These Terms and Conditions apply to all quotations, contracts, deliveries and other services, including consultancy services, in business transactions with non-consumers within the meaning of section 310 (1) BGB (German Civil Code) and become part of the contract. They shall also apply to all future business relationships even if they are not explicitly agreed as such.
We herewith explicitly prohibit any general terms and conditions proposed by the purchaser that deviate from or supplement these. They shall not apply even if the purchaser has based his order or other declaration upon them.
2 Quotations, orders and their conclusion
The quotations included in our sales documentation and brochures and available on the Internet are always non-binding, i.e. are only to be understood as a request to submit a quotation. Our quotations are also non-binding unless designated as binding in writing. Offers that do not include an acceptance period also only constitute requests to submit a quotation.
A contract is only deemed to have been concluded if we confirm acceptance in writing or deliver the goods ordered on receipt of an order or a commission. If detailed, time-limited quotations are submitted, the quotation may only be accepted within the deadline.
All technical documentation shall remain our intellectual property. They may be used for servicing and operation if they have been labeled to this effect by us.
Measurements, weights, technical data, illustrations, drawings and other documents that are part of our non-binding quotations shall remain our property and are only indicative. They may only become the binding content of any contract if confirmed explicitly by us in writing. Modifications to the design and changes prescribed by law remain explicitly reserved. Details in brochures and/or operating instructions are non-binding, meaning that they are not regarded as warranted characteristics or guarantees. The person placing the order is responsible for checking the suitability and usability of our goods himself.
The person placing the order must draw our attention to special legal, official and other provisions applicable to his business, which refer to the execution of the delivery; assembly, operation and the prevention of disease and accidents.
If we become aware of circumstances, which cast doubt on the purchaser’s ability or willingness to pay once the contract is concluded, we may make additional deliveries dependent on an advance payment for the goods by the purchaser. We can set the purchaser an appropriate period for the advance payment for the goods and withdraw from the contract if the advance payment is not received by us on time. If we have already supplied the goods in whole or in part, the purchase price attributable to the part supplied will be due immediately without any deduction notwithstanding any agreed payment terms. Doubts about the purchaser’s ability to pay will be cast by, among other factors, an application being made to initiate insolvency proceedings against his assets or payments to us or third parties not being received on time.
3 Delivery periods and delay
Unless we have made a commitment that is explicitly described as binding, a delivery period is only deemed to have been agreed approximately. It will start on the date all technical and other details of the order are clarified, all requisite documents are produced and, if applicable, the agreed advance payment is made. It shall be extended by the period in which the purchaser is delayed with his contractual obligations - including those arising from other contracts, if the business relationship is ongoing. The delivery period shall be complied with if the goods have been made available in the factory by the date on which the period ends. If it has been agreed that the goods will be dispatched, the delivery period is complied with when the goods have been transferred to the haulage company.
An execution or delivery period will be extended - even within a delay - appropriately in the event of the purchaser requesting changes or in the event of force majeure and all unforeseen obstacles occurring once the contract is concluded, for which we are not responsible (including, in particular, breakdowns, strikes, lockouts or disruption of traffic routes), if such obstacles can be demonstrated to have considerable influence on the execution or delivery envisaged. This is also the case if these circumstances occur at our pre-suppliers, component suppliers or subcontractors. We shall notify the purchaser of obstacles of this kind starting and ending as soon as possible. The purchaser may also ask us to declare whether we wish to withdraw or deliver within an appropriate period. If we do not declare without delay, the purchaser may withdraw. In these cases, claims for damage are excluded.
With regard to deliveries made on time, we shall only be liable for our own fault and that of our vicarious agents. We are not responsible for the fault of our pre-suppliers. However, we undertake to assign possible claims for compensation against pre-suppliers to the purchaser.
In the event of any delays in delivery attributable to us, the purchaser is obliged to declare, at our request, within an appropriate period whether he still insists on delivery or will withdraw from the contract because of the delay and/or – if at all possible - he will demand compensation instead of performance.
In the event of a possible delay in delivery, claims for compensation of any kind are precluded unless based on intent or gross negligence.
4 Dispatch, transfer of risks, packaging
Goods will be dispatched at the cost of the purchaser. Risk shall be transferred to the purchaser when the goods are loaded, even if carriage-paid delivery is agreed and/or the goods are dispatched using our own vehicles. We are not obliged to arrange transport insurance. Unless agreed otherwise, we are free to choose the shipping route and means of shipment. Additional costs caused by particular shipping requests made by the purchaser shall be borne by him. We must be notified of such particular requests, including those relating to insurance, such as transport insurance, with the order.
Unless explicitly agreed otherwise in writing, we are entitled to make part-deliveries to a reasonable extent.
