Terms & Conditions

As of: 2015

§ 1 Applicability of Provisions

  1. Our deliveries, services, and offers are made exclusively on the basis of these General Terms and Conditions. They therefore also apply to all future business relationships, even if not expressly agreed upon again. By accepting our offer, the purchaser declares their agreement to these General Terms and Conditions. If the purchaser confirms our offer subject to terms deviating from ours, only our General Terms and Conditions shall apply, even if we do not object. Deviations shall only apply if expressly acknowledged by us in writing. If the purchaser does not agree to this procedure, they must expressly point this out immediately in a separate letter. In such a case, we reserve the right to withdraw the offer without any claims of any kind being assertable against us.
  2. Our General Terms and Conditions also apply if we carry out deliveries or services for the customer without reservation, despite being aware of the customer’s terms that conflict with or deviate from our General Terms and Conditions.
  3. Our General Terms and Conditions apply only to businesses within the meaning of § 310 Para. 1 of the German Civil Code (BGB).

§ 2 Offer and Conclusion of Contract

  1. Our offers are subject to change and non-binding, unless otherwise stated in the order confirmation.
  2. If the customer’s order is to be classified as an offer pursuant to § 145 BGB, we may accept it within 4 weeks.
  3. Drawings, illustrations, dimensions, weights, or other performance data may be modified to the extent necessary due to operational requirements—provided the value of our performance is not negatively affected thereby. Such modification is excluded only if these specifications are expressly designated as binding.
  4. We reserve ownership rights and copyrights regarding illustrations, drawings, calculations, cost estimates, and other documents;

…they must not be made accessible to third parties. This applies in particular to documents designated as “confidential.” The customer requires our express consent before passing them on to third parties. Illustrations, drawings, and other documents accompanying quotations must be returned immediately upon request if the order is not placed with us.

  • We reserve the right to correct and subsequently adjust prices in the event of obvious errors or discrepancies in price lists, invoices, or confirmations. The purchaser bears the risk of transmission errors.
  • Where the purchaser is required to supply documents such as drawings, samples, models, or the like, the purchaser is liable for their accuracy, technical feasibility, and completeness; we are under no obligation to verify them. The purchaser is liable for ensuring that the use of such documents does not infringe upon the rights of third parties and agrees to indemnify and hold us harmless against all adverse consequences arising from any such infringement.

§ 3 Scope of Performance Obligation

  1. Our written order confirmation—if issued—is decisive regarding the content and scope of our deliveries or services. However, we are entitled, without consulting the purchaser, to utilize a technical design or material that differs from the order confirmation, provided this does not result in any deterioration of the delivered item.
  2. Protective devices are supplied only to the extent required by law or expressly agreed upon. The purchaser is obliged to inform us in a timely manner of the environmental and accident prevention regulations applicable at the installation site. Costs for such equipment are not included in the price unless otherwise stated in the order confirmation. The purchaser is responsible for compliance with the environmental and accident prevention regulations applicable at the installation site.

§ 4 Prices / Terms of Payment

    1. Unless otherwise agreed, prices are “ex works,” including loading at the factory but excluding packaging.
    2. Statutory VAT is not included in our prices; it will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
    3. The purchaser shall bear all costs associated with transport, including insurance.
    4. Any deduction of a cash discount requires a specific written agreement.
    5. Unless otherwise stated in the order confirmation or invoice, the purchase price is due for payment without deduction within 14 days of the invoice date.
    6. Checks and bills of exchange may be accepted subject to prior agreement. Discount and collection charges must be reimbursed to us immediately. For payments of any kind, the date of fulfillment is the day on which the funds are at our disposal.
    7. Statutory provisions apply in the event of a payment default. Accordingly, the default interest rate is currently 8 percentage points above the base interest rate. We reserve the right to claim further damages.
    8. If the purchaser is in default of payment, in whole or in part, we are entitled to demand the provision of bank-standard security for the amount of our outstanding claim. If the purchaser fails to provide the required security, we are entitled—after setting a reasonable grace period and giving notice that we will refuse performance if the deadline is missed—to refuse performance of the contract and claim damages for non-performance.

