The following terms and conditions shall apply to all offers and orders placed with us and shall be recognised as binding by our customers without exception by placing an order and accepting the order confirmation. We expressly object to all conflicting terms and conditions of our customers. Amendments as well as subsidiary agreements shall only be valid if they are expressly confirmed by us in writing.
2 . Prices
Prices are quoted in Euro ex works, exclusive of packaging, insurance, freight, customs and exclusive of any other costs, plus Value added tax at the respective statutory rate. The customer alone shall bear any exchange rate risk that may arise.
Our prices are based on the wage and material prices valid at the time of the conclusion of the contract. In the absence of any agreement to the contrary, we shall be entitled to adjust the prices to wage and salary increases as well as material price increases with a notice period of 4 months if there are more than 4 months between the conclusion of the contract and the agreed delivery date.
Our offers are always subject to change. Conclusions and agreements shall only become binding upon our written confirmation. Plans, drafts and drawings remain our property and may neither be duplicated nor made accessible to third parties. All technical and dimensional data are non-binding. We reserve the right to make minor changes to the design and dimensions and to use substitute materials. All technical specifications and dimensions in both the offers and the drawings are non-binding. These details are not guaranteed characteristics but descriptions or identifications of our delivery or service.
4. delivery and performance
Our written order confirmation shall be decisive for the scope of delivery and performance. Any deviating agreements must be made in writing. Subsequent changes and additions to the order as well as additional services of which we are notified after conclusion of the contract entitle us to an appropriate additional charge. The customer is not entitled to assign claims or rights against us arising from the business relationship to third parties or to transfer them to third parties without our consent. If assembly is necessary, the buyer shall bear all costs. If the systems are installed by our fitters, all construction work must have progressed to such an extent that the installation can be carried out unhindered before the start of the installation. All supply lines must be laid to the system on site in accordance with our specifications. The connections themselves must be made on site during installation. All police regulations must be observed during construction work. The electrical connections must be made in accordance with VDE guidelines. A possibly agreed fixed assembly price shall only apply to the one-time dispatch of an assembler under the condition that the assembly can be carried out immediately after the arrival of the assembler and without interruption. If assembly or commissioning is delayed due to circumstances at the construction site for which we are not responsible, the purchaser shall bear all costs for waiting time and additionally required travel by our fitters. The assembly and completion dates stated by us are approximate dates and are not binding.
5. delivery time
The delivery period confirmed by us begins with the sending of the order confirmation. In the event of a necessary release by the customer, the delivery period shall only commence upon receipt of the approved documents. If a down payment has been agreed, the delivery period shall not commence until payment has been received.
The delivery time is fixed so that it is likely to be met if the production runs smoothly. If our delivery time is exceeded, the buyer must set us a reasonable grace period. He cannot reject partial deliveries on our part. Delivery times and, if applicable, installation periods shall be extended to a reasonable extent if the purchaser subsequently requests technical modifications, in the event of force majeure as well as hindrances unforeseeable by us, irrespective of whether these occur in our works or at our suppliers. These may include, for example, operational disruptions, strikes, lockouts and delays in the delivery of essential third-party parts or raw materials. Insofar as these events significantly change the economic significance or the content of the performance or have a significant effect on our operations, as well as in the event that it subsequently becomes apparent that performance is impossible, the contract shall be adjusted accordingly. Should this not be economically justifiable, we shall be entitled to withdraw from the contract in whole or in part, to the exclusion of any claims for damages on the part of the customer. We shall be deemed to have complied with the delivery periods when the goods have left the factory or notification has been given that the goods are ready for dispatch. If a delay in delivery is justified by the customer, we are entitled to issue the invoice on the actual delivery date and, if necessary, to charge storage fees amounting to 0.5% of the invoice amount for each month or part thereof, but not more than 5% of the invoice amount, unless higher costs are proven in the case of storage by third parties.
Should the customer incur damage due to a delay for which we are responsible, he shall be entitled, to the exclusion of further claims, to demand compensation for the delay, against proof of the damage, up to a maximum of 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used on time or in accordance with the contract.
6. custom-made products
Custom-made products cannot be cancelled, exchanged or returned. In the event of justified notices of defects, we shall only be obliged to remedy the defects, but not to make a replacement delivery.
7 Right of withdrawal of the customer
With the exception of the cases regulated in these terms and conditions, the customer may withdraw from the contract if the entire delivery becomes definitively impossible for us before the transfer of risk or if the execution of a part of the delivery becomes impossible for us and the partial delivery is demonstrably of no interest to the customer. Otherwise, he may demand an appropriate reduction of the purchase price. If a binding delivery date is not met for reasons for which we are responsible, the customer may withdraw from the contract if he has granted us a reasonable period of grace and this period of grace has expired fruitlessly for reasons for which we are responsible. All further claims of the customer are excluded (see No. 11 Warranty). If neither party is responsible for the performance of the service, we shall be entitled to a part of the remuneration corresponding to the service rendered.