The purchaser must address any complaints associated with the transport to the final freight carrier immediately he receives the delivery or shipping documents.
If the dispatch or an agreed collection is delayed at the request of or through the fault of the purchaser, the goods shall be stored at the cost and risk of the purchaser. In this case, notification of the readiness for dispatch shall equate with dispatch. The invoice shall be due as soon as the goods are placed in storage. If the goods are stored in the factory, we shall charge at least 0.5 % of the amount of the invoice relating to the delivery being stored each month.
The purchaser shall only be provided with additional packaging as a loan. The purchaser must notify us of the return of packaging units within three weeks. If he fails to do so, we are entitled from the third week to demand 20 % of the purchase price (limited, however, to the full purchase price) for each week as a rental fee or to invoice him for the value of the packaging, payment of which will be due immediately the invoice is received. We shall take back transport packaging at the expense of the purchaser unless the purchaser has waived returning it. Old devices shall be disposed of in accordance with EAR guidelines (WEEE).
5 Prices and payment
Unless stated otherwise, prices are net “ex factory” or “ex stock” without any deductions. All ancillary costs, such as freight, insurance, export costs, transit costs, import costs and other permits as well as certification shall be borne by the purchaser and will be invoiced separately. The purchaser also has to pay all taxes, levies, charges and customs duties arising. The statutory value added tax is not included in our prices and is shown separately in the invoice in the amount payable by law on the date the invoice is issued.
If the goods or service are to be supplied 4 months after the contract is concluded and fixed prices were not agreed, the contracting parties agree to renegotiate the prices, if costs, wages etc. have changed. In such a case, we are entitled to amend the price appropriately.
Unless agreed otherwise, our deliveries of goods and services are payable within 14 days. Discounts and longer payment terms are only granted on a case-by-case business following special agreement in each case, however, payment by bills of exchange will not be granted under any circumstances. Payments are always used to settle the oldest due debts plus any debit interest incurred thereon. Discounts shall not be granted if the purchaser is in arrears in paying for previous deliveries.
Payments using the check/bill of exchange procedure always require special agreement. Credits via bills of exchange and checks are effected less expenditures for value on the date on which we can make use of the proceeds.
Our claims are due immediately regardless of the term of any bills of exchange received and credited, if the payment conditions are not complied with or we become aware of facts that lead us to infer that our purchase price claims may be jeopardized by the purchaser’s inability to pay.
If the purchaser defaults on his payments or fails to redeem a bill of exchange when it falls due, we are entitled to take back the goods, to enter the purchaser’s business, if applicable, and take the goods away. We can also prohibit the sale and removal of the goods supplied. Taking back the goods does not constitute a withdrawal from the contract unless the German Consumer Credit Act applies.
In cases of paragraphs 5.05 and 5.06, we can revoke the direct debit authorization (paragraph 6.05) and demand payment in advance for any outstanding deliveries. However, the purchaser can avert this and the legal consequences mentioned in paragraph 5.06 by providing collateral in the amount of our claim for payment that is in jeopardy.
Default interest will be charged at 9 percentage points above the base rate (section 247 BGB). It must be set higher if we provide evidence of a liability with a higher interest rate. In addition, we have a claim to payment of a lump sum of EUR 40.00. This is also the case for payments on account or installment payments.
A refusal to pay or any retention of payment is precluded if the purchaser was aware of the defect or other reason for complaint. This is also the case if he remained unaware of it as a consequence of gross negligence unless we concealed the defect or other reason for complaint fraudulently or assumed a guarantee for the item’s quality.
Set-off is only permissible with counterclaims that are undisputed or have been established in law.
A right of retention from previous or other transactions during the ongoing business relationship cannot be asserted. Apart from that, payment may only be retained because of defects and other complaints to an appropriate extent.
6 Retention of title
We shall retain title to the goods until the purchase price is paid in full (reserved goods). Title to the goods supplied will only be transferred to the purchaser if he has fulfilled all his obligations from the business relationship including ancillary claims, claims for compensation and redemptions of checks and bills of exchange. In the case of the check/bill of exchange procedure, the retention of title shall not lapse in all its forms listed here on payment of the check but only on redemption of the bill.
In the case of goods, which the purchaser purchases from us within the framework of an ongoing business relationship, we shall retain title until all our claims from the business relationship, including claims arising in future - even from contracts concluded simultaneously or later - are settled. This is also the case if individual or all claims were included in a current invoice and the balance has been established and recognized.
If a liability under a bill of exchange is established by us in connection with payment of the purchase price by the purchaser, the retention of title shall not lapse before the bill is redeemed by the purchaser as the drawee. If payment by the purchaser is delayed, we are entitled to take back the goods following a reminder and the purchaser is obliged to hand them over.
