General terms and conditions

 

The following terms and conditions apply to all sales transactions with all our customers, and also to all future legal transactions, irrespective of any specific reference in individual cases.

These terms and conditions apply for use against
  - a natural person or a legal entity or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding the contract (entrepreneur);
  - legal entities under public law and vis-à-vis a special fund under public law.

Deviating terms and conditions of the customer shall not be recognized even by acceptance of the order unless we have expressly agreed to them in writing. The terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our terms and conditions.

 

Our catalogs, product descriptions and other documents provided in advance of the conclusion of the contract are for information purposes and do not constitute an offer in the legal sense. Our offers are always subject to change and non-binding. The contract application (order) is to be submitted by the customer. We shall be entitled to revoke this within
of two (2) weeks to be accepted.

In the absence of any agreement to the contrary, the contract shall only be concluded upon our written order confirmation or the handover or delivery of the delivery item.

Our property rights and copyrights to cost estimates, drawings, construction plans as well as other documents and information of a physical and non-physical nature - also in electronic form - shall remain with us. These drawings and documents may not be made accessible to third parties and must be returned to us postage paid immediately upon our request if the order is not placed.

 

All our prices are ex works unless and insofar as otherwise stipulated in the order confirmation.
Prices are exclusive of VAT, packaging, assembly, outdoor installation and installation material. Additional conditions for assembly, outdoor installation etc. are to be agreed separately.
If the customer requests freight-free delivery, we are not obliged to present the freight costs. If partial deliveries are requested, any additional costs shall be borne by the customer.

Packaging, if agreed, will be charged at cost and will not be taken back unless otherwise expressly agreed.

If, after confirmation of the order, taxes, customs duties or other government levies are newly introduced or increased or abolished or reduced, we shall be entitled to pass on the resulting cost increases to the customer or be obliged to reduce the price accordingly if there are more than four months between conclusion of the contract and the scheduled delivery date. Should a price increase be unreasonable for the customer, he shall be entitled to withdraw from the contract.

If, after order confirmation, there are significant increases in our manufacturing costs, for example due to rising raw material and energy prices, and if the extent of these cost increases was unforeseeable for us at the time of order confirmation, we shall be entitled to pass on these cost increases to the customer if it would be unreasonable for us to adhere to the contract price. Should such a price increase then also be unreasonable for the customer, he shall be entitled to withdraw from the contract; further mutual claims shall be excluded.

 

Unless and insofar as otherwise stipulated in the order confirmation, the invoice amount shall be due immediately, free of any deductions. Checks and bills of exchange shall only be accepted upon special agreement and only on account of performance; we may refuse to accept bills of exchange.

Unless and insofar as otherwise stipulated in the order confirmation, the customer shall be in default of payment at the latest upon expiry of thirty (30) days from the invoice date. The obligation to pay default interest shall be governed by the statutory provisions.

Offsetting against our claims as well as the exercise of a right of retention are excluded unless the counterclaims have been legally established, are undisputed or have been acknowledged by us.

In the event of payment difficulties on the part of the customer (e.g. default in payment, protest of a check or bill of exchange), we shall be entitled to declare all outstanding or deferred invoices immediately due and payable and to demand advance payment or the provision of security. If advance payment or provision of security is not made within a reasonable period of time set by us, we may withdraw from the contract or refuse further deliveries or services and assert claims for non-performance. In such a case, any agreed discounts and rebates shall be forfeited.

 

The delivery item shall remain our property until all existing claims arising from the business relationship between us and the customer, including ancillary claims, claims for damages and encashment of checks and bills of exchange, have been settled in full. The customer shall be entitled to process and sell the delivery item delivered under reservation of title (reserved goods) in the ordinary course of business as long as he is not in default with his obligations. Pledges or transfers of ownership by way of security to third parties are not permitted.

If the goods subject to retention of title are combined with other items, the customer shall transfer its ownership of the newly produced items to us - insofar as we have not already become co-owners in accordance with our share of the goods subject to retention of title by law - and shall keep these items for us with the due care of a prudent businessman. The ownership of these items shall only serve as security for us to the amount of the value of the reserved goods.

The claims from a resale of the goods subject to retention of title and products manufactured therefrom are already now assigned to us, if necessary in the ratio of our co-ownership right to the rights of others. Upon request, the customer shall inform us of the debtors of the assigned claims and the amount of the claim and notify the debtors of the assignment. Subject to our revocation, he may collect the assigned claims. The collected amounts shall be paid to us, if applicable, in the amount of our share and up to the amount of our purchase price claim.

