General terms and conditions
§1 Scope
These General Terms and Conditions of Delivery and Service apply to all our fields of activity. These General Terms and Conditions of Delivery and Service therefore apply both to the delivery of goods, in particular spare parts, to work services, in particular maintenance services, and to services.
These General Terms and Conditions of Delivery and Service apply exclusively in our relationship with the customer. They shall also apply to all future business transactions and to all business contacts with the customer, such as the commencement of contract negotiations or the initiation of a contract, even if they are not expressly agreed again or if they are not expressly referred to again. The validity of the customer’s general terms and conditions of ordering or purchasing is expressly rejected. Previous agreements and earlier versions of our General Terms and Conditions are superseded by these General Terms and Conditions.
If, in individual cases, contractual obligations are also established with persons or companies who are not themselves to be parties to the contract, the limitations of liability in these General Terms and Conditions of Delivery and Service shall also apply to them, insofar as these General Terms and Conditions of Delivery and Service were included vis-à-vis the third parties when the contractual obligation was established. This is particularly the case if the third parties were aware of these General Terms and Conditions of Delivery and Service or were already aware of them when the contractual obligation was established. Acceptance of our services and deliveries by the customer shall be deemed as acceptance of the validity of these General Terms and Conditions of Delivery and Service.
§1 Conclusion of Contract
Unless otherwise agreed, our offers are non-binding.
We shall only be binding on an order if it has been confirmed by us in writing by means of an order confirmation or if we commence execution of the order.
§3 Scope of Delivery and Service, Performance Deadlines
The scope of our delivery or service shall be determined by our written offer or our order confirmation. Additional agreements and amendments require our written confirmation. If our offer or our order confirmation is based on information provided by the customer (data, figures, illustrations, drawings, weights and dimensions, etc.), our order confirmation shall only be binding if this information was correct. If it turns out after conclusion of the contract that the order cannot be carried out in accordance with the customer’s specifications, we shall be entitled to withdraw from the contract if and to the extent that the customer is not prepared to accept the alternative solution proposed by us and to bear any additional costs actually incurred.
We are entitled to provide partial deliveries and services to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations. As soon as we become aware of the risk of the customer’s inability to pay, we shall be entitled to provide deliveries of goods and services only against advance payment or the provision of security. This shall not affect our right to withdraw from individual contracts already concluded if and insofar as the customer fails to make an advance payment or provide security within a reasonable grace period.
Delivery and performance deadlines and dates always represent the best possible information, but are generally non-binding. The commencement of the delivery period and compliance with delivery dates shall be subject to the customer’s timely and proper performance of the acts of cooperation incumbent upon him, his provision of all documents to be provided and any agreed advance payments.
If it has been agreed that the customer shall pay in advance, delivery can only be made after we have received the purchase price in full. The information enclosed with our offers and order confirmations, such as drawings, weight, dimension and capacity specifications, are only approximate unless expressly marked as binding. We reserve all rights to drawings, drafts, samples or similar preliminary work.
In case of force majeure or other extraordinary circumstances for which we are not responsible, we shall not be in default. In this case, we are entitled to withdraw from the contract even if we are already in default. In particular, we shall not be in default in the event of delays in delivery if these are caused by incorrect or late delivery by our suppliers for which we are not responsible. In the event of hindrances of a temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.
If we are contractually obliged to perform in advance, we may refuse to perform if it becomes apparent after conclusion of the contract that our claim to consideration is jeopardized by the customer’s inability to pay. This is particularly the case if the consideration to which we are entitled is jeopardized due to poor financial circumstances of the customer or other impediments to performance such as export or import bans, war events, insolvency of suppliers or sickness-related absences of necessary employees.
Transport insurance for goods to be shipped will only be taken out if expressly requested. The transport insurance is then taken out in the name and for the account of the customer. The transfer of ownership and transfer of the object of purchase is owed. The assembly, installation or configuration of the object of purchase is not owed, unless this has been expressly agreed.
§4 Transfer of Risk
The risk of loss or deterioration of the goods shall pass to the customer when the goods are handed over for shipment, even if partial deliveries are made. If dispatch is delayed for reasons attributable to the customer, the risk shall pass to the customer upon notification of readiness for dispatch.
