General terms and conditions
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 thus apply to the delivery of goods, in particular also spare parts, to work performances, in particular maintenance performances, and to services.
These General Terms and Conditions of Delivery and Service shall apply exclusively in our relationship with the customer. They shall also apply to all future transactions, as well as 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 no express reference is made to them again. The validity of the customer’s general terms and conditions of ordering or purchasing is expressly rejected. Previous agreements and previous versions of our General Terms and Conditions shall be cancelled by these General Terms and Conditions.
If, in individual cases, contractual relationships are also established with persons or companies who are not themselves intended to become 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 relationship was established. This shall be the case in particular if the third parties have become aware of these General Terms and Conditions of Delivery and Service at the time of the establishment of the contractual obligation or have already become aware of them.
The acceptance of our services and deliveries by the customer shall be deemed as recognition of the validity of these General Terms and Conditions of Delivery and Service.
§1 Conclusion of Contract
Unless otherwise agreed, our offers are subject to change.
We shall not be bound by an order until it has been confirmed by us in writing by means of an order confirmation or until we start executing the order.
§3 Scope of Delivery and Performance, Performance Deadlines
Our written offer or our order confirmation shall be decisive for the scope of our delivery or service. Subsidiary 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 partial performance of all deliveries and services to a reasonable extent. We are further entitled to use subcontractors to fulfill our contractual obligations. As soon as we become aware of the risk of insufficient solvency on the part of the customer, 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 period of grace.
Delivery and performance deadlines and dates always represent the best possible information, but are generally non-binding. The commencement of the delivery period as well as compliance with delivery dates shall be subject to the customer’s timely and proper performance of the cooperation activities incumbent upon it, its provision of all documents to be provided and the making of any agreed advance payments.
If it is agreed that the customer pays 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, e.g. drawings, weights, dimensions and capacity specifications, are, unless expressly marked as binding, only approximate. We reserve all rights to drawings, drafts, samples or similar preliminary work.
In the event of force majeure or other circumstances beyond our control and extraordinary, 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 untimely delivery by our suppliers for which we are not responsible. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period.
If we are contractually obligated to advance performance, we may refuse the performance incumbent upon us if it becomes apparent after conclusion of the contract that our claim to counter-performance is jeopardized by the customer’s lack of ability to perform. This shall be the case in particular if the counter-performance to which we are entitled is at risk due to the customer’s poor financial circumstances or other impediments to performance are imminent, e.g. as a result of export or import bans, war events, insolvency of suppliers or absence of necessary employees due to illness.
Transport insurance for goods to be shipped will only be taken out upon express request. The transport insurance will then be taken out on behalf and for the account of the customer.
Owed is the transfer of ownership and surrender of the object of purchase. The assembly, installation or configuration of the object of purchase is not owed, unless this is 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 the dispatch is delayed for reasons which lie in the person of the purchaser, the risk shall already pass to the purchaser with the notification of readiness for dispatch.
Our prices are net prices and are always “ex works” (EXW Incoterms 2010) for deliveries, unless otherwise agreed. In the case of services, the prices refer to the performance of the service at the agreed place of performance. When invoicing, value added tax shall be added at its respective statutory rate.
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 that have occurred in the meantime as a result of price increases for us to the corresponding extent. The same shall apply if a performance period of less than four months was agreed but the performance can only be performed by us later than four months after confirmation of the order for reasons for which the customer is responsible.
§6 Terms of Payment
Unless otherwise contractually agreed, our claim shall be due 30 days after receipt of the delivery or after performance of our service, without any deduction. If we provide our deliveries or services in definable partial sections, we shall be entitled to make a corresponding part of the remuneration due for each partial section.
The customer shall not be entitled to make any deductions without express agreement.
If the customer is in default of payment, he shall compensate us for any damage caused by default, in particular by paying interest in the amount of 8 percentage points above the base interest rate. If the customer is in default with the payment of a due amount or partial amount for more than 14 days, if the customer violates the obligations resulting from a reservation of title or if the counter-performance to which we are entitled becomes endangered 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 by express agreement and even then only on account of payment.
Only undisputed or legally established claims may be set off against our claims for remuneration. The same applies to the exercise of a right of retention. The customer is 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 present and future claims arising from the concluded contract and an ongoing business relationship (secured claims), we retain title to 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 shall notify us immediately in writing if and to the extent that third parties seize the goods belonging to us.
In the event of conduct by the customer 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 or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. 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 products resulting from the processing, mixing or combination of our goods at their full value, 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. Otherwise, the same shall apply to the resulting product as to the goods delivered under reservation 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 its payment obligations towards 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 its ability to pay. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform 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 sufficiently insure the reserved goods at its own expense against damage by fire, water and theft at replacement value. If maintenance and inspection work becomes necessary, the customer must carry it out in good time at its own expense.
