General Terms and Conditions
1. General
These General Terms and Conditions of Delivery apply to all our deliveries and services. Purchasing or general terms and conditions and other conditions of the customer shall only apply insofar as we have expressly agreed to them in writing.
The following conditions apply only to entrepreneurs within the meaning of §§ 310, 14 BGB (German Civil Code).
2. Conclusion of Contract / Agreements
Agreements and conclusions, even if mediated by our representatives or employees, shall only become binding upon our written confirmation.
3. Documents Provided
We reserve the right of ownership and copyright to all documents provided to the customer in connection with the placing of the order – also in electronic form – such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our written consent to do so. If we do not accept the customer’s offer, these documents must be returned to us immediately.
4. Delivery and Delay, Reservation of Performance
Every delivery obligation is subject to our correct and timely self-delivery, unless we are responsible for the incorrect or untimely self-delivery. If we are unable to supply the customer due to incorrect or untimely self-delivery, we will notify the customer of this circumstance immediately upon becoming aware of it.
Partial deliveries are permissible for us as long as they are reasonable for the customer.
In the event of delivery delays due to force majeure or similar events, in particular labor disputes, machine breakdowns, transport disruptions and the like, we shall be granted a reasonable extension of the delivery period according to the circumstances. If the impediment to delivery lasts longer than 90 days, we shall be entitled to withdraw from the contract in whole or in part or to demand a reasonable adjustment of the contract.
Insofar as delivery is impossible and we are responsible for the impossibility, the customer’s claims for damages shall be limited to 5% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in cases of intent, gross negligence or injury to life, body or health; this shall not entail a change in the burden of proof to the detriment of the customer. The customer’s right to withdraw from the contract remains unaffected.
The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international foreign trade regulations, nor any embargos or other sanctions.
If dispatch or delivery is delayed at the customer’s request by more than one month after notification of readiness for dispatch, the customer may be charged storage fees of 0.5% of the price of the items of the deliveries for each further month commenced, but not exceeding 5% in total. The contracting parties shall be free to prove higher or lower storage costs.
5. Installation and Assembly
Assembly and disassembly work on the goods, e.g. on systems, are only owed if separately agreed.
Unless otherwise agreed in writing, the customer shall bear all earthworks, construction work and other ancillary work at his own expense and carry them out / have them carried out in good time. He shall be responsible for providing the necessary items and materials for assembly and commissioning, such as scaffolding, lifting equipment and the like, as well as energy and water including connections, heating and lighting. Sufficiently large, dry and lockable rooms for the storage of machine parts, material and tools must be provided at the assembly site, as well as adequate work and recreation rooms for the personnel. Any necessary information on the location of concealed power, gas, water pipes or other installations, as well as necessary static data, must be provided to us without request.
If assembly and/or disassembly work is delayed due to circumstances for which we are not responsible, the customer shall bear the costs of waiting time and additional travel costs of the assembly personnel to a reasonable extent.
If we demand acceptance of the service after completion of our work, the customer must accept it within two weeks. Otherwise, acceptance shall be deemed to have taken place, unless there are significant defects. Acceptance shall also be deemed to have taken place if the delivery item has been put into operation – if necessary after completion of an agreed test phase.
6. Prices / Payment
Unless otherwise agreed in writing, our prices valid on the day of delivery shall apply.
Unless otherwise agreed in writing, our prices are ex works plus the costs for packaging and transport as well as statutory value added tax at the rate applicable at the time of delivery. All other ancillary costs, in particular public charges and customs duties, which arise from the delivery, shall be borne by the customer. This shall not apply if mandatory statutory provisions conflict with this.
If we have undertaken the installation, assembly or disassembly and nothing else has been agreed, the customer shall bear all necessary ancillary costs such as travel and transport costs as well as allowances in addition to the agreed remuneration.
Unless otherwise agreed in writing or stated in our invoices, the invoice amount is due immediately without deduction of discount. In the event of default of payment, the customer shall pay interest at the statutory rate. The customer shall only be entitled to a right of retention and/or a right of set-off insofar as his counterclaims are undisputed or have been legally established.
If it becomes apparent after conclusion of the contract that our claim for payment is jeopardized by the customer’s lack of performance, the customer defaults on payment with a considerable amount or other circumstances occur which indicate a significant deterioration in the customer’s ability to pay, we shall be entitled to the rights under §§ 321 et seq. BGB.
