General Terms and Conditions

General Business and Delivery Terms and Conditions

  1. Areas of application

These General Business and Delivery Terms and Conditions apply to all business relationships with our customers. However, they apply exclusively if the contractual partner is an entrepreneur (Section 14 BGB (German Civil Code)), a legal person under public law or public special assets. Customer’s terms and conditions of purchase are hereby categorically rejected; they will not constitute any obligation for us, even if we do not explicitly oppose against them in individual cases. Verbal subsidiary agreements are not valid.

 

  1. Contract conclusion

Unless explicitly specified a binding, quotations are subject to change and non-binding. Unless explicitly described as binding in the order confirmation, any information, drawings, images, DIN standards, technical data, qualities, colour information, weight, dimension and performance descriptions included in brochures, catalogues, newsletters, advertisements, price lists, samplings and samples or documents pertaining to the quotation are non-binding. The aforementioned do not constitute guaranteed quality features, but are descriptions or identification indicators of the delivery or service. We reserve property and copy rights for these documents. The aforementioned (as such or contents thereof) may not be reproduced or disclosed to any third parties without our express consent. Drawings and especially static documentation must be returned upon request and any copies thereof must be destroyed.

A customer order is considered a binding quotation. Unless otherwise specified in the order, this contract offer can be accepted within three weeks after receipt. Acceptance can be indicated in writing (e.g. order confirmation) or by delivery. If acceptance is indicated in writing, solely the written concluded contract, including these General Business and Delivery Terms and Conditions, governs. If acceptance is indicated in the form of delivery, solely the order and these General Business and Delivery Terms and Conditions govern. Any individual agreements that have been reached in individual cases will always have priority over these General Business and Delivery Terms and Conditions. A written contract or our written confirmation is relevant for the content of such agreements. Deviations customary in the trade and deviations due to statutory provisions or that represent technical improvements, and substitutions of structural components by equivalent parts are allowed, as far as they do not affect the intended purpose under the contract.

 

  1. Delivery, transfer of risk

Unless a fixed deadline or date has expressly been promised or agreed to, any deadlines and dates for deliveries and services always just apply approximately. We are not liable for any inability to deliver or for delivery delays if this is caused by force majeure or other events that could not be foreseen at the time of contract conclusion and that are not our responsibility (e.g., interruptions of operations of any kind, strike, shortages of material, machine damage, loss of power, delayed or insufficient rail freight, incorrect or delayed delivery by suppliers). We have the right to withdraw from the contract if such events significantly make delivery or performance difficult or impossible for us and if this obstruction is not just of a temporary nature. Without prejudice of our rights from customer arrears, we have the right to request from the customer an extension of delivery and performance deadlines or postponement of delivery and performance deadlines by the time period (each additionally to a reasonable start-up time) by which the customer fails to fulfil its contractual obligations towards us. We have the right to make partial deliveries if such partial delivery can be used by the customer within the scope of the intended purpose under the contract, if delivery of the remaining ordered goods is ensured and if the customer does not incur any significant additional work or additional costs. Occurrence of our delay in delivery is determined by the statutory provisions. However, in any case, customer’s reminder is required. If we are in default with delivery or if we are unable to deliver or perform, regardless of the reason, our liability for damages is limited in accordance with clause 6 of these General Business and Delivery Terms and Conditions. Deliveries are made ex works, which is also the place of fulfilment, unless otherwise specified. Upon customer’s request and cost, good will be shipped to a different location. If shipping has been agreed upon, delivery deadlines and delivery dates refer to the date of transfer to the carrier, forwarding agent or other person or institution commissioned with the shipping. Unless otherwise agreed upon, we have the right to determine the type of shipping. The risk of coincidental destruction and coincidental deterioration of the goods are transferred to the customer no later than upon transfer to the customer. If the goods are shipped the risk of coincidental destruction and coincidental deterioration of the goods is already transferred as soon as goods are delivered to the carrier, forwarding agent or other person or institution commissioned with the shipping. If acceptance has been agreed upon, such acceptance is relevant for the transfer of risk. Any delay of acceptance by the customer is equivalent to transfer or acceptance. If the customer delays acceptance, fails to cooperate or if our delivery is delayed for different reasons that are the customer’s responsibility, we are entitled to request compensation for incurred damages, including additional expenses (e.g. storage costs). For this purpose, we charge a flat rate for compensation in the amount of 0.5% of the agreed gross price for each month, starting with the delivery deadline or notification that goods are ready to be shipped, however in total no more than 5%. The right of assertion and proof of further or lower storage costs and compensation claims remains reserved, however the flat rate must be offset against further claims. In the event of shipping, delivery is made to the location agreed upon and at customer’s risk. Deliveries free customer’s, storage or construction site means delivery without unloading, providing an access road which can be used by a heavy goods vehicle exists. If the delivery vehicle leaves this access road based on customer’s instructions, the customer is liable for any occurring damages. The customer must unload immediately and properly. Wait times will be charged to the customer. If shipping has been agreed to, the customer is responsible for the transportation costs ex warehouse. Shipped goods will only be insured against insurable risks upon express request and at cost of customer.

