General Terms and Conditions
- The following conditions exclusively apply to any offers submitted by us and any contracts concluded with us.
- The buyer's purchasing conditions or any contrary conditions the buyer may require will only be valid if confirmed by us in writing.
II. Conclusion of Contract
- All of our offers, especially such ones made in catalogues, sales particulars or on the internet are without obligation. Legally such offers are to be regarded as a request for quote.
- Orders are accepted if they are either confirmed by us in writing or executed immediately after receipt of the order.
In case of doubt, the subject matter of the contract is defined by our order confirmation resp. our delivery note, unless an order confirmation has been issued.
- Any specification of weight, measurement or performance, any illustrations or drawings are to be taken as approximate details unless confirmed by us as binding.
- We reserve unrestricted proprietary rights and the copyright for any cost estimates, design drawings and other documents. The disclosure to third parties is subject to our consent. If there is no contract concluded such particulars have to be returned to us without delay.
- Soil tests for the foundation of buildings are not carried out by us. Any statements referring to foundations and any prices related to such statements are based on a bearing capacity of the soil of 2 kg/cm2 and a suitable building ground.
- Design or shape are subject to alterations during the delivery period as far as such alterations are insignificant and reasonable for the purchaser.
- Auxiliary agreements - also with our representatives, field staff or other persons in charge - need to be explicitly confirmed by us in writing for taking effect.
- Any stated delivery period shall not commence until all design details have been completely clarified. Precondition for adhering to the delivery time is the fulfilment of the contractual obligations by the purchaser, notably the agreed down payment and the provision of required documents in due time.
- Delays in delivery caused by force majeure or by reasons beyond our responsibility, complicating delivery essentially or making delivery temporarily impossible - in particular strike, lockout, acts of civil authority, transport problems etc. - even if occurring at our suppliers or sub-suppliers - result in an appropriate prolongation of the agreed terms. If the default lasts for more than 3 months, both contract parties have the right to withdraw from the contract in part or in whole. Claims for damages are excluded. The same applies to the non-delivery or delays in delivery by our sub-suppliers for reasons beyond our control.
- Partial deliveries are allowed to a reasonable extent.
- We will endeavour to meet the delivery terms agreed upon. In case of delays in delivery which we are responsible for, the buyer is obliged to set us a reasonably prolonged time limit. After expiry of that period the buyer is entitled to withdraw from the contract. For any claims against us for damages caused by delay or non-performance paragr. VII shall be applicable.
- If dispatch of the goods is delayed for reasons the buyer is responsible for, we are entitled to debit the buyer with storage fees amounting to 0,5 % of the invoice amount for each calendar month or part thereof, limited to 5 % of the amount of the invoice. This does not exclude any claim for higher damages. The buyer has the right to furnish proof that there was no damage caused resp. damages were caused to an essentially lower extent.
- If the buyer culpably refuses to fulfil the contract we are entitled to claim damages in the amount of 20 % of the order value (VAT excluded). This does not exclude any claim for higher damages. The buyer has the right to furnish proof that there was no damage caused resp. damages were caused to an essentially lower extent.
IV. Prices, Terms of Payment
- Prices are quoted strictly net, ex works, loading included. VAT is levied at the applicable statutory rate.
- Any customs duty, taxes or similar charges imposed on our deliveries and services in the buyer’s country are to be paid by the buyer.
For cases the period between conclusion of the contract and start of contract execution exceeds 4 months we reserve the right to raise our prices reasonably for cost increase after conclusion of the contract, especially for components and raw materials, wages, production and transportation. Proof will be provided on request.
- The buyer shall only be entitled to offset counter claims if these are not contradicted by us and legally assessed.
- The assertion of the right of retention for counter claims contradicted by us or not assessed legally is excluded, unless such claims are based on the same contractual relationship.
- Bills of exchange are only accepted for payment after special agreement and are subject to eligibility for discount and immediate cash payment of the bank’s discount charges.
- Any payment must be made to us directly. The assignment of claims against us is excluded.
