and for the Performance of Repair Services
of Delivery, Sale and for the Performance of Repair Services, except where amended in writing or excluded by us with our express prior consent. Any general terms and conditions of the customer shall have no binding effect on us, even if we have not expressly objected to them.
Our offers are made without obligation. Orders placed and verbal agreements entered into shall only be binding upon us if and in so far as we have confirmed these in writing, via fax or on our standard forms, or if we comply by making delivery or issuing our invoice.
Our prices for deliveries apply ex our works, with no packing charges included. All prices are understood to apply in Euro (€) currency plus the statutory value-added tax at the rate applicable on the date our invoice is issued. Packing will be charged at cost, and used packaging materials may not be returned to us.
Goods supplied by us shall conform to our product descriptions and
any specifications agreed upon. Properties which the customer can reasonably expect the goods supplied by us to possess following any publicised claims on our part or on the part of our agents, in particular in advertisements or incorporated in the labelling of our goods or on the basis of general commercial usage, shall only be deemed to constitute contractually agreed qualities if we expressly confirm this
in our offer or any written confirmation of order. Warranties shall only be binding upon us if we have defined them as such in any of our binding offers or any written confirmation of order and if such written documents also sets out the details of our obligations under the warranty.
Part deliveries shall be admissible to a reasonable extent.
The risk shall pass to the customer no later than upon delivery to
the forwarding agent or any other party commissioned with the transportation of the goods; this also applies in the case of
shipments from the same location, part deliveries and if we are the party han-dling the transportation and installation. Unless we have received specific instructions to the contrary, we shall determine
the method of shipment at our discretion. At the customer’s request, transit insurance may be taken out at the customer’s expense. All delivery dates are non-binding, unless expressly declared by us as binding in writing. A binding delivery date is deemed to have been complied with if the goods have been dis-patched from the supply works or we have advised the customer that the goods are ready
for delivery by that date. The delivery period shall be extended by a reasonable period in the event of any measures as part of industrial disputes, in particular strike action and lawful lockout, as well as
in the case of any unforeseen im-pediments beyond our control.
This shall apply analogously in case any of these circumstances
should arise for our sub-suppliers. Said circumstances are deemed
to be beyond our control even if they occur within the period of any existing delay. We shall notify the customer of the commencement
and cessation of all such circumstances as soon as possible. In the case of non-binding delivery periods, we shall be deemed to have entered into default upon written demand by the customer which
may be made not earlier than one month after expiration of our nonbinding delivery period. The limitations pursuant to Section 8 hereunder shall apply analogously to any liability for de-fault on our part. If the customer fails to pick up any goods to be picked up
by the customer on the contractu-ally agreed delivery date, he shall enter into default. In the case of a non-binding delivery date, we
shall be entitled to advise the customer of any goods to be picked up by him being ready for pick-up giving him two weeks’ notice; should the customer fail to pick up the goods on this date, he shall enter
into default of acceptance. Pick-up of goods to be picked up in accordance with the contract is deemed to be a principal contractual obligation.
Unless otherwise agreed, all our invoices fall due immediately and
are payable within 30 days from the invoice date without any deductions. If payment is received within 14 days from the invoice date, we grant a 2% cash discount off the total invoiced amount.
We only accept bills of exchange if this has been expressly agreed. Acceptance of bills shall be without obligation as to the timely production of any protests against a bill of exchange and only subject to the cus-tomer being charged with all collection expenses. In the event of any default in payment and any well-founded doubts as to the customer’s solvency and/or credit worthiness, we shall have the right to demand advance payment for any outstanding deliveries and to declare all other claims from our contractual relations with the customer as immediately due and payable. Our obligation to make delivery shall be suspended for as long as the customer is in default with any payments due. This shall also apply if a bill of exchange
has been sent as payment. The right of set-off or retention based
on any counter claims of the customer, which are disputed by us or which have not been finally decided by a court of law, shall be excluded. The right of retention shall also be excluded where the customer’s counter claims are based on a contract between the customer and us other than the one governed hereunder.
We reserve ownership in all goods supplied by us until such time as all present and future claims due to us under our business relations with the customer, irrespective of the legal grounds on which they may be founded, have been paid in full. As long as the customer duly meets
his obligations arising out of the supply contract, he shall be entitled to dispose of the goods owned by us in the ordinary course of his business.