 

  1. Industrial buildings

The following applies to industrial buildings or buildings with long-term use:

Prior to ordering or starting execution of the order, the customer must obtain the required permissions under building law, either for

– a temporary structure pursuant to DIN EN 13782 (up to three months of duration of use) by means of notification to the building authority or

– in the event of the duration of use exceeding three months, by requesting a building permit.

The risk of a missing building permit is solely the customer’s responsibility. Since approval procedures are handled differently in each country, it is the customer’s responsibility to obtain corresponding information from relevant authorities. For this purpose we provide you with a structural analysis.

Any administrative fees, costs for verifying the structural analysis or costs due to additional requirements imposed by the building authority are the customer’s responsibility.

After completion of the building, inspection and acceptance will take place; the customer is obligated to participate. If the customer fails to participate in the inspection and acceptance despite being requested to do so, the building is considered accepted. The same applies if the customer starts using the building prior to its inspection and acceptance.

 

  1. Terms of payment, delay

The prices are ex works and do not include packaging, statutory VAT, or in the case of export deliveries, customs fees and charges, and other public dues. Offsetting with customer’s counterclaims or withholding payments due to such claims is only allowed if these counterclaims are undisputed and legally established. By accepting orders, customer’s creditworthiness is assumed. If it becomes apparent after conclusion of the contract that our entitlement is jeopardised due to customer’s lack of ability to pay (e.g. application to open insolvency proceedings), we are entitled to only perform outstanding deliveries and services subject to advance payments or securities or to request withdrawal from the contract pursuant to statutory provisions (Section 321 BGB (German Civil Code)), if applicable after setting a period specified for relief or a warning notice. In the case of contracts for the production of unique items (custom-made items), we can immediately declare withdrawal. This will not affect the statutory provisions regarding dispensability of specifying a period or issuing a warning notice. For the date of payment receipt on our business account is conclusive. If leasing has been agreed to, prior written consent from the leasing company and our written consent is required for this agreement to become effective. After expiry of the aforementioned payment deadlines, the customer is in arrears in each case. Interest shall be added to outstanding amounts during arrears at the respective statutory interest rate on arrears, without prejudice to our right to assert further damages for delay. Our entitlement for commercial default interest against merchants (Section 353 HGB (German Commercial Code)) remains unaffected.

 

  1. Liability, compensation

Our liability for compensation, regardless of the legal reason, especially due to inability, delay, deficient or incorrect delivery, breach of contract, violation of obligations concerning contract negotiations and unauthorised acts, as far as each depends on default, is limited in accordance with this Clause 6. We are not liable in the case of ordinary negligence of our organs, legal representatives, employees or other auxiliary persons if it does not involve a violation of essential contractual obligations. Contractually essential are the obligation to deliver or, if applicable, install the delivery item in time, it being free from deficiencies that affect its functional capability or usability more than just insignificantly, and duties of advice, protection and care that should allow the customer to use the delivery item pursuant to the contract or that are for the purpose of protecting life and limb of customer’s personnel or the protection of customer’s property against considerable damages. In so far as we are liable for compensation on the merits, such liability shall be limited to damages that we have foreseen at the time of contract conclusion as a possible consequence of a breach of contract or that we should have foreseen when practising due diligence. Consequential damages and subsequent damages that are the result of deficiencies of the delivery item are furthermore only eligible for compensation to the extent to which such damages may typically be expected when the delivery item is used for its intended purpose. The aforementioned exclusions and limitations of liability shall apply to the same extent for the benefit of our organs, legal representatives, employees and other auxiliary persons. As far as we provide technical support or offer advice and this support or advice is not part of the owed, contractually stipulated scope of services, this is considered gratuitous and to be an exception of liability. The limitations of this Clause 6 shall not apply to our liability for wilful misconduct, warranted quality features, injury to life, limb or health or our liability in accordance with the Product Liability Act.

