1. Validity of these Terms of Delivery/Payment
1.1 For the offer, offer acceptance, order confirmation and any contracts concerning the sale or manufacture of
our goods, supplies or our services (hereinafter: deliveries), these Terms of Delivery/Payment shall prevail.
Conflicting or deviating general terms and conditions of the Customer shall only apply insofar as we have
agreed to them in writing.
1.2 For the purposes of these Terms of Delivery/Payment, the term "Customer" in the case of contracts of sale
shall mean the "Purchaser" of goods.
1.3 In the case of export, the applicable foreign trade regulations, including any embargo regulations, also apply.
The Customer shall provide any necessary export documents at its own expense and, in the case of export
to other EU countries, the VAT identification number. Otherwise, the Customer has to bear the incurred sales
tax.
2. Offer and acceptance
2.1 Offers are subject to change without notice. Illustrations, drawings, weight specifications etc. that are part
of an offer may contain minor deviations from the actual deliveries. In addition, we may correct any errors
in sales brochures, price lists, offer documents or other documentation without being held liable for any
losses resulting from such errors. This also applies to errors made by our suppliers/subcontractors. With
regard to the accuracy of the order, the Customer bears the responsibility. Reference to standards, material
specifications or test reports, and to properties, dimensions, weights and fitness for a particular purpose
does not constitute a warranty, declaration of conformity, manufacturer's declaration or other confirmation
or seal, such as CE or GS.
2.2 Subsidiary agreements and special conditions must be in writing in order to be effective. The acceptance of
an order for delivery against open account is subject to the approval of a credit limit in this respect by the
trade credit insurance engaged by us.
2.3 We reserve ownership and copyrights or the rights of use to cost estimates, samples, drawings and other
documents. They may not be made accessible to third parties and must be returned upon request.
2.4 If we procure the supplies ourselves from suppliers or sub-suppliers, we shall be entitled to withdraw from
the contract with the Customer if the supplier or sub-supplier does not deliver on time and we are not
responsible for this.
3. Prices, place of performance and shipping
3.1 The price shall be the price stated by us or, if we have not stated a price, the price valid at the time of the
order from our respective valid price lists.
3.2 The place of performance shall be our works or the works of the company affiliated with us from which the
delivery is made if delivery ex works has been agreed. In all other cases, the place of performance shall be
the one of our warehouses from which the delivery is made.
3.3 In the absence of a special agreement, the prices shall apply ex works including loading at the works and
including standard packaging. Prices are exclusive of value added tax, which the Customer must pay to us
additionally. Special packaging, including packaging required by law, shall be invoiced to the Customer at
cost and thus becomes the Customer's property.
3.4 If we are responsible for installation or assembly and unless otherwise agreed, the Customer shall bear, in
addition to the agreed remuneration, all ancillary costs such as travel expenses, costs for transporting the
tools, costs of transport, personal luggage, other expenses and remuneration components.
3.5 The Customer shall be obliged to separately remunerate cost estimates, service plans, engineering services
as well as other activities related to consulting prepared by us on the basis of the statutory provisions
applicable to engineering services.
4. Shipping and transfer of risk
4.1 We will arrange for shipping and packaging to the best of our ability, but we are not liable for ensuring that
the most cost-effective solution is chosen in each case. The risks of the selected mode of shipping shall be
borne by the Customer. The undisputed acceptance of the goods by the forwarding agent or carrier shall
suffice as proof of defect-free packaging.
4.2 Shipment shall be at the expense and risk of the Customer, even if carriage paid prices have been agreed.
The risk of loss or deterioration is transferred when the delivery is handed over to the forwarding agent or
carrier. If the Customer postpones the shipment, the risk passes to the Customer when the goods are ready
for shipment. The costs incurred by us due to extension of the holding time (see 6. 4 below) shall be charged
to the Customer.
5. Terms of payment and set-off
5.1 If no special agreements have been made, the purchase price or remuneration is payable net within 14 days
of the invoice date. Payment by bill of exchange requires special agreement and the Customer shall bear any
bill of exchange and discount charges. In this case, payment shall only be deemed to have been effected
when we redeem the bill of exchange. In the event of payment by bill of exchange or down payments,
neither discounts nor interest rebates shall be granted.
5.2 If the Customer is in default, we shall be entitled to charge interest from the relevant date at a rate of 9
percentage points above the respective base interest rate pursuant to Sec. 247 BGB (German Civil Code).
The proof of a higher loss incurred by us is permissible. The same applies if a payment that is already due
is deferred. If the Customer is in default, we may additionally - without giving up any further rights and
claims to which we are entitled - terminate the contract or suspend further deliveries to the Customer.
