§ 1 Scope of Application
(1) Our Terms and Conditions only apply to traders as defined in Section 310 of the German Civil Code (BGB).
The following terms and conditions of sale and delivery apply to all of our contracts, deliveries and other services unless they are modified or excluded with our express written agreement. In particular, they shall also apply without reservation if we execute the delivery/service in full knowledge of deviating terms and conditions of our Contractual Partner. General terms and conditions of our contractual partners shall only be effective if we confirm them in writing.
(3) Our terms and conditions shall also apply to all future contracts, deliveries and services, even if they are not individually submitted to our contractual partner with each quotation or confirmation of order.
§ 2 Quotations and order execution
(1) Our quotations are non-binding until a contract has been concluded.
(2) The acceptance of orders shall be confirmed in writing. Orders shall constitute a valid contract only after our order confirmation.
(3) Our failure to object to commercial letters of confirmation submitted by our Contractual Partner shall not be construed as a tacit agreement to a contract whose contents diverge from our order and other written statements.
§ 3 Prices
(1) Our prices are stated in euro. Our contractual partner shall pay in euro unless otherwise agreed.
(2) All stated prices are net prices. Value added tax at the statutory rate shall be added.
(3) In cases where goods are delivered, our prices are quoted for delivery ex works, plus packaging, freight, taxes, insurance, transport, letters of credit, levies such as customs duties or other documents required for performance of the contract, installation and commissioning as well as the costs for the inspection of the installation sites and orientation of the operating personnel.
(4) We reserve the right to deliver only as and when payment of the agreed upon prices has been made. In all other respects, our invoices shall be paid within 14 days after delivery/service provision and invoice date without deductions, unless otherwise agreed.
(5) Once the payment deadline has passed, we shall be entitled to demand interest of 9 % above the current base rate without having to issue any further reminder. Further claims – in particular in respect of the default of our Contractual Partner – shall remain unaffected.
(6) If one of the following events occurs or if the existence of such an event prior to conclusion of the contract becomes known to us after conclusion of the contract, we can demand advance payment of the agreed price by our Contractual Partner, cancel any agreed or granted periods for payment or return any bills of exchange and demand immediate payment. This shall apply in case of the following events:
– Our contractual partner applies for the institution of judicial or extra-judicial insolvency or composition proceedings or judicial or extra-judicial insolvency or composition proceedings are initiated in respect of the assets of our contractual partner or the institution of such proceedings is rejected for lack of assets.
– A written credit report is provided by a bank or credit agency from which the non-creditworthiness of our contractual partner (e.g. Creditreform credit rating of > 3.0) or a significant deterioration in its financial circumstances can be derived, or a cheque or bill of exchange received from our contractual partner is not paid or is returned.
– Our contractual partner is in default of payment in another mutual business transaction.
(7) If our contractual partner does not comply with our justified request for advance payment within a reasonable final deadline set by us, despite the fact that we informed the contracting party that we will refuse to accept any further payments after expiry of this deadline, we shall be entitled to withdraw from the contract or to demand compensation for damage instead of the payment, but only with respect to the part of the contract not yet performed by us.
§ 4 Place of performance
The place of performance for the contractually agreed payment and for all other payments of our contractual partner is our respective place of business or respective factory.
§ 5 Cancellation costs – Withdrawal
Irrespective of our right to assert a higher damage claim, we can claim 10 % of the sales price for the costs incurred through processing the order and for loss of profit if the contractual partner unjustifiably withdraws from an order it has placed. Our contractual partner shall have the right to prove a lower level of loss. Our Contractual Partner shall have the right to prove a lower level of loss.
§ 6 Packaging and consignment
(1) All consignments shall be provided at the expense and risk of our contractual partner, even in the case of delivery free of charge.
(2) We reserve the right to select the form of consignment. No claims derived from the selected form of the consignment can be asserted against us.
(3) The packaging of the goods shall be provided at our discretion and invoiced separately to our contractual partner, whereby an additional charge is invoiced for special packaging. Our contractual partner is responsible for the disposal of the packaging.
(4) The risk passes at the moment the goods are handed over to a contracted carrier operating under its general terms and conditions or under terms and conditions agreed upon with us. We are only liable for damage caused by our contractor if it can be proven that we did not act with due care when choosing the contractor.
(5) We do not insure the goods against theft, breakage, transport, fire and water damage as well as other insurable risks.