 

  1. Payment terms for purchases

Unless otherwise arranged, invoice amounts must be paid to us in the amount of 50% of the agreed upon price, no later than 6 weeks before the specified delivery date, and the remaining amount no later than 1 week before delivery. For cash purchases, the purchase price is due immediately upon receipt without any deductions. Sale on payment due date is subject to agreement; in this case, invoices are due net within 10 days after the invoice date. Only the value of goods excluding the freight costs is discountable.

 

  1. Payment terms for rental

Rent shall always be paid by the 3rd weekday in advance for the current month, unless otherwise agreed. If the rental agreement is cancelled by reasons within the customer’s liability (e.g. withdrawal) prior to the intended transfer date, the customer must pay up until the 60st day prior to the agreed transfer date, a flat rate for damages in the amount of 20% of the total rent, until the 30st day prior to the agreed transfer date, a flat rate for damages in the amount of 40 % of the total rent, or as of the 29th day prior to the agreed transfer date, a flat rate for damages in the amount of 75 % of the total rent. The right of assertion and proof of further or lower storage costs and compensation claims remains reserved, however the flat rate must be offset against further claims.

 

  1. Retention of title

We retain title to all goods delivered until full payment has been made for all claims that we are entitled to or shall be entitled to as a result of the business relationship with the customer regardless of the legal reason. During this time period, the customer shall keep the delivered goods for us free of charge. The addition of individual items to a current account as well as balancing and its acceptance shall not affect the retention of title. The customer is entitled to process and resell goods delivered by us in the normal course of business until enforcement. Pledging and transfer as security are not permissible. The customer must inform us immediately if and to the extent to which third parties have access to items to which we retain title. In the event of customer’s behaviour constituting a breach of contract, in particular default of payment, we are entitled to withdraw from the contract in accordance with statutory provisions and/or demand return of the goods based on the retention of title. Demanding the return of the goods shall not be deemed to include a simultaneous declaration of withdrawal from the contract at the same time; on the contrary, we shall be entitled to demand solely the return of the goods and reserve the right to withdrawal. In the event that the customer does not pay the due invoice amounts, we may only assert such rights if we have previously and unsuccessfully set the customer a reasonable deadline for payment or if the setting of such a deadline is superfluous in accordance with the statutory provisions. The customer hereby now assigns claims from the resale of items delivered by us in total or to the extent of our share of joint ownership, if applicable, including all ancillary rights and rights to alter a legal relationship. We hereby accept the assignment. The same shall apply to claims in lieu of the delivered items or that arise otherwise with respect to the delivered items, e.g. insurance claims or claims from unauthorised handling in case of loss or damage. Apart from us, the customer is revocably authorised and obligated to collect the assigned claims. We undertake not to collect such claims provided the customer properly fulfils its obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other indication of the contractor’s inability to pay. In the event, however, that this is not the case, we shall be entitled to demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, surrenders the related documents, and informs the third party of the assignment. If items that are subject to retention of title are processed by the customer to a new movable item, such processing shall be performed on our behalf and on our account as producer, without incurring any obligations thereby; the new item shall become our property. If the event of processing with other items which do not belong to us, then we shall acquire the joint title to the new item in the proportion of the value of the items that are subject to retention of title to the other items at the time of processing. In the event that, pursuant to Sections 947 and 948 BGB (German Civil Code), the items that are subject to retention of title are inseparably mixed or joined with other items not belonging to us, then we shall acquire joint ownership pursuant to statutory provisions. In the event that no such ownership in accordance with the aforementioned provisions is acquired for us, the customer hereby now transfers its future ownership or joint ownership (in the proportion of the value of the items of delivery to the other items at the time of mixing or joining) of the newly created item to us as security. In addition, the same shall apply to the created product as for the items delivered subject to retention of title. If items that are subject to retention of title are installed by the customer as an integral part on the property of a third party, then the customer hereby now assigns all resulting claims for compensation in the amount of the value of the items that are subject to retention of title with all ancillary rights including the right for granting a collateral mortgage with the rank above the remainder; we hereby accept the assignment. If items that are subject to retention of title are installed by the customer as an integral part on the property of the customer; then the customer hereby now assigns all claims resulting from the commercial sale of the property or from the property rights in the amount of the value of the items that are subject to retention of title with all ancillary rights and with the rank above the remainder; we hereby accept the assignment. If the realisable value of securities exceeds our claims by more than 20%, then at the request of the customer, we shall release securities of our choice.

