General Terms and Conditions
This is a non-binding English translation of our General Terms and Conditions for information purposes only. The German version is legally binding.
I. General Provisions
1. The scope of deliveries or services (hereinafter: deliveries) is governed by the written declarations of both parties. General terms and conditions of the purchaser shall only apply to the extent that the supplier or service provider (hereinafter: supplier) has expressly agreed to them in writing.
2. The supplier reserves unrestricted ownership and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter: documents). Documents may only be made accessible to third parties with the supplier's prior consent and, if the order is not placed with the supplier, must be returned to the supplier immediately upon request. Sentences 1 and 2 apply accordingly to documents of the purchaser; however, these may be made accessible to third parties to whom the supplier has permissibly assigned deliveries.
3. The purchaser has the non-exclusive right to use standard software with the agreed features in unmodified form on the agreed devices. The purchaser may make a backup copy without express agreement.
II. Offers, Scope of Services and Conclusion of Contract
1. Contractual offers of the seller are subject to change without notice.
2. The seller's order confirmation is solely decisive for the scope of the contractual service.
3. We supply exclusively to commercial enterprises, freelance professionals, public authorities and public-law institutions.
4. The seller reserves the right to make changes to the design, choice of materials, specification and construction even after sending an order confirmation, provided that these changes do not conflict with the order confirmation or the purchaser's specification. The purchaser shall furthermore agree to further-reaching change proposals by the seller, insofar as these are reasonable for the purchaser.
5. The documents forming the basis of the offer or order confirmation, such as illustrations, drawings, and details of weight and dimensions, are generally to be regarded only as approximate values, unless expressly designated as binding.
6. Partial deliveries are permissible insofar as they are reasonable for the purchaser.
III. Prices and Payment Terms
1. Prices are ex works, excluding packaging, plus the applicable statutory value-added tax.
2. If the supplier has taken on the installation or assembly and nothing else has been agreed, the purchaser shall bear, in addition to the agreed remuneration, all necessary incidental costs such as travel expenses, costs for the transport of tools and personal luggage, as well as allowances.
3. Payments are to be made free of charge to the supplier's payment office.
4. The purchaser may only set off claims that are undisputed or have been finally and bindingly established.
5. If the seller takes into account change requests from the purchaser, the resulting additional costs shall be invoiced to the purchaser.
IV. Retention of Title
1. The subject matter of deliveries (goods subject to retention of title) remains the property of the supplier until all claims to which it is entitled against the purchaser arising from the business relationship have been satisfied. Insofar as the value of all security rights to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier shall release a corresponding part of the security rights at the purchaser's request.
2. For as long as the retention of title exists, the purchaser is prohibited from pledging or assigning the goods as security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or stipulates that ownership shall not pass to the customer until the customer has fulfilled its payment obligations.
3. In the event of seizure, confiscation or other dispositions or interventions by third parties, the purchaser must notify the supplier immediately.
4. In the event of breaches of duty by the purchaser, in particular default of payment, the supplier is entitled to withdraw from the contract and reclaim the goods after the unsuccessful expiry of a reasonable period set for the purchaser; the statutory provisions on the dispensability of setting a deadline remain unaffected. The purchaser is obliged to surrender the goods.
V. Delivery Periods; Default
1. Compliance with delivery periods presupposes the timely receipt of all documents, necessary approvals and releases to be provided by the purchaser, in particular plans, as well as compliance with the agreed payment terms and other obligations by the purchaser. If these requirements are not met in time, the periods shall be extended appropriately; this does not apply if the supplier is responsible for the delay.
2. If the failure to meet deadlines is due to force majeure, e.g. mobilisation, war, insurrection, or similar events, e.g. strikes, lockouts, the periods shall be extended appropriately.
3. If the supplier is in default, the purchaser may – provided it credibly demonstrates that it has suffered damage as a result – demand compensation for each completed week of delay of 0.5% each, but in total no more than 5%, of the price for the part of the deliveries that could not be put into proper operation due to the delay.
4. Both the purchaser's claims for damages due to delay in delivery and claims for damages in lieu of performance that exceed the limits stated in No. 3 are excluded in all cases of delayed delivery, even after expiry of any period set for the supplier for delivery. This does not apply insofar as liability is mandatory in cases of intent, gross negligence, or injury to life, body or health. The purchaser may only withdraw from the contract, within the framework of statutory provisions, insofar as the supplier is responsible for the delay in delivery. The foregoing provisions do not entail any change in the burden of proof to the detriment of the purchaser.