5.3 The Customer may set off only those claims which are undisputed or have been conclusively confirmed by a
court of law.
5.4 Residual claims shall become due immediately if the Customer fails to meet the agreed payment deadlines,
requests a deferral of payment or settlement, or suspends its payments.
5.5 In this case, if we have not yet fulfilled our contractual obligations in full, we shall be entitled to withhold
our contractual services until full payment of our remaining claim and to retrieve our unpaid deliveries at the
expense of the Customer.
6. Delivery period
6.1 The delivery period shall commence with the dispatch of the order confirmation, but not before the Customer
has provided the documents and approvals to be obtained and not before receipt of the agreed payment
and not before all details relating to the order have been clarified. The delivery period shall be deemed to
have been complied with if the delivery item has left the factory or notification of readiness for dispatch has
been given by the time the delivery period expires. We cannot guarantee that specific delivery deadlines will
be met.
6.2 The delivery period shall be extended by a reasonable period in the event of industrial action, in particular
strikes and lockouts, unforeseen operational disruptions or unavoidable shortages of raw materials or energy,
as well as the occurrence of other unforeseen impediments for which we are not responsible, insofar as such
impediments demonstrably have a significant influence on the completion or delivery of the delivery item.
This shall also apply if the circumstances occur at suppliers or sub-suppliers and even if we were already in
default.
6.3 If dispatch is delayed by more than 30 calendar days at the request of the Customer, we shall charge at least
0.5% of the invoice amount for each month in the case of storage in the factory. In addition, we charge the
costs incurred to make the delivery ready for shipment again after the end of the delay (e.g. recharging
batteries). We are entitled to otherwise dispose of the delivery item after setting and unsuccessful expiry of
a reasonable deadline and then to supply the Customer with a reasonable, extended deadline.
6.4 Both claims for damages by the Customer due to delay in delivery and claims for damages in lieu of
performance exceeding the limits specified in 6.3 shall be excluded in all cases of delayed delivery, even
after expiry of any deadline set for us for delivery. In this case, the Customer may only claim damages in
lieu of performance if the delay in delivery is due to intent or gross negligence or if we have culpably breached
a contractual obligation that is essential for achieving the purpose of the contract (cardinal obligation).
7. Delivery processing
7.1 Upon written request of the Customer, we shall insure the shipment against theft, breakage, transport, fire
and water damage as well as other insurable risks at the Customer's expense. For subsequent deliveries and
supplementary deliveries, we invoice the transport costs separately. Section 4 of these Terms of
Delivery/Payment shall apply accordingly.
7.2 We are entitled to make partial deliveries insofar as this is reasonable in good faith. Customary deviations
from the contractually agreed delivery quantity are permissible.
8. Retention of title
8.1 The objects of the deliveries remain our property until all our claims against the Customer arising from the
business relationship have been fulfilled. As long as the goods have not been paid for in full, the Customer
must hold the goods in trust for us, store the goods separately from its own property and that of third parties,
properly store, secure and insure the goods subject to retention of title to the customary extent and mark
them as our property. If the realizable value of all security interests to which we are entitled exceeds the
amount of all secured claims by more than 10%, we shall release a corresponding part of the security
interests at the request of the Customer.
8.2 The Customer may process the goods subject to retention of title; any processing shall be carried out on our
behalf. The processed or transformed item shall be deemed to be goods subject to retention of title. This
also applies to combined or mixed items with the proviso that we only reserve co-ownership of them in
proportion to the value of the item delivered by us in relation to the total value of the combined or mixed
items, insofar as the items with which the delivery is combined or mixed are owned by a third party. The
Customer is not entitled to dispose of the goods subject to retention of title in any other way, in particular
by pledging them or assigning them as security. Resale shall only be permitted in the ordinary course of
business and only if the Customer receives payment from its buyer or stipulates that ownership shall not
pass to the buyer until the latter has fulfilled its payment obligations. In the event of resale of the goods
subject to retention of title, the Customer hereby assigns to us the claims against its buyers to which it is
entitled from the resale, including all ancillary rights, up to the final amount of our claims against the
Customer. Upon request, the Customer shall disclose the assignment to its buyers and provide us with the
documents and information required for assertion. Any remuneration (including any insurance payments)
must be held by the Customer on our behalf up to the amount of the final invoice amount of our claims
against the Customer. The Customer must keep these funds separate from its own assets and those of third
parties.
8.3 In the event of seizures, confiscations or other interventions by third parties, the Customer must notify us
immediately so that we can take legal action. If the Customer fails to comply with this obligation, it shall be
liable for the damage incurred. Our intervention costs shall be borne by the Customer if the intervention is
successful and if the costs could not be recovered by the defendant in the intervention action by way of compulsory enforcement.