If the reserved goods are combined with other goods by the purchaser, we shall have joint title to the new item in the proportion of the invoice value of the reserved goods to the invoice value of the other goods and the processing value. If our title lapses as a result of the combination, the purchaser shall transfer the title he has to the new item in the amount of the invoice value of the reserved goods at the time the contract is concluded and shall keep it safe for us free of charge. The ownership rights resulting hereafter shall count as reserved goods within the meaning of No. 6.01.
The purchaser must inform us immediately of possible access by third parties to the reserved goods and the assigned claims. He may sell the reserved goods only in customary business transactions on his normal business terms, and as long as he is not in default, provided the claims from the resale are transferred to us in accordance with the following No. 6.05 to 6.06. He is not entitled to dispose of the reserved goods otherwise.
The purchaser’s claims from a resale of the reserved goods are already assigned. We accept this assignment. They serve to the same extent as the reserved goods. If the reserved goods are sold by the purchaser together with other goods not supplied by us, the claim from the resale is assigned in the proportion of the invoice value of our goods to the other goods sold. When goods in which we have co-ownership shares pursuant to No. 6.03 are sold, a fraction corresponding to our ownership share will be transferred to us.
The purchaser is entitled to collect claims from the resale unless we revoke the direct debit authorization in the cases mentioned in section 5.07. At our request, he shall immediately inform his purchaser of the assignment to us – unless we do so ourselves - and give us the information and documentation needed for collection, which may include providing details of the names and addresses of debtors. The purchaser is not entitled in any case to assign the claim further.
We undertake, at the request of the purchaser, to release the collateral to which we are entitled, at our option in as much as its realizable value exceeds the claims for which collateral must be provided by 20 %.
The purchaser is obliged to insure the goods supplied by us against the risks of theft, fire and damage at his own expense until payment in full. In this respect, the purchaser shall transfer all claims against the insurance policy relating to our goods to us. We herewith accept the transfer.
7 Complaints, warranty and recourse
We shall only be liable for defects within the meaning of section 434 BGB as follows:
The purchaser must examine the goods received for completeness, transport damage, obvious defects, quality and their characteristics without delay. Having examined the goods, the purchaser must notify us without delay of any defects and deviations that are apparent from reasonable examinations; he must notify us of defects and deviations that are not apparent here immediately he discovers them or becomes aware of them in writing giving details of the type and extent of the defects and deviations. If the purchaser omits to notify us promptly, the goods supplied will be deemed to be approved unless we have concealed the defect fraudulently.
If the purchaser omits to inspect the characteristics of relevance for the intended use before the goods are installed or affixed on a random basis at least (for example, using functional tests or test installation), he will breach the normal duty of care required in trading to a significant degree (gross negligence). The purchaser must reimburse us for possible damages and expenses, which we incur as a consequence of not notifying us immediately, irrespective of our other rights.
Further obligations incumbent upon merchants pursuant to sections 377, 378 HGB (German Commercial Code) shall remain unaffected. We are not obliged to provide a warranty, if the purchaser has failed to complain in writing about an obvious and/or recognized defect in good time.
If the purchaser establishes defects in the goods, he may not dispose of them, i.e. they may not be commissioned, processed or resold until agreement on the handling of the complaint has been reached.
The purchaser is also obliged to give us the option of determining the defect, which is the subject of the complaint, on the spot or, at our request, making the subject of the complaint available; the warranty shall lapse if the defects have been culpably concealed.
We shall not assume any warranty for damage, which is attributable to the goods being used unsuitably or improperly, being assembled erroneously, not by us, being commissioned, amended or repaired erroneously, being handled erroneously or negligently or natural wear and tear. A warranty is only provided for the use envisaged in the operating instructionst.
In the case of justified complaints, we are entitled, taking account of the type of defect and the purchaser’s justified interests, to specify the type of rectification (replacement, repair) unless we are entitled to refuse rectification on the basis of legal regulations – especially if the costs are disproportionate. The purchaser must grant us an appropriate period for rectification for each individual defect. Replaced goods (including parts) are our property and must be returned to us. Any reduction in the purchase price or withdrawal from the contract by the purchaser is ruled out during any rectification. A repair is deemed to have failed after the second unsuccessful attempt If rectification has failed or we have refused rectification unjustifiably by and large, the purchaser may, at his option, demand a reduction in the purchase price (decrease) or declare that he is withdrawing from the contract.
The purchaser must inform us immediately of any warranty claim involving a consumer within the meaning of section 13 BGB.
