§ 1 Validity of the conditions
(1) The following Terms and Conditions of Sale and Delivery shall apply to the exclusion of all previous versions to all sales and delivery transactions conducted with us. The Terms and Conditions of Sale and Delivery shall form an integral part of all our offers and declarations of contract acceptance and shall form the basis of all our deliveries and services, including advice and information.
(2) We hereby expressly reject any terms and conditions of the Purchaser that deviate from these Terms and Conditions. We shall not be bound by the customer's terms and conditions even if we do not expressly reject them again separately after receipt; they shall only apply if we expressly confirm their validity in writing.
(3) These Terms and Conditions shall also apply to all future business relations, even if the Terms and Conditions are not separately agreed again.
§ 2 Conclusion of contracts
(1) Our offers are non-binding and noncommittal unless they are expressly marked as binding or contain a specific acceptance period. We may accept orders or contracts within 4 weeks after receipt.
(2) Only the written order including these General Terms and Conditions of Delivery shall be decisive for the legal relationship between us and the Customer. The latter shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by us shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they continue to be binding. Any additions or amendments made to the agreements, including these terms and conditions, must be in writing to be effective. Except for managing directors or authorized signatories, our employees are not entitled to make any agreements deviating from this. Transmission by fax or e-mail with a signed attachment shall also be sufficient to comply with the requirement for the written form.
(3) Our information about the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative unless usability for the contractually intended purpose requires exact conformity. They are no guaranteed quality features, but rather descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(4) We reserve the right of ownership or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the purchaser. The Purchaser may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without our explicit approval. At our request, he shall return these items to us in their entirety and destroy any possible copies if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
(5) Subsequent changes to the order can only be made if the production status still permits this; any additional costs incurred will be charged to the Purchaser.
§ 3 Prices
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. If not otherwise agreed in writing, the prices are in Euro from the factory plus packaging and the statutory value added tax. In the case of export deliveries, customs duties, fees and other public charges are not included in the prices and are the responsibility of the purchaser.
(2) If the agreed prices are based on our list prices and the delivery is to be made more than 4 months after conclusion of the contract, the list prices valid at the time of delivery shall apply (in each case after deducting an agreed percentage or fixed discount).
§ 4 Delivery
(1) Any deadlines and dates for deliveries and services promised by us shall only be approximately unless a fixed deadline or a fixed date has been expressly promised or agreed. All delivery periods shall then run from the time of final written agreement on all details of the order, but at the earliest from the time of receipt of the written order by us. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party entrusted with the transport.
(2) We may demand from the Purchaser - without prejudice to its possible rights arising from default - an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Purchaser fails to meet its contractual obligations towards us.
(3) We shall not be held responsible for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration (e.g., more than 12 weeks), we shall be entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery and service deadlines shall be extended, or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.
(4) We shall be entitled to make partial deliveries if the partial delivery is usable for the Customer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional expense as a result.
(5) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 9 of these General Terms and Conditions of Delivery.
§ 5 Shipping, Packaging, Transfer of Risk, Acceptance
(1) The method of dispatch and the packaging shall be at our dutiful discretion.
(1a) Notice pursuant to § 15 para. 1 of the Packaging Act:
The Customer shall be entitled to return the transport packaging (e.g. cardboard boxes, foils, disposable pallets) which has been provided for the transport to the Contractor.
The transport packaging must be returned within 4 weeks after delivery or, in the case of recurring deliveries, with the next delivery.
The Customer shall bear the costs of the return.
The packaging must be returned empty of residues and sorted by type of packaging.
The return shall take place at the registered office of the Contractor.
In the case of failure to return the packaging, the Purchaser shall be liable for its proper disposal.
(2) The risk shall pass at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if we have assumed other services (e.g., shipping or installation). If shipment or handover is delayed due to circumstances caused by the customer, the risk shall pass to the customer on the day on which the delivery item is ready for shipment, and we have informed the customer about this.