§ 7 Scope of delivery and service
(1) The information regarding the object of performance and its intended use, dimensions, weight, durability, utility value or other properties provided in our catalogues, brochures, price lists, descriptions, illustrations, drawings, sketches, directories or other files only constitutes approximate values which are customary within the industry. It only serves to provide an approximate description of our products and is only binding if we expressly confirm this.
(2) We reserve the right to make changes to the appearance, dimensions, weights and other properties to the extent that the usability of the supplied articles is not impaired thereby and that the changes are not deemed unacceptable by our contractual partner for other reasons.
§ 8 Delivery; delivery period; obligation to deliver
(1) The delivery term shall commence on the date that the order confirmation is sent. However, it shall not commence before provision of the documents, licenses and approvals to be furnished by our contractual partner as well as receipt of the agreed down payment.
(2) The delivery term shall be deemed to have been complied with if the goods have left the factory or place of consignment or notice has been given that they are ready for dispatch before the delivery term expires.
(3) The delivery term shall be extended in the event of industrial disputes, disruptions of operations, shortages of raw materials, transport disruptions, all cases of force majeure as well as the occurrence of unforeseeable obstacles which are beyond our control for as long as the disturbance persists and to the extent that it can be verified that such obstacles have a significant impact on the completion or delivery of the goods. The same shall also apply if such circumstances occur at subcontractors or contracted suppliers. Furthermore, if the contents of the scope of performance are substantially changed by these circumstances, this shall discharge us from the obligation to deliver for the duration of the disturbance and to the extent of its impacts.
(4) Partial deliveries are permissible within our specified delivery terms, provided that this does not negatively affect use and partial deliveries are not deemed to be unreasonable or unusable by our contractual partner.
(5) Both claims for compensation of our Contractual Partner relating to a delay in delivery and claims for compensation in lieu of performance shall be excluded in all cases of delayed delivery.
§ 9 Offsetting; retention
(1) Our contractual partner may not offset payments against counterclaims contested by us which have not been legally established.
(2) Payments concerning the agreed payment can be retained by our Contractual Partner to the amount of up to 10 per cent only if our Contractual Partner complains about the condition of the goods and/or the quantity in writing and only until justified complaints have been redressed by us through rectification of the defects complained of.
§ 10 Liability for defects
(1) In the case of contracts of sale and contracts for work and materials, claims of our contractual partner relating to defects of the object assume that the contractual partner has duly complied with the obligations to inspect for and give notification of defects as provided for in Section 377 of the German Commercial Code (HGB), whereby the complaint must be made in writing. If our contractual partner fails to give due notice of defects in good time, our contractual partner is no longer entitled to assert claims relating to the circumstances subject to the notice, unless we acted fraudulently. If a complaint is under negotiation or we carry out tests or inspections relating to a complaint, any legitimate objection that the complaint was/is late, deficient or unfounded shall not become null and void under any circumstances.
(2) In the case of contracts of sale and contracts for work and materials, our contractual partner shall immediately make a sufficient number of the allegedly defective parts available to us upon request for inspection by us or third parties, in order to investigate and determine claims relating to defects of the object, with the forwarding costs being borne by us.
(3) If the object of the contract of sale is a used machine or system, it is sold to our Contractual Partner with the exclusion of any warranty and within the limitations of Section 10, Subsection 4 of these Terms and Conditions. If new machines or systems are supplied, the rights of our contractual partner with respect to defects of the delivered object or provided services shall be determined according to the statutory regulations, with the proviso that our contractual partner must grant us a reasonable period for subsequent performance of at least 4 weeks, whereby our contractual partner shall have the right to set us a shorter period in the individual case if a period of at least 4 weeks for subsequent performance is deemed to be unreasonable for our contractual partner. Any claims for compensation of our contractual partner for defective delivery or performance shall be limited to the extent defined in subsection 4 below.
(4) Our liability for damage arising from the injury of life, body or health of our contractual partner which is based on a culpable breach of duty is neither excluded nor limited. We are only liable for other damage to our contractual partner if it is based on an intentional or grossly negligent breach of duty on our part or on the part of one of our legal representatives or agents. In all other respects, claims for compensation of our contractual partner arising from a breach of duty, wrongful acts or any other cause in law are excluded. The above limitations of liability shall not apply to the absence of warranted characteristics and conditions if and to the extent that the aim of the agreement was to protect our contractual partner against damage which was not caused to the goods supplied or the service itself. To the extent that our liability is excluded or limited, the same shall also apply to the personal liability of our salaried employees, workers, associates and agents. The above exclusions of liability also apply in any event of subsequent loss or damage. However, the above exclusions of liability do not apply to claims pursuant to the German Product Liability Act.
