1. Applicable Provisions
1.1 The following Standard Terms of Sale, Delivery and Installation (in the following “Terms”) apply for all business relationships with our customers (in the following “Customers”), if such Customers are natural or legal persons who act in their capacity as commercial or self-employed businessmen (entrepreneurs) upon contract-making, and to Customers that are legal entities under public law and public-law special funds
1.2. All our deliveries and services shall be subject to the present Terms as well as any contract terms that may have been agreed separately. Deviating, opposing or supplementary standard business terms of Customers are herewith expressly contradicted. Deviating, opposing or supplementary standard business terms of Customers are only included in the contract, if we explicitly accept them. Such requirement of acceptance shall apply in any case, also e. g. in cases where we have knowledge of standard business terms of Customers and execute the order without reservation.
2. Offer / Contract Conclusion
2.1. Our offers are subject to change without notice and not binding unless expressly stipulated otherwise by us in writing.
2.2. Any order of a Customer is deemed to be a binding contract offer. Unless otherwise stated in the order, we are entitled to accept the contract offer within a time period of 3 weeks after receipt of the order. The contract is concluded with receipt of our written order confirmation.
2.3. If we issue in single cases, a binding offer ourselves, the contract is concluded with receipt of the written acceptance of our Customer within the commitment period as stipulated in our contract offer. As far as no commitment period is stipulated, the commitment period shall be deemed to be 3 weeks.
3. Contract Terms
3.1. Our written order confirmation shall be binding as regards the scope of our delivery obligation. If in single cases we submitted a binding contract offer that was validly accepted by the Customer, our offer shall be binding as regards the scope of our delivery obligation. Any ancillary agreements and amendments hereto shall be subject to our written confirmation.
3.2. Our product information and other documents, such as figures, drawings, sketches and dimensional data shall not be part of the contract and shall be binding by approximation only unless we have expressly designated them as being binding. In the event that modifications are made to the products in the course of permanent technical development after submission of the order, we shall be entitled to deliver the technically modified version. We shall be entitled to deviate from pictures, drawings, descriptions, colors, dimensional, weight, quality and other data if Customer can be expected to accept such deviations given the mutual interests. Customer shall inform us upon placement of the order if we are not supposed to deviate from any data or specifications under any circumstances.
3.3. The approvals required for the design and the operation of the deliveries shall be obtained by Customer at his own expense. To the extent that we assist a Customer on Customer´s wish in obtaining such approvals, Customer shall bear all costs incurred by us in this connection.
3.4. Customer shall provide sufficient quantities of the media required for the installation and operation of our delivery at its own expense.
4. Items Subject to Export License
To the extent that we deliver items abroad, all offers and order confirmations shall be subject to the suspensive condition that the export licenses, if necessary, are granted by the relevant authorities.
5. Copyright, Secrecy
We reserve all property rights and copyrights to all samples, cost estimates, drawings, models, templates and similar information of a physical or non-physical nature - including in electronic form. Copies and other duplicates may be made for the agreed purpose only. Neither the originals nor any duplicates thereof may be released to third parties or disclosed in any other way, unless such is necessary to achieve the agreed purpose. Without Customer´s consent, we shall not disclose any information or documents to third parties which have been designated as confidential by Customer.
6.1. Notwithstanding any agreement to the contrary, the prices are quoted ex works including loading in the factory, but exclusive of packaging and other costs. Value-added tax at the respective statutory rate shall be added to the prices in Germany, if such tax is to be charged.
6.2. For any services that are provided more than 4 months after signing of the agreement, we may charge a reasonable overheads surcharge with respect to any wage and/or material price increases experienced after submission of the offer.
7. Payments, Default of Payment, Retention, Revocation
7.1. Unless otherwise agreed, invoices shall be payable without any deductions within 30 days of the date of the invoice.
7.2. We shall not be obligated to accept bills of exchange. Any bill charges shall be Customer’s responsibility. If a bill of exchange is not honoured, all our claims against Customer shall become immediately due.
7.3. In the event of default of payment (Zahlungsverzug), we may charge default interest according to § 288 BGB (German Civil Code). Evidence of higher damages shall be reserved. Our right to claim commercial maturity interest (Fälligkeitszins § 353 HGB (German Commercial Code)) if Customer is merchant (Kaufmann) in the sense of HGB (German Commercial Code) remains unaffected.
7.4. We reserve the right to claim € 2.50 per written warning as a lump-sum claim for damages if Customer is at the time of the written warning already in default of payment (Zahlungsverzug).