8.4 If this retention of title is ineffective pursuant to the law of the country in which the delivered items are
located, then the security right that comes closest to the function of the retention of title in the corresponding
country shall be deemed to have been agreed.
8.5 If, pursuant to the law of the country in which the delivered items are located, a reservation of title more
extensive than that provided for in this Section 8. is permissible, such as, for example, the assignment of all
future claims of the Customer arising from the resale of the items delivered by us, or the extension of the
reservation of title to items to be delivered in the future, the Customer shall grant such reservation upon
request.
9. Receipt and examination
9.1 The Customer may not refuse to accept deliveries due to insignificant defects.
9.2 Any defects must be reported immediately in writing, but not later than 7 days after acceptance by the
Customer. Defects that cannot be detected within this period despite careful examination shall be notified
immediately after their detection, unless the Customer discovers them only after expiry of the statutory or
contractual limitation period.
10. Warranty
We are liable for material defects as follows:
10.1 Scope of warranty
10.1.1 A defect only exists if the delivery proves to be unusable or not insignificantly impaired in its usability due to
faulty design, faulty or unsuitable building materials, insofar as their use was not contractually agreed, or
faulty execution. We are not responsible for the suitability of the delivery for a specific purpose, unless we
have expressly agreed to this liability. The technical knowledge at the time of completion is decisive for newly
manufactured products. Subsequent changes in scientific knowledge do not constitute a material defect. For
third-party products, our liability shall be limited to the assignment of the liability claims to which we are
entitled against the supplier of the third-party product. Statements in information leaflets, brochures, etc.
are merely material descriptions and do not contain any legally binding product description and do not
represent any warranted characteristics. Unclear assembly instructions do not constitute a material defect.
In such cases, the Customer shall be obliged to point out the ambiguity in writing and to request us to make
a clarifying written statement on the assembly instructions. Continuation of assembly work with unclear
assembly instructions excludes any liability on our part.
10.1.2 No warranty is given for impairments in use, product defects or damage due to reasons including the
following: Improper or inappropriate use; faulty installation, assembly, commissioning or use by the Customer
or third parties; natural wear and tear; use of unsuitable operating materials by the Customer; replacement
of materials; defective construction work; unsuitable building ground; chemical or electro-mechanical or
electrical influences or faulty execution of work by a subcontractor. The same applies to damage caused by
negligence by the Customer or for other reasons after the transfer of risk. Claims regarding the delivery are
also excluded if, on the part of the Customer or a third party, e.g. modifications were made without our prior
approval or repair work was carried out without prior notification to us or maintenance work was not carried
out properly or not in accordance with the interval specification. We do not assume liability for defects of the
delivery that result from a description of the goods or specification of the Customer. The same applies to
parts, material or other equipment manufactured by or on behalf of the Customer, unless the manufacturer
of such parts assumes responsibility for them towards us.
10.1.3 Exemptions from liability contained in this section do not apply in the cases referred to in 13.2.
10.2 Claims in the event of a warranty claim
10.2.1 All parts or services that show a material defect within the limitation period shall be repaired, replaced, or
redelivered by us, provided that the cause of the defect was already present in the delivery at the time of
the transfer of risk and the Customer gave notice of the defect in due time. If we are not willing or able to
remedy the defect or to deliver a replacement, the Customer shall be entitled, at its discretion, to demand a
reduction in price or, after fruitless expiry of a reasonable deadline set by the Customer, rescission of the
contract. In the case of an insignificant defect, the Customer may not demand rescission of the contract, but
only a reduction in price.
10.2.2 The Customer shall have no claim with respect to expenses incurred in the course of supplementary
performance, including costs of travel, transport, labor, and material, to the extent that such expenses are
increased because delivery items were subsequently brought to a location other than the Customer's site or
the location agreed upon in the contract.
10.2.3 The Customer's right of recourse against us pursuant to Sec. 478 BGB (recourse of the entrepreneur) shall
only exist to the extent that this does not exceed claims for defects to which the Customer's buyer is entitled
against the Customer by operation of law. 10.2.2 shall apply mutatis mutandis to the scope of the Customer's
right of recourse against us pursuant to Sec. 478 (2) BGB.
10.2.4 Further claims or claims other than those regulated in this section by the Customer against us or our vicarious
agents due to a material defect are excluded. The same applies to defects that do not exist in the delivery
item itself. Regulations 13.2 and 13.3 apply.
10.3 Settlement of claims and statute of limitations
10.3.1 If the Customer claims the existence of a defect, it shall in any case be obliged to grant us the opportunity
to inspect the goods within a reasonable period of time and, if necessary, make the defective parts of the
delivery available to us. Replaced parts become our property.
