to the top 1. Applicability and Conclusion of Contract
1.1. All deliveries and services rendered to customers which are companies take place, regardless of their type, solely on the basis of our General Terms and Conditions for Sales and Delivery, which the customer accepts by placing an order or accepting a delivery or a service.
Applicability of conditions that deviate from our General Terms and Conditions is excluded even if we do not object to them.
Our General Terms and Conditions for Sales and Delivery also apply to all future business relations even if this is not expressly agreed again.
1.2. Offers from us are not binding.
A contract is only formed when an order has been confirmed by us in writing. Order confirmations, bills of delivery and other confirmatory writings from us are deemed to have been recognized by the customer as being materially correct except as the customer objects in writing without delay, within 4 working days of receipt at the latest.
In ordering a work or goods, the customer declares that it is bound to the order and wants to conclude a contract in accordance with the order. Upon receiving such an order, we have two weeks in which to accept the customer’s offer of the corresponding contract. This acceptance can be declared in writing or by transferring the given work or goods to the customer.
1.3. We reserve the right to make technically necessary or expedient changes to the products. Dimensions, pictures and drawings are just preliminary information for the customer and are only binding when this has been confirmed by us in writing.
Statements about product characteristics and performance attributes just serve as illustrations and not binding.
1.4. Insofar as nothing different is agreed in detail, the contents of the contract, insofar as there are any questions of interpretation, shall be deemed to be supplemented by the following sources, which shall apply in the order given: the determinations and specifictions in written offers, the determinations and specifications in written descriptions of performance, the determinations and specifications in these General Terms and Conditions for Sales and Delivery, and, finally, the determinations and specifications of the German Civil Code [Bürgerliches Gesetzbuch - BGB].
1.5. Contracts are concluded subject to the reservation of correct and timely supply for our own needs through our suppliers.
This only applies to the case in which we are not responsible for non-delivery, especially when a congruent covering transaction has been agreed with our supplier. The customer shall be informed of the non availability without culpable delay and any consideration rendered shall be reimbursed without culpable delay.
to the top 2. Delivery
2.1. Delivery dates and periods are only binding if they are agreed with the customer or confirmed by us in writing.
Delivery periods begin with the date of order confirmation at the earliest, but not until all technical questions (if any) have been clarified and the documents and/or drawings to be provided by the customer have been received.
2.2. Delivery periods are prolonged by the duration of delays due to force majeure as well as to strikes, lockouts and disruptions of operations for which we are not responsible and/or delayed or omitted deliveries to us by our suppliers. The same applies when the customer makes changes or additions to the order.
If a disruption lasts longer than 6 months, the parties shall each be entitled to withdraw from the contract. The customer shall not be entitled to compensation for damages in this respect.
2.3. If we should default in our obligations, the customer shall not be entitled to withdraw from the contract until it has reminded us and allowed a reasonable period of grace for performance or supplementary performance to elapse. Claims for compensation for damages are excluded except as something else is implied by these General Terms and Conditions for Sales and Delivery.
2.4. If the customer is in default of acceptance or is otherwise responsible for a delay of dispatch, we may store the products at the risk and expense of the customer. If a deadline for acceptance of the products has been set by us and expired without result, we may withdraw from the contract and demand compensation for damages in lieu of performance without prejudice to any further rights which we may have.
2.5. All risks pass to the customer upon transfer of the goods to the customer or, with a contract involving carriage of goods, upon dispatch of the goods to the shipper, freight carrier or other person or organisation responsible for shipping the goods.
2.6. We are entitled to render partial deliveries. Our obligation to deliver is suspended for as long as the customer is in default on an obligation resulting from the business relation-ship.
to the top 3. Prices and Payment Conditions
3.1. All prices shall be computed on the basis of the price lists that were valid when the order was confirmed insofar as nothing different has been agreed or is directly implied by the confirmation of the order. The customer is responsible for all shipping, insurance and packaging costs and is also responsible for disposing of all packaging.
3.2. Payments shall be rendered by the customer without discount insofar as nothing different has been agreed.
3.3. In the case of payments by bank credit transfer, check or bill of exchange, the date of payment is deemed to be the credit value date. Checks and bills of exchange will only be accepted by us on the basis of a special agreement and then acceptance is subject to collection with all collection, discount and other costs to be borne by the customer.
3.4. If the customer misses the payment date, we can assert default damages. During the period of default the customer shall pay interest on the cash debt at the rate of 8 percentage points above the base interest rate, whereby we reserve the right vis-à-vis the cus-tomer to prove greater default damages and to assert these accordingly.
