General terms and conditions of trade
§ 1 Generalities - Scope of these Terms and Conditions
Our Terms and Conditions apply exclusively; Terms and Conditions of a client who are opposed to our Terms and Conditions or differ from those are not accepted by us; we thus disagree with any such Terms and Conditions if we did not previously explicitly agreed to those Terms and Conditions in writing or by telex. In cases of us being aware of General Terms and Conditions of the other party either contradicting our Terms and Conditions or differing from our Terms and Conditions, our Terms and Conditions also apply when without any reservations we carry out a shipment to a client.
§ 2 Offer - Documents regarding an offer
Our offer is subject to confirmation if not stated otherwise in the confirmation of order. We explicitly reserve our property rights and copyrights of all images, charts, calculations and other documents. Documents declared "confidential" must not be transmitted to a third party in any form without our prior consent.
§ 3 Conditions of delivery - price - conditions of payment
Our prices are to be understood in the way that the VAT of the day of shipment has to be added to all prices. If the confirmation of order does not state otherwise, the prices are to be considered "ex factory", excluding wrapping. The price for the required wrapping is at the client's expenses. Wrapping will not be taken back. If agreed upon, we will conclude transit insurance or any other insurance at the expenses of the client. Any other costs arising from customs or technical inspection authorities are at the expense of the client.
We are authorised to perform or deliver partially if reasonable.
By fulfilling his obligations the client is not authorised to exploit or utilise our property rights which are subject to our delivery or performance in any way partially or totally. In particular, clients may not manufacture goods actively or passively in any way, let them be manufactured or perform services of any kind by using our construction documents or by exploiting our special protection rights; clients may also not pass on the Know how which is subject to our special protection rights to a third party or utilise this Know how in any way.
Payment is due promptly; payment is to be made within two weeks after billing and shipment.
The reduction of discount requires a special agreement in writing.
The client is only allowed to set-off when his counterclaims are assessed as legally binding, indisputable or accepted by us. A right of retention is only permissible if the counterclaim is subject to the same contractual relationship.
Shipments and performances ordered by the client are to be accepted by the client; this also applies when the shipment is inessential imperfect. The client's duty to examine as well as his warranty rights remains unaffected.
§ 4 Arrangements regarding shipment and default of acceptance - bearing of risks and liability (limits to liability and exclusion) - special note
The start of the period of delivery stated by us requires prior clarification of all technical aspects. The compliance of our obligations to deliver requires the prompt and complete performance of all duties to co-operate by the client. In case of technical and/or other documents are to be provided by the client or to be send back to us, our obligation to deliver does not start before these documents have reached us.
The time of delivery is complied with when up to its expiration readiness for dispatch is existent and this has been issued to the client or when the shipment has left the factory.
At the latest the bearing of risk is assumed by the client when the shipment is handed over to a carrier or any other carrying business. In addition to this, the following terms apply. This set of rules also applies when we pay for the shipment of goods. We are authorised to choose a suitable carrier as long as the client does not issue a special request for a carrier.
In case of default of acceptance by the client or culpable breach of the client's obligation to co-operate, we are authorised under the reservation of further claims to demand compensation for damage sustained though default of acceptance and/or breach of duty to co-operate including possible additional expenditure.
In case the conditions of the previous clause are accomplished, the bearing of risks for a loss by accident or an impairment by chance of the object of purchase is transferred onto the client irrespective of the regulation of clause 2 at the time when the client is in default of acceptance or debtor's delay.
Special note regarding bearing of risks and exclusion of liability:
We would like to point out that we are not able to protect devices/ preliminary products/ materials provided or delivered by the clients and/or devices/ preliminary products/ materials which are to be manufactured or installed against theft or damaging/destruction by a third party while these are stored; insurance can neither be provided. Bearing of risks and liability on our part for dangers described in phrase one of this clause for devices/ preliminary products/materials etc. are thus explicitly excluded with the directive that the bearing of risks is solely on the client up to dispatch by us.
We are liable for own intentional conduct and own gross negligence as well as direct intent and gross negligence of executives. We are further liable for failing to comply with warranties, when assuming an exercise risk as well as for culpable violation of life, corpus, and health. We are also liable within the scope of the Produkthaftungsgesetz (product liability law).
We are generally liable for any culpable violation of essential duties by contract as well as for gross negligence of simple auxiliary personnel. Any further liability is excluded on its merits. Regarding the amount of our liability, it is limited to the compensation of the typical and foreseeable damages in cases of slightly negligent violations of essential duties by contract (so called cardinal duties) in a manner that endangers the purpose of the contract. This scope of liability applies to cases of grossly negligent violation by simple auxiliary personnel (not executives or organs) or in cases of acceptance of a guarantee as long as we have not explicitly issued a guarantee regarding the condition of the shipment and performance. These rules apply analogous for our liability regarding compensation for vain expenditures.
Claims for damages by the client regarding the prior clause become time-barred within two years from the point of time at which the client assumed knowledge of the damage and three years from the point of time at which the hurtful incident occurred regardless of the client's knowledge of the damage.