The provisions of sentences 1 and 2 shall also apply if enforcement proceedings are initiated against the Customer’s assets, if the Customer suspends payments, or if the Customer seeks a settlement or a moratorium.

  1. The Customer shall only have the right to set off claims if its counterclaims have been legally established, are undisputed, or have been acknowledged by us.
  2. All taxes, fees, and other charges arising outside the Federal Republic of Germany shall be borne by the Customer. The Customer shall also be responsible, at its own expense, for obtaining official permits, particularly import permits.

§ 5 Delivery Time

    1. The delivery time is determined by mutual agreement. Unless otherwise stipulated, it commences on the date of the order confirmation but, in any event, not before receipt of the documents, information, and approvals to be provided by the Purchaser, nor before receipt of any down payment required from the Purchaser and the fulfillment of his other obligations, nor before all technical questions have been clarified.
    2. The delivery period is deemed met if the delivery item has left the plant or notification of readiness for shipment has been given by the time the period expires.
    3. Delivery is subject to correct and timely supply to us by our own suppliers. This applies only in cases where non-delivery is not attributable to us, particularly where a congruent covering transaction has been concluded with our suppliers.
    4. The delivery period shall be extended appropriately—even during a delay in delivery—in the event of unforeseeable obstacles that we could not avert despite exercising the care reasonable under the circumstances. It is immaterial whether such obstacles occur at our plant or at the plant of one of our suppliers. Obstacles within the meaning of the preceding sentences include, for example, operational disruptions, operational interventions, energy supply difficulties, delays in the delivery of essential raw materials and components, strikes and lockouts, mobilization, war, civil unrest, terrorist attacks, and epidemics. We shall notify the Purchaser without delay of the commencement and end of such obstacles.
    5. If the events mentioned in Section 4 result in delivery becoming substantially more difficult or impossible for us or our sub-suppliers, we are entitled to withdraw from the contract. The Purchaser may demand notification from us as to whether we intend to deliver within a reasonable period or to withdraw. If we fail to make a declaration, the Purchaser may withdraw.

In cases of delayed delivery due to unforeseeable obstacles, claims for damages are excluded for both parties.

  1. If the Purchaser incurs damage due to a delay caused by us, they are entitled—to the exclusion of further claims—to demand compensation for the delay. However, this does not affect the right of withdrawal governed by Section 10, Item 3 of these conditions. The compensation for delay amounts to 0.5% for each full week of delay following a grace period of two months, up to a maximum total of 5% of the value of that part of the delivery or service which cannot be used on time or in accordance with the contract due to the delay. If the delay is attributable to willful intent or gross negligence on our part, or if it results from a culpable breach of a material contractual obligation, we shall be liable in accordance with statutory provisions; the fault of our representatives or agents is attributable to us. Unless the delay in delivery in such cases is based on an intentional breach of contract for which we are responsible, our liability for damages is limited to foreseeable damage of the type typically occurring.
  2. If shipment is delayed at the Purchaser’s request, if the Purchaser is in default of acceptance, or if the Purchaser culpably breaches other obligations to cooperate, the costs incurred due to storage—or, in the case of storage on our premises, a minimum of 0.5% of the invoice amount—shall be charged to the Purchaser for each month or part thereof, commencing one month after notification of readiness for shipment. We are entitled, after setting a reasonable deadline that has expired without result, to dispose of the delivery item elsewhere and to supply the Purchaser within a reasonably extended period. Further claims, in particular the assertion of higher damages including any additional expenses, remain reserved.

§ 6 Acceptance of delivered items

  1. Delivered items must be accepted by the Purchaser, even if they exhibit minor defects, without prejudice to the rights under § 8.
  2. We are entitled to make partial deliveries to a reasonable extent.

§ 7 Transfer of Risk

  1. Unless otherwise stated in the order confirmation, delivery is agreed on an “ex works” basis. This applies even if partial deliveries are made pursuant to § 6 Item 2 or if we have assumed other services, such as shipping costs or delivery and installation.
  2. At the Purchaser’s request, the shipment will be insured by us at the Purchaser’s expense against theft, breakage, fire, and water damage, as well as other insurable risks.
  3. If the Purchaser is in default of acceptance or culpably breaches other obligations to cooperate, the risk of accidental loss or accidental deterioration of the purchased goods passes to the Purchaser at the moment the Purchaser falls into default of acceptance or debtor’s default.