§5 Prices
Our prices are net prices and for deliveries are always “ex works” (EXW Incoterms 2010), unless otherwise agreed. In the case of services, the prices refer to the performance of the service at the agreed place of performance. Value added tax at the applicable statutory rate shall be added to the invoice.
If a performance period of more than four months is agreed between the time of confirmation of the order and the performance of the service, we shall be entitled to pass on to the customer any increases in costs incurred by us in the meantime as a result of price increases to a corresponding extent. The same shall apply if a performance period of less than four months was agreed, but the service can only be performed by us later than four months after the confirmation of the order for reasons for which the customer is responsible.
§6 Terms of Payment
Unless otherwise contractually agreed, our claim shall become due 30 days after receipt of the delivery or after provision of our service, without any deduction. If we provide our deliveries or services in definable partial sections, we shall be entitled to demand payment of a corresponding part of the remuneration for each partial section.
The customer is not entitled to make deductions without express agreement. If the customer is in default of payment, he shall compensate us for any damage caused by default, in particular interest at a rate of 8 percentage points above the base interest rate. If the customer is in arrears with the payment of a due amount or partial amount for more than 14 days, if the customer breaches the obligations arising from a reservation of title or if the consideration due to us is jeopardized due to poor financial circumstances of the customer, the entire remainder of all outstanding claims shall become due for payment immediately.
Payment by bill of exchange or acceptance is only permitted if expressly agreed and even then only on account of payment. Only undisputed or legally established claims may be offset against our remuneration claims. The same applies to the exercise of a right of retention. The customer is otherwise only authorized to exercise a right of retention if it is based on the same contractual relationship.
The assignment of claims against us by the customer requires our prior approval, which we will only refuse for good cause.
§7 Retention of Title
Until full payment of all our current and future claims arising from the concluded contract and an ongoing business relationship (secured claims), we reserve title to the delivered goods.
The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if and insofar as third parties seize the goods belonging to us.
If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
4.1 The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
4.2 The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer stated in the above paragraph 2 shall also apply in respect of the assigned claims.
4.3 The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request. The customer must treat the reserved goods with care. At our request, the customer must insure the goods subject to retention of title at his own expense against fire, water damage and theft at replacement value.
If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense. If the effectiveness of this retention of title is dependent on its registration, e.g. in public registers in the customer’s country, we are entitled and authorized by the customer to effect this registration at the customer’s expense. The customer is obliged to provide all cooperation required for this registration free of charge.
§8 Obligations of the Customer to Cooperate
The customer shall support us and our employees to a reasonable and customary extent. If we have to provide project-related work or services by our employees in the customer’s company, support may also include, at our request, the provision of workrooms and workstations with PCs and telephones, the costs of which shall be borne by the customer.
Materials, information and data that we require to provide our services must be made available to us by the customer. Data and data carriers must be technically flawless. If special statutory or operational safety regulations apply in the customer’s company, the customer must inform us of this before we provide our services.
Instructions from the customer to our employees regarding the specific form of service provision are excluded, unless instructions are necessary in connection with safety requirements and operating regulations in the customer’s company. Instructions on individual questions regarding work or services to be provided by us shall not be given to the employees entrusted with the task by us, but to the contact persons designated by us for the project. We always decide on the necessary measures within the scope of our performance obligations on our own responsibility.
§9 Liability for Defects and General Liability
The customer’s claims for defects in the service or delivery to be provided by us, in particular for subsequent performance, reduction, withdrawal from the contract and damages, as well as other claims for damages by the customer, shall be governed by the statutory provisions, with the exceptions contained in this section.
Claims of the customer for subsequent performance due to defects in the service or delivery to be provided by us shall exist in accordance with the following provisions:
2.1 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). The right to refuse the chosen type of subsequent performance under the statutory conditions remains unaffected.
2.2 We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in proportion to the defect.
2.3 The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
2.4 We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel and material costs, if a defect actually exists. The customer shall bear the costs of rectification or subsequent performance incurred as a result of the purchased item having been taken to a place other than the customer’s place of residence or commercial establishment after delivery. If the customer’s request to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the customer.
