TERMS & CONDITIONS
1. Applicability of the Conditions
a) Insofar as our obligation does not only relate to the delivery of goods but also extends to work and installation services on the customer’s premises or buildings, the provisions of the German Construction Contract Procedures, Part B (hereinafter referred to as VOB/B), shall take precedence over the following conditions and shall apply uniformly to delivery and installation services. The VOB/B is available for inspection at our business premises. Insofar as the customers are consumers, they shall be provided with a copy of the VOB/B.
Otherwise, the following General Terms and Conditions apply.
b) Our deliveries, services, and offers are made exclusively on the basis of these Terms and Conditions; we do not recognize any conditions of the customer that deviate from these Terms and Conditions unless we have expressly agreed to their validity in writing. Our Terms and Conditions shall also apply if we carry out the delivery or service to the customer unconditionally in the knowledge of the customer’s terms that conflict with or deviate from our Terms and Conditions. Our Terms and Conditions also apply to all future business relationships, even if they are not expressly agreed again.
2. Offer and Conclusion of Contract
a) Our offers are non-binding and without obligation.
b) Drawings, illustrations, dimensions, or other performance data are only binding if expressly agreed in writing.
c) Our employees are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the contract.
3. Prices
a) Unless otherwise stated, we are bound by the prices contained in our offers for 30 days from the date of the offer. Otherwise, the prices agreed upon when the order is placed plus the applicable statutory VAT shall apply. Additional deliveries and services will be charged separately.
b) If the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), we reserve the right to adjust our prices accordingly if no fixed price agreement has been made and cost reductions or cost increases occur after the conclusion of the contract, in particular due to wage agreements or changes in material prices. We will provide evidence of such changes to the customer upon request.
c) Unless otherwise agreed, prices are ex works (ex warehouse).
4. Delivery and Performance Time
a) Delivery dates or deadlines, whether binding or non-binding, require written form.
b) In the event of force majeure or the occurrence of unforeseeable extraordinary events which we could not prevent despite exercising reasonable care under the circumstances (including if they occur at our suppliers), e.g., strikes, lockouts, operational disruptions, subsequent difficulties in procuring materials, rejection of an important workpiece, official orders, etc., the delivery period shall be extended (or the delivery date postponed) by the duration of the hindrance plus a reasonable start-up period in line with our operational requirements. If the hindrance lasts longer than two months or if delivery or performance becomes impossible through no fault of our own, both parties shall be entitled to withdraw from the contract with respect to the unfulfilled part. Claims for damages are governed by Clause 9 of these Terms and Conditions. We may only invoke these conditions if we notify the customer without delay.
c) If we are responsible for failing to meet binding deadlines and dates or if we are in default, the customer may, in addition to performance/delivery, claim compensation for damages caused by the delay; in the case of slight negligence on our part, this is limited to a maximum of 0.5% for each completed week of delay, but in total to no more than 5% of the invoice value of the delayed deliveries and services. Excluded from this limitation to 5% are claims within the meaning of Clause 9 b).
d) We are entitled to make partial deliveries and partial services, provided these are reasonable for the customer.
e) Compliance with our delivery and performance obligations requires the timely and proper fulfillment of the customer’s obligations.
f) If the customer is in default of acceptance, we are entitled, in the event of fault on the part of the customer, to claim compensation for the damage we incur; upon default of acceptance, the risk of accidental deterioration and accidental loss passes to the customer.
5. Transfer of Risk
a) The risk passes to customers who are entrepreneurs within the meaning of § 14 BGB as soon as the goods leave our warehouse. If shipment is delayed at the customer’s request, the risk passes to the customer upon notification of readiness for dispatch.
b) For customers who are consumers within the meaning of § 13 BGB, the risk of loss or deterioration does not pass until the goods arrive at the customer’s premises.
6. Warranty
a) Warranty claims by customers who are consumers (§ 13 BGB) shall expire after 2 years. This limitation period begins with the delivery of the item, in the case of contracts for work and services upon acceptance. If the customer is an entrepreneur (§ 14 BGB), the limitation period is 1 year. Warranty claims for buildings or for goods that are used for a building in accordance with their usual purpose and have caused its defect (building materials) expire after 5 years.
b) Warranty claims by customers who are merchants within the meaning of the German Commercial Code (HGB) only exist insofar as the customer has fulfilled their obligation to inspect and notify defects pursuant to § 377 HGB.