§ 8 Warranty for Defects

    1. We shall be liable for defects as follows, to the exclusion of further claims and without prejudice to the Purchaser’s right of withdrawal as determined by these conditions (Section 10, Item 4):
    2. We shall be liable for defects in the supplied item only insofar as they are attributable to a circumstance existing prior to the transfer of risk—specifically, faulty design or defective workmanship—and provided the item has been used properly and under the operating conditions prescribed by us. Liability excludes defects and damage resulting from improper handling, unauthorized modifications or repairs, improper installation of the supplied item by the Purchaser or a third party, or normal wear and tear. The same applies to defects and damage caused by excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground, or chemical, electrochemical, or electrical influences not contemplated by the contract.
    3. The Purchaser’s warranty rights are contingent upon the Purchaser having duly complied with the obligations to inspect and give notice of defects required under Sections 377 and 378 of the German Commercial Code (HGB). In any event, the Purchaser must notify us in writing of patent defects within two weeks of receipt of the delivery and of latent defects within two weeks of their discovery. If the Purchaser fails to comply with the obligations to inspect and give notice of defects, all warranty claims regarding the defects not notified shall be forfeited.
    4. Where a defect exists for which we are responsible, we shall be entitled, at our discretion, to remedy the defect or provide a replacement delivery. In the event of defect remediation, we shall bear costs only up to the amount of the purchase price.

We shall not bear any costs incurred as a result of the purchased item being moved to a location other than the place of performance. If the remedy of defects or the delivery of a replacement fails, the buyer is entitled, at their discretion, to withdraw from the contract or demand a reduction in the purchase price. Replaced parts shall become our property. The purchaser shall bear all costs arising from any unjustified complaint.

  1. The purchaser must grant us the necessary time and opportunity to carry out all remedial work and replacement deliveries that appear necessary at our reasonable discretion. If the purchaser refuses to do so, we shall be released from liability for defects. Only in urgent cases involving a threat to operational safety or to prevent disproportionately large damage does the purchaser have the right to remedy the defect themselves—or have it remedied by third parties—and subsequently claim reimbursement of the necessary costs from us. In the latter case, we must be notified immediately of the nature and extent of the defects.
  2. Further claims by the purchaser, particularly claims for compensation for damage not occurring to the delivered item itself (consequential damage), are excluded. We shall be liable in accordance with statutory provisions if the purchaser asserts claims for damages based on willful misconduct or gross negligence—including willful misconduct or gross negligence on the part of our representatives or agents—or if we have culpably breached a material contractual obligation. Unless we are charged with willful breach of contract, our liability for damages in such cases is limited to the foreseeable damage typically occurring.
  3. Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
  4. Unless otherwise agreed, the warranty period is 12 months. The warranty period is calculated from the date of the transfer of risk. The limitation period in the event of a supplier recourse claim pursuant to Sections 478 and 479 of the German Civil Code (BGB) remains unaffected; it is five years, calculated from the delivery of the defective item.
  5. The foregoing conditions apply accordingly if remedial work or replaced parts are defective.
  6. If the subject matter of the delivery is an item that was not newly manufactured or involves services that are not to be newly provided, all warranty claims are excluded.

Section 9 Other claims for damages

  1. Any liability for damages beyond that set forth in the preceding provisions is excluded—regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the time of contract conclusion, other breaches of duty, or tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).
  2. To the extent that our liability towards the purchaser or third parties is excluded or limited, this also applies with regard to the personal liability for damages of our employees, staff, representatives, and agents.