 

  1. Notice of defects, warranty

The delivered items must be thoroughly inspected immediately upon delivery to the customer or a third party appointed by the customer. The delivered items shall be deemed as accepted by the customer with respect to apparent defects or other defects that would have been apparent during an immediate, thorough inspection if we have not received a written notice of defects within 7 working days after delivery. With respect to other defects, the delivery items are deemed as accepted if the notice of defect has not been received by us within 7 working days after the date when the defect was apparent; however, if the defect was apparent to the customer at an earlier date, this earlier date is the relevant date for the start of the period allowed for submitting the notice of defect. Transport damages and loss of goods must be reported to us immediately and be noted for the carrier, forwarding agent or other person or institution commissioned with the shipping on the consignment note in writing. Upon our request, a rejected delivery item shall be returned to us free of carriage charges. If the notice of defect is justified, we shall reimburse the costs of the lowest priced shipping method; this shall not apply if the costs are increased due to the delivery item being located at a different location to the location of intended use. In the event of material defects of the delivered items we are initially obligated and entitled, at our choice, to subsequent improvement or substitute delivery. Our right to refuse the subsequent performance under the statutory prerequisites remains unaffected. Should subsequent performance fail, i.e. it is not possible, not reasonable, it is refused or due to an unreasonable delay of subsequent performance the customer withdraw from the contract or appropriately reduce the contract amount. However, in the case of only an insubstantial defect the right to withdraw from the contract shall not apply. If a defect is our fault, then the customer can request compensation for damages under certain circumstances specified under Clause 6. The warranty is void if the customer modifies the delivered item or has it modified by a third party, without our consent, and correction of the defect becomes impossible or unreasonably difficult as a result of this. In this case, the customer shall bear the additional costs for the correction of the defect that were caused by the modification. Any delivery of used items that we may agree upon with the customer in individual cases shall be carried out by excluding any warranty for material defects.

 

  1. Claims for defects

The customer’s rights are limited to the right of subsequent performance in accordance with Section 635 BGB Cure (German Civil Code). The customer’s right to reduce the compensation or, at it’s choice, to withdraw from the contract instead if subsequent performance fails shall explicitly remain reserved. The customer must immediately report any detected defect. We are not liable if the defect is insubstantial for the customer’s interests or if it is the result of circumstances that are not our responsibility. Further claims are exclusively determined by Clause 6.

 

  1. Limitation

The general period of limitation for all customer claims is one year after delivery. Insofar as an acceptance is to be carried out, the period of limitation starts on the date of acceptance. The limitations of the above sentence 1 shall not apply to our liability for wilful misconduct, warranted quality features, injury to life, limb or health or our liability in accordance with the Product Liability Act.

 

  1. Severability Clause

Should any provision in these General Business and Delivery Terms and Conditions or any provision within the scope of other agreements be or become ineffective, the validity of the remaining provisions or agreements hereof shall in no way be affected.

 

  1. Choice of law and place of jurisdiction

Relationships between us and the customer are exclusively subject to the law of the Federal Republic of Germany to the exclusion of the international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Requirements and effects of the retention of title pursuant to Clause 8 are subject to the law at the relevant location of the items insofar as it renders the choice of law in favour of German law invalid or ineffective. The exclusive – including international – place of jurisdiction for any dispute directly or indirectly arising from the contract relationship is our place of business in Buedingen/Hessen, Germany. However, we are also authorised to take legal action at the customer’s general place of jurisdiction.

