Terms and Conditions of Sale and Delivery
Edition of 1 June 2017
All services, including proposals and advice, are rendered under the following terms and conditions:
1. Vertragsschluss
a) The contracting partner's business terms and conditions are hereby rejected, even if we do not also expressly object to them after gaining knowledge thereof.
b) Statements made in brochures and other advertising materials and upon telephone requests are subject to change. Information delivered by telephone is non-binding, unless it has been confirmed in writing. Statements made in our order confirmation become part of the contract, unless the contracting partner immediately objects to them after receipt.
c) We reserve title, copyright and other rights to cost estimates, drawings and documents, which may not be made accessible to third parties without our consent.
d) In the event of changes and supplements to the contract, the content of our confirmation letter shall be decisive, unless objections are immediately raised by the contracting partner after receiving such letter.
e) Obvious deviations in the technical design or in the ordered quantity are deemed to be according to contract or an implicit contract amendment, if the contracting partner accepts the delivery and fails to immediately object to such deviations.
f) The international trade terms shall be interpreted in accordance with the currently applicable Incoterms, which are expressly deemed to have been agreed in that respect.
g) Unless otherwise agreed, instructions, drawings and certificates, as weil as other technical documents are made available in the German language and only insofar as this is usual in the industry. Translations and additional explanations are only made at the contracting partner's request against additional cost and exclusively without guarantee for their content correctness.
h) We render our services according to the rules of engineering acknowledged upon order placement and with the care customary in the industry. We neither owe a successful outcome going beyond the offered services, nor shall we be liable for realizing any wishes or goals of the contracting partner going beyond the offered services. Where we are entrusted with research and development activities, the contracting partner bears the research and development risk, as weil as the risk for the applicability or usability of the results.
2. Prices, Payment Conditions
a) Unless otherwise expressly agreed, the prices apply ex works without packing and bundling, but including loading. Upon return of repeatedly usable boxes and other transport packagings in serviceable condition, a credit note will be issued in the amount of 2/3 of the calculated box value; the costs for return transport shall be borne by the contracting partner.
b) Partial deliveries are admissible and charged separately.
c) The offsetting against counterclaims is excluded, unless any uncontested claims or claims established as final and absolute are concerned. A right of retention of the contracting pa rtner is excl uded.
d) Quoted prices are the prices valid on the date of the offer. The price stated in the order confirmation shall apply, unless the contracting partner immediately raises objection after receipt thereof.
e) Bills, where agreed, and cheques are accepted on account of payment.
f) Our claims immediately fall due for payment regardless of the term of any submitted bills, if the agreed payment conditions have not been fulfilled, or if we learn about any circumstances after contract conclusion, which are likely to diminish the creditworthiness of the contracting partner.
We are then entitled to only perform delivery against advance payment and, after setting a reasonable deadline with warning of rejection, to either withdraw from the contract or demand damages for non-performance.
We may furthermore prohibit the resale and/or the installation of the delivered goods and demand their return or the transfer of indirect ownership of the delivered goods at the buyer's costs, as weil as to revoke the direct debit authorization. In such cases the buyer, now already, consents to the removal of the delivered goods.
3. Delivery Time / Default / Right of Withdrawal / Cancellation
a) The agreed delivery period starts to run upon dispatch of the order confirmation, however not prior to receipt of the documents, approvals and clearances to be procured by the contracting partner, the clarification of all commercial and technical details, and receipt of an agreed down payment.
b) The agreed delivery period is deemed to be observed, if until expiry of this period the delivery item has left the factory, or notice of the readiness for dispatch has been given.
c) Through unforeseen events, going beyond our control, the delivery period will be reasonably extended. These occurrences also include delays in the supply of essential raw and auxiliary materials by our sub-suppliers, as weil as of all types of fuels and energy, operational breakdowns, labor movements, strikes, lockouts, the wastage of essential production parts and the consequences arising from such disruptions, disturbances in freight transports, and in general all events of force majeure.