(3) Storage costs after transfer of risk shall be borne by the Purchaser. In the case of storage on our part, the storage costs shall be 0.25 % of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
(4) The consignment shall only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks at the explicit request of the Purchaser and at his expense.
(5) Insofar as acceptance is to take place, the object of purchase shall be deemed to have been accepted when
- the delivery, insofar as we also owe the installation, has been completed,
- we have informed the customer about this with reference to the acceptance fiction according to this § 5 section 5 and have requested the customer to accept the goods,
- 15 working days have elapsed since delivery or installation or the Customer has started to use the item (e.g. has put the delivered parts or components into operation) and in this case 10 working days have elapsed since delivery or installation, and
- the Purchaser has failed to accept the goods within this period for a reason other than a defect of which we have been notified and which has rendered the use of the goods impossible or significantly impaired their use.
§ 6 Payment
(1) Unless otherwise agreed, payments for our deliveries of goods shall be received within 10 days of the invoice date with a 2% discount or after 30 days without deduction. This shall also apply to deliveries for which a certificate in accordance with EN 10204 3.1 or comparable (third-party acceptance 3.2) is required. We shall not grant any discount on any ancillary costs submitted by us (e.g. acceptance costs and freight costs).
(2) In the case of default in payment by the Purchaser, we shall be entitled to charge interest at 8 percentage points above the prime rate p.a. The damage caused by default shall be set higher or lower if we prove a higher damage caused by default or the customer proves a lower damage caused by default.
(3) Cheques shall not be deemed to be payment until they have been cashed and credited. Any costs and expenses incurred upon encashment shall be borne by the customer.
(4) The withholding of payments on the basis of counterclaims disputed by us and not legally established or the offsetting of such counterclaims shall not be permitted.
(5) If, in the case of export transactions from the country from which payment is to be made, it is impossible to transfer the payments at the time they are due, the Purchaser shall nevertheless pay the equivalent of the amount owed on time to a bank in that country. In case of deterioration of the exchange rate of the amounts deposited in non-agreed currency, the Purchaser shall compensate for it by additional payment.
§ 7 Warranty
(1) The warranty period shall be 12 months from delivery or, if acceptance is required, from acceptance. The purchaser is obliged to check the goods immediately for shortages and recognizable defects and to inform us about these in writing within 14 days after delivery. Hidden defects must be reported to us in writing within 8 days of their discovery, at the latest within the warranty period (sentence 1), if they are not discovered within the period specified in sentence 1. If the purchaser fails to notify us in due time, the goods shall be deemed to have been approved.
(2) Upon our request, the delivery item complained about shall be returned to us freight prepaid. In the case of a justified complaint, we shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. In the case of material defects in the delivered items, we shall first be obliged and entitled to choose between rectification of the defect or replacement delivery within a reasonable period of time. In the case of failure, whereby at least two attempts at rectification are to be granted to us, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
(3) If a defect is due to our fault, the purchaser may claim damages under the conditions specified in § 9.
(4) In the case of defects in components of other manufacturers which we cannot remedy for licensing or actual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the purchaser or assign them to the purchaser. In the case of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the claims mentioned above against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Purchaser against us shall be suspended.
(5) The warranty shall not apply if
- the Purchaser modifies the delivery item or has it modified by a third party without our consent and the rectification of the defect is thereby rendered impossible or unreasonably difficult (in any case, the Purchaser shall bear the additional costs of the rectification of the defect resulting from the modification);
- the customer does not give us the opportunity to convince ourselves of the defect complained of, in particular does not provide the goods complained of or corresponding samples upon request within a reasonable period to be determined by us.
(6) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
§ 8 Guaranty
If a warranty has been agreed for our goods, it shall only be valid towards the purchaser. It shall be valid for 12 months from delivery or, if acceptance is required, from acceptance.
§ 9 Liability for damages due to fault
(1) Our liability shall be limited in accordance with this § 9, irrespective of the legal grounds on which it is based, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, insofar as fault is involved in each case.
