General terms and conditions
§ 1 Validity § 1 Validity
(1) All deliveries, services and offers of the Seller shall be provided exclusively
on the basis of these General Terms and Conditions. These are an integral part of all contracts that
the Seller concludes with its contractual partners (hereinafter also referred to as the "Client") concerning
the deliveries or services offered by him. They shall also apply to all
future deliveries, services or offers to the Client, even if they are not separately
they are not separately agreed again.
(2) Terms and conditions of business of the Client or third parties shall not apply, even if
the Seller does not separately object to their validity in individual cases. Even if the
Seller refers to a letter that contains or refers to the terms and conditions of the
of a third party or refers to such, this shall not constitute agreement with the validity of
of those terms and conditions.
§ 2 Offer and conclusion of contract § 2 Offer and conclusion of contract
(1) All offers made by the Seller are subject to change and non-binding, unless they are
expressly marked as binding or contain a specific acceptance period.
contain. The Seller may accept orders or commissions within fourteen days of receipt.
receipt.
(2) The legal relationship between the Seller and the Buyer shall be governed solely by the
contract of sale concluded in writing, including these General Terms and
Terms and Conditions. This fully reflects all agreements between the contracting parties
object of the contract in full. Verbal promises made by the Seller prior to the conclusion
of this contract are not legally binding and verbal agreements between the contracting parties
shall be replaced by the written contract, unless it is expressly stated in each case
that they continue to be binding. Additions and amendments to the agreements made
agreements, including these terms and conditions, must be made in writing to be effective.
the written form. With the exception of managing directors or authorized signatories, the employees of the
employees of the seller are not authorized to make verbal agreements deviating from this. To comply with
transmission by fax is sufficient to comply with the written form requirement.
transmission, in particular by e-mail, is not sufficient.
(3) Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions,
values, load-bearing capacity, tolerances and technical data) as well as our
representations of the same (e.g. drawings and illustrations) are only approximate,
unless the usability for the contractually intended purpose requires an exact
purpose requires exact conformity. They are not guaranteed characteristics, but rather
descriptions or identifications of the delivery or service. Customary
deviations and deviations that occur due to legal regulations or represent
technical improvements and the replacement of components with equivalent parts are
parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
impair the intended purpose.
(4) The Seller retains the ownership or copyright to all offers and cost estimates submitted by him
offers and cost estimates submitted by him as well as drawings, illustrations
drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and
other documents and aids. The Client may not use these items without the
these items as such or in terms of content to third parties without the express consent of the seller, disclose them
disclose them, use them himself or through third parties or reproduce them. At the
return these items in full to the seller at the seller's request and destroy any copies
and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
lead to the conclusion of a contract.
§ 3 Prices and payment § 3 Prices and payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations.
scope of delivery. Additional or special services shall be invoiced separately. The prices
are quoted in EURO ex works plus packaging, statutory value added tax, customs duties in the case of
customs duties and fees and other public charges in the case of export deliveries. 2
(2) Insofar as the agreed prices are based on the Seller's list prices and the delivery does not take place
delivery is to take place more than four months after the conclusion of the contract, the
Seller's list prices valid at the time of delivery (in each case less an agreed
percentage or fixed discount).
(3) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing.
otherwise agreed in writing. Decisive for the date of payment is the date of
receipt by the seller. Checks shall not be considered payment until they have been cashed. If the
payment on the due date, the outstanding amounts shall bear interest at 5% p.a. from the due date.
interest of 5% p.a. from the due date; the assertion of higher interest and further damages in the event of
in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the client or the retention of payments due to such
payments due to such claims shall only be permissible insofar as the counterclaims are undisputed
or have been legally established.
(5) The Seller shall be entitled to execute or provide outstanding deliveries or services only against
or services only against advance payment or provision of security if, after conclusion of the contract
circumstances become known to him after the conclusion of the contract which are
the creditworthiness of the customer and which could jeopardize the payment of the
outstanding claims of the seller by the client from the respective contractual
contractual relationship (including from other individual orders to which the same framework
framework agreement applies) is jeopardized.
§ 4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) Deadlines and dates for deliveries and services promised by the seller are always approximate, unless a fixed deadline or date has been explicitly promised or agreed. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
(3) The seller can - without prejudice to his rights from the buyer's delay - demand an extension of delivery and service periods or a postponement of delivery and service dates by the period in which the buyer does not meet his contractual obligations to the seller.