7.5. Customer is only entitled to withholding and offsetting rights for receivables which are either undisputed or legally established.
7.6. Where it becomes obvious after signing of the contract that our claim for payment is at risk due to Customer’s insufficient financial capacity, e. g. if our trade credit insurance refuses to provide full coverage for claims against Customer, we may according to the statutory provisions of law (§321 BGB (German Civil Code)) refuse performance and grant Customer a reasonable period of time during which Customer shall pay or provide collateral concurrently against delivery. If Customer refuses this arrangement or the time limit granted has expired unsuccessfully, we shall be entitled to revoke the agreement and claim additionally other rights which we may have according to the statutory provisions of law.
8. Delivery Date, Delivery Term, and Delayed Delivery
8.1. The delivery term or delivery date shall not be binding unless made binding in our order confirmation or binding contract offer.
8.2. The delivery term will be agreed individually. Delivery may depend on cooperation duties or provision performance of Customer, e. g. drawings approved by Customer, release of documents to be obtained, approvals and the information required for the performance of the order, etc. Customer is obliged to fulfil such cooperation duties or provision performance within the set time frame. If Customer fails to do so, the delivery term will be extended by the period by which the Customer is delayed in his obligations.
8.3. If a binding delivery term cannot be met for reasons we are not responsible for (nicht zu vertreten haben) (e.g. non-availability of the service, Force Majeure or other events which are beyond our control), we will inform the Customer without undue delay and announce a new estimated delivery term. If the service is also not available within the new delivery term, we are entitled to revoke the contract in whole or in parts; in this case, we shall without undue delay refund any payments already made by the Customer. In this respect it is in particular deemed to be a case of non-availability if we have concluded a congruent covering and were not supplied by our third party suppliers, and no fault can be attributed neither to us nor to our third party supplier or if we are in a single case not obliged for procurement. The same applies if such circumstances are experienced by our third party suppliers.
8.4. The delivery term or the delivery date shall be deemed to have been complied with if the delivery has left the factory or readiness for shipment has been notified prior to the end of this term. Where deliveries have to be accepted by Customer, the date of acceptance or alternatively notification of readiness for acceptance shall be authoritative unless Customer refuses to accept the delivery with cause.
8.5. Whether delivery is in default (Lieferverzug) will be determined according to statutory provisions of law. In any case a warning by Customer is necessary for delivery default
8.6. The rights of Customer according to Section 12 of these Terms und our rights according to the statutory provisions of law, in particular with respect to the exclusion of the duty of obligation (Ausschluss einer Leistungspflicht) (e. g. impossibility or unreasonableness of performance or subsequent performance) remain unaffected.
8.7. Partial deliveries are permissable.
9. Receipt, Acceptance, Passing of Risk, Default of Acceptance
9.1. The delivery is carried out ex warehouse or ex works where the place of performance is also respectively located. At request and cost of Customer, we will ship the goods sold to another place than the place of performance (Versendungskauf). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular the shipper, shipping route, packaging).
9.2. The risk of accidental damage (zufällige Verschlechterung) or accidental loss (zufälliger Untergang) of the goods passes to Customer with handover at the latest. This applies also in cases of partial delivery. However, in case of sales shipment (Versendungskauf) the risk of accidental damage (zufällige Verschlechterung), accidental loss (zufälliger Untergang) and of delay passes to Customer with the hand-over to the forwarder, carrier or other person or body specified to carry out the shipment. We are entitled to insure the goods on costs of Customer. If the goods at the time of delivery show damaging due to shipping or such damages become obvious at a later stage, Customer has to require a written damage report of shipper. As far as an acceptance is agreed the risk will pass to Customer with acceptance. The acceptance has to be performed without undue delay at the agreed time of acceptance, or if an acceptance time has not been agreed, after notice of readiness for acceptance. Customer is not entitled to refuse acceptance by reason of trivial defects (unwesentliche Mängel). The statutory provisions of the law on contracts for services (Werkvertrag) shall apply analogously in other respects to an agreed acceptance. The risk of accidental damage (zufällige Verschlechterung) or accidental loss (zufälliger Untergang) will similar to the hand-over and acceptance pass to Customer if Customer falls into default of acceptance (Annahmeverzug).