V. Transport, Transfer of Risks and Acceptance
- As soon as the goods have left our works or the buyer is in default of acceptance, all risks pass over to the buyer, even if delivery was agreed on a freight paid basis. This also applies to partial deliveries. If delivery is delayed due to reasons the buyer is responsible for, risks pass over to the buyer upon notification of readiness for dispatch.
- Any delivery, whether ex our works or ex factory of third parties in Germany, carried out on our behalf, is effected at buyer’s risk and cost.
Notice of damage in transit, if any, has to be given by the consignee to the carrier prior to payment of freight and acceptance of goods. If shortage or damage to the goods was not visible at acceptance, the consignee shall give notice of claim to the carrier within a week after delivery.
- If the acceptance of work performed by us is delayed for reasons the buyer is responsible for, acceptance shall be deemed to be effected if a reasonable time limit set by us to the buyer has expired without effect and the buyer has been informed about the consequences of such expiry, however at the latest 3 months after delivery.
VI. Notification of Defects, Liability for Defects
- The specification of properties, e.g. dimensions, weight and other technical data is to be regarded as a description of properties only and does not imply the acceptance of guarantees. The purchaser has to verify the suitability of the products for his purposes on his own responsibility.
- The purchaser is obliged to carry out a thorough inspection with regard to quantity, defects and properties upon receipt of the goods supplied by us. The goods are regarded as accepted unless the purchaser has given immediate written notification of recognizable defects, at the latest within 1 week after receipt of the goods resp. immediately after detection of defects. This does not apply if an acceptance of the goods was expressly agreed. If a defect has been detected by the purchaser, the purchaser is not entitled to dispose of the goods, i.e. the goods must not be parted, resold or processed.
- In case of defects or the lack of property descriptions at the goods supplied by us it is at our option to either remedy the defect (rectification of defect) or to supply goods free of defects (substitute delivery). For the rectification of defects we have the choice to either ask the purchaser for returning the goods to us for remedy resp. exchange (free of charge for the purchaser) or to hold the defective goods ready for having them rectified or exchanged on site by our staff or other persons on our behalf. The purchaser is entitled to decide for the latter regulation if it is not reasonable for him to return the defective product to us. Costs in connection with the rectification of defects (especially for transportation, labour and material) will be paid by us. This regulation is not applicable for increased expenses caused by the relocation of the purchased goods to another place than the domicile or the business premises of the purchaser, except such relocation complies with the intended purpose of the goods.
- If we are not prepared or unable to rectify the defects or to supply a substitute, if rectification/substitution is delayed beyond a reasonable time limit for reasons within our responsibility, if rectification/substitution is unacceptable for the purchaser or if it fails due to other reasons, the purchaser is entitled, at his option, to either terminate the contract, demand reduction of the purchase price or claim for damages or reimbursement of expenses.
- For machinery and equipment supplied by us and integrated in a building or connected with the building the purchaser's right to withdraw from the contract is excluded.
- The period of limitation for the liability for defects is 12 months, unless the regulations as per § 438 clause 1 no. 2 (buildings and components of buildings), § 479 clause 1 (right of withdrawal) and § 634 clause 1 no. 2 (deficiencies in construction) BGB provide longer periods.
- Any liability for defects is excluded for the delivery of second-hand goods agreed upon with the purchaser in special cases.
VII. General Liability
- Claims for damages by the purchaser - irrespective of the legal basis - in particular due to impossibility, delay, liability for defects or wrong delivery, contract violation, violation of obligations during contract negotiations and tortious acts can be enforced by the purchaser
- if damage has been caused by the culpable violation of an essential contractual obligation endangering the accomplishment of the contract purpose, or
- if a property of the delivered item has been guaranteed by us - even for a certain period, or
- if damage has been caused by injury of life, body or health, or
- if the conclusion of an insurance policy would have been possible and reasonable in case of insurable damages, or
- if damage was caused by intent or gross negligence
- If we are liable for the violation of an essential contractual obligation as per clause 1 a) without gross negligence, the extent of liability for damage is limited to what might typically have been predicted when concluding the contract, basing on the circumstances known to us at that time.
- The a.m. limitations of liability apply analogously to acts as well as to the personal liability of our employees, representatives, vicarious agents and staff acting on our behalf.