The same applies, if official or other approvals or documents required for performance of the delivery are not received in due time.
d) In the cases mentioned under letter c) the buyer undertakes to extend the periods of letters of credit, instructions etc. issued by him accordingly; the same applies to import licenses and foreign exchange authorizations.
Notice of the beginning and end of such obstacles will be given to the buyer in important cases, as soon as they become recognizable in their full extent.
e) The contracting partner may only withdraw from the contract in cases where the delivery time has been exceeded due to gross negligence or intent, where default has occurred and a reasonable grace period has been set to us, which must at least be 4 weeks. At our request, the contracting partner is obliged to declare within a reasonable period whether he intends to make use of his right of withdrawal.
We are entitled to declare our withdrawal from the contract in cases where the service impediments / disruptions mentioned under letter c) were not recognizable upon contract conclusion, and where a later fulfillment of the contract cannot be reasonably expected of us. To this effect, unreasonableness is in particular existent in cases where the contracting partner is not ready to make a reasonable adjustment when additional expenditures are incurred.
d) In the cases mentioned under letter c) the buyer undertakes to extend the periods of letters of credit, instructions etc. issued by him accordingly; the same applies to import licenses and foreign exchange authorizations.
Notice of the beginning and end of such obstacles will be given to the buyer in important cases, as soon as they become recognizable in their full extent.
e) The contracting partner may only withdraw from the contract in cases where the delivery time has been exceeded due to gross negligence or intent, where default has occurred and a reasonable grace period has been set to us, which must at least be 4 weeks. At our request, the contracting partner is obliged to declare within a reasonable period whether he intends to make use of his right of withdrawal.
We are entitled to declare our withdrawal from the contract in cases where the service impediments / disruptions mentioned under letter c) were not recognizable upon contract conclusion, and where a later fulfillment of the contract cannot be reasonably expected of us. To this effect, unreasonableness is in particular existent in cases where the contracting partner is not ready to make a reasonable adjustment when additional expenditures are incurred.
4. Passing of Risk, Dispatch, Acceptance
a) The risk of accidental loss of the delivery item shall pass to the contracting partner upon receipt of notice of readiness for dispatch, in case of agreed delivery when leaving the supplier's premises, even if freight-free delivery or trade clauses of other content have been agreed. The same also applies to partial deliveries.
b) Delivered items shall be accepted by the contracting partner without prejudice to the rights arising from clause 6, even if they show defects. Partial deliveries are admissible.
c) Where there is no agreement on the type of shipment, the dispatch takes place at our free discretion, without guarantee for the lowest-cost or quiekest means of shipping.
d) If the buyer fails to punctually accept delivery, this shall not affect the buyer's payment obligation. We are then entitled to arrange for storage at the expense and risk of the buyer. Delivery and compliance with the delivery period presupposes the fulfillment of all contractual duties of the buyer.
e) The contracting partner is basically obliged to accept partial deliveries, unless the entitlement to perform partial delivery has been expressly excluded in a separate contract.
5. Retention of Title
a) All goods delivered remain our property until settlement of all claims. This also applies to payments made for specifically designated claims.
b) If the contracting partner combines the reserved goods with other goods, we shall be entitled to co-ownership of the new item in a ratio of the invoice value of the reserved goods to the invoice value of the other goods used.
If our ownership expires through combination, the contracting partner shall now already transfer the property rights vested on him in the new stock or item in the amount of the invoice value of the reserved goods, which the contracting partner shall store for us free of charge. The resulting co-ownership rights are deemed to be reserved goods within the meaning of clause a).
c) The buyer may only seil the reserved goods in the ordinary course of business under his normal business terms and conditions, as long as the buyer is not in default, provided however that the claims arising from resale according to clauses d) and e) shall pass to us. The buyer is not entitled to otherwise dispose of the reserved goods.
d) The contracting partner's claim arising from resale of the reserved goods shall now be assigned to us in accordance with the share of the reserved goods in the final product.
e) The contracting partner is entitled to collect claims from the resale according to clause c) until our revocation, which can be declared at any time. We will only make use of the right of revocation in the cases mentioned in clause 2. The contracting partner is under no circumstances entitled to assign such claim. At our request, the contracting partner undertakes to immediately inform his customers about the assignment made to us, and to provide us with the information and documents required for collection.