8. dispatch/transfer of risk
Any risk shall pass to the buyer when the goods leave our works or the buyer has been notified that the goods are ready for dispatch. This applies both in the case of transport by our own means of transport and in the case of carriage paid delivery, irrespective of whether we have undertaken the assembly. This also applies in the case of partial deliveries. Shipment is at the expense and risk of the buyer without responsibility for the most favorable freight. Complaints and claims about missing parts can only be considered if they are recorded immediately and in writing on the carrier’s accompanying documents upon acceptance of the shipment. The packaging cannot be taken back.
9. terms of payment
The term of payment is 14 days after the invoice date. A cash discount deduction from more recent invoices is not permitted as long as older invoices have not yet been paid. Bills of exchange are only accepted by prior agreement. Discount and expenses are always at the expense of the purchaser. In the event of default in payment, interest shall be charged at a rate of 8 % above the respective base rate. If the customer can prove that we have not incurred any damage at all or that our damage is significantly lower than the aforementioned lump sum, the interest shall be reduced to the actual damage incurred. We shall not be obliged to make any further deliveries from a current order before full payment of invoices due, including any interest on arrears, and we may not be put in default of delivery for this reason. We are entitled to refuse our performance if, after the conclusion of the contract, we have to fear that we will not receive the customer’s payment in full and on time due to a circumstance that has occurred, unless the customer has paid in advance or provided sufficient security. Counterclaims which are not recognised may neither be offset by the customer nor may payment be withheld for this reason. If the customer is an entrepreneur and is acting in the exercise of his commercial or independent professional activity at the time the contract is concluded, his notice of defects shall not affect either the obligation to pay or the due date. In addition, the customer, who is an entrepreneur and acts in the exercise of his commercial or independent professional activity when concluding the contract, waives the exercise of a right to refuse performance or a right of retention, unless we or our legal representatives or vicarious agents are guilty of gross breaches of contract or the counterclaims of the customer on which the right to refuse performance or the right of retention is based are undisputed, have been finally determined by a court of law or are ready for a decision. All deferments granted by us, including those tacitly granted by the acceptance of bills of exchange, may be revoked by us at any time. In case of return due to wrong order or groundless return we are entitled to charge a handling fee of 30 % of the net value of the goods. Excluded from this are incorrect deliveries on our part. In cases of judicial or extrajudicial composition proceedings, insolvency or default in payment and in the event of judicial recovery, the discounts granted shall cease to apply.
10. retention of title
The goods shall remain our property until full payment of all claims arising from deliveries of goods and services from the entire business relationship, including ancillary claims, claims for damages and encashment of cheques and bills of exchange. The retention of title shall also remain in force if individual claims of the seller are included in a current account and the balance is struck and acknowledged.
The buyer is obliged to store the goods delivered under reservation of title with the diligence of a prudent businessman, to insure them against fire and destruction to the amount of their full value. The buyer shall store the reserved goods for the seller free of charge. He assigns his claims for compensation to which he is entitled from damages of the above-mentioned kind against insurance companies or other parties liable for compensation to the seller in the amount of the invoice value of the goods. If the goods are mixed or combined with other items, this shall be done on behalf of the seller without the seller being obliged as a result. The purchaser does not acquire ownership in accordance with the terms of the contract by combining, mixing or processing. §§ 947 ff BGB in the new object. In these cases, the buyer hereby assigns to us his ownership or co-ownership rights to the mixed stock or to the new items. The buyer may only sell or process our property in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term. The purchaser assigns to us all claims against third parties, including future claims, arising from the resale of the goods owned by us, as soon as the order is placed. At our request, the purchaser is obliged to inform the third party purchaser of the assignment for payment to us. The customer is only authorised to collect the claims assigned by way of security in the ordinary course of business and only revocably. Revocation may only be effected if the customer breaches his contractual obligations, fails to meet his payment obligations towards us, is insolvent or over-indebted, the opening of insolvency proceedings against his assets has been applied for, in the event of a protest of a cheque or bill of exchange or in the event of a seizure having been effected. In the aforementioned cases, the right to resell or process the goods shall also expire. The customer is obliged to inform us of the name or company of his customers and their address in the event of revocation of the collection authorisation. Notwithstanding our right of revocation, the customer’s authorization to process the delivered goods, to resell them and to collect the claims assigned by way of security shall expire upon the occurrence of his insolvency or over-indebtedness as well as if the customer files for the opening of insolvency proceedings against his assets or if this has been applied for by third parties. If the customer is in default with his payment obligations, we are entitled to demand the surrender of the reserved goods. The assertion of the reservation of title shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing. We may satisfy ourselves from the goods taken back subject to retention of title by sale on the open market. We undertake to release the securities to which we are entitled at the customer’s request insofar as the value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall be incumbent upon us. The customer may neither pledge the goods nor assign them as security. Access by third parties to the goods delivered under retention of title or assigned claims must be notified to us immediately in writing, handing over the documents necessary for an intervention. Intervention and litigation costs shall be borne internally by the customer. The customer is generally permitted, after informing us, to engage in factoring for his outstanding accounts. If the buyer has sold the receivables within the framework of genuine factoring, the buyer shall assign to us any claims against the factor in their place and shall pass on to us its sales proceeds in proportion to the value of our rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the settlement of an invoice or if his financial circumstances deteriorate significantly. If a central settlement agency is involved in the business transaction between us and the buyer and assumes the del credere, the seller shall transfer ownership to the central settlement agency upon dispatch of the goods with the condition precedent of payment of the purchase price by the central settlement agency. The purchaser shall only be released upon payment by the central settler.