If the customer has sold the claim within the scope of genuine factoring, our claim shall become due immediately and the customer shall assign to us the claim against the factor taking its place and shall immediately forward its sales proceeds to us. We accept this assignment.

In the event of conduct by the customer in breach of contract - in particular in the event of default in payment - we shall be entitled to withdraw from the contract immediately after issuing a reminder or, if such reminder is dispensable, to demand the surrender of the reserved goods to us.

The application for the opening of insolvency proceedings entitles us to demand the immediate surrender of the reserved goods.

 

Delivery dates and delivery periods, which may be agreed as binding and, for example, as "expected delivery date", non-binding, shall be stated in writing. Deadlines shall commence upon receipt of the order confirmation, but not before the customer has provided the final documents, approvals, drawings and the prerequisites to be provided by the customer in accordance with the agreement. Unless otherwise agreed, delivery periods shall be deemed to have been complied with if, by the time they expire, the delivery item has left our works or - in the case of delivery ex works - at least readiness for delivery has been notified in writing and the customer has been requested to collect the goods.

Delivery and performance periods shall be reasonably extended in the event of force majeure or other reasonably unforeseeable events beyond our control, such as natural disasters, labor disputes (strike or lockout), war, civil war or sabotage, if these cause temporary delays in performance for us or our suppliers or subcontractors through no fault of our own. Should delivery become impossible or unreasonably difficult due to a circumstance of force majeure (for example, because a period of ninety (90) days has been exceeded), both we and the customer shall be entitled to withdraw from the contract, but only against reimbursement of the respective services already rendered; any further
Claims, in particular for damages, are excluded.

The delivery is subject to self-delivery.

Partial deliveries by us are permissible unless their acceptance is unreasonable for the customer with regard to the contractual use.

In the event of a delay in delivery for which we are responsible (for example, if a binding delivery date is exceeded or after a reminder has been issued) and if the customer demonstrably suffers damage as a result, we shall pay a lump-sum compensation for the delay of 0.5% per week of the delay calculated on the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay, but no more than 5% of the total order value. This restriction shall not apply if we are guilty of intent or gross negligence; furthermore, it shall not apply if the customer has demonstrably incurred higher damages in an individual case.

Upon fruitless expiration of a reasonable grace period granted to us by the customer, but no earlier than after four (4) weeks, the customer shall be entitled to withdraw from the contract and - in the event of intent or gross negligence on our part - to claim damages in lieu of performance.

If delivery is delayed for reasons for which the customer is responsible, he will be charged for the additional costs incurred by us as a result.

Unless otherwise expressly agreed in writing, delivery shall be "ex works", without packaging. The risk of accidental loss and accidental deterioration of the delivery item shall pass to the customer upon delivery. If the delivery is delayed for reasons beyond our control beyond the date stated in the notification of readiness for delivery, the risk shall pass to the customer upon expiration of five (5) working days from the notification of readiness for delivery and request for collection. If acceptance of the delivery item has been agreed, the acceptance date, or alternatively the date of readiness for acceptance, shall be decisive for the transfer of risk - except in the case of justified refusal of acceptance.

The shipment of goods shall only take place on the basis of a special agreement and only for the account and at the risk of the customer. If the shipment is delayed at the request of the customer, the risk shall pass to the customer upon expiry of five (5) working days from the notification of readiness for delivery and request for collection.

 

 

For each delivery item, we warrant that it has been manufactured by us in accordance with the recognized rules of technology and from suitable material with care and in compliance with tolerances customary in the industry.

The object of the liability for defects is exclusively the delivery item with the characteristics and properties as well as the intended use known to us in accordance with the product description known to the customer. In the absence of a product description and or any other description, in particular of the quality of the delivery item, the quality of the delivery item owed by us shall be derived from its
functional suitability for the use customary for delivery items of this type. Other or more far-reaching properties and/or characteristics or a purpose of use beyond this shall only be deemed to have been agreed if they have been expressly confirmed by us in writing.

Drawings, specifications, samples, etc. submitted by the customer shall only be authoritative for the quality and properties of the delivery item if this has been expressly agreed. Written information in descriptions valid at the time of conclusion of the contract regarding scope of delivery, appearance, performance, dimensions and weights shall form part of the contract; however, they shall only be deemed approximate and shall only constitute agreed properties if this has been expressly agreed in writing based on the customer's order.