3.5. If the customer does not meet its payment obligations in accordance with the contract or if it suspends its payments or if we become aware of other circumstances which call the creditworthiness of the customer into question, then we are entitled to declare that the remaining debt is due at once and to demand advance payments and deposition of collateral. In these cases we may also withdraw from the contract without setting a period of grace insofar as the contract has not yet been fulfilled.
3.6. The customer only has the right of offset if its counter-claim has become legally final and absolute or has been recognized by us. The customer is not entitled to assign to any third party any of its claims against us or to empower any third party to assert such claims against us.
The customer may only exercise a right of retention if its counter-claim is based on the same contractual relationship.
3.7. In the event of subsequent changes to design, construction or dimensions relative to our offer or the letter of confirmation, we are entitled to charge the additional effort to the customer regardless of whether these changes have been made at the request of the customer or were due to technical necessities, unforeseeable difficulties or other circumstances which lay beyond our influence.
3.8. Our claims vis-à-vis companies1 for payment are subject to a limitations period of five years.
to the top 4. Retention of Title (Ownership)
4.1. We retain title to the goods until all claims arising from a current business relationship have been paid in full.
4.2. We retain ownership in all goods delivered until these goods have been paid for in full and without conditions. If we also have other claims against the customer, then we also retain ownership in the goods delivered until these other claims have been paid. The customer may resell such goods of ours (“retention goods”) in the normal course of business provided that the customer does not assign, pledge or otherwise encumber its claims arising from the resale.
In the event of customer conduct that is contrary to contract, especially in the case of delay in payment or breach of an obligation under this particular provision of the contract, we are entitled to withdraw from the contract and demand surrender of the goods.
In order to ascertain what our rights are in regard to retention goods, we may have all documents and books of the customer's which pertain to these goods inspected by a person who is subject by law to a professional obligation to maintain secrecy.
4.3. The customer may only sell retention goods in a proper business transaction with agreement of a corresponding retention of title, whereby the customer hereby already as-signs to us its resulting claims in the amount of the open claims by us, together with the rights from its retention of title. This authorisation can be revoked. We reserve the right to collect the claim ourselves as soon as the customer does not properly comply with its payment obligations and enters into payment default.
4.4. For the cases that the products from us are processed or combined with other products, the customer hereby now transfers to us as collateral ownership in the resulting processed product or product combinations (“the new objects”) in the amount of the price of the products from us to which we have title and the customer shall keep the new objects in safe keeping for us without charge to us. The customer assumes for us responsibility for processing the goods from us to which we have title, whereby we do not thereby acquire any obligations in any way. If there is processing with objects which do not belong to us, we acquire co-ownership in the new objects in the ratio of the value of the goods delivered by us to that of the other processed goods.
The same applies when goods which belong to us are mixed with other objects which do not belong to us.
4.5. Insofar as the value of collateral exceeds the nominal value of the open claims by more than 10%, we shall release collateral upon request.
to the top 5. Warranty
5.1. The customer shall carefully inspect the goods without delay upon receiving them. This shall include a check of product safety. The customer shall report any obvious defects to us in writing without delay and any concealed defects to us in writing without delay when they are discovered. Defects sustained during transport shall be reported by the customer to the deliverer at once. Claims by the customer based on defects are excluded if these inspection and reporting obligations are not met.
The deadlines apply to the time at which written notification is sent. The customer has the full burden of proof for all prerequisites for damage claims, especially for the defect itself, the time at which it was determined and the time at which written notice was sent.
5.2. If there is a defect, we, at our sole discretion, first decide whether to improve the delivery or to replace it with a new delivery (“supplementary performance”). When a part is replaced it becomes our property (if it was not already our property).
If we refuse, seriously and finally, to fulfil the contract, or to remove the defect and render supplementary performance because of disproportionate costs, or if supplementary performance is unsuccessful or would be unreasonable for the customer, then the customer can decide, at its discretion, just to reduce the price or to withdraw from (unwind) the contract and to demand compensation for damages, within the framework of the agreed limitations on liability, in lieu of performance.
However, if the breach of contract is only minor, especially in the case of defects that are only minor, the customer does not have the right to withdraw from the contract.
If, upon unsuccessful supplementary performance because of a legal or material defect, the customer chooses to withdraw from the contract, then the customer is not also entitled to compensation for damages because of the defect.
If, after unsuccessful supplementary performance, the customer demands compensation for damages, then the goods stay with the customer if this is not unreasonable for the customer. These claims for damages are confined to the difference between the sales price and the value of the defective object. This does not apply if we have fraudulently caused the breach of contract.
There are no claims under guarantees to the extent that the products delivered are defective because they were not maintained and cleaned properly, were damaged, or were used, handled or repaired improperly.