Complaints and notices of defects will only be considered if they are notified to us in writing within 3 days of receipt of the goods (for restrictions see No. 8 Shipping/Transfer of Risk).Hidden defects must be notified in writing immediately after they become apparent (§ 377 HGB). The further processing and installation of delivered goods shall be deemed to be a waiver of a notice of defect, unless the defect was not identifiable at that time. The warranty for deliveries of brand-new products is limited to a period of 12 months after delivery of the goods and factually to subsequent performance. Unless a purchase of consumer goods within the meaning of the law is involved, claims for material defects in used items shall become statute-barred after 6 months. We shall determine the type of subsequent performance, free of charge elimination of the defects notified by the customer in due time within a reasonable period of time or defect-free replacement delivery. We are entitled to refuse subsequent performance if it involves disproportionate costs for us. In this case, a reduction of the agreed purchase price can be demanded. After repeated failure of subsequent improvement or replacement delivery, the purchaser may also demand either a reduction of the purchase price or cancellation of the contract. The rejected goods may only be returned to us after agreement. Defective items for which we have provided a replacement shall become our property.
The warranty shall only cover defects which can be proven to be due to a circumstance occurring prior to the transfer of risk, in particular faulty design, low-quality material or defective workmanship. The liability for defects shall not apply in the case of such defects which are due to unsuitable or improper use, faulty operation, natural wear and tear, unsuitable or insufficient operating materials, improper handling as well as storage and care, illuminants, glass etc. and in the case of defects which are due to faulty assembly or commissioning by the customer or third parties. Also excluded from our warranty are all damages which have their origin in defective construction work, improper connection, chemical and electrical influences, fluctuating energy supply, excessive use, inspections or maintenance not carried out regularly, as well as non-observance of our operating and maintenance instructions. Modifications and remedies of any kind without our consent, repairs by service companies not authorized by us as well as the installation of other than original CP spare parts, exclude any liability on our part. We do not assume any liability for any indirect damage during commissioning of the equipment and instruction of the personnel.
For essential third-party products within our delivery, our liability is limited to the assignment of the warranty claims to which we are entitled against our suppliers. Beyond the aforementioned warranty claims, all further claims of the customer (see also No. 7 Customer’s Right of Withdrawal), in particular for injury to persons, consequential costs, for damage to goods which are not the subject of the contract or for loss of profit, etc., are excluded. This exclusion of liability applies in particular to any claims for damages if they are not based on intent, gross negligence on our part or on the part of our legal representatives and vicarious agents.
Claims for damages arising from impossibility of performance, from delay, from positive breach of contract, from culpa in contrahendo and from tort are excluded if they are not based on intent or gross negligence on the part of the supplier or his executives. In the event of a negligent breach of duty by us, our liability shall be limited to the foreseeable damage typical for the contract. If the typical contractual risk of damage is covered by liability insurance, our liability and the liability of our legal representatives or vicarious agents shall be limited in amount to the benefits of the liability insurance. This also applies to the violation of essential contractual obligations. This shall only apply if the customer is an entrepreneur and is acting in his commercial capacity when concluding the purchase contract.
12 Place of performance and jurisdiction
The place of performance for all rights and obligations arising from the transactions is Eslohe. German law shall apply to the contractual relationship. The law on the conclusion of international sales contracts does not apply. The place of jurisdiction arising from the business relationship with fully qualified merchants is Eslohe.
Should one or more of the aforementioned points be or become void, this shall not affect the validity of the remaining provisions and the entire legal transaction. The rights of the buyer under the contract are not transferable.