General Terms and Conditions
General
Sales, Delivery and Repair Conditions for Technology (General Terms and
Conditions)
I.
General
1.
Our offers, services and deliveries are based exclusively upon these General
Terms and conditions.
2.
They apply exclusively for business persons also for all future business.
3.
Orders or assignments are binding for the customer; the agreement is formed by confirmation
of the assignment or execution of the order or the assignment at our
discretion.
4.
We explicitly reject deviating general terms and conditions or counter
confirmations. Our silence to such deviating conditions is particularly not
regarded as acknowledgement or approval, also in case of future agreements.
II.
Quality of goods
1.
Construction and/or form changes of the delivery item remain reserved if the
delivery item is significantly altered and the changes are reasonable for the
customer with respect to the contractual usage.
2.
Templates, samples, analysis data and other specifications regarding the
quality on our part are only indications within the actually available range of
the respective values pertaining to dimensions, colour,
quality, chemical composition and action mechanism of the products supplied by
us.
3.
We only assume the guarantee for quality, durability or the earnings of the
delivery item or the procurement risk upon explicit statement, however, not
based on the content of product descriptions, technical data and other printed
material and information.
III.
Prices and payments
1.
Subject to special agreement, prices apply ex our warehouse or ex works in case
of dispatch from the manufacturers location, exclusive packaging. Specified and
agreed prices for business persona are net plus VAT in the statutory amount
applicable at the time of execution of the service.
2.
Subject to special agreement, payment is due immediately upon delivery or
provision and receipt of the invoice without deduction free paying agent.
Discount only applies in the event that the customer is not in arrears with the
payment of earlier deliveries.
3.
Payments to our employees are only permitted if they present a valid Power to
Collect.
4.
We only accept bills or cheques upon respective
agreements and only as payments. Credit notes based on bills and cheques are subject to receipt less expenses with value of
the day at which we are able to dispose of the equivalent value.
5. Our
claims, also in case of granting of payment deadlines, regardless of the term
of any received and credited bills, are due and payable immediately if the
customer culpably fails to comply with payment conditions or in case of events
raising justified doubts regarding the customer's creditworthiness. Deviating
regulations of the Consumer Credit Act remain
unaffected.
6.
The customer is not permitted to offset our claims unless the claim for
offsetting is uncontested or conclusively determined. Business persons are only
permitted to assert a right to refuse or retain payment if the underlying claim
is uncontested or conclusively determined. This also applies for the corporate
right of retention based on §§ 369 to 372 HGB (German Commercial Code).
7.
Unless otherwise specified, in the event of an ongoing business relationship
between us and the customer all arising reciprocal claims are deposited in a
current account which is subject to the specifications of the HGB (German
Commercial Code). The individual debt balances in the current account accrue
interest at a minimum of 5% in case of consumers and 8% in case of business
persons respectively above the basic interest rate. Our statements of account
apply as balance of account. The balance is deemed approved if the customer
fails to raise objections within six weeks following the receipt of the balance
of account. We shall inform the customer of this fact upon commencement of this
period at the latest.
8.
In the event of a payment on SEPA basis or corporate direct debit we notify the
customer in case of a one-off SEPA debit and at each SEPA permanent direct
debit with changing amounts one working day prior to the direct debit at the
latest. In case of a first SEPA permanent direct debit with invariable amounts we
shall notify the customer of the first direct debit and the subsequent direct
debit at least one working day prior to the first and subsequent direct debit.
IV.
Delivery terms and default / self-supply and force majeure
1.
Delivery terms and deadlines only apply as approximately agreed unless we have
provided an explicitly binding written undertaking. Unless agreed otherwise,
the delivery term commences on the day of undersigning a written purchase
agreement or the dispatch of our order confirmation, however not before the
delivery of the documents, permits or approvals to be provided by the customer
as well as the receipt of an agreed deposit.
2.
The delivery term is deemed met if the delivery item is assigned to the person
responsible for transport by the time of expiration of the agreed date or, in
case of self-transport once the goods have left our warehouse or, in case of
dispatch ex works once the goods have left the manufacturer or, in case of
customer pick-up once the customer has been informed of
the readiness for dispatch.
3.
We shall inform the customer in writing or text form immediately if we do not,
not correctly or not in time receive deliveries/performances from our
pre-suppliers for reasons outside of our sphere of responsibility for the
provision of contractually owed deliveries/performances despite proper and
sufficient respective provision (congruent provision) or in the event of force
majeure of a significant period of time (i.e. with a duration of more than 14
calendar days). In this case we are entitled to delay the delivery by the
duration of the impediment or partially or entirely withdraw from the agreement
with
respect to the
unfulfilled part if we have complied with our above mentioned duty to provide
information and if we have not accepted the risk of procurement. Force majeure
includes strike, lock-out, official interventions, energy and raw material shortage,
not culpable transport bottlenecks, not culpable operational impediments - e.g.
due to fire, water or machine damage - and all other impediments which have not
been culpably caused by us based on objective approach. If a delivery/performance
date or delivery/performance deadline has been bindingly agreed and if it is
exceeded based on the above mentioned events, the customer is entitled to
withdraw from the agreement with respect to the unfulfilled part of the agreement
following futile expiration of an appropriate period of grace if a further
compliance with the agreement is objectively unacceptable for the customer.
