1 General Stipulations
1.1 All supplies or services (hereinafter: “deliveries”) rendered by us will be rendered exclusively on the basis of thefollowing General Terms and Conditions. General terms and conditions of the ordering party will only be recognised, if we have expressly agreed to do so in writing. These General Terms and Conditions do also apply if we deliver to the ordering party without reserve, notwithstanding whether we are aware of terms and conditions to the contrary effect or of terms and conditions of the ordering party that deviate from these Terms and Conditions.
1.2 All agreements governing particular deliveries that have been concluded between us and the ordering party, must be laid down in writing in the relevant agreement. All agreement must be in writing. Secondary agreements do not exist.
1.3 These General Terms and Conditions do also apply to any future transactions with the ordering party.
1.4 These General Terms and Conditions only apply to entrepreneurs, public-law legal persons and to separate public-law estates within the meaning of Article 310, Paragraph 1, BGB (Bürgerliches Gesetzbuch [Civil Code]).
2 Offer – Tender Documentatios
2.1 Orders from the ordering party must be interpreted as orders within the meaning of Article 145, BGB, which we may accept within two weeks from receipt of the order.
2.2 We reserve, without restrictions, proprietary rights and copyrights in respect of cost estimates, drawings and other documentation (hereinafter: “Documentation”). The documentation may only be made accessible to thirdparties after our prior approval and must be returned to us upon our request, if the order is not awarded.
3 Prices / Payment Conditions
3.1 Except where stated otherwise in our order confirmation, prices are ex-factory, without packaging and subject to VAT. Packaging will be charged separately.
3.2 If it has been agreed that we will take care of erecting and mounting and nothing to the contrary has been agreed, in addition to the agreed compensation all necessary ancillary expenses, such as travel expenses, the cost of transporting the hand tools and of personal baggage, are for account of the ordering party.
3.3 Except when stated otherwise on the order confirmation, the purchase price must be paid net (without deductions) within 30 days from the date of the invoice. Delays in payments will be dealt with in accordance with the relevant legal stipulations. No discounts may be deducted, except after specific written agreement.
4 Deadlines for Deliveries; Delays
4.1 Deadlines for deliveries are only then binding, when they have been expressly agreed by us.
4.2 A precondition for honouring delivery deadlines is the timely receipt of all documentation to be submitted by the ordering party, including required permits, approvals and particularly planning details, as well as the honouring by the ordering party of the agreed payment conditions and other obligations. Should those preconditions not be met in good time, the deadlines will be suitably extended; this does not apply if we were to be responsible for the delay.
4.3 If the non-adherence is due to force majeure, e.g. mobilisation, war, unrest or similar events, such as strike or lock-outs, the deadlines will be extended as appropriate.
4.4 Upon our request, the ordering party must state whether, because of the delay in delivery, it will withdraw from the agreement of whether it will insist on delivery.
4.5 If dispatch or delivery are postponed, at the request of the ordering party, by more than one month after advice of readiness for dispatch, we may charge storage fees of 0.5 % of the price of the performance for every commenced month, with a total of 5 %, without this restricting our ability of enforcing further claims. Providing proof of higher or lower storage costs remains within the purview of the parties to the agreement.
4.6 We may make partial deliveries, provided that it is not unreasonable to the ordering party if we do so.
5 Passage of Risk / Packaging
5.1 If nothing else has been stated on the order confirmation, delivery “ex-factory” has been agreed.
5.2 Transportation packaging and all other packaging as stipulated in the Packaging Ordinance will not be taken back, with the exception of two-way pallets and crates. The ordering party must arrange for disposal of the packaging, at its own expense.
5.3 If the ordering party requests us to do so in writing, we will arrange for transportation insurance; the appurtenant costs are for account of the ordering party.
The ordering party may not refuse to accept deliveries on account of insignificant deficiencies.
7 Erecting and Mounting
If it has been agreed that we will take care of erecting and mounting, the following stipulations will apply, except where agreed otherwise in writing:
7.1 The ordering party must provide in good time, at its expense:
a) all earthwork, construction work and other ancillary work that does not fall within the normal scope of reference, including the requisite expert and auxiliary staff, building materials and tools;
b) the objects and materials for scaffolding, lifting gear and other appliances, fuels and lubricants, as needed;
c) energy and water at the point of use, including connections, heating and lighting;
d) at the mounting site, sufficiently large, suitable, dry and lockable spaces for storing machine parts, devices, materials, tools, etc., and suitable work spaces and recreation rooms for the staff, including sanitary installations as appropriate for the circumstances; other than that, the ordering party must take all appropriate measures for ensuring the safety of the materials and staff;
e) protective clothing and equipment as required.