f) If the value of existing securities exceeds the secured claims in total by more than 20%, we shall at the contracting partner's request insofar release securities at our discretion. The contracting partner must immediately inform us about any seizure or other impairment by third parties.
g) If the retention of title or the assignment is not effective according to the laws of the territory where the goods are located, the security corresponding to the retention of title or assignment in this territory is deemed to have been agreed. If the contracting partner's participation is required here, he shall take all measures which are required or reasonable for justification and maintenance of such rights.
h) In cases as mentioned under clause 2. f) we are entitled to inspect the reserved goods at any time, to mark them as our property and separate them. The contracting partner also agrees to bear the costs for removal of the reserved goods.
6. The Contracting Partner's Duty to Cooperate
a) The contracting partner shall provide us with adequate support in rendering the services. In particular, he will grant access to his facilities and all necessary information to the required extent, make qualified staff and other necessary tools and infrastructure available free of charge, and will punctually and immediately inform us about all circumstances concerning contract performance.
b) Where our services relate to a work, the contracting partner shall immediately accept this work. The service subjected to acceptance is exclusively the work performance owed. We may demand intermediate acceptance of interim and partial services, where it forms the basis for further rendering our services. The provisions stipulated in clause 6 shall apply to intermediate and partial acceptance accordingly.
c) The contracting partner shall have the statutory obligations of inspection and notice of non-conformity in accordance with Section 377 of the German Commercial Code (HGB).
d) In case of insignificant defects, the contracting partner may not refuse acceptance or the receipt of services.
7. Claims for Defects
Our warranty against defects of quality and title in our delivery is given to the exclusion of further claims, subject to clause 8 below, as follows:
Defects of Quality
a) All parts that are discovered to be defective as a result of circumstances existing prior to the transfer of risk shall, at our discretion, either be repaired or replaced by new parts free of charge. Notice of the discovery of such defects shall be immediately given to us in writing. Parts replaced shall become our property.
b) Following consultation with us, the contracting partner shall grant the time and opportunity required to perform all repairs and replacement deliveries that we deem necessary; otherwise we shall be released from liability for the resulting consequences. The contracting partner shall only in urgent cases of danger to operational safety or to prevent disproportionately extensive damages, whereby we must be informed immediately, have the right to have the defect rectified by himself or third parties, and to demand reimbursement of the necessary expenses from us.
c) Of the direct costs arising from the repair or replacement delivery, we shall - provided that the complaint proves to be justified - bear the costs of the replacement part including shipment. We additionally bear the costs of dismantling and installation, as weil as the costs of appointment of qualified staff required for that purpose, including travel expenses, insofar as no disproportionate burden arises for us.
d) The contracting partner shall have the right to withdraw from the contract within the scope of the statutory regulations, if we - taking account of the statutory exceptions - allow a reasonable period set to us for repair or replacement delivery due to a defect of quality to elapse fruitlessly.
Where there is only a minor defect, the contracting partner shall only be entitled to reduction of the contract price. The right to reduce the contract price shall otherwise be excluded.
e) No guarantee shall be given by us particularly in the following cases, unless we are responsible therefor:
unsuitable or improper use;
- incorrect assembly or commissioning by the contracting partner or third parties acting on his behalf;
- natural wear and tear;
- incorrect or negligent treatment;
- improper maintenance;
- inappropriate equipment;
- defective construction work;
- unsuitable building ground;
- chemical or electrical influences;
- delivery of used machines.
f) If the contracting partner or a third party provides improper repair, we assume no liability for the resulting consequences. The same applies to modifications of the delivery item made without our prior consent.Bessert der Vertragspartner oder ein Dritter unsachgemäß nach, übernehmen wir hierfür keine Haftung für die daraus entstehenden Folgen. Gleiches gilt für ohne unsere vorherige Zustimmung vorgenommene Änderungen des Liefergegenstandes.