10.3.2 The Customer may withhold payments only if a notification of defects is asserted and there is no doubt as
to its justification. If the notification of defects is unjustified, we shall be entitled to demand compensation
from the Customer for the expenses incurred in clarifying the matter.
10.3.3 Claims for material defects are subject to a limitation period of 12 months. This shall not apply where longer
periods are prescribed by law, in particular pursuant to Sec. 438 (1) No. 2 BGB (buildings and objects for
buildings), Sec. 479 (1) BGB (right of recourse) and Sec. 634 a (1) No. 2 BGB (construction defects). The
statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain
unaffected - subject to 13.3 below.
11. Impossibility, delay and unforeseen events
11.1 The Customer may withdraw from the contract if it becomes conclusively impossible for us to perform the
entire service before the transfer of risk. If the Customer claims damages, we are obliged to pay damages if
we are responsible for the impossibility. Subject to 13.2, the Customer's claim for damages is limited to 10%
of the value of that part of the performance which cannot be used in a useful manner due to the impossibility.
11.2 If there is a delay in delivery within the meaning of these Terms of Delivery/Payment, the Customer may
grant us a reasonable period of grace with the express declaration that the Customer will refuse to accept
performance after expiry. The Customer shall be entitled to withdraw from the affected part of the contract
only once the period of grace has expired fruitlessly due to our fault.
11.3 All further claims of the Customer, in particular for termination or reduction as well as for compensation for
damages of any kind, including such damages that have not occurred to the delivery item itself, are excluded.
6.5 and 13.2 remain unaffected.
11.4 If the Customer withdraws from the contract, we shall be entitled to demand compensation for the damage
incurred by us: this shall amount to at least 25% of the order value. If the goods are returned accordingly,
we will reimburse the Customer for a maximum of 50% of the invoice value. However, there is no obligation
to take back the product. The ancillary costs of the return delivery shall be borne by the Customer.
11.5 If unforeseeable events substantially change the economic significance or the content of the delivery or have
a substantial effect on our operations, the contract shall be adjusted appropriately in good faith. If this is not
economically justifiable, we shall have the right to withdraw from the contract.
12. Property rights
12.1 If the goods have to be manufactured or otherwise processed by us and the Customer has provided a
specification for this purpose, the Customer shall indemnify us against any loss, damage, costs or other
expenses which we have to pay or are prepared to pay because the contractual processing of the goods has
been found to infringe a patent, copyright, trademark or other industrial property right of a third party due
to the Customer's specification.
12.2 We reserve the right to change the description of the goods with regard to the specification insofar as legal
requirements or the rights of third parties conflict with this, provided that this change does not result in a
deterioration of the deliveries with regard to quality and usability.
13. Claims for damages and exclusion of liability
13.1 Claims for damages due to negligent advice shall be excluded unless the Customer provides evidence of a
separate consultancy agreement. Claims for damages are in principle limited to the typical damage that was
reasonably foreseeable at the time of the conclusion of the contract. We are in principle only liable for
damages caused by intent or gross negligence on our part or on the part of our legal representatives or our
vicarious agents. All other claims for damages, including non-contractual claims for damages, against us are
excluded.
13.2 This shall not apply if our liability is mandatory under statutory provisions, in particular in the case of liability
under the Product Liability Act, as well as in the case of liability for injury to life, body or health by us, our
legal representatives or our vicarious agents. Our liability for the at least negligent breach of contractual
obligations that are indispensable for achieving the purpose of the contract (cardinal obligations), for the
fraudulent concealment of defects or for the properties of an item for the existence of which we have
assumed a guarantee shall also remain unaffected. These provisions have no effect on the allocation of the
burden of proof.
13.3 The limitation period for claims for damages shall commence with the knowledge of the circumstances giving
rise to the claim. In any case, the Customer shall be obliged to notify us immediately in writing of any relevant
circumstances. In the event of subsequent performance, the limitation period shall not recommence upon
completion of the subsequent performance.
14. Validity, confidentiality, place of jurisdiction and applicable law
14.1 These Terms of Delivery/Payment shall replace all other agreements previously made by the contracting
parties in writing or orally, insofar as they conflict with these Terms of Delivery/Payment. These shall become
ineffective when these Terms of Delivery/Payment come into effect. Framework agreements concluded
between the parties in writing shall remain unaffected.
14.2 These terms and conditions of delivery/payment may not be made accessible to third parties without the
written consent of the other contracting party.
14.3 The place of jurisdiction is Hagen, but we are also entitled to take legal action at the Customer's place of
business.
14.4 German substantive law shall apply to the legal relationships to which these Terms of Delivery/Payment
apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods
(CISG) of 11 April 1980.