 

General Business and Delivery Terms and Conditions

  1. Areas of application

These General Business and Delivery Terms and Conditions apply to all business relationships with our customers. However, they apply exclusively if the contractual partner is an entrepreneur (Section 14 BGB (German Civil Code)), a legal person under public law or public special assets. Customer’s terms and conditions of purchase are hereby categorically rejected; they will not constitute any obligation for us, even if we do not explicitly oppose against them in individual cases. Verbal subsidiary agreements are not valid.

 

  1. Contract conclusion

Unless explicitly specified a binding, quotations are subject to change and non-binding. Unless explicitly described as binding in the order confirmation, any information, drawings, images, DIN standards, technical data, qualities, colour information, weight, dimension and performance descriptions included in brochures, catalogues, newsletters, advertisements, price lists, samplings and samples or documents pertaining to the quotation are non-binding. The aforementioned do not constitute guaranteed quality features, but are descriptions or identification indicators of the delivery or service. We reserve property and copy rights for these documents. The aforementioned (as such or contents thereof) may not be reproduced or disclosed to any third parties without our express consent. Drawings and especially static documentation must be returned upon request and any copies thereof must be destroyed.

A customer order is considered a binding quotation. Unless otherwise specified in the order, this contract offer can be accepted within three weeks after receipt. Acceptance can be indicated in writing (e.g. order confirmation) or by delivery. If acceptance is indicated in writing, solely the written concluded contract, including these General Business and Delivery Terms and Conditions, governs. If acceptance is indicated in the form of delivery, solely the order and these General Business and Delivery Terms and Conditions govern. Any individual agreements that have been reached in individual cases will always have priority over these General Business and Delivery Terms and Conditions. A written contract or our written confirmation is relevant for the content of such agreements. Deviations customary in the trade and deviations due to statutory provisions or that represent technical improvements, and substitutions of structural components by equivalent parts are allowed, as far as they do not affect the intended purpose under the contract.

 

  1. Delivery, transfer of risk

Unless a fixed deadline or date has expressly been promised or agreed to, any deadlines and dates for deliveries and services always just apply approximately. We are not liable for any inability to deliver or for delivery delays if this is caused by force majeure or other events that could not be foreseen at the time of contract conclusion and that are not our responsibility (e.g., interruptions of operations of any kind, strike, shortages of material, machine damage, loss of power, delayed or insufficient rail freight, incorrect or delayed delivery by suppliers). We have the right to withdraw from the contract if such events significantly make delivery or performance difficult or impossible for us and if this obstruction is not just of a temporary nature. Without prejudice of our rights from customer arrears, we have the right to request from the customer an extension of delivery and performance deadlines or postponement of delivery and performance deadlines by the time period (each additionally to a reasonable start-up time) by which the customer fails to fulfil its contractual obligations towards us. We have the right to make partial deliveries if such partial delivery can be used by the customer within the scope of the intended purpose under the contract, if delivery of the remaining ordered goods is ensured and if the customer does not incur any significant additional work or additional costs. Occurrence of our delay in delivery is determined by the statutory provisions. However, in any case, customer’s reminder is required. If we are in default with delivery or if we are unable to deliver or perform, regardless of the reason, our liability for damages is limited in accordance with clause 6 of these General Business and Delivery Terms and Conditions. Deliveries are made ex works, which is also the place of fulfilment, unless otherwise specified. Upon customer’s request and cost, good will be shipped to a different location. If shipping has been agreed upon, delivery deadlines and delivery dates refer to the date of transfer to the carrier, forwarding agent or other person or institution commissioned with the shipping. Unless otherwise agreed upon, we have the right to determine the type of shipping. The risk of coincidental destruction and coincidental deterioration of the goods are transferred to the customer no later than upon transfer to the customer. If the goods are shipped the risk of coincidental destruction and coincidental deterioration of the goods is already transferred as soon as goods are delivered to the carrier, forwarding agent or other person or institution commissioned with the shipping. If acceptance has been agreed upon, such acceptance is relevant for the transfer of risk. Any delay of acceptance by the customer is equivalent to transfer or acceptance. If the customer delays acceptance, fails to cooperate or if our delivery is delayed for different reasons that are the customer’s responsibility, we are entitled to request compensation for incurred damages, including additional expenses (e.g. storage costs). For this purpose, we charge a flat rate for compensation in the amount of 0.5% of the agreed gross price for each month, starting with the delivery deadline or notification that goods are ready to be shipped, however in total no more than 5%. The right of assertion and proof of further or lower storage costs and compensation claims remains reserved, however the flat rate must be offset against further claims. In the event of shipping, delivery is made to the location agreed upon and at customer’s risk. Deliveries free customer’s, storage or construction site means delivery without unloading, providing an access road which can be used by a heavy goods vehicle exists. If the delivery vehicle leaves this access road based on customer’s instructions, the customer is liable for any occurring damages. The customer must unload immediately and properly. Wait times will be charged to the customer. If shipping has been agreed to, the customer is responsible for the transportation costs ex warehouse. Shipped goods will only be insured against insurable risks upon express request and at cost of customer.