5. The purchaser is obliged, at the supplier's request, to declare within a reasonable period whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
6. If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the purchaser's request, the purchaser may be charged storage costs of 0.5% of the price of the delivered goods for each commenced month, up to a total maximum of 5%. The contracting parties remain free to prove higher or lower storage costs.
VI. Passing of Risk
1. Risk passes to the purchaser, even in the case of carriage-paid delivery, as follows:
a) for deliveries without installation or assembly, when they have been dispatched or collected. At the purchaser's request and expense, deliveries shall be insured by the supplier against the usual transport risks;
b) for deliveries with installation or assembly, on the day of acceptance into the purchaser's own operation or, if agreed, after a successful trial run.
2. If dispatch, delivery, the start or performance of installation or assembly, acceptance into the purchaser's own operation, or the trial run is delayed for reasons for which the purchaser is responsible, or if the purchaser is otherwise in default of acceptance for other reasons, risk shall pass to the purchaser.
VII. Installation and Assembly
Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
1. The purchaser shall provide, at its own expense and in good time:
a) all earthworks, construction and other ancillary work outside the supplier's trade, including the skilled and unskilled labour, building materials and tools required for this,
b) the equipment and materials required for assembly and commissioning, such as scaffolding, hoisting gear and other devices, fuels and lubricants,
c) energy and water at the point of use, including connections, heating and lighting,
d) at the assembly site, sufficiently large, suitable, dry and lockable rooms for storing machine parts, apparatus, materials, tools, etc., and suitable work and rest rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; furthermore, the purchaser shall take the measures at the construction site to protect the property of the supplier and the assembly personnel that it would take to protect its own property,
e) protective clothing and protective devices required due to special circumstances at the assembly site.
2. Before the start of assembly work, the purchaser shall, without being requested, provide the necessary information on the location of concealed electricity, gas and water lines or similar installations, as well as the required structural data.
3. Before the start of installation or assembly, the items and materials to be provided by the purchaser required to commence work must be present at the installation or assembly site, and all preparatory work must have progressed sufficiently for installation or assembly to begin as agreed and to be carried out without interruption. Access routes and the installation or assembly site must be levelled and cleared.
4. If installation, assembly or commissioning is delayed due to circumstances for which the supplier is not responsible, the purchaser shall bear, to a reasonable extent, the costs of waiting time and additional travel required by the supplier or the assembly personnel.
5. The purchaser shall certify to the supplier, on a weekly basis, the working hours of the assembly personnel as well as, without delay, the completion of installation, assembly or commissioning.
6. If the supplier requests acceptance of the delivery upon completion, the purchaser shall carry this out within two weeks. If this does not happen, acceptance is deemed to have taken place. Acceptance is likewise deemed to have taken place if the delivery has been put into use – if applicable, after completion of an agreed test phase.
VIII. Acceptance
The purchaser may not refuse to accept deliveries on account of insignificant defects.
IX. Defects in Quality
The supplier is liable for defects in quality as follows:
1. All parts or services that show a defect in quality within the limitation period – irrespective of the operating time – shall, at the supplier's discretion, be remedied free of charge, newly delivered or newly performed, provided the cause of the defect already existed at the time risk passed.
2. Claims for defects in quality become time-barred after 12 months. This does not apply insofar as the law prescribes longer periods pursuant to Sections 438 (1) No. 2 (buildings and items for buildings), 479 (1) (right of recourse) and 634a (1) No. 2 (building defects) of the German Civil Code (BGB), nor in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty by the supplier, and in the case of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of periods remain unaffected.
3. The purchaser must notify the supplier of defects in quality in writing without delay.
4. In the event of a notice of defects, the purchaser may withhold payments to an extent that is reasonably proportionate to the defects in quality that have occurred. The purchaser may only withhold payments if a notice of defects is asserted about which there can be no reasonable doubt. If the notice of defects was unjustified, the supplier is entitled to demand reimbursement of the expenses incurred as a result from the purchaser.
5. The supplier must first be given the opportunity to remedy the defect within a reasonable period.
6. If the remedy fails, the purchaser may – without prejudice to any claims for damages pursuant to Article XI – withdraw from the contract or reduce the remuneration.
