1. Scope of the Terms and Conditions
Our Terms and Conditions of Sale and Delivery shall apply exclusively; we shall not recognise terms and conditions of the Customer which oppose or deviate from our Terms and Conditions of Sale and Delivery, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale and Delivery shall apply also if we have knowledge of terms and conditions of the Customer opposing or deviating from our Terms and Conditions of Sale and Delivery and execute the delivery to the Customer without reservation.
It is essential that all agreements which have been concluded between ourselves and the Customer for the purpose of the execution of this delivery contract shall be laid down in writing in this contract.
Our Terms and Conditions of Sale and Delivery shall also apply for all future business with the Customer.
If the order qualifies as an offer acc. § 145 BGB (German Civil Code), then we can accept this within 4 weeks. Documents such as figures, drawings, weight and dimension data included in our offer shall only be approximately decisive if they are not expressly denoted as being binding. We shall reserve the right of ownership and copyright on cost estimations, drawings and other documents; they may not be made accessible to third parties. Likewise, we are obligated only to make plans designated by the Customer as confidential accessible to third parties with their permission.
Our offers are non-binding and subject to alteration. All contracts shall come into effect with the receipt of our written order confirmation, at the latest on execution of the delivery. The written order confirmation shall be decisive for the scope of delivery. Ancillary agreements and changes shall imperatively require our written confirmation.
3. Prices / payments
Without any special agreement, the prices are valid ex works including loading at the works, but excluding packaging. VAT at the statutory rate shall be added to the prices.
Without any special agreement, payment shall be in cash without any deductions, rendered to our payment office without charge, and as follows: 1/3 advance payment following receipt of the order confirmation, 1/3 as soon as we have notified that the main parts are ready for dispatch, and the remaining amount within one month following delivery. Should the Customer be in default of payment, then we shall be entitled to demand default interest at an amount of 4 % p. a. above the respective base interest rate. Should we be in a position to verify a higher default damage, then we shall be entitled to assert this amount. However, the Customer is entitled to prove to us that no or lesser damage has arisen as a consequence of the default.
The Customer shall only be entitled to a right of offset if their counterclaims are determined as legally binding, undisputed or recognised by us. Furthermore, they shall only be authorised to assert a right of retention insofar as a counterclaim is based on the same contractual relationship and is likewise determined as legally-binding, undisputed or recognised by us.
Bills of exchange and cheques shall only be accepted on account of performance; costs arising from these shall be borne by the Customer and shall be rendered due with the acceptance of the bills of exchange or the cheque.
In case of substantiated doubt of the payment worthiness of the Customer, in particular outstanding payments, we may, subject to further claims, revoke granted terms of payment and declare our claims as immediately due for payment, including any bills receivable. Furthermore, we may demand advance payment or rendering of securities for further deliveries. Agreed current account relationships may be retrospectively cancelled with immediate effect. In this case, the Customer no longer owes on account, but instead owes the payment for the individual deliveries.
An invoice or account statement shall be deemed recognised provided these are not revoked by writing to us within 14 days. The receipt shall be decisive for the compliance with the deadline.
4. Delivery times
The delivery time begins with the dispatch of the order confirmation, however not prior to the procurement of the documents, licenses, approvals to be obtained by the Customer and prior to the receipt of an agreed payment.
The delivery time shall be deemed as observed if the delivery item has left the works prior to the expiry, the dispatch readiness has been notified, or in case assembly is included in the scope of the contract, with its completion.
The delivery time shall be appropriately extended in case of measures within the scope of industrial disputes, in particular strikes and lock-outs, and with the occurrence of unforeseeable impediments beyond our will, insofar as such impediments are verifiably of significant influence for the completion or delivery of the delivery item. This shall also apply if such circumstances occur with subsuppliers. We are also not responsible for the abovementioned circumstances if they occur during an already-existing delay. In important cases, the beginning and end of such impediments shall be notified to the Customer as soon as possible.
Should the Customer set us an appropriate period of grace after we have already defaulted on payment, then, following the futile expiry of this deadline, they shall be entitled to withdraw from the contract. Claims for compensation for damage due to non-performance to the amount of the foreseeable damage shall only be due to the Customer if the delay is based on intent or gross negligence. Furthermore, the damage compensation liability shall be limited to a maximum 5 % of the value of that part of the delivery which cannot be used in due time or as contractually intended due to the delay.