c) If the delivered goods are defective, we shall, at our discretion, provide subsequent performance (rectification, new production, or delivery of defect-free goods). However, if the customer is a consumer (§ 13 BGB), the right of choice regarding the type of subsequent performance belongs to the customer. For customers who are entrepreneurs (§ 14 BGB), we shall only bear the reasonable costs of subsequent performance, up to a maximum of the purchase price. Any additional costs of subsequent performance arising from the fact that the goods we delivered were taken to a location other than the customer’s place of business shall be borne by the customer if they are an entrepreneur within the meaning of § 14 BGB. If we are unwilling or unable to provide subsequent performance, if it is delayed beyond a reasonable deadline set by the customer of at least 2 weeks, if subsequent performance otherwise fails, or if it is unreasonable for us, the customer is entitled, at their option, to reduce the agreed remuneration or, if the warranty does not relate to a construction service, withdraw from the contract.
d) Liability for normal wear and tear does not exist. For further claims for damages, Clause 9 of these Terms and Conditions applies. For claims for damages that are not excluded under Clause 9, the statutory warranty period applies, as does the customer’s right of withdrawal, insofar as the defect is attributable to us (relevant only for customers who are entrepreneurs).
e) If the customer is an entrepreneur (§ 14 BGB) and demands subsequent performance, they must, within a period of two weeks after expiry of the deadline set for us to provide subsequent performance, declare whether they still demand performance or whether they wish to reduce the remuneration or, if not excluded, withdraw from the contract and/or claim damages.
f) Insofar as the customer, if they are an entrepreneur within the meaning of § 14 BGB, asserts warranty claims against us based on public statements made by us, the manufacturer of our products, or its agents, particularly in advertising or labeling regarding certain characteristics (§ 434 para. 1 sentence 3 BGB), the customer bears the burden of proof that such statements were causal for their purchase decision.
g) We shall not be liable for statements and advertising claims made by third parties if the customer is an entrepreneur.
h) In the case of a supplier’s recourse under § 478 BGB (recourse of the purchaser in the event of warranty claims by an end consumer), the statutory rights of the purchaser in the event of defects apply without the restrictions on warranty claims mentioned in the above paragraphs of this provision (Clause 6 of these Terms and Conditions), with the exception of claims for damages. The customer does not need to set us the otherwise required deadline with respect to the defect asserted by the end consumer. For claims for damages, Clause 9 of these Terms and Conditions applies. For the purchaser’s reimbursement claim under § 478 para. 2 BGB, Clause 9 c), penultimate paragraph (regarding § 284 BGB), applies accordingly.
i) Insofar as liability is excluded or limited in Clause 6 a) to h), Clause 9 b) shall apply accordingly.
7. Retention of Title
a) Until all claims (including all balance claims from current accounts) to which we are entitled against the customer now or in the future for any legal reason have been satisfied, we are granted the following securities, which we will release at our discretion upon request to the extent that their value sustainably exceeds our claims by more than 10%.
b) The goods remain our property. Processing or transformation always takes place for us as manufacturer, but without obligation for us. If our (co-)ownership expires through combination, it is already agreed that the customer’s (co-)ownership of the unified item shall pass to us proportionally (invoice value). The customer shall store our (co-)ownership free of charge. Goods in which we have (co-)ownership are hereinafter referred to as “reserved goods.”
c) The customer is entitled to process and resell the reserved goods in the ordinary course of business as long as they are not in default and fulfill their other obligations. Pledges or transfers of ownership by way of security are not permitted. The customer hereby assigns to us in advance all claims arising from the resale or any other legal reason (insurance, tort) relating to the reserved goods (including all balance claims from current accounts) as security in full. We accept the assignment. We revocably authorize the customer to collect the claims assigned to us in their own name for our account. The authorization to collect may only be revoked if the customer fails to duly meet their payment obligations. We reserve the right to collect the claim ourselves as soon as the customer fails to properly meet their payment obligations and is in default.
d) In the event of third-party access to the reserved goods, particularly in the case of seizure, the customer shall point out our ownership and notify us immediately so that we can enforce our ownership rights. Insofar as the third party is not able to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable.
e) We are entitled, in the event of conduct by the customer in breach of contract, in particular in the event of default in payment or breach of an obligation under Clause 7 d), to withdraw from the contract and demand the return of the goods.