If the effectiveness of this reservation of title depends 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 obligated to provide all cooperation services necessary for this registration on his part free of charge.
§8 Obligations of the Customer to Cooperate
The customer shall support us and our employees to a reasonable, customary extent. If we have to provide project-related work or services by our employees in the customer’s company, the support may also include the provision of work rooms and workstations with PC and telephone at our request, the costs of which shall be borne by the customer.
The customer shall provide us with materials, information and data which we require for the performance of our services. Data and data carriers must be technically flawless. Insofar as special legal or operational safety regulations apply in the customer’s business, the customer must inform us of this before we provide our services.
Instructions from the customer to our employees regarding the specific form of performance are excluded, unless instructions are necessary in connection with safety requirements and operating regulations in the customer’s business. Instructions on individual questions regarding work or services to be provided by us shall not be given to the employees entrusted by us with the task, but to the contact persons named by us for the project. We shall always decide independently on the necessary measures within the scope of our performance obligations.
§9 Liability for Defects and General Liability
The customer’s claims due to 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 (subsequent improvement) or by delivering an item free of defects (replacement delivery). The right to refuse the chosen type of subsequent performance under the statutory conditions shall remain unaffected.
2.2 We shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
2.3 The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall 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 is actually present. The customer shall bear the expenses for rectification or supplementary performance incurred because the purchased item has been taken to a place other than the customer’s place of residence or commercial establishment after delivery. If a request by the customer to remedy a defect turns out to be unjustified, we may demand compensation from the customer for the costs incurred as a result.
The customer’s claims for defects, in particular the claims for supplementary performance, withdrawal from the contract, reduction of the purchase price and damages, require that the customer has fulfilled its statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, the supplier must be notified of this in writing without delay. The notification shall be deemed immediate if it is made within two weeks of discovery of the defect, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer shall give written notice of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notice shall also suffice to meet the deadline. If the customer fails to duly inspect the goods and/or notify us of defects, our liability for the defect not notified 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 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 based on the intentional or negligent breach of material contractual obligations (cardinal obligations) of the Provider, a legal representative of the Provider, executive employees or vicarious agents. Material contractual obligations (cardinal obligations) are obligations whose fulfillment is necessary for the proper performance 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 shall be limited to the amount of the damage typically to be expected and foreseeable for the provider at the time of the conclusion of the contract when exercising due care.
This does not apply to damages resulting from injury to life, body or health. Claims for damages by the customer in the event of a simple negligent breach of a material contractual obligation shall become statute-barred one year after the statutory commencement of the limitation period. This does not apply to damages resulting from injury to life, body or health.
Claims for damages against the provider arising from statutory liability, for example under the Product Liability Act, shall remain unaffected by the above provisions and shall exist to the statutory extent within the statutory periods.
Rights of the Customer under Sections 478 and 479 of the German Civil Code (BGB) in the event that the Customer or its other customers in a supply chain are claimed by a consumer shall remain unaffected by the provisions in this § 9.
If third parties are commissioned or involved for the initiation or settlement of the debt relationship between the customer and the supplier, the above-mentioned warranty and liability limitations shall also apply in favor of the third parties.
The customer and we (“the parties”) undertake to keep secret during the term of the contract all information to which they have access in connection with the contract and which is designated as confidential or is recognizable as business or trade secrets due to other circumstances and not to record it or pass it on to third parties or exploit it in any way – unless expressly approved in writing in advance or required to achieve the purpose of the contract. This obligation to maintain secrecy shall remain in force for a further five years after complete performance or termination of the order.
Excluded from this is that information,
2.1. which were already known to a party before the start of the contractual negotiations or which are communicated by third parties as non-confidential, provided that these do not in turn violate 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 statutory obligations or official or court orders.In the latter case, the disclosing party shall inform the other party without delay prior to disclosure. Further statutory duties of confidentiality shall remain unaffected.
Place of performance, place of jurisdiction, applicable law, data processing, contractual language, severability clause
The place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship shall be Ubstadt-Weiher, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer does not have a general place of jurisdiction in the Federal Republic of Germany or transfers 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 business operation set up in a commercial manner. 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 use another language in addition, the German wording shall take precedence in accordance with the agreement.
Should any provision in these General Terms and Conditions of Delivery and Payment or any provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
German law shall apply to the contractual and other legal relationships with our customers to the exclusion of the UN Convention on Contracts for the International Sale of Goods.