7. Transfer of Risk/Shipment
If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This shall apply regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
8. Warranty, Warranty Period
8.1 Warranty rights of the customer presuppose that the customer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). 8.2 Defects must be reported in writing without delay. In the event of a justified, timely notice of defect, we may, at our discretion, remedy the defect or deliver defect-free goods. If subsequent performance fails or is refused, the customer may withdraw from the contract or reduce the price after the unsuccessful expiry of a reasonable period of time. If the defect is not significant or the goods have already been processed, he shall only be entitled to reduce the price.
Claims for subsequent performance shall become statute-barred 12 months from the statutory commencement of the limitation period; the same shall apply to withdrawal and reduction. This period shall not apply insofar as the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 (buildings and objects for buildings), 479 para. 1 (right of recourse) and § 634 a para. 1 no. 2 (building defects) BGB, and also in the event of intent, fraudulent concealment of the defect and non-compliance with a guarantee of quality. The statutory provisions on suspension, interruption and recommencement of the limitation periods shall remain unaffected.
In the event of justified notices of defects, insofar as these are not statute-barred, payments by the customer may only be withheld insofar as they are in reasonable proportion to the defects that have occurred.
Warranty claims are excluded in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of faulty handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or that occurs due to special external influences that are not presupposed according to the contract, as well as in the event of non-reproducible software errors. Furthermore, warranty claims shall not exist for modifications or repair work improperly carried out by the customer or third parties.
If the object of the contract is subsequently moved by the customer to a place other than the place intended under the contract, claims of the customer due to the expenses required for subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as they are increased as a result.
9. Claims for Damages
Claims for damages and other further claims of the customer, regardless of the legal grounds, are excluded. This shall not apply if we are mandatorily liable, e.g. under the Product Liability Act, in the event of intent or gross negligence, injury to life, body and health or breach of essential contractual obligations (cardinal obligations). However, in the event of culpable breach of an essential contractual obligation and in cases in which we are only accused of negligent breach of contract, our liability for damages shall be limited to compensation for the typical, foreseeable damage. The foregoing provisions shall not entail a change in the burden of proof to the detriment of the customer.
Insofar as our liability is excluded or limited, this shall also apply to the liability of our employees, representatives and vicarious agents.
10. Retention of Title
The delivered goods shall remain our property until all claims arising from the business relationship with the customer have been fulfilled, regardless of the legal grounds. The retention of title shall also remain in effect if individual claims are included in the current account and the balance has been drawn or acknowledged.
The customer is obliged to treat the contractual object with care as long as ownership has not yet passed to him. If maintenance and inspection work has to be carried out, the customer must carry this out at his own expense in good time. As long as ownership has not yet passed, the customer must notify us immediately in writing if the delivered item is seized or subjected to other interventions by third parties. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
As long as the customer fulfills his obligations to us and is not in default, he is entitled to resell the goods delivered under retention of title in the ordinary course of business and subject to retention of title. Pledging or transfer by way of security is prohibited. The customer hereby assigns to us his claim from the resale of the reserved goods in the amount of the value of the delivery. We accept this assignment. In the event of the sale of goods in which we have co-ownership, the assignment of the claim shall apply in the amount of the value of the co-ownership share. At our request, the customer is obliged to inform his customers immediately of the assignment to us and to provide us with the documents necessary for collection.
The customer is authorized by us, within the framework of proper business transactions, to collect the claims assigned to us from the resale. Collected payments from the resale are to be held in trust for us and to be remitted to us. If there is an important reason, in particular in the event of default of payment, cessation of payments, opening of insolvency proceedings or justified indications of excessive indebtedness or imminent insolvency of the customer, we shall be entitled to revoke the authorization to collect.
Pledges, transfers by way of security and any assignment are inadmissible. We must be notified immediately of any access by third parties to the reserved goods so that we can protect our rights. We will release securities granted to us by our customer if the realizable value of the existing securities exceeds the secured claims in total by more than 20%.
11. Place of Performance, Jurisdiction, Applicable Law
The place of performance is agreed to be Iserlohn.
The exclusive place of jurisdiction for customers who are merchants, legal entities under public law or special funds under public law shall be the court responsible for the registered office of our company. However, we are also entitled to sue the customer at the court responsible for him.
German law shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods is excluded.
12. Binding Nature of the Contract
Should any of the aforementioned conditions be or become invalid or should a loophole become apparent, the validity of the remaining provisions shall not be affected thereby. Rather, the contracting parties shall endeavor to replace the invalid provision with a valid provision that comes as close as possible to the invalid provision in legal and economic terms. Otherwise, the law shall apply.