(2) We shall not be liable in the case of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item free of material defects in a timely manner as well as consulting, protection and care obligations which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from significant damage.
(3) Insofar as we are liable for damages on the merits in accordance with § 9 (2), this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
(4) In the case of liability for simple negligence, our liability to pay compensation for property damage and further financial losses resulting therefrom shall be limited to an amount of 10 million euros per case of damage (corresponding to the current coverage amount of our product liability insurance/liability insurance), even if a breach of material contractual obligations is involved.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
(6) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 9 shall not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 10 Retention of title
(1) We retain title to the delivered goods until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all of our claims have been included in a current invoice and the balance has been struck and acknowledged.
(2) The customer shall be revocably entitled to resell the goods subject to retention of title (reserved goods) in the ordinary course of business. Other disposals, in particular pledges or transfers of ownership by way of security, are not permitted.
(3) Upon conclusion of our purchase contract, the Purchaser already assigns to us all claims accruing to it against its customers or third parties from the resale without or after further processing. The customer is revocably authorized to collect the claims assigned to us.
(4) If the goods subject to retention of title are resold together with other goods to which we do not have title, the purchaser's claim against its customer shall be deemed assigned in the amount of the delivery price agreed between the purchaser and us.
(5) In the case of processing or transformation of the reserved goods as well as in the case of an agreement of the reserved goods with other items, we shall always become (co-)owner to the extent that the Purchaser would become (co-)owner without such agreement. The Customer shall also assign to us the claims against third parties arising from the combination of the reserved goods with real property.
(6) The Purchaser shall be obliged to treat the Retained Goods with care, to have them repaired and maintained if necessary, to insure them adequately at its own expense against damage by fire, water and burglary and to provide us with evidence of the insurance upon request. This shall apply mutatis mutandis to new items created by processing or combination, unless this is opposed by prior rights of third parties.
(7) In the case of imminent access by third parties to the goods subject to retention of title, in particular in the case of seizure, the Purchaser shall draw attention to our ownership in a suitable manner and notify us without delay.
(8) In the case of conduct by the customer in breach of contract, in particular in the case of default in payment, we shall be entitled to demand the return of the goods subject to retention of title, to revoke the authorization to sell in the ordinary course of business (paragraph 2, sentence 1) and to revoke the direct debit authorization (paragraph 3, sentence 2). In addition, the customer shall, at our request, immediately inform us of the debtors of the claim assigned to us and notify them of the assignment. The same shall apply if insolvency proceedings are applied for against the assets of the customer or if payments are suspended. The taking back or seizure of the reserved goods by us shall only constitute a withdrawal from the contract if we expressly declare this in writing. After taking back the goods subject to retention of title, we shall be entitled to realize the goods subject to retention of title, setting off the proceeds against the customer's liabilities (less reasonable realization costs). Paragraph 6, sentence 2 shall apply accordingly.
(9) If the value of the existing securities exceeds the claims to be secured by more than 20%, we shall be obligated to release such securities upon written request of the Purchaser. The choice of the securities to be released shall be at our discretion.
(10) If the retention of title is not effective in the above form according to the law of the country of destination, the purchaser shall cooperate in establishing a security right for us corresponding to the provisions of his country.
§ 11 Place of performance, place of jurisdiction, choice of law, final clause
(1) The place of performance for all obligations arising from the delivery transaction shall be Saarbrücken-Ensheim.
(2) The place of jurisdiction for both parties is Saarbrücken.
(3) The contract is subject to the law of the Federal Republic of Germany. The Hague Conventions of 01.07.64 concerning uniform laws on the international purchase of movable property and the United Nations Convention of 11.04.80 concerning contracts for the international purchase of movable property shall not apply.
(4) In the case of invalidity of individual provisions of the contract or the General Terms and Conditions, the remainder of the contract and the General Terms and Conditions shall remain valid.