7.2 Before commencement of the mounting work, the ordering party must submit, without being requested to do so, all necessary information about hidden electricity cables, gas and water pipes and similar contraptions, and all necessary static information.
7.3 Before commencement of the erection or mounting work, all materials and devices to be provided by the ordering party that are needed for starting the activities must be present at the erection and mounting site and all preparatory work must have advanced to a stage that permits the erection or mounting to be commenced as agreed and to be continued without interruption. Access routes to the place of erection or mounting must have been levelled and cleared.
7.4 If erection, mounting or commissioning are delayed for reasons for which we are not responsible, the ordering party must bear the costs in connection with waiting time and the travel expenses of the supplier or of the mounting staff.
7.5 Every week, the ordering party must inform us forthwith about the worked hours of the mounting staff and about completion of any erection work, mounting work or commissioning.
7.6 If, after completion of the work, we require formal acceptance of the delivery, the ordering party must carry it out within two weeks. If it is not done, official acceptance will be assumed, unless the ordering party has expressly refused acceptance in advance. Official acceptance will also be assumed, if the object of the delivery – perhaps after completion of an agreed test stage – has been commissioned.
8 Liability for Deficiencies
We are liable for material damage, as follows:
8.1 Precondition for the lodging of claims by the ordering party is that the latter must have correctly honoured its inspection and notification obligations as per Articles 377, ff., HGB (Handelsgesetzbuch [Commercial Code]).
8.2 If there is a deficiency in a delivery, we may, at our choice, provide remediation in the form of repairing the deficiency or of supplying a new object without deficiencies. In the case of remediation of deficiencies, we are obliged to bear the concomitant cost of everything that is necessary for the purpose of the remediation, particularly the costs of transportation, travel, materials and work, provided that they will not be increased on account of transferring the purchased matter to another location than the location of fulfilment.
8.3 If remediation does not succeed, the ordering party may withdraw from the agreement or reduce the consideration – irrespective of any claims for compensation of damage as per the following Point 9 (Claims for Compensation of Damage).
8.4 Claims for compensation are not accepted in case of merely insignificant deviation from the agreed quality, merely insignificant impairment of usability, in case of natural wear and tear or in respect of damage that has occurred after the passage of risk, as a result of wrong or negligent handling, exposure to excessive stress or unsuitable operating agents or as a result of external influences that have not been recognised as preconditions in the agreement and as a result of software errors that cannot be reproduced. Claims for compensation are not accepted either in respect of incorrectly changes or repair work carried out by the ordering party or by third parties, and in respect of the consequences thereof.
8.5 The period of limitation for claims for damages is 12 months. The period of limitation commences upon delivery of the object – in case of agreements to carry out work, upon official acceptance of the work. The period of limitation will not be affected by events of recourse as per Articles 478 and 479, Civil Code. In the case of defects to an object that has been used in a way that is normal for the particular structure and which has brought about the deficiency, the statutory period of limitation applies.
8.6 The ordering party can only lodge claims for recourse against us as per Article 478, Civil Code, regardless of anything that the ordering party may have agreed with its customer that goes beyond the claims for deficiency as provided for in the relevant legislation.
8.7 In any situation that has not been mentioned here, Point 9 (Claims for Compensation of Damage), below, applies. No other claims for compensation against us and our fulfilment agents on account of a deficiency will be accepted.
9 Claims for Compensation of Damage
9.1 No claims for compensation of damage or for expenditure (hereinafter: “Claims for Compensation of Damage”)by the ordering party will be accepted, whatever their legal basis is, especially if in respect of infraction of contractual obligations and through tort, except where otherwise arranged in Point 9.2.
9.2 The exclusion from liability as per Point 9.1 does not apply:
a) to our liability as regulated in the product liability legislation and / or
b) in cases of wilfulness, gross negligence, death, bodily injuries or impairment of health and in cases of infraction of essential contractual obligations (essential contractual obligations are those that make it possible to properly render the agreed performance in the first place and in respect of which the party to the agreement may rely on them being steadily honoured). However, claims for compensation of damage on account of infraction of essential contractual obligations are restricted to unforeseeable damage that is typical for the kind of agreement, provided there is no liability on account of wilfulness, gross negligence, death, bodily injuries or impairment of health.
The arrangements above do not amount to a change in the burden of proof to the disadvantage of the ordering party.
9.3 If our liability for compensation of damage is excluded or restricted, it is equally excluded or restricted in respect of personal liability for compensation of damage of our managerial staff and other staff, of our representatives and of our fulfilment agents.
