I. General information, documents, material samples
1. All deliveries and services to companies, legal entities under public law and special funds under public law shall be based on these General Terms and Conditions of Delivery as well as on any separate contractual agreements. These General Terms of Delivery shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer unconditionally in full knowledge of the customer's general terms and conditions. Unless otherwise agreed, these General Terms and Conditions of Delivery shall also apply to all future deliveries and services to the customer without our having to refer to them again in each individual case.
2. All details in catalogues, price lists, cost estimates and advertising brochures are non-binding. We reserve the right to make changes and errors.
3. All documents provided to the customer in connection with the placing of the order, such as samples, cost estimates, drawings, etc., are subject to change without notice. Information of a physical and immaterial nature - also in electronic form - we reserve the right of ownership and copyright. These may not be made accessible to third parties. We undertake to make information and documents designated as confidential by the customer accessible to third parties only with the customer's consent.
4. The documents belonging to an offer, such as illustrations, drawings, weight and dimension data, are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact agreement. They are not guaranteed characteristics, but descriptions and markings of the delivery or service. The customer assumes sole responsibility for the documents to be provided by him, such as drawings, gauges, samples or the like. The customer guarantees that no rights of third parties within the Federal Republic of Germany or at the place of delivery are infringed in connection with the execution documents submitted by him. If claims are made against us by a third party for this reason, the customer shall be obliged to indemnify us against these claims upon our first written request. In the case of claims for damages by the third party, the customer reserves the right to prove that he was not at fault for the infringement of the rights of the third party.
5. Material samples provided by the customer shall be delivered to us free of charge with the corresponding safety data sheets. Material samples sent in which are not expressly reclaimed upon delivery or within four weeks of being sent in may be destroyed by us.
6. Samples will only be delivered against payment.
II. Conclusion of contract, scope of delivery, delivery period
1. Our offers are subject to confirmation and non-binding. The order of deliveries and services by the customer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer by means of an order confirmation within two weeks of its receipt by us.
2. Our written order confirmation is decisive for the scope of delivery.
3. Deadlines and dates promised by us are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed.
4. A delivery period expressly promised or agreed as a fixed period shall commence on the date of the written order confirmation or, if a down payment has been agreed, on receipt of payment (value date). The delivery period shall be deemed to have been observed if the contractual item has been notified to the customer ready for dispatch ex works by the end of the delivery period. Deviating regulations can be made in the order confirmation.
5. We shall not be liable for the impossibility of delivery or for delays in delivery and performance due to force majeure and other events not foreseeable at the time of conclusion of the contract (e.g. operational disturbances of any kind, in particular strike, lawful lockout, shortage of labour, official order, material failure etc., including at sub-suppliers, incorrect or untimely delivery by sub-suppliers), insofar as we are not responsible for these. We shall inform the customer immediately of the beginning and probable end of such hindrances. Insofar as such events make the delivery or service for us considerably more difficult or impossible and the hindrance is not only temporary, we shall be entitled to withdraw from the contract.
In the case of obstacles of temporary duration, the delivery and service periods shall be extended or the delivery and service dates postponed by the period of the obstruction plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by written declaration to us.
6. The customer shall be solely responsible for the suitability of the installation site, for obtaining the necessary permits and compliance with all planning, construction and operating regulations as well as for the preparation of the installation site (in particular foundations and other preliminary work). This also applies to the accessibility of the installation site with necessary lifting and installation tools.
III. Prices and payment
1. In the absence of a special agreement, the prices shall apply ex works net including loading at the works, but excluding packaging, insurance or other ancillary costs. Value added tax at the respective statutory rate shall be added to the prices.
2. In the absence of a special agreement, payment shall be made without any deduction within 30 days of the invoice date. The customer shall only be entitled to withhold payments or set them off against counterclaims to the extent that his counterclaims are undisputed or have been legally established.
IV. Place of performance, passing of risk, acceptance
1. The delivery is made from our place of business, where the place of performance for the delivery and any subsequent performance is.
2. The risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or if we have assumed other services, e.g. shipping costs or delivery and installation. Deviating regulations can be made in the order confirmation.
3. If dispatch or acceptance is delayed or fails to take place due to circumstances for which we are not responsible, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and we have notified the customer accordingly. We undertake to take out the insurance policies requested by the customer at the customer's expense.
V. Retention of title
1. We reserve the right of ownership to the delivery item until all claims against the customer arising from the business relationship including future claims arising from contracts concluded at the same time or later have been settled. This shall also apply if individual or all claims of the supplier have been included in a current account and the balance has been struck.