9.3. If Customer falls into default of acceptance (Annahmeverzug), fails to fulfil or delays his cooperation duties or provision performance or if our delivery is delayed for other reasons the Customer is responsible for, we are entitled to claim damages and expenditures (e. g. storage costs) that arise due to this circumstances. In this respect we claim starting with the delivery term, or if no delivery term was agreed, starting with the notice of delivery readiness, a lump-sum damage which amounts to 0.5 % of the net-price (delivery value) for each completed calendar week in default of acceptance, but limited to a total maximum of 5 % of the net delivery value of the goods in default of acceptance. Customer reserves the right to proof, that we did not suffer any damage or only significantly less damage. We reserve the right to proof, that we suffered a higher damage than the agreed lump-sum damage. The lump-sum will be credited to any further payment claims.
9.4. For any Customer material stored on our premises, we only liable for the care that he customarily exercises in our own affairs. Any Customer material stored on our premises shall be insured against fire at our expense. Customer shall apply in writing for any additional insurance at its own expense.
10. Reservation of Title
10.1. We reserve title to all deliveries until receipt of all payments from our current and future claims from the respective purchase contract and the current business relationship. This shall also include any claims arising out of checks or bills as well as claims from current account. If we are made liable for bills of exchange in connection with the payment, the present reservation of title shall not become extinct unless any claims against us arising out of the bill of exchange are excluded.
10.2. Customer shall neither pledge the goods subject to retention of title nor assign such goods to a third party as security. Customer is obliged to notify us in writing without undue delay if third parties will gain access to the goods subject to retention of title. In the event of seizure, sequestration or other dispositions or interventions by third parties Customer is to notify us immediately.
10.3. If Customer is in breach with contract, in particular by non-payment, we are entitled to revoke the contract according to the statutory provisions of law and/or claim return of our goods due to the retention of title. The claim for return of our goods does not in any case contain the revocation of the contract; we are entitled to claim only return of our goods and reserve our right to revoke the contract. In cases of non-payment by Customer at the due date, we will only exercise these rights, if we have unsuccessfully set Customer a reasonable deadline for payment, unless such setting of a deadline is not required by the statutory provisions of law.
10.4. Customer is entitled to sell and/or process goods under retention of title in ordinary course of business. In this case the following provisions will apply additionally:
10.4.1. The retention of title extends to the full value of products resulting from processing, blending or combining the products subject to retention of title. In this case we are deemed to be the manufacturer of such products. If any title of third parties remains in case of the processing, blending and combining our goods with goods of such third parties, we will acquire co-ownership in relationship to the invoiced value of the goods processed, blended or combined to make the new product. Additionally the same applies for the new product as for the goods subject to retention of title.
10.4.2. Customer will already now assign by way of security any claims in total or up to the amount of our co-ownership rights (according to Section 10.4.1 above) to third parties resulting from the reselling of the goods subject to retention of title or the products. We herewith accept such assignment. The obligations of Customer stipulated in Section 10.2 shall also apply to the claims assigned.
10.4.3. Beside us Consumer remains entitled to the collection of the assigned claims. We commit ourselves not to collect the claims as long as Costumer fulfils his payment duties in time, does not fall in default of payment (Zahlungsverzug), no application for insolvency procedures is filed, and there is no other deficiency of its capacity. If one of such circumstances occurs, we are entitled to claim that Customer notifies the debtors, provides us with the necessary information in respect to the assigned claims, the debtors and all circumstances for collection of the claims and hands-over respective documents necessary for collection.
10.4.4. If the realisable value of the securities held by us exceeds our claims by more than 10%, we shall be obliged, if so requested, to release securities extending beyond this value according to our choice.
11. Warranty for Defects
11.1. For Customer´s rights with respect to defects in quality and title (Sach- und Rechtsmängel) of the goods delivered (including short delivery and incorrect delivery) as well as improper installation, improper installation or operation manuals the statutory provisions of law shall apply, unless agreed otherwise in the following.
11.2. The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. Product descriptions are deemed to be an agreement made concerning the quality of the goods as far as they are included in the respective contract, no matter whether the respective product description is from Customer, manufacturer or us.
11.3. If no agreement is made concerning the quality of the goods, the statutory provisions shall be applied to assess whether there is a defect or not (§ 434 para 1 sentence 2 and 3 BGB (German Civil Code)). For statements made in public (e. g. advertising statements) of the manufacturer or other third parties our liability is excluded.
11.4. The warranty claims of the Customer require that he has complied with his duties to examine and to notify defects according to the statutory provisions of law (§§ 377, 381 HGB (German Commercial Code)). In the event that a defect is revealed during the inspection or at a later date, Customer shall notify us in writing without undue delay. It is deemed to be a notification without undue delay if the notification is done in a time period of two weeks from delivery, whereby the timely dispatch of the report is sufficient in order to safeguard the deadline. Independently of the duty to examine and to notify defects Customer shall notify us about obvious defects (including short delivery and incorrect delivery) within 2 weeks from delivery in writing, whereby in this case also the timely dispatch of the report is sufficient in order to safeguard the deadline. If Customer fails to examine the goods and to notify us within the given deadline, his warranty claims for defects are excluded. We reserve the right to personally inspect the goods supplied by us in installed condition. The warranty expires in case of dismantling or shifting of the supplied equipment without our prior approval.