10 Securing Reservation of Ownership
10.1 Until all receivables, including balances in current account, that the ordering party owe us now or in the future have been settled, we retain ownership of the goods (goods subject to reservation of title). For cases where the ordering party acts in contravention of the stipulations of the agreement, especially where it is defaulting on payments, we reserve the right of repossessing the delivered goods. Such repossessing of goods does not amount to withdrawal from the agreement, unless we had expressly stated so. In the event of withdrawal we are entitled to selling the relevant goods after they have been repossessed, whilst the proceeds must be written towards the obligations of the ordering party – subject to deduction of reasonable sales costs.
10.2 The ordering party has the obligation of taking good care of the supplied goods; it does especially have the obligation of taking out, at its own expense, an insurance policy against damage from fire, water and theft, where the insured sum must be sufficiently high for covering the acquisition value. Where service and inspection work is required, the ordering party must carry it out in good time, at its own expense.
10.3 In case of placing of liens or any other such actions by third parties, the ordering party must notify us forthwith in writing.
GENERAL TERMS AND CONDITIONS (DELIVERY TERMS)
10.4 The ordering party has the right of selling the delivered goods, within the normal course of business; however, it will already now cede to us all its receivables up to the final invoice amount of our claim (including VAT) that it may become entitled to receive from its customer or third parties on account of selling to them, regardless of whether the goods have been sold without or after processing. The ordering party remains entitled to collecting under the claim, also after it has been ceded. This has no impact on our own right of collecting under the claim. However, we commit ourselves to not collecting under the claim for as long as the ordering party honours its payment obligations emanating from the secured proceeds, no event of default occurs and, particularly, does not request the instigation of bankruptcy / insolvency proceedings and there is no suspension of payments. Should that, nevertheless, be the case, we may demand for the ordering party to disclose to us all ceded claims and the names of the concomitant debtors, to provide us with all information that is necessary for collecting under the claims, to submit to us all appurtenant documentation and to notify the debtors (third parties) of the cession.
10.5 The processing or transforming of the supplied goods by the ordering party is always done on our behalf. If, for the processing of the supplied goods, objects are used that do not belong to us, we acquire co-ownership in the new object in proportion to the value of the delivered goods (final invoice amount, including VAT) to the other processed objects, at the time of processing. The same applies to the matter that is created through processing as to the delivery that was made subject to title.
10.6 If the supplied goods are mixed with objects that do not belong to us, in a way that they cannot be separated, we acquire co-ownership in the new object in proportion to the value of the delivered goods (final invoice amount, including VAT) to the other mixed objects, at the time of processing. If the mixing is done in a way that the goods belonging to the ordering party can be considered to be the main object, it is considered to have been agreed that the ordering party will transfer proportional co-ownership to us. The ordering party will hold the sole ownership or co-ownership that has come about in that way, on our behalf.
10.7 The ordering party does also cede to us the claim for securing its claim against it, which has arisen against a third party as a result of linking the delivery with real property.
10.8 We commit ourselves to releasing upon the request of the ordering party the collateral that we are entitled to, to the extent that the realisable value of the collateral exceeds value of the claims that it secures by more than 10 %; the choice of the collateral to be released is ours.
11 Exclusion of the Right of Compensation and of the Right of Retention of the Ordering Party
Our claims under the agreement with the ordering party and under concomitant extra-contractual claims may only be compensated against counter-claims of the ordering party or be subject to retention by the ordering party, if the counter- claims are due for payment, are not disputed, have been legally established or are about to be decided upon. This does notapply to claims of the ordering partner that are in a synallagmatic (approximately ‘do ut des’ or ‘quid pro quo’) relationship to our claims.
12 Final Provisions
12.1 All aspects of our business relationship with our ordering parties are governed by German law, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), agreed in Vienna on 11/04/1980 (CISG).
12.2 If the ordering partner is a merchant, a public-law legal person or a separate public-law estate, exclusive jurisdiction rests with the courts of our statutory seat, D-89555 Steinheim. That also applies, of the ordering party does not fall under a general jurisdiction within the Federal Republic of Germany – also in that case, exclusive jurisdiction rests with the courts of our statutory seat, D-89555 Steinheim. However, we reserve the right of suing the ordering party in the jurisdiction of its statutory seat.
12.3 Except where otherwise agreed, the location of fulfilment is our statutory seat, D-89555 Steinheim.
12.4 If individual clauses of the agreement should be void or inoperable, regardless whether they should be clauses in the General Terms and Conditions or individual stipulations, the effectiveness of the remaining contractual stipulations is not affected.