 

  1. Industrial buildings

The following applies to industrial buildings or buildings with long-term use:

Prior to ordering or starting execution of the order, the customer must obtain the required permissions under building law, either for

– a temporary structure pursuant to DIN EN 13782 (up to three months of duration of use) by means of notification to the building authority or

– in the event of the duration of use exceeding three months, by requesting a building permit.

The risk of a missing building permit is solely the customer’s responsibility. Since approval procedures are handled differently in each country, it is the customer’s responsibility to obtain corresponding information from relevant authorities. For this purpose we provide you with a structural analysis.

Any administrative fees, costs for verifying the structural analysis or costs due to additional requirements imposed by the building authority are the customer’s responsibility.

After completion of the building, inspection and acceptance will take place; the customer is obligated to participate. If the customer fails to participate in the inspection and acceptance despite being requested to do so, the building is considered accepted. The same applies if the customer starts using the building prior to its inspection and acceptance.

 

  1. Terms of payment, delay

The prices are ex works and do not include packaging, statutory VAT, or in the case of export deliveries, customs fees and charges, and other public dues. Offsetting with customer’s counterclaims or withholding payments due to such claims is only allowed if these counterclaims are undisputed and legally established. By accepting orders, customer’s creditworthiness is assumed. If it becomes apparent after conclusion of the contract that our entitlement is jeopardised due to customer’s lack of ability to pay (e.g. application to open insolvency proceedings), we are entitled to only perform outstanding deliveries and services subject to advance payments or securities or to request withdrawal from the contract pursuant to statutory provisions (Section 321 BGB (German Civil Code)), if applicable after setting a period specified for relief or a warning notice. In the case of contracts for the production of unique items (custom-made items), we can immediately declare withdrawal. This will not affect the statutory provisions regarding dispensability of specifying a period or issuing a warning notice. For the date of payment receipt on our business account is conclusive. If leasing has been agreed to, prior written consent from the leasing company and our written consent is required for this agreement to become effective. After expiry of the aforementioned payment deadlines, the customer is in arrears in each case. Interest shall be added to outstanding amounts during arrears at the respective statutory interest rate on arrears, without prejudice to our right to assert further damages for delay. Our entitlement for commercial default interest against merchants (Section 353 HGB (German Commercial Code)) remains unaffected.

 

  1. Liability, compensation

Our liability for compensation, regardless of the legal reason, especially due to inability, delay, deficient or incorrect delivery, breach of contract, violation of obligations concerning contract negotiations and unauthorised acts, as far as each depends on default, is limited in accordance with this Clause 6. We are not liable in the case of ordinary negligence of our organs, legal representatives, employees or other auxiliary persons if it does not involve a violation of essential contractual obligations. Contractually essential are the obligation to deliver or, if applicable, install the delivery item in time, it being free from deficiencies that affect its functional capability or usability more than just insignificantly, and duties of advice, protection and care that should allow the customer to use the delivery item pursuant to the contract or that are for the purpose of protecting life and limb of customer’s personnel or the protection of customer’s property against considerable damages. In so far as we are liable for compensation on the merits, such liability shall be limited to damages that we have foreseen at the time of contract conclusion as a possible consequence of a breach of contract or that we should have foreseen when practising due diligence. Consequential damages and subsequent damages that are the result of deficiencies of the delivery item are furthermore only eligible for compensation to the extent to which such damages may typically be expected when the delivery item is used for its intended purpose. The aforementioned exclusions and limitations of liability shall apply to the same extent for the benefit of our organs, legal representatives, employees and other auxiliary persons. As far as we provide technical support or offer advice and this support or advice is not part of the owed, contractually stipulated scope of services, this is considered gratuitous and to be an exception of liability. The limitations of this Clause 6 shall not apply to our liability for wilful misconduct, warranted quality features, injury to life, limb or health or our liability in accordance with the Product Liability Act.