Except for the cases of liability on the grounds of the "Proukthaftungsgesetz", in cases of bodily harm, acceptance of a guarantee for the condition of goods or in cases of defects maliciously kept secret, these limitations of liability apply to all kinds of claims for damages regardless of their legal ground including claims for tortuous acts.
These limitations to liability also apply in cases of possible claims of the client against our staff or agents.
§ 5 Duty to examine, requirement to give notice of defects, warrantee, limitation period
The client has the duty to examine all shipments and performances immediately after they have been delivered, as far as this is possible within the normal business; in cases of defects, we have to be informed in writing immediately. If the client does not indicate any defects, the shipment/performance is to be considered approved. In case that such a defect shows later, the indication must occur in writing immediately after it has been discovered; otherwise, this performance/shipment is to be considered as approved in regard to this defect.
When such a defect is present, we are authorised at our own choice to correct this defect or perform a new delivery. We are authorised to attempt at least two attempts to correct any defect. The rescission of a contract is impossible if the violation of duty is of insubstantional nature.
The period of limitation for claiming for defects is twelve months, beginning with the bearing of risk.
Parts of any devices which have been dismantled for the purpose of correction of a defect become our property again when dismantled and are to be handed back to us.
§ 6 Conditional sale, legal protection
We reserve the ownership of the items sold up to the point when all payments from the contract of delivery regarding that item have been made. In case the client acts contrary to the contract, especially when the client is in default in payment we are entitled to take the relevant item(s) back. When taking an item back, we thus retire from the contract. We are entitled to utilise the respective item after it has been taken back; the profit from this is accounted to the obligations of the client - minus the reasonable costs for the utilization.
The client is obliged to deal the item with good care. In particular the client is obliged to insure the item sufficiently on his own accounts at the reinstatement value from the point of time he bears the risk against damages due to fire, water, theft and breakage. Maintenance work and inspections have to be made on the client's account in due time.
In case of distraint or other impacts by a third party, the client has to inform us immediately so that we can issue a claim according to § 771 ZPO.
The client is allowed to sell the delivery item to a third party within his ordinary business. However, the client already now transfers all claims up to the amount of the invoice final amount of our claim which arise from the resale against his buyer or a third party; this takes place independently from the question whether the respective item was sold originally or processed. The client remains authorised to pursue this claim after the transfer. We are nevertheless authorised to pursue this claim ourselves. We thus oblige ourselves not to pursue this claim as long as the client meets his obligation to pay from the generated proceeds and does not fall behind with the payment; this applies in particular, as long as there is no request for a composition proceeding or insolvency proceeding or cessation of payment.
In such a case, the client has to inform us about the assigned book account and the respective debtor as well as all relevant information necessary to execute the collection; the client further has to hand over the respective documents and inform the debtors of the assignment of claims.
The processing or alteration of the delivery item by the client is always conducted for us. If the delivery item is processed with other items which are not our property, we acquire co-ownership of the new item in relation of the value of the delivery item (including VAT) to the manufactured items at the time of the manufacturing process. The rules applying to the deliver item delivered under reservation are applicable to the items coming into existence by manufacturing.
In case the delivery item is inseparably mixed with other items which are not ours, we acquire co-ownership of the new item in relation of the value of the object of sale (including VAT) to the other inseparable items at the time of the mixture. If the mixture occurs in the way that the item of the client can be considered as the main item, it is agreed that the client assigns Co-ownership to us. The client keeps the new property for us.
The client assigns to us the claim that comes into existence through the mixture of the delivery item with real estate of a third party; thus, our claim is assured.
We are obliged to free the securities we are entitled to when the client wishes so in so far as that the realisable value of our securities exceeds the claims that are to be secured by ten per cent (10 %); the choice, which securities are to be freed is upon us.
§ 7 Covenant against assignment/mortgaging The assignment and/or mortgaging of goods that have been sold under conditional sale is barred.
§ 8 Venue, choice of law, place of delivery
If the client is a merchant, our business location is the sole location for claims of the client against us; however, we are entitled to sue the client at his domicile.
For all litigation, the law of the Federal Republic of Germany solely applies. The Convention on Contracts for the International Sale of Goods - CISG - does not apply.
If the acceptance of order does not state otherwise, our domicile is place of delivery under consideration of the following rules. The contractor's duty to remedy defects as well as restitution which affects the client in case of a reversed transaction is to be conducted at the place of the usual locus rei sitae of the subject matter of the contract; this only applies if this place in within the EU. If this is not the case, the place of delivery is the place of the last usual locus rei sitae prior to leaving the EU.
Clients, whose domicile is not within the boundaries of the EU and in which case the object of the agreement is delivered to a place outside the EU according to the terms of the contract, are entitled to send the object of the agreement to the last place of the usual conduct of the contract on their account.
§ 9 Final clause
In case that any clauses of this contract or any future amendments to his contract are or are going to be partly or totally void and/or impractical, the validity of the rest of the contract remains valid.
The same is to be applied in case of a gap in the provisions of the agreement. Instead of the void or impractical clause or the gap in the provisions of the agreement, an adequate arrangement is to be applied which is closest to what the partners wanted if they had known the inefficacy, impracticability or incompleteness.