7. Claims for defects do not exist in the case of only insignificant deviation from the agreed condition, only insignificant impairment of usability, natural wear and tear, or damage arising after the passing of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating resources, defective construction work, unsuitable building ground, or arising due to special external influences not provided for under the contract, as well as in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, no claims for defects exist for these and their consequences either.
8. Claims by the purchaser for expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the purchaser's place of business, unless the relocation corresponds to its intended use.
9. The purchaser's rights of recourse against the supplier pursuant to Section 478 BGB (recourse of the entrepreneur) exist only to the extent that the purchaser has not made any agreements with its customer that go beyond the statutory claims for defects. No. 8 shall further apply accordingly to the scope of the purchaser's right of recourse against the supplier pursuant to Section 478 (2) BGB.
10. For claims for damages, Article XI (Other Claims for Damages) otherwise applies. Further or other claims of the purchaser against the supplier and its vicarious agents due to a defect in quality, beyond those regulated in this Article VIII, are excluded.
X. Industrial Property Rights and Copyrights; Defects of Title
1. Unless otherwise agreed, the supplier is only obliged to provide the delivery free from industrial property rights and copyrights of third parties (hereinafter: property rights) in the country of the place of delivery. If a third party asserts justified claims against the purchaser due to the infringement of property rights by deliveries provided by the supplier and used in accordance with the contract, the supplier shall be liable to the purchaser within the period specified in Article VIII No. 2 as follows:
a) The supplier shall, at its discretion and expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or exchange them. If this is not possible for the supplier on reasonable terms, the purchaser shall have the statutory rights of withdrawal or reduction.
b) The supplier's obligation to pay damages is governed by Article XI.
c) The above obligations of the supplier only exist insofar as the purchaser notifies the supplier of the claims asserted by the third party immediately in writing, does not acknowledge an infringement, and all defensive measures and settlement negotiations remain reserved to the supplier. If the purchaser discontinues use of the delivery for reasons of damage limitation or other important reasons, it is obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
2. Claims by the purchaser are excluded insofar as it is responsible for the infringement of property rights.
3. Claims by the purchaser are further excluded insofar as the infringement of property rights is caused by specific requirements of the purchaser, by an application not foreseeable by the supplier, or by the fact that the delivery has been modified by the purchaser or used together with products not supplied by the supplier.
4. In the event of infringements of property rights, the provisions of Article VIII Nos. 4, 5 and 9 apply accordingly for the remainder to the claims of the purchaser regulated in No. 1 a).
5. In the event of other defects of title, the provisions of Article VIII apply accordingly.
6. Further or other claims of the purchaser against the supplier and its vicarious agents due to a defect of title, beyond those regulated in this Article IX, are excluded.
XI. Impossibility; Adaptation of Contract
1. Insofar as delivery is impossible, the purchaser is entitled to demand damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages is limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This limitation does not apply insofar as liability is mandatory in cases of intent, gross negligence, or injury to life, body or health; this does not entail any change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of Article IV No. 2 significantly change the economic significance or the content of the delivery, or significantly affect the supplier's operations, the contract shall be appropriately adapted in accordance with the principle of good faith. Insofar as this is not economically viable, the supplier has the right to withdraw from the contract. If it wishes to make use of this right of withdrawal, it must notify the purchaser without delay after recognising the significance of the event, even if an extension of the delivery time was initially agreed with the purchaser.
XII. Other Claims for Damages
1. Claims for damages and reimbursement of expenses by the purchaser (hereinafter: claims for damages), regardless of the legal grounds, in particular due to breach of duties arising from the contractual relationship and from tort, are excluded.
2. This does not apply insofar as liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of material contractual obligations. However, the claim for damages for breach of material contractual obligations is limited to the foreseeable damage typical for the type of contract, unless there is intent or gross negligence, or liability arises from injury to life, body or health. The foregoing provisions do not entail any change in the burden of proof to the detriment of the purchaser.
3. Insofar as the purchaser is entitled to claims for damages under this Article XI, these become time-barred upon expiry of the limitation period applicable to claims for defects in quality pursuant to Article VIII No. 2. For claims for damages under the Product Liability Act, the statutory limitation provisions apply.
XIII. Place of Jurisdiction and Applicable Law
1. If the purchaser is a merchant, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the supplier's registered office. However, the supplier is also entitled to sue at the purchaser's registered office.
2. German substantive law applies to the legal relationships in connection with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV. Validity of the Contract
The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This does not apply if adherence to the contract would constitute unreasonable hardship for a party.