The customer’s claims for defects, in particular the claims for subsequent performance, withdrawal from the contract, reduction in price and compensation, presuppose that the customer has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, the supplier must be notified immediately in writing. The notification shall be deemed immediate if it is made within two weeks of discovery of the defect, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or report defects, our liability for the unreported defect shall be excluded. This shall not apply if we have fraudulently concealed the defect.
The customer may only claim damages:
4.1. for damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty by the provider or an intentional or negligent breach of duty by a legal representative or vicarious agent of the provider;
4.2. for damages that are based on an intentional or grossly negligent breach of duty by the provider or on an intentional or grossly negligent breach of duty by a legal representative of the provider, executive employees or vicarious agents;
4.3. for damages resulting from the intentional or negligent breach of material contractual obligations (cardinal obligations) by the provider, a legal representative of the provider, executive employees or vicarious agents. Essential contractual obligations (cardinal obligations) are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies.
4.4. for damages that fall within the scope of protection of a property expressly warranted by the provider or a guarantee of quality or durability; in the event of a simple negligent breach of a material contractual obligation, the liability of the provider is limited to the amount of damage typically foreseeable for the provider at the time of conclusion of the contract when exercising due care.
This does not apply to damages resulting from injury to life, limb or health. Claims for damages by the customer in the event of simple negligent breach of a material contractual obligation shall become time-barred one year after the start of the statutory limitation period. This does not apply to damages resulting from injury to life, limb or health.
Claims for damages against the provider arising from mandatory statutory liability, for example under the Product Liability Act, shall remain unaffected by the above provisions and shall exist to the extent permitted by law within the statutory periods.
The customer’s rights under Sections 478 and 479 BGB in the event that claims are asserted against the customer or its other customers in a supply chain by a consumer shall remain unaffected by the provisions in this Section 9. If third parties are commissioned or involved in the initiation or execution of the contractual relationship between the customer and the provider, the above-mentioned warranty and liability limitations shall also apply in favor of the third parties.
§10 Confidentiality
The customer and we (“the parties”) undertake to keep confidential during the term of the contract all information which becomes accessible to them in connection with the contract and which is designated as confidential or is recognizable as business or trade secrets due to other circumstances, and – unless expressly approved in writing in advance or required to achieve the purpose of the contract – not to record it, pass it on to third parties or exploit it in any way. This confidentiality obligation shall remain in force for a further five years after complete fulfillment or termination of the order.
This does not apply to information,
2.1. which were already known to one of the parties prior to the commencement of the contract negotiations or which are disclosed by third parties as non-confidential, unless these third parties themselves are in breach of confidentiality obligations;
2.2. which the Parties have each developed independently;
2.3. which are or become public knowledge through no fault or action of the parties, or;
2.4. which must be disclosed due to legal obligations or official or court orders. In the latter case, the disclosing party must inform the other party immediately prior to disclosure. Further statutory confidentiality obligations remain unaffected.
§11 Other:
Place of Performance, Jurisdiction, Applicable Law, Data Processing, Language of Contract, Severability Clause
The place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship is Bruchsal, provided the customer is a merchant, a legal entity under public law or a special fund under public law or the customer has no general place of jurisdiction in the Federal Republic of Germany or has relocated its place of jurisdiction abroad. As an exception to this, we are also entitled to take legal action against the customer at his general place of jurisdiction.
A merchant is any entrepreneur who is entered in the commercial register or who operates a commercial business and requires a commercially organized business operation. The customer has his general place of jurisdiction abroad if he has his place of business abroad.
The customer is aware that data from business transactions, including personal data, must be stored and processed within the scope of business necessity and transmitted to third parties. The customer agrees to this data collection and processing.
The contractual language is German. If the parties also use another language, the German wording shall take precedence in accordance with the agreement.
Should a provision in these General Terms and Conditions of Delivery and Payment or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
The contractual and other legal relationships with our customers shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Status Terms and Conditions 10/21/2024