If the dispatch is delayed at the request of the Customer, then the costs arising due to storage shall be charged to them, beginning 1 month after the notification of the dispatch, however in case of storage in our works at least ½ % of the invoice sum each month. Following the setting and the futile expiry of an appropriate deadline, we shall be entitled to deal otherwise with the delivery item and provide the Customer with an appropriately extended deadline. Furthermore, we shall be entitled to demand compensation for arising damages including any extra expenses. In this case, the risk of accidental destruction or accidental deterioration of the delivery item shall be transferred to the Customer at the time it falls into default of acceptance.
Compliance with the delivery time is the prerequisite for the fulfilment of the contractual obligations of the Customer.
Should we be released from the abovementioned regulation in cases of force majeure, but the delivery is nevertheless immediately executed following cessation of the impediment, then we shall be entitled to charge any extra costs for the replacement procurement of raw materials and/or to deviate from the composition and the guaranteed values inasmuch as this is necessary due to this obstruction and if the interests of the Customer are only insignificantly impaired.
Delivered objects, even if they exhibit defects, are to be accepted by the Customer irrespective of their further rights.
Part deliveries are permissible.
If we are obligated to assembly according to the order, then the Customer must provide the required resources at their own cost.
5. Transfer of risk
The risk shall be transferred to the Customer at the latest with the dispatch of the delivery parts, and also then if part deliveries occur or we have assumed further services, e.g. the shipment costs or carriage and deployment. On request by the Customer, the consignment shall be insured at their costs against theft, breakage, transportation, fire and water damage and other insurable risks.
The rights of warranty of the Customer stipulate that they have properly fulfilled their legally owed obligation to inspect and notify us of defects.
All parts, which within 6 months of commissioning are deemed unusable or their usability is significantly impaired as a result of circumstances prior to the transfer of risk due to a faulty construction, poor materials or defective execution, shall be repaired or re-delivered without charge at our reasonable discretion. Replacement parts are our property. Should the dispatch, deployment or commissioning be delayed outside our scope of responsibility, then the liability shall lapse at the latest 12 months after the transfer of risk. For significant external products, our liability shall be limited to the liability claims to which we are entitled from the supplier of the external product.
The period of warranty is 6 months, calculated from the transfer of risk. This period is a period of limitation and also applies for claims for compensation for consequential damages.
We shall not be held liable for damages which arise due to unsuitable or incorrect use, faulty assembly or commissioning by the Customer or third parties, natural wear, faulty or negligent handling or maintenance, inappropriate equipment, replacement materials, faulty construction work, inappropriate building site, chemical, electrochemical or electrical influences, provided they are not attributable to us.
Following agreement, the Customer must provide us with the reasonably required time and opportunity to execute improvements and replacement deliveries deemed as necessary, otherwise we shall be released from our liability for defects. Only in urgent cases of risk to operational safety and resistance to disproportionate amounts of damage, or if we are in default with the elimination of defects does the Customer have the right to eliminate the defect themselves or by a third party and to demand reimbursement of the necessary costs. In such cases, we are nevertheless to be informed immediately.
If a complaint is justified, we shall bear, from the direct costs arising for improvement or replacement delivery, the costs of the replacement part including shipment, the appropriate costs of installation and de-installation, and furthermore the costs for the required provision of fitters and assistants, if this can be reasonably demanded depending on the individual case. Otherwise the Customer shall bear the costs.
The warranty period shall be 3 months for a replacement part and improvements. However, it shall run at least until the expiry of the original warranty period for the delivery item. The deadline for the liability for defects on the delivery item shall be extended by the duration of the operational interruption caused by the improvement work.
We shall not be held liable for changes or repair work improperly undertaken by the Customer or third parties without our prior permission and for the resulting consequences.
Further claims of the Customer, in particular a claim for compensation for damages which have not occurred on the delivery item itself shall be excluded. In particular, we shall not be held liable for the loss of profit or damages to other assets of the Customer. The abovementioned exemption from liability shall not apply if the cause of damage is based on intent or gross negligence. Furthermore, it shall not apply if the Customer asserts claims for compensation for damages based on non-performance due to the lack of an assured property. If we negligently violate an essential contractual obligation, our obligation to replacement shall be limited to material and personal damage to the cover sum of our product liability insurance. Provided our liability is excluded or limited above, then this shall also apply for the personal liability of our staff, workforce, employees, representatives and vicarious agents. Insofar as we are not the manufacturer of the delivered works, claims against us may only be asserted, irrespective of the abovementioned regulation, to the extent to which the manufacturer owes liability towards us.
The abovementioned regulations shall apply accordingly if, due to our fault, the delivered object cannot be used by the Customer as contractually intended as a result of negligent or faulty execution of suggestions and advice prior to or after the conclusion of the contract and other contractual ancillary obligations, in particular instructions for operation and maintenance.