The customer hereby assigns to us all claims due to him following a resale of our goods, including all subsidiary rights. Such claims
assigned to us shall serve as collateral for our claims against the customer. We hereby accept any such claims being as-signed to us. So long as the customer duly meets his obligations arising out of this contract, he shall be entitled to collect the claims assigned to us himself. We have the right to demand that the customer inform us of any amounts assigned and pass on to us the names and addresses of the respective debtors; that he supply us with all collection-relevant information, submit to us all pertinent documentation and advises the debtor of the assignment. We shall also have the right to disclose the assignment if we consider this to be necessary in order to secure our claims. Apart from his right to resell our goods, the customer is not authorised to dispose of the goods under reserve in any other way,
in particular to pledge or transfer the goods by way of security or to assign his debts with respect to the goods. He shall immediately
advise us of any interference with our rights to the goods owned by us. If the customer should default in his payments to us or should he breach any duty relating to the contractual reservation of ownership or if we have any well-founded doubts as to his solvency, we have
the right to demand that our goods be surrendered without prior rescission of the contract and to pick up the goods from the customer’s premises. A rescission of contract is deemed to have been effected only if we have expressly confirmed this in writing. Such rescission shall not be subject to any notice periods. The costs for
the surrender of the goods and any rescission shall be borne by the customer. Our reservation of ownership also extends to any new products created following processing. Such processing shall be deemed to have been carried out on our behalf as the manufacturer.
If the goods supplied by us are processed, combined or mixed with other materials, we shall acquire co-ownership in the new product in proportion to the value of our goods as originally invoiced vis-à-vis
the invoiced price of the other materials. In case of the end product being sold, the amount due to us shall be limited to the portion of our claim corresponding to the share of our co-ownership. If our goods
are sold together with other products at a combined total price, the amount due to us shall be limited to the amount invoiced by the customer (including the statutory value-added tax) for the goods owned by us and sold together with the other products or, if we have acquired co-ownership in the product sold to-gether with other products at a combined total price, to the portion of claim which corresponds to our share of co-ownership. If the goods under reserve are combined with any pieces of real estate or movable property, the customer shall assign his own claims due to him in connection with his product combination, including all subsidiary rights, to us by way of security, without this requiring any further explanation.
The customer shall check whether the goods delivered comply with
the contractually agreed quality and are suitable for use for the designated purpose. Failure to carry out such inspections, inspections carried out less thoroughly than required or in the event that we are not notified of any obvious defects, including deviations in quantity or deliveries of the wrong goods, immediately after receipt of the consignment, the goods in question shall be deemed to have been accepted in respect of the said defects. Hidden defects shall be deemed to have been accepted if we have not been notified accordingly immediately after their detection, however, at the latest within 12 months after having been delivered from the shipping point. Externally visible transport damage shall be declared immediately; externally not visible trans-port damage, within 3 days of the delivery. Notices of defects shall be lodged in writing, including all order details and the invoice number. We shall redress all notices of defects duly lodged and substantiated notices of defects either by removing the defect or by making substitute delivery with a defect-free product at our discretion. If the goods supplied by us have been processed or modified or a return of the goods is impossible for any other reasons, the provisions pursuant to § 346 Para. 2, 3 of the German Civil Code shall apply. If we are unable to remove the defect and/or supply a defect-free product, if the costs for this are deemed unreasonably high or if our endeavours of redress have ultimately failed, the customer has the right at his discretion either to withdraw from the contract or to demand diminution of the purchase price. We accept
no liability for defects and/or damage caused by any of the following circumstances:
- Unsuitable or improper use or storage prior to initial operation;
- Processing or modification by the customer or a third party;
- Incorrect installation or commissioning by the customer or a third party or interference by an unauthorised third party;
- Normal wear and tear, incorrect or negligent handling, use of unsuitable operating material;
- Use of substitute materials;
- Defective construction works;
- Chemical, electrochemical or electrical impacts,
unless such circumstances can be attributed to our own negligence.