Claims against us under guarantees or for damages are excluded for third party products which are associated with deliveries and services from us or are deployed together with these products, whereby we do assign to the customer all claims for liability to which we are entitled vis-à-vis the supplier of the given third party delivery.
Except as something different is agreed, we assume no warranty for the functional capability of our deliveries and services when the customer combines these with third party products or operates the two together.
If the customer receives defective assembly instructions, we are only obliged to deliver assembly instructions that are free of defects, and then only insofar as defects in the assembly instructions, when not recognized as such, lead to improper usage of the delivery.
5.3. The limitations period for claims against us based on defects expires one year after acceptance of the goods delivered. The same applies to claims arising from violations of accessory obligations and/or compensation for material damages and financial losses that do not arise from the said goods themselves. This restriction does not apply to liability for fraudulent concealment of a defect, nor does it apply to liability under the German Product Liability Law, liability for damage to life, limb or health or to liability for intentional or grossly negligent conduct.
5.4. If claims based on fraudulent concealment of defects or assumption of a guarantee for the characteristics of goods are asserted, further claims are not affected. The customer does not receive guarantees from us in the sense in which this term is legally understood.
5.5. Further claims, especially those for consequential damages, are excluded insofar as this is permissible under law. Insofar as is legally permissible, all claims for compensation for damages, including those arising from positive breach of contract, from impermissible acts and especially from the German Product Liability Law or other legal grounds can only be asserted against us in cases of intention or gross negligence.
We are liable for slight negligence when essential contractual obligations have been violated and the violation of duty is based on our company organisation. The limitations period for these claims is six months, whereby the limitations period begins with the date of dispatch.
5.6. Further claims are excluded insofar as nothing different has been provided in these General Terms and Conditions for Sales and Delivery.
to the top 6. Liability
6.1. We are not liable in cases of slightly negligent violations of duty. Apart from that, our liability is limited to the foreseeable, direct average damages which are typical of the contract and of the type of work in question. This also applies to slightly negligent violations of duty on the part of our assistants and legal representatives.
6.2. The foregoing limitations on liability do not apply to claims of the customer arising from the German Product Liability Law. Nor do they apply when damages to body or health of the customer can be attributed to us or when loss of the customer's life can be attributed to the contractor.
to the top 7. Industrial Property Rights, Maintenance of Secrecy
7.1. We retain ownership of and all industrial property rights and originators’ rights to all constructions, samples, illustrations, technical documents, cost estimates and offers prepared by us even when the customer has assumed the costs for the said constructions, samples, illustrations, technical documents, cost estimates and offers prepared by us. The customer may only use them in the manner agreed with us. The customer may not produce or have produced by third parties the goods delivered except on the basis of our written consent.
7.2. Insofar as we deliver goods in accordance with constructions prescribed by the customer, the customer guarantees to us that no industrial property rights or other rights of third parties are violated in that we manufacture or deliver the said goods. The customer shall reimburse us for all damages which result from any infringement of any such right.
7.3. The customer shall keep secret from third parties all knowledge which the customer gains from the business relation with us insofar as such knowledge is not generally obvious.
to the top 8. Replacement Parts
Insofar as there is an obligation to be able to supply spare parts, this obligation shall be restricted to a period of five years after acceptance of the goods delivered.
to the top 9. General Provisions
9.1. Changes and extensions of the contract and these provisions must be made in writing.
9.2. If any of the foregoing provisions is ineffective or void, this does not affect the validity of the remaining provisions.
If a provision of these contractual conditions is ineffective, then it shall be replaced by a valid provision which takes account of the remaining provisions and comes as close as possible to the financial purpose of the ineffective provision.
9.3. The legal relations between us and the customer are subject to the laws of the Federal Republic of Germany. Application of the Uniform Law on the International Sale of Goods (according to the Hague Convention) is excluded.
9.4. Insofar as the customer is a merchant within the meaning of the German Commercial Code [Handelsgesetzbuch - HGB], or a legal entity or special fund of public law, it is agreed that exclusive jurisdiction for all disputes which arise from the contractual relationship directly or indirectly shall be the courts with jurisdiction for Wertheim/Main, Germany, whereby we could also proceed against the customer at its general place of jurisdiction.
The same applies if the customer does not have a general place of jurisdiction in Germany or if its residence or general place of abode is not known when proceedings are commenced.
9.5. The customer is aware that personal data about the customer is recorded and processed in our normal course of business to the extent necessary for business purposes. The customer agrees to this and is deemed to have been informed pursuant to §33 par. 1 of the German Federal Data Protection Act [Bundesdatenschutzgesetz].