 

  1. Payment terms for purchases

Unless otherwise arranged, invoice amounts must be paid to us in the amount of 50% of the agreed upon price, no later than 6 weeks before the specified delivery date, and the remaining amount no later than 1 week before delivery. For cash purchases, the purchase price is due immediately upon receipt without any deductions. Sale on payment due date is subject to agreement; in this case, invoices are due net within 10 days after the invoice date. Only the value of goods excluding the freight costs is discountable.

 

  1. Payment terms for rental

Rent shall always be paid by the 3rd weekday in advance for the current month, unless otherwise agreed. If the rental agreement is cancelled by reasons within the customer’s liability (e.g. withdrawal) prior to the intended transfer date, the customer must pay up until the 60st day prior to the agreed transfer date, a flat rate for damages in the amount of 20% of the total rent, until the 30st day prior to the agreed transfer date, a flat rate for damages in the amount of 40 % of the total rent, or as of the 29th day prior to the agreed transfer date, a flat rate for damages in the amount of 75 % of the total rent. The right of assertion and proof of further or lower storage costs and compensation claims remains reserved, however the flat rate must be offset against further claims.

 

  1. Retention of title

We retain title to all goods delivered until full payment has been made for all claims that we are entitled to or shall be entitled to as a result of the business relationship with the customer regardless of the legal reason. During this time period, the customer shall keep the delivered goods for us free of charge. The addition of individual items to a current account as well as balancing and its acceptance shall not affect the retention of title. The customer is entitled to process and resell goods delivered by us in the normal course of business until enforcement. Pledging and transfer as security are not permissible. The customer must inform us immediately if and to the extent to which third parties have access to items to which we retain title. In the event of customer’s behaviour constituting a breach of contract, in particular default of payment, we are entitled to withdraw from the contract in accordance with statutory provisions and/or demand return of the goods based on the retention of title. Demanding the return of the goods shall not be deemed to include a simultaneous declaration of withdrawal from the contract at the same time; on the contrary, we shall be entitled to demand solely the return of the goods and reserve the right to withdrawal. In the event that the customer does not pay the due invoice amounts, we may only assert such rights if we have previously and unsuccessfully set the customer a reasonable deadline for payment or if the setting of such a deadline is superfluous in accordance with the statutory provisions. The customer hereby now assigns claims from the resale of items delivered by us in total or to the extent of our share of joint ownership, if applicable, including all ancillary rights and rights to alter a legal relationship. We hereby accept the assignment. The same shall apply to claims in lieu of the delivered items or that arise otherwise with respect to the delivered items, e.g. insurance claims or claims from unauthorised handling in case of loss or damage. Apart from us, the customer is revocably authorised and obligated to collect the assigned claims. We undertake not to collect such claims provided the customer properly fulfils its obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other indication of the contractor’s inability to pay. In the event, however, that this is not the case, we shall be entitled to demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, surrenders the related documents, and informs the third party of the assignment. If items that are subject to retention of title are processed by the customer to a new movable item, such processing shall be performed on our behalf and on our account as producer, without incurring any obligations thereby; the new item shall become our property. If the event of processing with other items which do not belong to us, then we shall acquire the joint title to the new item in the proportion of the value of the items that are subject to retention of title to the other items at the time of processing. In the event that, pursuant to Sections 947 and 948 BGB (German Civil Code), the items that are subject to retention of title are inseparably mixed or joined with other items not belonging to us, then we shall acquire joint ownership pursuant to statutory provisions. In the event that no such ownership in accordance with the aforementioned provisions is acquired for us, the customer hereby now transfers its future ownership or joint ownership (in the proportion of the value of the items of delivery to the other items at the time of mixing or joining) of the newly created item to us as security. In addition, the same shall apply to the created product as for the items delivered subject to retention of title. If items that are subject to retention of title are installed by the customer as an integral part on the property of a third party, then the customer hereby now assigns all resulting claims for compensation in the amount of the value of the items that are subject to retention of title with all ancillary rights including the right for granting a collateral mortgage with the rank above the remainder; we hereby accept the assignment. If items that are subject to retention of title are installed by the customer as an integral part on the property of the customer; then the customer hereby now assigns all claims resulting from the commercial sale of the property or from the property rights in the amount of the value of the items that are subject to retention of title with all ancillary rights and with the rank above the remainder; we hereby accept the assignment. If the realisable value of securities exceeds our claims by more than 20%, then at the request of the customer, we shall release securities of our choice.