(4) The seller is not liable for impossibility of delivery or for delivery delays, insofar as these have been caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the absence, incorrect or untimely delivery by suppliers) for which the seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the seller and the impediment is not only temporary, the seller is entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the obstruction plus a reasonable start-up period. If, as a result of the delay, the buyer cannot reasonably be expected to accept the delivery or service, he can withdraw from the contract by giving immediate written notice to the seller.
(5) The seller is only entitled to partial deliveries if the partial delivery can be used by the buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and this does not result in significant additional effort or additional costs for the buyer (unless the seller agrees to bear these costs).
(6) If the seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the seller's liability for damages is limited in accordance with § 8 of these General Terms and Conditions.
§ 5 Place of fulfillment, shipment, packaging, transfer of risk, acceptance
(1) The place of fulfillment for all obligations arising from the contractual relationship is Attendorn, unless otherwise specified. If the seller also owes the installation, the place of fulfillment is the place where the installation is to be carried out.
(2) The method of shipment and packaging are at the seller's due discretion.
(3) The risk is transferred to the customer at the latest when the delivery item (where the start of the loading process is decisive) is handed over to the freight forwarder, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or the seller has taken over other services (e.g. shipping or installation). If the shipment or handover is delayed due to a circumstance whose cause lies with the customer, the risk is transferred to the customer on the day the seller is ready for shipment and has notified the customer of this.
(4) The customer bears storage costs after the transfer of risk. If stored by the seller, the storage costs are 0.25% of the invoice amount of the delivery items to be stored per elapsed week. The assertion and proof of further or lower storage costs are reserved.
(5) The shipment will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request and at the expense of the customer.
(6) As far as an acceptance is to take place, the purchased item is considered accepted if the delivery and, if the seller also owes the installation, the installation is complete, the seller has communicated this to the customer, referring to the fictitious acceptance according to this § 5 (6) and has asked him to accept, twelve working days have passed since the delivery or installation or the customer has started using the purchased item (e.g., has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and the customer has failed to accept within this period for a reason other than a defect notified to the seller that makes the use of the purchased item impossible or significantly impairs it.
(1) The warranty period is one year from delivery or, if an acceptance is required, from the acceptance.
(2) The delivered items must be carefully examined immediately after delivery to the client or to the third party designated by him. They are considered approved if a notice of defects regarding obvious defects or other defects, which were recognisable during an immediate, careful examination, is not received by the seller within seven working days after delivery of the item, or otherwise within seven working days after the discovery of the defect or the time at which the defect was recognisable for the client during normal use of the item without further examination. At the seller's request, the complained-about item must be returned freight-free to the seller. If the complaint is justified, the seller will refund the cost of the cheapest shipping; this does not apply if the costs increase because the item is located in a place other than the place of intended use.
(3) In case of material defects of the delivered items, the seller is first obliged and entitled to repair or replace at his discretion within a reasonable period of time. If the repair fails, the client can withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the seller's fault, the client can demand compensation under the conditions specified in section 8.
(5) For defects of components from other manufacturers, which the seller cannot eliminate due to licensing or actual reasons, the seller will, at his discretion, assert his warranty claims against the manufacturers and suppliers on behalf of the client or assign to the client. Warranty claims against the seller exist for such defects under the other conditions and according to these general terms and conditions only if the legal enforcement of the above claims against the manufacturer and suppliers was unsuccessful or, for example due to insolvency, is futile. During the duration of the litigation, the limitation of the relevant warranty claims of the client against the seller is inhibited.
(6) The warranty is void if the client modifies the item delivered or has it modified by third parties without the consent of the seller and the elimination of defects is thereby rendered impossible or unreasonably difficult. In any case, the client has to bear the additional costs of the defect elimination caused by the change.
(7) A delivery of used items agreed with the client in individual cases is carried out excluding any warranty.
§ 7 Intellectual Property Rights § 7 Intellectual Property Rights
(1) The seller guarantees, according to this § 7, that the delivery item is free from
industrial property rights or copyrights of third parties. Each contractual partner will notify the
other contractual partner immediately in writing if claims are asserted against him
due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright
of a third party, the seller will, at his discretion and at his own expense, modify or exchange the delivery item in such a way that no third party rights are violated
any more, but the delivery item still fulfills the contractually agreed functions,
or procure the right of use for the customer by concluding a license agreement.
If he fails to do so within a reasonable period of time, the client is
entitled to withdraw from the contract or to reduce the purchase price appropriately.
Any claims for damages by the client are subject to the limitations of
§ 8 of these General Terms and Conditions.