Further claims of the customer, particularly those pertaining to compensation,
are excluded in this case. The regulation above applies accordingly if a
conventional delivery/performance deadline has been exceeded by more than 7 calendar
days due to the above mentioned reasons, also without the contractual agreement
of a fixed delivery/performance deadline. If the agreement for
delivery/performances to be provided by us is dissolved entirely or partially
by us or the customer due to the above mentioned regulations, we shall
immediately refund to the customer the part of consideration with respect to
the dissolved part of the agreement in the event that he has paid a deposit.
4.
Compliance with the delivery deadline implies that the customer has fulfilled
his contractual obligations applicable up to the time of delivery.
V . Acceptance
The
acceptance of a repair occurs with the unequivocal transfer of the object of
repair to the customer or his representative. The customer is in default of
acceptance if he has not accepted the repaired object within one week following
the notification of completion at the latest. If the object of repair has not
been accepted within this period, it can be stored or handed over for storage
at the expense and risk of the customer. If the customer requests the dispatch
of the repaired object it shall be dispatched at the expense of the customer.
VI.
Transfer of risk and transport
1.
Unless agreed otherwise, the customer has to pick up the goods from us. If
delivery of the goods has been agreed upon, transport route and means are at
our discretion unless agreed otherwise. The goods shall be insured at the
request and expense of the customer
2.
If the customer is a business person, the risk is transferred to the customer
upon handover of the goods to the forwarding agent or freight carrier, however
at the latest upon leaving the warehouse or, in case of direct dispatch
ex-works upon the goods leaving the factory. This also applies in case of
partial deliveries or if the customer is responsible for the shipping costs.
3.
If the customer is a business person and if the dispatch is delayed due to
reasons owed to the customer, the risk is transferred to the customer at the
date of readiness for dispatch.
4.
Delivered objects have to be accepted by the customer also if they exhibit
insignificant defects, regardless of his rights based on the law and the
agreement.
5.
Partial deliveries are admissible
VIl. Warranty and
notice of defect
1.
We warrant for the delivery item according to the statutory provisions unless
determined otherwise below and in Item VIII.
2.
Applicable for consumers:
2.1.
The customer's entitlements and rights in case of defects in a used, movable
delivery item become statute barred after one year from transfer of risk
subject to the regulations in Item VII. no. 4.
2.2.
Consumers have to report obvious defects to us within a period of one month
following receipt of the goods. If a notice of defect is not received within
this period, the warranty rights for obvious defects expire. This does not
apply in the event of intentional or malicious actions by us, in the event of
violation of life, body or health, the acceptance of a defect-free warranty or liability
according to the ProdhaftG (Product Liability Act).
3.
Applicable for business persons:
3.1.
Unless agreed otherwise, the sale of used, movable delivery items occurs
excluding any warranty. If the customer is entitled to warranty in individual
cases with respect to a used, movable purchased object - i.e. due to special
agreement - the claims and rights of the customer based on defects become
statute barred one year following the transfer of risk. This does not apply in cases
specified in no. 4 of this paragraph.
3.2.
Claims and rights of the customer based on defects in movable, newly produced
delivery items become statute barred after one year following the transfer of
risk subject to the regulations in Item VII. no. 4.
3.3.
Subject to our discretion we initially provide replacement delivery or
subsequent improvement in case of defects which significantly reduce the value
of the goods or suitability for the contractually specified use. In case of
insignificant defects we are entitled to provide a reduction instead of
subsequent fulfilment.
3.4.
If the subsequent improvement failed, the customer is entitled to the right of
reduction, withdrawal and/or compensation instead of the performance only if he
has granted us a period of grace of at least 14 calendar days for subsequent
improvement prior to exercising these rights. These rights are furthermore
subject to the customer warning us unequivocally that he will not accept
subsequent improvement following the expiration of this period. The above
regulation (Item VII, 3.4) does not apply if a deadline is unnecessary
according to the law.
4.
The above mentioned regulations regarding the exclusion of warranty claims of
the customer and the limitation periods do not apply in cases of intent or
gross negligence on our part, in the event of violation of life, limb or
health, the acceptance of a warranty of absence of defects, liability according
to the ProdhaftG (Product Liability Act) or
acceptance of procurement risk as well as in cases were a longer period is
specified according to §§ 438 (1) no. 2 (constructions and parts for construction),
and 634 a (1) no. 2 (construction defects) BGB (German Civil Code).
VIII.