Section 10 Purchaser’s Right of Withdrawal

  1. The purchaser may withdraw from the contract if the entire performance becomes definitively impossible for us prior to the transfer of risk. Furthermore, the purchaser may withdraw from the contract if, in the case of an order for items of the same type, the execution of a part of the delivery becomes impossible in terms of quantity and the purchaser has a legitimate interest in refusing a partial delivery; if this is not the case, the purchaser is entitled to reduce the counter-performance accordingly.
  2. If impossibility occurs during the purchaser’s default in acceptance or due to the purchaser’s fault, the purchaser remains obliged to provide the counter-performance.
  3. If we are in default of performance, the purchaser is entitled to set a reasonable grace period for us, accompanied by the express declaration that they will refuse acceptance of the performance after the expiry of this period. In the event that this grace period is not observed, the purchaser is entitled to withdraw.
  4. The purchaser also has a right of withdrawal if we allow a reasonable grace period set for us—for the rectification or replacement delivery regarding a defect for which we are responsible—to expire without result due to our fault.

The customer’s right of withdrawal also applies in other cases where repair or replacement delivery fails.

  • The customer may only declare withdrawal if their interest in the performance is substantially impaired. Such impairment is not substantial if the customer continues to use the delivered item.

§ 11 Safeguarding the Retention of Title

    1. All goods and items supplied by us remain our property until full payment of all claims, including ancillary claims, claims for damages, and the honoring of checks and bills of exchange. This retention of title remains in effect even if we include individual claims in a running account and the balance has been struck and acknowledged.
    2. The foregoing also applies to deliveries abroad. If the legal regulations of the country of destination do not permit retention of title in the aforementioned form, the purchaser undertakes to provide us with equivalent security for all claims we hold against them.
    3. Should the goods and items supplied by us be transferred—with our consent—to a third party (who finances the price payable to us by the purchaser via a loan or other means) as security for said financing, the purchaser hereby assigns to us their contingent right of ownership (*dingliche Anwartschaft*) in the supplied items. This assignment applies in the event that, at the time the financing third party releases the security interest, not all of our claims against the purchaser have yet been satisfied. The scope of this contingent right of ownership is such that the supplied item reverts to being subject to our retention of title as security for our outstanding balance.
    4. The purchaser is obliged to cooperate with any measures we intend to take to protect our ownership—or a comparable right—regarding the supplied item. The purchaser is not permitted to pledge the supplied item or transfer it as security.

The Purchaser must notify us immediately of any attachments, seizures, or other dispositions by third parties and forward copies of the relevant documents.

  1. We are entitled to insure the delivered item at the Purchaser’s expense against theft, breakage, fire, water damage, and other risks, unless the Purchaser has demonstrably taken out such insurance themselves. If the Purchaser has taken out their own insurance, we are entitled to verify the existence of adequate insurance coverage by inquiring with the respective insurer.
  2. In the event of conduct by the Purchaser in breach of the contract—particularly in the event of default on payment or culpable deterioration of the delivered item—we are entitled to reclaim the item following a formal demand for payment, and the Purchaser is obliged to surrender it. Asserting our retention of title or seizing the delivered item does not constitute a withdrawal from the contract.
  3. As long as the delivered item remains subject to our retention of title, the Purchaser is not entitled to resell it without our consent. If we have consented to the resale, the Purchaser must disclose the retention of title to the third party. The Purchaser may only sell the item while maintaining the retention of title.

§ 12 Place of Performance

The place of performance for all obligations arising from the contractual relationship is our registered office in Wilhelmsdorf.

§ 13 Place of Jurisdiction

The place of jurisdiction for all legal disputes arising from the contractual relationship—as well as those concerning its formation and validity, including actions involving bills of exchange and cheques—shall be the court having jurisdiction over our registered office. However, we reserve the right to bring an action at any other competent place of jurisdiction, such as the Purchaser’s principal place of business.

§ 14 Applicable Law

The contractual relationship is governed by the law of the Federal Republic of Germany. The application of the uniform UN Sales Convention is excluded. In addition to our General Terms and Conditions, we reserve the right to agree upon special delivery terms based on INCOTERMS by means of an individual agreement. The uniform rules of the International Chamber of Commerce (Paris), in their most recent version, shall apply to the interpretation thereof. In the event that contract texts are used in both a foreign language and German, the German version shall prevail.

§ 15 Partial Invalidity

The invalidity of individual provisions of these delivery terms shall not result in the invalidity of the entire contract or the remaining delivery terms. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to the intended economic outcome.