 

  1. Notice of defects, warranty

The delivered items must be thoroughly inspected immediately upon delivery to the customer or a third party appointed by the customer. The delivered items shall be deemed as accepted by the customer with respect to apparent defects or other defects that would have been apparent during an immediate, thorough inspection if we have not received a written notice of defects within 7 working days after delivery. With respect to other defects, the delivery items are deemed as accepted if the notice of defect has not been received by us within 7 working days after the date when the defect was apparent; however, if the defect was apparent to the customer at an earlier date, this earlier date is the relevant date for the start of the period allowed for submitting the notice of defect. Transport damages and loss of goods must be reported to us immediately and be noted for the carrier, forwarding agent or other person or institution commissioned with the shipping on the consignment note in writing. Upon our request, a rejected delivery item shall be returned to us free of carriage charges. If the notice of defect is justified, we shall reimburse the costs of the lowest priced shipping method; this shall not apply if the costs are increased due to the delivery item being located at a different location to the location of intended use. In the event of material defects of the delivered items we are initially obligated and entitled, at our choice, to subsequent improvement or substitute delivery. Our right to refuse the subsequent performance under the statutory prerequisites remains unaffected. Should subsequent performance fail, i.e. it is not possible, not reasonable, it is refused or due to an unreasonable delay of subsequent performance the customer withdraw from the contract or appropriately reduce the contract amount. However, in the case of only an insubstantial defect the right to withdraw from the contract shall not apply. If a defect is our fault, then the customer can request compensation for damages under certain circumstances specified under Clause 6. The warranty is void if the customer modifies the delivered item or has it modified by a third party, without our consent, and correction of the defect becomes impossible or unreasonably difficult as a result of this. In this case, the customer shall bear the additional costs for the correction of the defect that were caused by the modification. Any delivery of used items that we may agree upon with the customer in individual cases shall be carried out by excluding any warranty for material defects.

 

  1. Claims for defects

The customer’s rights are limited to the right of subsequent performance in accordance with Section 635 BGB Cure (German Civil Code). The customer’s right to reduce the compensation or, at it’s choice, to withdraw from the contract instead if subsequent performance fails shall explicitly remain reserved. The customer must immediately report any detected defect. We are not liable if the defect is insubstantial for the customer’s interests or if it is the result of circumstances that are not our responsibility. Further claims are exclusively determined by Clause 6.

 

  1. Limitation

The general period of limitation for all customer claims is one year after delivery. Insofar as an acceptance is to be carried out, the period of limitation starts on the date of acceptance. The limitations of the above sentence 1 shall not apply to our liability for wilful misconduct, warranted quality features, injury to life, limb or health or our liability in accordance with the Product Liability Act.

 

  1. Severability Clause

Should any provision in these General Business and Delivery Terms and Conditions or any provision within the scope of other agreements be or become ineffective, the validity of the remaining provisions or agreements hereof shall in no way be affected.

 

  1. Choice of law and place of jurisdiction

Relationships between us and the customer are exclusively subject to the law of the Federal Republic of Germany to the exclusion of the international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Requirements and effects of the retention of title pursuant to Clause 8 are subject to the law at the relevant location of the items insofar as it renders the choice of law in favour of German law invalid or ineffective. The exclusive – including international – place of jurisdiction for any dispute directly or indirectly arising from the contract relationship is our place of business in Buedingen/Hessen, Germany. However, we are also authorised to take legal action at the customer’s general place of jurisdiction.

 

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