11.5. If goods delivered have defects, we are in a first step entitled to choose if we provide subsequent performance (Nacherfüllung) by remedy of the defect (Nachbesserung) or replacement of the goods (Ersatzlieferung). Our right to refuse subsequent performance according to the statutory provisions of law remains unaffected.
11.6. We are entitled to make the owed subsequent performance dependent on the fact that Customer pays the due purchase price. However, Customer is entitled, to retain a reasonable part of the payment in relation to the defect.
11.7. Customer is obliged to provide us with the time and opportunity necessary for subsequent performance (Nacherfüllung), in particular handover the defect goods for inspection or enable us to do an inspection on-site. In case of a replacement of the goods (Ersatzlieferung), Customer is obliged to return the defect goods according to the provisions of statutory law. The obligation of subsequent performance (Nacherfüllung) does not contain the obligation of removal and subsequent re-installation, unless we have been obliged to installation in the first place.
11.8. If a defect exists, all expenditures necessary for inspection and subsequent performance (Nacherfüllung), in particular costs for carriage, infrastructure, time and material (not costs for removal and re-installation), are born by us. However, if it becomes apparent that Customer`s claim for warranty was unjustified, we are entitled to claim such costs from Customer.
11.9. If subsequent performance (Nacherfüllung) fails or a reasonable time limit given by Customer for subsequent performance is unsuccessfully expired or the setting of such time limit is not necessary according to the statutory provisions of law, Customer is entitled according to the statutory provisions of law to revoke the contract or to reduce the purchase price. However, no right to revoke the contract exists in case of an insignificant defect.
11.10. Customer´s claims for damages shall be given only as far as Section 12 of these Terms provides for and are otherwise excluded.
11.11. Customer’s claims regarding defects are excluded, if Customer or a third party on behalf of Customer improperly modifies or rectifies the good without our approval unless the modifications or rectifications did not cause the defect and Customer proves that the modifications and rectifications do not have unreasonable effects on analysis and removal of the defect.
11.12. Any parts or materials supplied by Customer for processing or as additions for handling an order shall not be subject to an incoming inspection for defects that are not immediately visible.
12.1. Unless otherwise agreed in these Terms, including the following provisions, we are liable for the breach of contractual or non-contractual obligations according to the statutory provisions of law.
12.2. We are liable for damage – for whatever legal reason - for willful misconduct and gross negligence. For slight negligence we are only liable for damages
a) on account of loss of life, physical injury or impairment of health and
b) due to breach of a material obligation under the contract. A material obligation is defined as an obligation that is essential for the proper fulfilment of the Agreement and in which the Customer can rely to be fulfiled. In cases of slight negligence our liability is limited to the amount of the foreseeable damage, which at the time of entering into the contract is typical in those cases.
12.3. The limitations in Section 12.2 do not apply insofar as we have maliciously failed to disclose a defect. The same applies for damage claims pursuant to ProdHaftG (German Law on Product Liability).
12.4. Customer is only entitled to revoke the contract due to our breach of contract, which does not consist of a defect of the goods, if we are culpable for such breach of contract. A free right to terminate the contract (in particular according to §§ 651, 649 BGB (German Civil Code) is excluded. Apart from this the requirements and the legal consequences of the statutory provisions of law shall apply.
13. Installation, Start-Up
13.1. Whenever installation and/or start-up services are included in the scope of performance, the following terms shall apply in addition:
Unless agreed otherwise, services shall be invoiced according to the time expended and our applicable installation rates at the time of contract conclusion. The material expended shall be additionally paid, and the same applies to the travel expenses for the round trip of our personnel, the shipping costs, customs, duties and transport insurance for luggage and tools.
13.3. Settlement of accounts
Customer shall confirm the installation personnel’s working hours, travel and waiting times as well as the work performed on the installation statements submitted by the installation personnel. If Customer refuses to confirm this data without justified reasons, or if our personnel is unable to obtain such confirmation for other reasons, accounts shall be settled on the basis of the installation statements filled out by our personnel. All ancillary works (such as masonry, chiseling, plastering, carpenter’s, electrical connection, earthwork and painting works) shall not be included in the offer unless listed separately by items including their quantity and price. Any work not included in the order which is performed by us shall be additionally reimbursed according to our cost rates at the time of contract conclusion. The same applies to additional costs incurred by us if the work performance is interrupted for reasons for which we are not responsible.
