances of the individual case or not reasonable. Technical guidelines, especially operating manuals given by the supplier are to be observed.
6. The purchaser must insure the goods at his own expense until complete payment against loss, damage or destruction in such a manner that the right resulting from the insurance secures our claims. If the purchaser fails to meet this obligation despite our request, or the purchaser does not prove the conclusion of the insurance, we shall be entitled to take out insurance at the costs of the buyer. The customer may be required to provide proof of insurance at any time after delivery.
Insurance benefits are to be used for reconditioning/replacement. The obligation to take out insurance does not apply for goods with a value, without value added tax, lower than € 2.000,-.
7. If the customer gets into default of payment or there are sufficient grounds for suspicion that the purchaser gets/got into deterioration of his assets, or should the customer despite a warning considerably violates his obligations stated under aforegoing paragraph V 5 and 6, then we shall be entitled to take the reserved goods into our possession regardless of deviating mandatory and statutory provisions without this constituting a rescission of the contract. The customer irrevocably declares that he consents to the collection of the goods by a representative of the seller; he gives also consent that the representatives are given required access to his rooms, for the purpose of pick up. During the time in which the returned reserved goods are stored by us, we shall be liable only for acts committed willfully or with gross negligence. The seller is entitled to charge an adequate storage fee for the time that such material is stored. We shall furthermore be entitled to freely sell the returned goods. Any proceeds shall be credited to the customer’s existing liabilities with us; a possible surplus of those proceeds will be paid-off to the customer.
VI. Warranty and liability
1. We guarantee that our products comply with the latest state of the technical art at the time of dispatch. Prerequisite for our guarantee is the strict compliance with our installation, operating and maintenance instructions.
2. The purchaser has to examine the received goods immediately after receipt in regard to completeness, defects and the assured properties. Obvious defects of the delivered goods have to be reported to us in writing (works Adenau) within 10 working days after receipt notwithstanding the statutory shorter time limit for claims. The warranty shall be excluded if such defects are not notified in time.
3. Paragraph VI 2 is valid for non-obvious defects, if the purchaser is a merchant.
4. Moreover, we shall be liable for defects of the goods for 6 months, including the lack of assured properties, provided that the buyer did not perform unauthorized modifications or repairs to the delivered item. The liability for consequential damages shall be excluded.
The purchaser shall grant us reasonable time and give us the opportunity to carry out the execution of all work deemed necessary, as well as for the total or partial replacement during the usual business hours. Special requirements as well as works that are to be performed on Sundays or bank holidays, night time work and at remote locations are to be reimbursed.
We shall be relieved from any liability for defects, if this should be refused. We do not assume any liability for parts which are subject to premature wear due to the quality of material or kind of use. The same applies if improper maintenance, overstraining and misuse are discovered. For goods produced by third parties we pass the liability of the manufacturer on. However, we are liable for the right choice and the calculation of those products. Liability for the functionality of our products is only assumed, if mounting and connection of the delivered goods is done in an appropriate and carefully manner or by us. In the case of a failed replacement delivery and/or rectification of a defect, the customer’s rights are limited to the right to withdraw from the contract with the waiver of all further claims, in particular any claims for compensation. If the customer is a fully qualified merchant, the arising costs to be borne by us according to § 439 BGB are limited to the net order value of the defective good.
5. In the event of a complaint, the customer has to give us on request the opportunity to check the defect on site or by returning the good to our works. The customer has no rights for warranty claims should this obligation be violated, unless the breach of this obligation does not constitute a hindrance or difficulty to check the cause of the damage. The costs for the examination and/or return shall be at our expense, if our delivery was defective. The purchaser shall not be entitled to rectify defects at our expense by third parties without our agreement or because of this claim a price reduction.
VII. General limitation of liability
Rights for compensation, irrespective of their legal grounds, are excluded, unless they are due to willful intent or gross negligence on our part, or by our vicarious agents, or due to infringement of contractual obligations. A liability arising from damage or injury to life, body or health as well as according to the Product Liability Act remains unaffected by these regulations.
VIII. Repairs
Repairs are generally done only in our workshop. We have the right, in the course of the repair work to perform also such works that are deemed necessary or expedient. In case of unusual proportion of such additional repair work, we will inform the customer and execute such work only with his consent.
IX. Loaned device
Loaned devices are to be treated properly and with due care. The due diligence and obligation to take out insurance of goods delivered under retention of title apply mutatis mutandis. If no loan time is agreed upon, we can demand return of the loaned device at any time. In the event of non-compliance with the loan provisions, especially improper handling or not sufficient insurance, we can demand return of the loaned device at any time.
X. Consultation and provision of information
Unless a written contract for consultation and engineering services is expressly entered into, any oral consultation and information provided by us shall not give rise to a consulting contract. Consultation and information services are made according to the best of our knowledge but without any guarantee. By apparently major importance, especially extensively economical importance of the provision of information for the customer, the consultation is carried out as pre-/main-contractually secondary service obligation.
XI. Place of performance, court of jurisdiction
1. The place of performance for all goods and services is our company registered office in Adenau.
2. The applicable court at the place where our company has its seat shall have exclusive jurisdiction over all disputes arising from the contract, including bill of exchange and cheque litigations, as long as the purchaser is a qualified merchant, a legal person under public law or special assets under public law.
XII. Applicable law
The applicable law for the contractual relations between manufacturer and purchaser is that of the Federal Republic of Germany. The UN purchase law (CISG) shall be excluded. Should any provision of these General Terms and Conditions be or become ineffective, all other terms or agreements between manufacturer and purchaser shall not be affected thereby.
As of July 1st, 2014