Insofar as there is a defect in the delivery item for which we are responsible, we shall be obligated and entitled to remedy the defect, at our discretion either by repair or replacement. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these have not increased due to the fact that the delivery item has been taken to a place other than the place of performance. Travel expenses shall not be borne by us. Parts for which replacement has been provided shall become our property. If the supplementary performance fails for the repeated time, the customer is entitled to demand rescission or reduction at his discretion. If the defect is only insignificant, the customer's right to reduce the contract price shall replace the right of withdrawal. In all other respects, the statutory provisions shall apply.

We must be notified immediately in writing of any defects discovered. This shall also apply to defects which are only discovered after an attempt to rectify them. An obvious defect shall be notified to us within a period of ten (10) working days after delivery. A defect occurring later shall be notified to us within ten (10) working days after its discovery. If the notification has not been sent to us by the end of the respective period, the delivery item shall be deemed to have been approved without defects. The customer shall give us the opportunity to inform ourselves about the type and extent of the defect as well as the appropriate way of subsequent performance, in particular by unimpeded access to the delivery item or by sending us material samples. After prior consultation, the customer shall grant us all reasonable time and opportunity to carry out measures to remedy the defect; otherwise, we shall be released from liability for defects to the extent that we were not granted the opportunity for subsequent performance.

The right of the customer to remedy the defect himself or to have it remedied by a third party at our expense (substitute performance) in urgent cases, e.g. to avoid disproportionately large damage or to avert danger, shall remain unaffected by this; in these cases, however, we must be notified immediately.
We shall not be liable for the consequences of improper substitute performance; this shall also apply to modifications to the delivery item made without our consent.

Claims for defects shall become statute-barred twelve (12) months after delivery or, in the case of self-collection, five (5) working days after notification of readiness for delivery. If we are also contractually obligated to assemble the delivery item, the aforementioned period shall commence upon completion of the assembly and acceptance of the delivery item.

Excluded from the liability for defects are normal wear and tear, unauthorized attempts at rectification by the customer or third parties and the consequences of improper use, in particular through non-compliance with assembly and operating instructions and maintenance and repair instructions by the customer or third parties, unless these instructions or instructions are themselves already defective. Claims for defects shall also be excluded if the actual conditions of use of the delivery item deviate not only insignificantly from the agreed conditions of use or those specified by the customer in the inquiry.

In any case, claims of the customer shall remain unaffected in case of fraudulent concealment of a defect or in case of possible assumption of a guarantee for the quality or a procurement risk by us.

Further claims of the customer beyond claims based on defects shall be determined in accordance with Section 8 of these Terms and Conditions.

Our liability for defects of title shall be governed by the statutory provisions.

 

In all cases of breach of contractual or pre-contractual as well as statutory obligations, in particular for damage not caused to the delivery item itself, such as loss of profit, we shall only be liable in the event of intent or gross negligence on the part of our owner, our executive bodies or senior employees. In the event of a breach of material contractual obligations, we shall also be liable in the event of gross negligence on the part of non-executive employees and in the event of slight negligence; in the latter case, however, our liability shall be limited to reasonably foreseeable damage typical for the contract.

Liability due to fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk, according to the Product Liability Act for damage to privately used items as well as for bodily injury and personal injury shall always remain unaffected.

The personal liability of our legal representatives, vicarious agents and employees for damage caused by them through slight negligence is excluded.

Liability for faulty consulting services shall only exist if this has been expressly agreed in writing.

 

All claims of the customer against us shall become statute-barred twelve (12) months after delivery or, if we also undertake the assembly, after acceptance; in the latter case, however, the statute of limitations shall expire at the latest upon the expiry of fifteen (15) months after delivery if acceptance does not take place within three (3) months after delivery for reasons for which the customer is responsible.

Notwithstanding the foregoing provision, the statutory limitation provisions shall apply to claims of the kind described in Section 8.2.

 

This contract is subject to the law of the Federal Republic of Germany.

The place of jurisdiction shall be the court having jurisdiction at our registered office. However, we are entitled to sue the customer at his principal place of business.

Telephone and verbal agreements as well as agreements and promises in electronic form require written confirmation to be effective. Our representatives do not have the authority to conclude or collect contracts, nor do they have the authority to agree on changes to these terms and conditions. Therefore, agreements and commitments made by our representatives shall only be effective if they have been confirmed by us in writing. Amendments to the contract must also be in writing.