13.4. Customer’s assistance
Customer is obliged to fulfil on his own costs his provision performance and cooperation duties which are necessary for the installation or start-up, in particular:
a. to confirm our employee a safe execution of the assembly work in written form and to provide them the needed permission (Befahrerlaubnisschein);
b. provide the necessary, suitable personnel (masons, carpenters, locksmiths and other skilled personnel, auxiliaries) in the numbers and for the times required for the installation work; and to provide a safety guard for the duration of our employee in the apparatus;
c. provide suitable access roads for the supply of the parts to be assembled which shall be accessible by crane trucks and provide also the necessary lifting equipment;
d. provide heating, lighting, power, water, including the necessary connections;
e. provide the necessary dry, lockable, theft-proof rooms for storing the tools as well as social rooms for the service personnel;
f. protect the installation site and the materials with the same care which Customer has for own employees against any kind of adverse influences;
g. draw attention to any risks (such as fire hazards in rooms or of materials) that may arise in connection with cutting, welding, thawing and soldering work, and take all necessary precautions (e. g. provision of fire watch teams, fire extinguishing material etc.);
h. provide protective clothing for aggravated working conditions, including hazardous vapors, gases, acids, dusty air, etc. The same applies to protective clothing and protective devices that are necessary because of special circumstances of the installation location and are not customary in our trade. In addition, the installation personnel shall be informed of the relevant safety instructions to be observed in connection with the installation work;
i. to guarantee that the enameled apparatus is emptied, cleaned, product residue-free, clean, dry and rinsed;
j. to disconnect energy supply of all existing electric motor drives (off power) to prevent the start of the drive;
k. to cut off all incoming and outgoing media lines from the apparatus for the duration of the employee inside the apparatus by using plug washers;
l. if our installation personnel during installation or start-up should suffer an accident, immediate medical attention shall be insured, and we shall be immediately informed;
m. if the place of installation is located outside of the Federal Republic of Germany, it shall obtain the necessary entrance visa for the installation personnel and any work permits, if necessary, timely procure all approvals from the authorities and otherwise that are required for the design and erection of equipment and plants, instruct our installation personnel with respect to all obligations (notifications etc.) vis-à-vis the local authorities as well as the existing safety requirements, support them in dealing with the authorities and assist them with the procurement of all documents that ensure free movement within the country and traveling home at any time including their belongings.
Customer shall accept the installation works as soon as he has been notified of completion thereof. Unless explicitly otherwise agreed, the plant shall be deemed to have been accepted as soon as its test run has started, even if Customer has not assisted the test run despite being invited. On request, self-contained parts of the performance shall be separately accepted. If the plant has been started up, in whole or in part, or if acceptance is delayed without our default, acceptance shall be deemed to have taken place when 5 working days have passed since notification has been given that the works have been completed. The plant may be used prior to acceptance subject to our express agreement only; the parts already installed in the plant shall be deemed to have been accepted if so used.
14. Limitation (Verjährung)
14.1. In deviation of § 438 para 1 No. 3 BGB (German Civil Code) claims with respect to defects in quality and title (Sach- und Rechtsmängel) become statute-barred within 1 year from the time the risk passes to Customer. If an acceptance is agreed such period starts with acceptance.
14.2. For all damage claims according to Section 12 the statutory provisions of law shall apply to the deadlines for limitation (Verjährungsfristen).
15. Binding Force of the Agreement
The present agreement shall remain valid as a whole even if individual provisions contained in any part hereof should be invalid. This does not apply where insisting on the contract would mean undue hardship for either party. In the event that one of the provisions hereof should be invalid, in whole or in part, the parties hereto shall immediately try to achieve the economic effect intended by the invalid provision by other legally valid means.
16. Jurisdiction, Governing Law
16.1. For all contracts concluded based on these Terms the laws of the Federal Republic of Germany, excluding the “United Nation Convention on Contracts for International Sale of Goods”, shall apply. However, conditions and consequences of the retention of title are subject to the law of the country where the goods are stored as far as this law states that the choice of German law is inadmissible or ineffective.
16.2. If the Customer is a merchant pursuant to the HGB (German Commercial Code), a juristic person under public law or special fund under public law all disputes shall be settled exclusively by the court that has jurisdiction for our place of business in Thale. However, we may also sue Customer at its place of business.