The onus of proof for proper usage, storage, installation and commissioning, handling, the identity of operating materials, defect-free construction works and the absence of chemical, electrochemical or electrical impacts rests with the customer. The customer’s
warranty claims are subject to a period of limitation of 12 months from the date of deliv-ery at the customer’s works. This does not apply in the case of fraud, nor if the product was used for a building or structure in a manner it is ordinarily used and has caused damage to the building/structure.
The above provisions do not apply to our customers’ claims under a right of recourse in the event that the products are sold to a consumer. In this case, the right of recourse shall only apply in so far as the customer has not entered into any agreement with his end-customer which extend beyond the scope of his claims under the statutory warranty. The scope of any claims under a right of recourse shall be governed by the provisions applicable to the limitation of damage claims under Section 8 hereunder. All further warranty claims, irrespective of their nature, shall be excluded, subject to any limitations of damage claims as set forth under Section 8 hereunder.
We accept liability only in the event of wilful intent and gross negligence on our part, as well as ordinary negligence in cases where we have breached any of our essential contractual duties or cardinal duties in a manner detrimental to the object of the contract. Our liability for ordinary negligence shall be limited to any foreseeable damage typical for contracts such as between the parties. This shall also apply in the case of any grossly negligent violations by any of our vicarious agents (i.e. not our legal representatives or senior executives). In the event of ordinary negligence, we accept no liability for indirect damage, consequential damage and loss of profit. Claims for damages not relating to defective goods, and which are therefore to be treated in accordance with Section 7 hereunder, shall become statute-barred after two years from the time the customer has detected the damage at the latest or, irrespective of any detection, after three years from the time the damaging incident had occurred at the latest. This does not apply to any liability for damages based on intent. The above limitations of liability do not apply to any statutory liability under the Product Liability Act, to cases of personal injury, to damage occurring after having extended a warranty of fitness and in the event of fraudulent con-cealment of defects. In all other respects, the aforementioned limitations of liability shall apply to all claims for dam-ages, irrespective of the legal grounds on which they may be based, including claims based on actionable tort. The above limitations of liability shall also apply in the event of any damage claims by the customer against our employees or agents.
These limitations of liability also apply to unascertained goods of the same kind.
We carry out orders for repair works only if and in so far as we have sent our confirmation in writing, by fax or on our standard forms. Delivery to us of equipment sent in for repair shall be sent carriage-paid. We reserve the right to refuse acceptance of any consignments sent not prepaid. In all other respects, the above provisions shall apply analogously with the proviso that apart from the customer’s right to rescind the contract or demand diminution of labour charges, he has the right to remove any defects in the repairs carried out by us himself and to demand compensation for any ex-penses incurred, to demand that the 12-month period of limitation for warranty claims commence at the time of acceptance and that it shall not apply if the works are related to any buildings/structures or any planning and monitoring
services for same.
We reserve all proprietary rights and copyrights in respect of all our offers and all attached documents, our preliminary cost estimates and all drawings and diagrams, irrespective of whether they have been attached to our offer, appear in catalogues or are stored on any electronic media or are incorporated in any other form. All such protected documents and data may be neither disclosed to any third parties nor used for business purposes without our prior consent and shall be immediately returned to us upon our request. All protected trademarks or trademarks entrusted to us for our use may only be used in conjunction with products manufactured by the customer with our express written consent.
The place of performance for all deliveries and payments shall be Kronberg im Taunus, Germany. Statements, in particular invoices, may also be transmitted electronically (§ 127 of the German Civil Code), unless otherwise agreed with the customer. Unless an exclusive place of jurisdiction has been established, the place of jurisdiction for all disputes, including proceedings based on bills of exchange and cheques involving merchants, legal enti-ties under public-law or special funds under public law, as well as customers with no general jurisdiction within Germany, in so far as they concern pecuniary claims or non-pecuniary claims which have not been referred to the local courts, irrespective of the value of the matter in dispute, shall be the court of law at our principal place of business or our subsidiary effecting the delivery. However, we also have the right to resort to any other competent courts of law. All relations between our company and the customer shall governed solely by the laws of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980. We hereby point out that all personal data obtained in regard to or in conjunction with the business relations between the parties hereunder, irrespective of whether they were obtained from the customer in person or via a third party, will be processed within the scope of the German Data Protection Act.
In the event of individual provisions hereunder being legally ineffective, all other sections of these Terms and Condi-tions shall continue to be operative.