2. The customer is entitled to resell the delivery item in the ordinary course of business. However, he hereby assigns to us all claims with all ancillary rights arising from the resale against the customer or against third parties. The customer is authorised to collect these claims even after the assignment. Our authority to collect the claims ourselves remains unaffected; however, we undertake not to collect the claims as long as the customer duly meets his payment obligations. We can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. If the delivery item is resold together with other goods that do not belong to us, the customer's claim against the buyer shall be deemed assigned in the amount of the delivery price agreed between us and the customer. We undertake to release the securities to which we are entitled insofar as their realisable value exceeds the claims to be secured by more than 10%, insofar as these have not yet been settled.
3. We are entitled to insure the delivery item at the customer's expense against theft, breakage, fire, water and other damage, unless the customer has demonstrably taken out the insurance himself.
4. Whe customer may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the customer must notify us immediately.
1. The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise provided below.
2. The basis of our liability for defects is above all the agreement reached on the condition of the goods. All product descriptions which are the subject of the respective contract shall be deemed to be an agreement on the quality of the goods. If the quality has not been agreed, it shall be assessed according to the statutory provisions whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB).
3. The defect claims of the customer presuppose that he has fulfilled his legal obligations to examine and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this immediately in writing.
4. If the delivery item is defective, we may first choose whether we render subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
5. We are entitled to make the supplementary performance owed dependent on the customer paying the due remuneration. However, the customer shall be entitled to retain a reasonable part of the remuneration in proportion to the defect.
6. The customer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the delivery item complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall include neither the removal of the defective item nor its reinstallation if we were originally not obliged to install it.
7. We shall bear the expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labour and material costs (not: dismantling and installation costs), if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the customer was unable to recognize the defect.
8. If the supplementary performance has failed or a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the remuneration. In the case of an insignificant defect, however, there is no right of withdrawal.
9. No guarantee for damages is taken over, as far as these are to be led back on following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear and normal wear, faulty or negligent treatment, excessive strain, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences - insofar as they are not our responsibility - changes to the delivery item without our prior consent.
10. Claims of the customer for damages or reimbursement of futile expenses, even in the case of defects, shall only exist in accordance with Section VIII and shall otherwise be excluded.
VII. Property Rights
1. We guarantee that the delivery item is free from industrial property rights or copyrights of third parties. Each contractual partner shall notify the other contractual partner without delay if claims are asserted against it due to the infringement of such rights. If the delivery item infringes an industrial property right or copyright of a third party, we shall, at our option and expense, modify or replace the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or provide the customer with the right of use by concluding a license agreement. If we fail to do so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the remuneration accordingly. Any claims for damages by the customer shall be subject to the restrictions of Section VIII of these General Terms and Conditions of Delivery.
2. In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. In such cases, claims against us shall only exist in accordance with this Section VII if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers has been unsuccessful or is futile, for example due to insolvency.
3. We shall have no obligation to assume liability under this section if the infringement of industrial property rights or copyrights is based on an instruction by the customer or if the infringement was caused by the customer changing the delivery item on his own authority or using it in a non-contractual manner.
VIII Other liability
1. Unless otherwise stated in these General Terms and Conditions of Delivery including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. We shall be liable for damages - on whatever legal grounds - within the framework of liability for culpability in cases of intent and gross negligence. In the case of ordinary negligence, we shall be liable, subject to a milder liability standard in accordance with statutory provisions (e.g. for care in our own affairs), only in the following cases
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not inconsiderable breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability resulting from clause 2 shall also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and they shall also not apply to claims under the Product Liability Act.
4. The buyer may only withdraw and terminate due to a breach of duty which does not consist in a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
IX. Statute of limitations
1. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. If, however, the delivery item is a building or an object which has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). This shall also not affect any other special statutory provisions concerning the statute of limitations.
3. The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the customer based on a defect of the delivery item, unless the application of the regular limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages on the part of the customer pursuant to Section VIII, Number 2, Sentence 1 and Sentence 2, Letter a) as well as pursuant to the Product Liability Act shall, however, become statute-barred exclusively in accordance with the statutory statute of limitations. All claims of the customer - regardless of the legal claims - shall become statute-barred after 12 months. For intentional or fraudulent conduct and for claims under the Production Liability Act, the statutory periods shall apply.
X. Use of software
1. If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be made available for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer information, in particular copyright notices, or to change it without our prior express consent.
all other rights to the software and the documentation including copies shall remain with us or with the software supplier. The granting of sublicenses is not permitted.
XI. Applicable law, place of jurisdiction
1. These general terms and conditions of delivery and all legal relationships between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Remscheid. However, we are entitled to bring an action at the general place of jurisdiction of the customer.