8. Payment, Default Interest, Counterclaims, Solvency
a) Unless otherwise agreed, our invoices are payable without deduction upon invoicing. A payment is only deemed to have been made when we can dispose of the amount. In the case of checks, payment is only deemed to have been made when the check is cashed.
b) If the customer is in default, we are entitled, from that time on, to demand interest at 5 percentage points above the respective base interest rate pursuant to § 247 BGB. In the case of entrepreneurs (§ 14 BGB), we may demand interest at 9 percentage points above the respective base interest rate pursuant to § 247 BGB. Proof of greater damages is not excluded.
c) The customer, if they are an entrepreneur within the meaning of § 14 BGB, may only offset our claims or assert a right of retention if the customer’s counterclaims have been legally established or are undisputed. This does not apply insofar as the customer’s counterclaims are based on a defective performance by us. Furthermore, this does not apply to the right of retention if it is based on the same contractual relationship.
d) If, after conclusion of the contract, we become aware of facts indicating the customer’s lack of solvency, in particular a significant deterioration in the customer’s financial circumstances – e.g., through enforcement measures, insolvency, cessation of payments, dissolution of business, or if the customer fails to pay due invoices several times despite reminders – we may, if such facts are likely to jeopardize our claim to consideration, in particular payment of the purchase price, refuse performance owed by us. The right to refuse performance ceases if consideration is effected or security is provided.
We may set a reasonable deadline within which the customer must provide consideration concurrently with performance or provide security at our discretion. After the unsuccessful expiry of the deadline, we may withdraw from the contract. Insofar as the above events are attributable to the customer, we are entitled to declare the entire remaining debt from the business relationship with the customer immediately due and payable.
9. Limitation of Liability, Compensation for Expenses, Withdrawal
a) Claims for damages against us and our employees, workers, staff, representatives, and agents are excluded regardless of the legal basis, in particular due to impossibility, delay, defective performance, breach of ancillary contractual obligations, other obligations arising from the contractual relationship, and tort.
b) The exclusion of liability does not apply insofar as a guarantee has been given for the quality of the performance or a defect has been fraudulently concealed. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, body, or health. The exclusion of liability also does not apply to other damages if they are based on grossly negligent or intentional breach of duty by the user or their legal representatives or agents. If essential contractual obligations are breached, the exclusion of liability also does not apply if the breach was negligent; in such cases, liability is limited to typical and foreseeable damages. Claims under the Product Liability Act remain unaffected by the exclusion of liability.
c) If the customer is an entrepreneur, they are only entitled to withdraw from the contract in the event of a breach of duty by us not consisting in a defective performance if we are at fault.
10. Installation and Assembly
Unless otherwise agreed in writing, the following provisions apply to entrepreneurs regarding installation and assembly:
a) The customer shall, at their own expense, undertake and provide in due time:
aa) all earthworks, construction work, and other ancillary work outside the industry, including the necessary skilled and unskilled workers, building materials, and tools,
bb) the necessary items and materials for installation and commissioning, such as scaffolding, lifting gear, and other devices, fuels, and lubricants,
cc) energy and water at the place of use, including connections, heating, and lighting,
dd) sufficiently large, suitable, dry, and lockable rooms at the installation site for storing machine parts, equipment, materials, tools, etc., and adequate work and break rooms for installation personnel, including appropriate sanitary facilities; in all other respects, the customer shall take the same measures to protect the property in our possession and the installation personnel on the construction site as they would to protect their own property,
ee) protective clothing and protective devices required due to particular circumstances at the installation site.
b) Before the start of installation work, the customer must provide the necessary information regarding the location of concealed electricity, gas, and water lines or similar installations as well as the necessary structural data without being asked.
c) Before the start of installation or assembly, all necessary provisions and items must be at the installation site, and all preliminary work must have progressed to the extent that installation or assembly can begin in accordance with the agreement and carried out without interruption. Access roads and the installation and assembly site must be leveled and cleared.
d) If installation, assembly, or commissioning is delayed due to circumstances beyond our control, the customer shall bear the costs for waiting time and any additional necessary travel by us or the installation personnel to a reasonable extent.
e) The customer must confirm to us weekly the duration of the working time of the installation personnel and the completion of installation, assembly, or commissioning without delay.
f) If we request acceptance of the delivery after completion, the customer must carry it out within 2 weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use – if necessary, after completion of an agreed test phase.
11. Applicable Law, Place of Jurisdiction
a) The law of the Federal Republic of Germany applies to these Terms and Conditions and to all legal relations between us and the customer.
b) 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 place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Herford.
c) Should any provision of these Terms and Conditions or any provision within the framework of other agreements be invalid, this shall not affect the validity of all other provisions or agreements.
As of:
March 2018