(5) If a complaint of our contractual partner proves to be unfounded, our contractual partner shall reimburse us with all the necessary and reasonable expenses incurred as a result of the complaint.
(6) The warranty period amounts to two years from the date of the passing of risk in the case of contracts of sale and contracts for work and materials and to one year from the date of the passing of risk in the case of used objects. The warranty period amounts to two years from the date of acceptance in the case of contracts for work, irrespective of whether they are provided formally or by implication.
§ 11 Acceptance inspection
If an acceptance inspection of our performance is required before the payment to which we are entitled becomes due, the acceptance inspection can be implemented in any form provided for by law. Our work shall be deemed to have been accepted after the expiry of 12 working days after receipt of our written notification of the completion of the work by our contractual partner unless we receive written notification from our contractual partner within this period that acceptance has been refused. Furthermore, the acceptance inspection is deemed to have taken place if our contractual partner has used the object of performance and 12 working days have passed since the commencement of use and we do not receive written notification from our contractual partner that the machine or system has not been accepted and will not be used.
§ 12 Retention of Title
(1) We shall retain title to the purchased goods until full payment of all claims, including accessory claims, claims for compensation, future claims and the honouring of cheques and bills of exchange.
(2) We are entitled to insure the goods against theft, breakage, fire, water and other damage at the expense of our contractual partner unless our contractual partner has taken out such insurance as can be proven.
(3) Our contractual partner shall be entitled to resell the goods in the ordinary course of business; in so doing, however, our contractual partner hereby assigns all claims to the amount of the purchase price agreed between us and our contractual partner (including value added tax) which accrue to our contractual partner from the resale, irrespective of whether the delivered goods are resold without or after processing. Our contractual partner is entitled to collect these claims even after their assignment. Our authority to collect claims ourselves shall remain unaffected hereby; however, we undertake not to collect the claims as long as the ordering party duly meets its payment obligations and is not in default of payment. If this is the case, however, we can request our contractual partner to disclose the assigned claims and the respective debtors, to provide us with all the information necessary for collection, to surrender the associated documents and to inform the debtors (third parties) about the assignment.
(4) Our contractual partner shall not acquire ownership of the new article by processing the goods under reservation. If the goods under reservation are processed together with other articles, we shall acquire co-ownership of the new article in proportion to the value of the delivered goods compared with the other intermixed articles.
(5) Any pledging or transfer by way of security of the goods under reservation or disposition of the assigned claims or false factoring is not permitted.
(6) If our goods are seized or subjected to other third-party claims, our contractual partner shall notify us thereof without delay, confirm our title in writing both to us and the third party and assist us in asserting our title.
(7) If we take back the delivered goods based on our retention of title, this shall only constitute a withdrawal from the contract if we expressly declare this.
(8) Our contractual partner shall hold the goods under reservation in safekeeping for us. Our contractual partner hereby irrevocably assigns its due claims for compensation against insurance companies or other claims for compensation for damage of the nature defined in sentence 2 to the amount of our claims. We hereby accept this assignment.
§ 13 Rights of ownership and copyrights, secrecy
(1) We are unreservedly entitled to all rights of ownership and copyrights of estimates, calculations, drawings, drafts, forms, samples, models, copies, tools, simulations and other documents or data which the ordering party received directly from us or from third parties at our instigation. A right of retention of our contractual partner to objects of this kind is excluded.
(2) The contractual partners mutually undertake to treat all commercial and technical details which they become aware of as a result of their collaboration and which are not in the public domain as if they were their own commercial secrets and to maintain absolute confidentiality towards third parties in respect of these. The contractual partners undertake to pay a contractual penalty to the amount of € 6,000.00 for each individual case of culpable violation of the stated obligations. The right to demand compensation for damage extending beyond the contractual penalty shall not be affected hereby
§ 14 Other provisions
(1) If a provision of this contract should be ineffective or impracticable, this shall not affect the validity of the rest of the contract. In such cases, the parties undertake to replace the ineffective or impracticable provision with an effective or practicable provision which corresponds as closely as possible to the spirit and purpose of the provision being replaced; the same applies to any gaps or omissions in the contract.
(2) Alterations or supplements to this contract shall only be effective if they are recorded in a deed signed by the parties.
(3) German law shall apply to the exclusion of the convention on the international sales of goods, if permissible, even if the registered place of business of our contractual partner is located outside Germany.
(4) The place of jurisdiction for all disputes arising from the contracts concluded on the basis of these general terms and conditions shall be Solingen. However, we are also entitled to take legal action at the principal place of business of our contractual partner.