Defects of Title
g) If the use of the delivery item leads to a violation of industrial property rights and of copyrights in Germany, as a matter of principle we will provide the contracting partner at our own cost with the right to further use or modify the delivery item in such a way, which is reasonably acceptable to the contracting partner, as to avoid the breach of property rights. If this is not possible under commercially reasonable conditions or within a reasonable period, the contracting partner has the right to withdraw from the contract. Under the stated prerequisites, we shall also be entitled to withdraw from the contract. In addition, we will indemnify the contracting partner against undisputed claims or claims established as final and absolute of the relevant holder of property rights.
h) The obligations stated in this clause shall, subject to the regulations set out in clause 8 below, be final and conclusive in the event of infringement of property rights or copyrights. These obligations only exist, if:
- the contracting partner immediately informs us about any claimed violations of property rights or copyrights;
- the contracting partner provides us with reasonable support in the defense against the asserted claims, or in the execution of the modifications mentioned above;
- all defense measures including out-of-court settlements are retained for us;
- the defect of title is not based on an instruction given by the contracting partner; and
- the infringement of rights was not caused by the fact that the contracting partner modified or utilized the delivery item in a manner contrary to the contract without authorization.
8. Liability
a) If, due to our fault, the contracting partner is unable to use the delivery item according to contract because of omitted or deficient implementation, or due to proposals or consultation made prior or subsequent to contract conclusion, or as a result of violation of other contractual ancillary duties - in particular instructions for the operation and maintenance of the delivery item -, the provisions stipulated in clause 7 above shall apply accordingly, to the exclusion of further claims of the contracting partner.
The contracting partner undertakes to personally examine the deliveries and services performed by us for their suitability and the intended use.
b) We shall only be liable - on whatever legal grounds - for damages not arising on the delivery item itself:
- in case of intent;
- in case of gross negligence on the part of the owner, the executive organs or senior managers;
- in case of culpable injury to life, the body or health;
- in case of defects which we maliciously concealed or guaranteed to be absent;
- in case of defects of the delivery item, insofar as liability exists under the German Product Liability Act for personal injury or property damage in relation to privately used items.
c) In case of property and financial damage caused by negligence, we and our vicarious agents shall only be liable for violation of an essential contractual duty; our liability shall however be limited to the amount of damages which were foreseeable upon contract conclusion and are typical for the contract. Essential contractual duties are those obligations which enable fulfillment of the contract and which the contracting partner may rely on.
d) No change in the burden of proof to the disadvantage of the contracting partner is associated with the above regulations.
e) Any further claims shall be excluded.
9. Statute of Limitation
All claims of the contracting partner - based on whatever legal grounds - are subject to a 12 months limitation period, beginning with the acceptance or commissioning. The statutory periods shall apply to claims for damages specified in clause 8 above. They shall also apply to defects of a building work or to delivery items which, in keeping with their customary mode of use, were used in a building structure and caused its defectiveness.
10. Software Usage
Subject to separate rules regarding the delivery and use of software, the following shall apply:
If software is included in the scope of delivery, the contracting partner shall be granted a nonexclusive and non-transferable right to use the delivered software including its documentation. lt shall be delivered for use on the delivery item intended for this purpose. The use of software on more than one system is prohibited. The customer may only reproduce, revise or translate the software or convert it from the object code into the source code to the legally admissible extent (Sections 69 a et seq. German Copyright Act - UrhG). The contracting partner undertakes not to remove the manufacturer's specifications - in particular copyright references -, or to change them without our prior express consent.
All other rights to the software and the documentation, including copies thereof, shall remain with us or with the software supplier.
11. Place of Performance/ Jurisdiction; Governing Law
a) The place of performance and jurisdiction shall, for both parties, exclusively be Neuss/Rhine.
b) The exclusive place of jurisdiction shall be the court having jurisdiction over our registered seat. We shall, however, be entitled to also take legal action at the contracting partner's registered seat.
c) The validity of a contract and the rights and obligations resulting herefrom shall be governed by German law, to the exclusion of the UN-Convention on Contracts for the International Sale of Goods of 1980 (CISG).