General Terms and Conditions

 

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

These terms and conditions apply for use vis-à-vis
  - a natural or legal person or a partnership with legal capacity that is acting 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 if the order is accepted, 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 conflict with or deviate from our terms and conditions.

 

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

In the absence of any agreement to the contrary, the contract shall only come into effect 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 and other documents and information of a physical and non-physical nature - including 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 immediately postage paid at our request if the order is not placed.

 

All our prices are ex works unless otherwise specified in the order confirmation.
Prices are exclusive of VAT, packaging, assembly, outdoor installation and installation materials. Additional conditions for assembly, outdoor installation etc. must be agreed separately.
If the customer requests carriage paid delivery, we are not obliged to submit 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 price and will not be taken back unless expressly agreed otherwise.

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

If, after confirmation of the order, 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 when the order was confirmed, we shall be entitled to pass these cost increases on 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 otherwise specified in the order confirmation, the invoice amount is due immediately, free of any deductions. Checks and bills of exchange shall only be accepted by special agreement and only on account of performance; we may refuse to accept bills of exchange.

Unless otherwise specified in the order confirmation, the customer shall be in default of payment no later than thirty (30) days after the invoice date. The obligation to pay default interest shall be governed by the statutory provisions.

Offsetting against our claims and the exercise of a right of retention are excluded, unless the counterclaims are legally established, undisputed or recognized by us.

In the event of payment difficulties on the part of the customer (e.g. default of payment, check or bill protest), 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 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 lapse.

 

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 redemption of checks and bills of exchange, have been settled in full. The customer is entitled to process and sell the delivery item delivered under retention of title (reserved goods) in the ordinary course of business as long as he is not in default with his obligations. Pledging or transfer by way of security to third parties is not permitted.

If the goods subject to retention of title are combined with other items, the customer shall transfer his ownership of the newly manufactured items to us - unless we have already become co-owners by law in accordance with our share of the goods subject to retention of title - and shall store them for us with the due care of a prudent businessman. Ownership of these items shall serve as security for us only up to the value of the reserved goods.

The claims from a resale of the goods subject to retention of title and products manufactured therefrom are hereby assigned to us, if applicable in the ratio of our co-ownership right to the rights of others. Upon request, the customer must 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 amounts collected shall be transferred 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 framework of genuine factoring, our claim shall become due immediately and the customer shall assign the claim against the factor replacing it to us and shall forward its sales proceeds to us without delay. We accept this assignment.

If the customer acts 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 this is dispensable, to demand the return 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 non-binding, for example as "expected delivery date", must 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 conditions to be provided by the customer in accordance with the contract. Unless otherwise agreed, delivery deadlines shall be deemed to have been met if the delivery item has left our factory by the time they expire 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 it.

Delivery and performance deadlines shall be extended appropriately 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 lead to 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 (e.g. 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 services already rendered in each case; any further claims shall be excluded.
Claims, in particular for damages, are excluded.

The delivery is subject to the reservation of 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 (e.g. if a bindingly agreed delivery date is exceeded or after a reminder has been sent) and the customer has demonstrably suffered damage as a result, we shall pay a lump-sum compensation for delay of 0.5 % per week of 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, up to a maximum of 5 % of the total order value. This limitation 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.

If a reasonable grace period set by the customer expires without result, but at the earliest 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 the delivery is delayed for reasons for which the customer is responsible, the customer shall 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 delivery is delayed beyond the date stated in the notification of readiness for delivery for reasons for which we are not responsible, the risk shall pass to the customer five (5) working days after notification of readiness for delivery and request for collection. If acceptance of the delivery item has been agreed, the date of acceptance, 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.

Goods shall only be shipped on the basis of a special agreement and only at the customer's expense and risk. If shipment is delayed at the customer's request, the risk shall pass to the customer five (5) working days after notification of readiness for delivery and request for collection.

 

 

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

The subject of the liability for defects is exclusively the delivery item with the properties and characteristics 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 result from its
functional suitability for the use customary for delivery items of this type. Other or more extensive properties and/or characteristics or an intended use going beyond these shall only be deemed to have been agreed if they have been expressly confirmed by us in writing.

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

If there is a defect in the delivery item for which we are responsible, we shall be obliged and entitled to subsequent performance, at our discretion by repair or replacement. In the event of rectification of defects, 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 costs shall not be borne by us. Parts for which a replacement has been provided shall become our property. If the subsequent performance fails repeatedly, the customer is entitled, at his discretion, to demand withdrawal or a reduction in price. If the defect is only insignificant, the customer's right to reduce the contract price shall take the place of the right of withdrawal. Otherwise, the statutory provisions shall apply.

Any defects discovered must be reported to us immediately in writing. This shall also apply to defects that are only discovered after an attempt at rectification. We must be notified of an obvious defect within ten (10) working days of delivery. We must be notified of a defect that appears later within ten (10) working days of its discovery. If the notification has not been sent to us by the expiry of the respective deadline, the delivery item shall be deemed to have been approved free of defects. The customer must give us the opportunity to inform ourselves about the nature and extent of the defect and the appropriate type of subsequent performance, in particular by providing unhindered access to the delivery item or by sending 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 have not been granted the opportunity for subsequent performance.

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

Claims for defects shall become time-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 obliged to assemble the delivery item, the above period shall commence upon completion of the assembly and acceptance of the delivery item.

Normal wear and tear, unauthorized attempts at rectification by the customer or third parties as well as the consequences of improper use, in particular due to non-compliance with assembly and operating instructions as well as maintenance and repair instructions by the customer or third parties, are excluded from the liability for defects, unless these instructions or regulations are themselves already defective. Claims for defects are also excluded if the actual conditions of use of the delivery item deviate significantly from the agreed conditions of use or the conditions of use specified by the customer in the inquiry.

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

Further claims of the customer that go beyond claims for 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 damages that have not occurred 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 executive 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, we shall only be liable for reasonably foreseeable damage typical of the contract.

Liability due to fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk, under the Product Liability Act for damage to privately used items and 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 time-barred twelve (12) months after delivery or, if we also undertake the installation, after acceptance; in the latter case, however, the limitation period shall expire at the latest 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 above provision, the statutory limitation provisions shall apply to claims of the type described in clause 8.2.

 

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

The place of jurisdiction is the competent court at our registered office. However, we shall be entitled to sue the customer at its head office.

Telephone and verbal agreements as well as agreements and promises in electronic form require written confirmation to be effective. Our representatives have no authority to conclude or collect contracts, nor do they have the authority to agree 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 made in writing.