- The a.m. regulation is not applicable if we are liable according to the Product Liability Act.
VIII. Reservation of Proprietary Rights
- The reservation of proprietary rights serves for securing all our current and future receivable accounts in connection with the business relations with the purchaser (including balance claims from a current account relationship which may have been agreed).
- Delivered goods are subject to retention of title and remain our property until all outstanding secured debts have been settled.
- If the purchaser is in default of payment we are entitled to demand delivery of the goods which are subject to retention of title without our prior withdrawal.
- The purchaser will store the goods subject to retention of title free of charge for us.
- In the usual course of business the purchaser is entitled to process or resell the goods which are subject to retention of title. The purchaser, however, herewith assigns in advance to us all claims with all ancillary rights in the value of the goods which are subject to retention of title and entitles us to collect the payment. We hereby accept this assignment.
- Processing or modification of goods subject to retention of title is considered as having been carried out on our behalf. In this respect we are regarded as the manufacturer in terms of § 950 BGB.
- The value of the goods subject to retention is the amount of our invoice. If the purchaser is a joint owner of resold goods under retention of title, the assignment of claims extends to the value of the joint ownership of the purchaser.
- If goods subject to retention of title are combined with material not owned by us, our ownership on the newly manufactured goods will extend to the proportion of the the goods subject to retention of title to the other material at the time of processing. If goods subject to retention of title are combined, mixed or merged with material not owned by us as per §§ 947, 948 BGB we become a joint owner in accordance with the legal regulations. If the purchaser becomes the sole owner by combining, mixing or merging, he herewith assigns in advance to us the joint ownership in the proportion of the value of the goods under retention of title to the value of the other goods at the time of combining, mixing or merging them.
- If goods under retention of title are integrated by the purchaser as an essential part into an estate, a vessel or an aircraft of the purchaser, the purchaser herewith assigns in advance the claims arising from the sale of the estate, any rights under property law, the vessel, the vessel structure or the aircraft in the value of the goods under retention of title.
- The purchaser is not entitled to the pledging or the transfer of security interest concerning goods under retention of title.
- Until cancelled, the purchaser is entitled to collect assigned book accounts. As long as the purchaser is fulfilling his payment obligations towards us we will not exercise our right to collect assigned claims. Upon request the purchaser is obliged to inform us about the debtor of the assigned claim and to notify him of the claim assignment, irrespective of our right to notify the debtor ourselves.
- Default of payment, suspension of payment, the application for or the opening of insolvency proceedings on the property of the purchaser or the dismissal of such proceedings terminate the right to resell, process, mix, merge, combine or utilize the goods supplied under retention of title otherwise.
- In case of garnishment or other actions by third parties the purchaser has to notify us in writing without delay to enable us to take legal action as per § 771 ZPO. In case the third party will not be able to refund the judical and extrajudical costs connected with legal actions as per § 771 ZPO the customer will be liable for such non-payment.
- Upon buyer's request we undertake to release the securities due to us to the extent, the value of our securities exceeds the claims to be secured by more than 20 %. The securities to be released shall be selected by us.
IX. Final Clauses
- Place of performance for both parties and for any mutual business relations shall be Krumbach.
- The exclusive place of venue for merchants, body corporates and special funds under public law, including action on bills or cheques as well as for any legal disputes arising directly or indirectly shall be Krumbach. However, we reserve the right to take legal action at the buyer’s domicile or at other courts having jurisdiction on the basis of domestic or foreign applicable law.
- The legal relation with the purchaser is governed by German law, however excluding the UN statutes (United Nations Convention on Contracts for the International Sale of Goods - CISG).
- The invalidity of one ore more provisions of these general terms in whole or in part shall not affect the validity of any other provisions. Any valid item contained in an otherwise invalid provision shall not be affected. The parties undertake herewith to find substitutes which shall ensure as far as possible be economic result of the deleted provision.
- Where, apart from or instead of deliveries, installations are assembled by us, our Terms of Assembly shall also apply, which will be forwarded to the buyer on demand.
Edition August 2007