The Customer may withdraw from the contract if the entire performance prior to the transfer of risk becomes ultimately impossible. The same applies to inability to perform. The Customer may also withdraw from the contract if the number of identical objects of a part of the delivery becomes impossible for an order and they have a justifiable interest in the refusal of a part delivery. If this is not the case, then the Customer may reduce the financial considerations accordingly.
If a default of performance in terms of the abovementioned delivery terms and conditions exists and the Customer provides us with an appropriate period of grace with the express declaration that following expiry of this deadline, they shall refuse acceptance of the performance, and shall not comply with the period of grace, then the Customer shall be entitled to withdraw.
Should the impossibility occur during default of acceptance or due to the fault of the Customer, then they shall remain obligated to compensatory measures.
Furthermore, the Customer has the right of withdrawal if we allow an appropriately set period of grace for the improvement or replacement of a delivery regarding a defect we are responsible for in terms of the delivery terms and conditions to lapse without success through our own fault. The right of withdrawal of the Customer shall also apply in other cases of our failure to improve or replace a delivery.
All further claims of the Customer shall be excluded, in particular for conversion, termination or reduction and for compensation for damages of any kind, and also such damages which have not arisen on the delivery item itself. This disclaimer is limited in the same way as it is in the abovementioned Clause 6.
8. Proprietary rights
We reserve the right to the ownership of the delivery item until receipt of all payments arising from the delivery contract. In case of conduct of the Customer contravening the contract, in particular in case of payment default, we shall be entitled to repossess the delivery item. A withdrawal from the contract shall not be possible through the repossession of the delivery item by us, unless we have expressly declared this in writing. A withdrawal from the contract shall be possible at all times through the seizure of the delivery item by us. We shall be authorised to the utilisation of the delivery item following its repossession. The proceeds from the utilisation are to be credited to the commitments of the Customer minus appropriate utilisation costs.
The repositories provided to the Customer (e.g. transportation containers, containers, plastic containers, drums, boxes, pallets etc. ) shall remain our sole and unlimited property. They are to be returned to us by the Customer in a faultless and cleaned condition immediately after their intended use, otherwise we shall be entitled to invoice the Customer for the cleaning and also replacement costs.
The Customer is obligated to handle the purchased item carefully. In particular, they are obligated to adequately insure this at the replacement value at their own expense against fire, water and theft damage, if it is not intended for immediate use.
In case of seizure or other interventions by third parties, the Customer must immediately notify us in writing. If the third party is not able to reimburse the legal and extrajudicial costs for the defence of our rights, then the Customer shall be held liable for losses to us.
The Customer shall be entitled to re-sell the delivery item in the course of normal business; however, they hereby already assign all claims to us for the amount of the invoice final sum including the statutory VAT which accrue from the further sale to their buyer or third parties, and this independent of whether the delivery item has been sold without/or after processing. The Customer shall remain authorised for the collection of this claim, even after assignment. Our authorisation to collect the claim ourselves shall remain unaffected by this matter. However, we shall obligate ourselves not to collect the claim as long as the Customer fulfils the payment obligations to us, is not in default of payment and in particular has not submitted an application for the opening of insolvency or if similar proceedings or a cessation of payment exists. However, if this is the case, then we may demand that the Customer notifies us of the assigned claims and their debtors, provides all the necessary data required for collection, hands over the associated documents and informs the debtors of this assignment.
The processing of the delivery item by the Customer shall be undertaken for us at all times. Should the delivery item be mixed with other objects which do not belong to us, then we shall acquire co-ownership of the new object to the proportion of the value of the delivery item to the other objects mixed with it at the time of mixing. Furthermore, the same shall apply for the new item arising through this mixing as for the object delivered under reservation. The Customer shall store this new object for us.
We obligate ourselves to release securities due to us at the request of the Customer provided the value of our securities exceeds the claims to be secured by more than 20 %. The choice of the securities to be released shall be incumbent upon us. The reference value is the respective purchase price.
9. Place of jurisdiction
Provided the Customer is a merchant, our headquarters is the place of jurisdiction. However, we shall also be entitled to file proceedinsg against the Customer at their place of jurisdiction.
Provided nothing else is agreed in writing, our headquarters is the place of performance. The law of the Federal Republic of Germany under exclusion of the UN Sales Law applies for the business relationships and the overall legal relationship with us.
Should a provision in these terms and conditions or within the scope of other agreements be or become ineffective, then the efficacy of the remaining provisions shall not be affected by this.
All previous Terms and Conditions of Sale and Delivery shall become obsolete through this document
Vechta, 26th June 2008