Claims by the purchaser based on material defects shall lapse in a year from the start of the statutory period unless the law prescribes longer periods pursuant to sections 438 (1) No. 2 BGB (buildings and items for buildings) and section 634a (1) No. 2 BGB (structural defects) or 7.11 prescribes otherwise. Complaints about defects by consumers as well as claims for compensation because of injury to life, limb or health and/or claims for compensation based on damage caused by us through gross negligence or intent are also excluded from this; the statutory limitation periods also apply in this respect in these cases.
The necessity of expenses for the removal of defective goods and the installation of defect-free goods must be demonstrated and evidenced by the customer. The costs actually incurred as a result of the measure undertaken reasonably must be verified in a comprehensible statement for this purpose. If the costs of rectification are disproportionate according to the specific circumstances of the case, we may refuse to reimburse these expenses. Section 475 (4) shall remain unaffected (consumer goods purchase). Costs are disproportionate, in particular, if the costs of rectification compared with the value of the goods in a defect-free condition or in comparison with the significance of the defect are disproportionate. This is regularly the case if the total costs required for rectification exceed 150 % of value of the goods invoiced or 200 % of the reduction in the value of the goods caused by the defects.
If the quality and/or quantity of the goods supplied by us deviates only insignificantly from the agreed quality and/or quantity, the purchaser can only demand rectification or a reduction if 7.08 applies to the claim for rectification. This is not the case if the final contract in the delivery chain is a consumer goods purchase.
The purchaser’s rights of recourse pursuant to sections 445a, 445b BGB (recourse by the seller) only apply in as much as the purchaser has reached agreements with his purchaser that go beyond the legal complaints about defects. However, the purchaser’s claims to recourse pursuant to sections 445a, 445b BGB only apply up to a ceiling of 150 % of the invoiced value of the goods; this does not apply in the event of recourse where the last contract in the delivery chain is a consumer goods purchase.
The limitation period for the purchaser’s rights of recourse pursuant to sections 445a, 445b BGB amounts to one year from the start of the legal limitation period unless the last contract in the delivery chain is a consumer goods purchase. In this case the statutory limitation period applies.
The warranty for rectifications amounts to 3 months, for replacements 6 months but will run until the end of the original warranty period for the goods at least.
Section 8 will apply to claims for compensation (general limitation on liability).
8 General limitation on liability
Claims for compensation for loss and expenses (hereinafter claims for compensation) are excluded, regardless of any legal reason, especially for breach of obligations from a contractual relationship and from unlawful action. This does not apply in cases where a guarantee has been assumed or procurement risk is involved. This does not apply either if our liability is compulsory, such as under the German Product Liability Act (Produkthaftungsgesetz), in cases of intentional or grossly negligent breaches of our obligations, because of injury to life, limb or health and the breach of material contractual obligations. The claim to compensation for the breach of material contractual obligations is, however, limited to foreseeable damage that is typical of the contract, unless we can be accused of gross negligence or are liable because of injury to life, limb or health. A change to the burden of proof to the detriment of the purchaser is not associated with this.
The restriction on liability contained in the above number 8.01 also applies in favor of our employees, workers, staff, representatives and vicarious agents.
If we have given a guarantee of quality and/or durability regarding the goods or parts thereof, we shall also be liable in the context of this guarantee. However, we are only liable for damage, which is based on the absence of the guaranteed quality or durability but does not affect the goods directly, if the risk of such damage is evidently covered by the guarantee of quality and durability.
We are also liable for damage that was caused by simple carelessness if this carelessness relates to the breach of such contractual obligations, compliance with which is of particular significance for achieving the purpose of the contract (cardinal obligations). However, we are only limited to the extent to which the damage is typically associated with the contract and foreseeable. We are not liable in other respects for breaches of ancillary obligations that are not material to the contract caused by simple carelessness. The limitations on liability included in 8.01 shall also apply if liability for our legal representatives, senior employees and other vicarious agents is affected.
Further liability without regard to the legal nature of the claim asserted is excluded. If our liability is excluded or restricted, this also applies to the personal liabilities of his employees, workers, staff, representatives and vicarious agents.
9 Place of performance, place of jurisdiction, applicable law
Halle (Saale) is the place of performance for payments, while the place of dispatch is the place of performance for our deliveries of goods.
If the purchaser is a merchant, legal entity incorporated under public law or a special fund under public law, Halle (Saale) is the place of jurisdiction for both parts – and for actions involving bills of exchange and checks. We are, however, also entitled to take action against the purchaser at his general place of jurisdiction.
The contractual relationship between the purchaser and us will be governed solely by the Federal Republic of Germany, even if the purchaser has his place of residence or business abroad. Application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods is excluded.
The purchaser is not entitled to assign claims from the purchase contract without our consent.