(3) In the case of legal infringements by products supplied by the seller from other manufacturers, he will
the seller, at his discretion, will assert his claims against the manufacturers and pre-suppliers for the client's account or assign them to the client. Claims
against the seller exist in these cases according to this § 7 only if the
judicial enforcement of the aforementioned claims against the manufacturers and
pre-suppliers was unsuccessful or, for example due to insolvency, is hopeless.
§ 8 Liability for damages due to negligence
(1) The seller's liability for damages, regardless of the legal reason, particularly due to impossibility, delay, defective or incorrect delivery, contract violation, violation of duties during contract negotiations, and unlawful act is, when it depends on fault, restricted according to this § 8.
(2) The seller is not liable in the case of simple negligence of its bodies, legal representatives, employees, or other vicarious agents, as long as it does not involve a breach of essential contractual obligations. Essential are the obligation for timely, defect-free delivery and installation as well as advisory, protection, and care duties, which should enable the client to use the delivery item in accordance with the contract or aim to protect the body or life of the client's personnel or third parties or the client's property from significant damages.
(3) As far as the seller is liable for damages according to § 8 (2), this liability is limited to damages which the seller has foreseen as a possible consequence of a contract violation at the time of the contract conclusion or, taking into account the circumstances that were known to him or should have been known to him with the application of customary care, should have foreseen. Indirect damages and consequential damages that are a result of defects of the delivered item are also only compensable if such damages are typically to be expected with the delivery item's intended use.
(4) In the event of liability for simple negligence, the seller's obligation to compensate for property or personal damage is limited to an amount of EUR 10,000,000 per damage case (corresponding to the current coverage sum of his product liability insurance or liability insurance), even if it is a violation of essential contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent in favor of the seller's bodies, legal representatives, employees, and other vicarious agents.
(6) Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the scope of services owed by him contractually agreed, this is done free of charge and excluding any liability.
(7) The restrictions of this § 8 do not apply to the seller's liability for intentional behavior, guaranteed characteristics, injury to life, body, or health, or under the Product Liability Act.
§ 9 Retention of title
(1) The agreed reservation of title serves to secure all existing current and future claims of the seller against the customer from the delivery relationship existing between the contractual partners.
(2) The goods delivered by the seller to the customer remain the property of the seller until all secured claims have been fully paid. The goods and the goods covered by the reservation of title which replace them according to this clause are hereinafter referred to as reserved goods.
(3) The customer keeps the reserved goods free of charge for the seller.
(4) The customer is entitled to process and sell the reserved goods in the ordinary course of business until the occurrence of the exploitation case (paragraph 9). Pledges and assignments as security are not permissible.
(5) If the reserved goods are processed by the customer, it is agreed that the processing takes place in the name and for the account of the seller as manufacturer and the seller directly acquires ownership or - if the processing is made from materials of several owners or the value of the processed item is higher than the value of the reserved goods - the joint ownership (fractional ownership) of the newly created item in relation to the value of the reserved goods to the value of the newly created item. If no such acquisition of ownership should occur at the seller, the customer already now transfers his future ownership or - in the above ratio - joint ownership of the newly created item to the seller for security. If the reserved goods are combined with other items into a uniform item or are inseparably mixed and one of the other items is to be regarded as the main item, the seller transfers, insofar as the main item belongs to him, the joint ownership of the uniform item to the customer in the proportion mentioned in sentence 1.
(6) In the event of the resale of the reserved goods, the customer already now assigns the resulting claim against the purchaser to the seller as security - in the case of co-ownership of the seller of the reserved goods proportionately according to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tortious acts in the event of loss or destruction. The seller authorizes the customer revocably to collect the claims assigned to the seller in his own name for the account of the seller. The seller may only revoke this direct debit authorization in the case of exploitation.
(7) If third parties access the reserved goods, in particular by seizure, the customer will immediately point out the seller's ownership and inform the seller in order to enable him to enforce his property rights. If the third party is not able to reimburse the seller for the judicial and extrajudicial costs incurred in this context.
§ 10 Final provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between the seller and the client is, at our discretion, Attendorn or the client's location. For lawsuits against the seller, Attendorn is the exclusive place of jurisdiction. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relations between the seller and the client are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Terms and Conditions contain regulatory gaps, those legally effective regulations are deemed to have been agreed to fill these gaps, which the contracting parties would have agreed based on the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known the regulatory gap.
(4) In the event that individual provisions are ineffective, the remaining provisions of these General Terms and Conditions remain effective.
Note:
The client acknowledges that the seller stores data from the contractual relationship in accordance with § 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data, if necessary for the fulfillment of the contract, to third parties (e.g., insurance companies).