General liability limitation
Compensation
claims of the customer, regardless of the legal reasons, particularly based on
the violation of obligations based on contractual obligations and tortious acts
are excluded. This does not apply if liability is determined by the law,
particularly in cases of malice, intent or gross negligence, in case of violation
of life, limb or heath, in case of default if a fixed delivery date was agreed
upon, in case of acceptance of a warranty for the quality of the delivery item,
according to the ProdhaftG (Product Liability Act) or
in case of other violation of essential contractual obligations; in this case,
the claim for damage
compensation is limited to
the typical arising damage. "Essential contractual obligations" are
obligations which protect the customer's legal positions essential to the
agreement which are just owed to him according to the content and purpose of
the agreement. Furthermore, essential contractual obligations are those whereby
the fulfilment generally facilitates the proper execution of the agreement and
the compliance in which the customer regularly trusts or may trust. A change of
the onus of proof to the disadvantage of the Customer is not associated with
the above regulations.
IX.
Reservation of title
1.
Applicable for business persons:
1.1.
We reserve the right of ownership of the delivery item up to the receipt of all
payments due to the business relationship with the customer. The reservation of
title also includes the approved balance if we book claims against the customer
in current accounts (reservation of current account).
1.2.
The Customer is entitled to on-sell the delivery item in the context of the
proper course of business.
1.3.
Treatment and processing of the reserved goods occurs on our behalf as
manufacturer in terms of § 950 BGB (German Civil Code), however without
obligations for us. If the reserved goods are processed or inseparably combined
with objects not belonging to us, we procure co-ownership to the new item at
the ratio of the invoice value of our goods to the invoice value of the other
processed or combined objects. If our goods are combined with other movable
objects to one uniform object and if the other object is to be considered the
main object, it is deemed agreed upon that the customer hereby assigns to us
the proportionate co-ownership to the item. The customer preserves the thus
created ownership or co-ownership for us free of charge. The thus created
co-ownership rights apply as reserved goods. At our request, the customer is
obligated to provide us with the necessary information required to pursue our
ownership or co-ownership at any time.
1.4.
If we procure new ownership in the cases of Item 1.3, we hereby transfer the
specified claims to the customer subject to the full payment of claims
stipulated Item 1.1 of the paragraph.
1.5.
The customer hereby assigns to us a first-ranking part of the claim from the
on-selling of the delivery item or the goods produced from this delivery item
by treatment or processing in the amount of the purchase price calculated by us
for the delivery item.
1.6.
Subject to revocation at any time, the customer is authorisedto collect the assigned claims from the on-sale. At our request, the customer
is obligated to nominate the debtors of the assigned claims, to inform them of
the assignation and to present to us the notice of assignment or facilitate
direct notification. We shall not disclose the assignation as long as the customer
complies with his payment obligations. If the estimated value of the securities
provided for us exceeds our claims against the customer by more than 30%, we
are obligated to release the securities to this extent at our discretion upon
the customer's request.
2.
Applicable for customers which are not business persons:
2.1.
We reserve ownership of the delivery item up to the complete payment of the
purchase price and any invoiced amounts accrued up to that date for the
delivery of spare parts for the respective purchased object and any repairs
performed on the item as well as interest and the like.
2.2.
The customer is not entitled to on-sell, process or inseparably combine, mix or intermingle the delivery item without our consent
until our claim according to Item 2.1 of this paragraph has been paid.
3.
Applicable for all customers:
3.1.
If the customer does not intend the immediate, justified on-sale of the
delivery item or if we demand insurance, the customer has to insure the goods
belonging to us against the usual risks to the appropriate extent at his
expense and assign to us the insurance claims. We are also entitled to pay the
insurance premium costs at the expense of the customer.
3.2.
If we withdraw from the agreement due to conduct contrary to the agreement by
the customer, the customer – among other - is obligated to pay the costs of the
return and processing of the delivery item as well as the thus incurred administration
costs. These costs amount to 10% of the realisationproceeds including VAT without verification. They are to be assessed higher or
lower if we prove higher or the customer lower costs. The revenue is credited
to the customer following deduction of the costs and other claims by us related
to the purchase agreement.
3.3.
The customer is obligated to immediately inform us in writing in the event of levies
of execution or other interventions by third parties to enable us to file a
petition according to § 771 ZPO (Code of Civil Procedure). If the third party
is not able to reimburse us for the judicial and extra-judicial costs of a
successful petition according to § 771 ZPO (Code of Civil Procedure), the
customer is liable for the damage we incurred.
3.4.
In the event of the existence or conclusion of a credit agreement based on
pledging the business inventory, the customer is obligated to insure our proprietary
rights based on the reservation of title and pertaining to the unpaid delivery
items at the respective credit institute.
X.
Place of jurisdiction, applicable law
1.
If the customer is a legal person under public law or a public special fund,
the place of jurisdiction for all legal disputes is our registered address.
This also applies for claims asserted during summary proceedings for recovery
of debt or liquidated demand. We are also entitled to raise claim at the
customer's general place of jurisdiction.
2.
The legal relationship between the contractual parties is exclusively based on
the laws of the Federal Republic of Germany excluding the United Nations
Convention on Contracts for the International Sale of Goods (CISG). The legal process
of consumer-protected standards of the state of the customer's usual residence
remains unaffected.
Version 01/2016
If you have any questions, comments or concerns, please call us.
+49 (0) 5935 9393-300