GENE­RAL TERMS AND CONDITIONS

I. Gene­ral

(1) The fol­lowing terms and con­di­ti­ons of sale and deli­very app­ly exclu­si­ve­ly, unless devia­ting terms and con­di­ti­ons have been agreed in wri­ting in indi­vi­du­al cases. Agree­ments recor­ded in wri­ting shall have prio­ri­ty inso­far as they devia­te from the fol­lowing terms and con­di­ti­ons of sale and deli­very and shall not affect their validity. 

(2) The fol­lowing terms and con­di­ti­ons of sale and deli­very are accep­ted by the Cus­to­mer upon rece­i­pt of our offer docu­ments, even if no con­tract is con­clu­ded. This app­lies in par­ti­cu­lar to clau­se II(3) of the­se conditions.

II. Offer and Conclusion

(1) All offers are non-bin­ding with regard to pri­ce, deli­very time and deli­very pos­si­bi­li­ty. Agree­ments made ver­bal­ly or by tele­pho­ne shall only beco­me valid if they have been con­fir­med in wri­ting by the Contractor.

(2) The docu­ments per­tai­ning to the offer, such as illus­tra­ti­ons, drawings, weight and dimen­sio­nal data, are only appro­xi­ma­te unless they have been express­ly con­fir­med as binding.

(3) We reser­ve owners­hip and copy­rights to cost esti­ma­tes, drawings and other docu­ments. They may not be made acces­si­ble to third par­ties without our express per­mis­si­on. We shall also only make the docu­ments pro­vi­ded to us by the Cus­to­mer acces­si­ble to third par­ties with the Customer’s consent.

III. Scope of Delivery

(1) If the deli­very of the sub­ject mat­ter of the con­tract has beco­me impos­si­ble befo­re the trans­fer of risk, the con­tract shall be rescinded.

(2) Claims for dama­ges exist only if the user is guil­ty of intent or gross negligence.

IV. Pri­ces

(1) The pri­ces are valid ex works Neu-Ulm plus the respec­tively valid value added tax. Pack­a­ging, trans­port, assem­bly and com­mis­sio­ning cos­ts as well as any addi­tio­nal cos­ts for cus­toms and insuran­ce are not inclu­ded in the prices.

(2) If, as agreed, deli­very is made more than four mon­ths after con­clu­si­on of the con­tract, the Con­trac­tor is enti­t­led to char­ge the list pri­ce valid on the day of deli­very. If the pri­ce incre­a­ses, the Cus­to­mer is enti­t­led to with­draw from the con­tract wit­hin 14 days after noti­fi­ca­ti­on of the pri­ce increase.

(3) The Con­trac­tor is enti­t­led to cor­rec­tion of pri­ce errors and cal­cu­la­ti­on errors, even if they are not obvious.

V. Assem­bly and Commissioning

On request, the Cus­to­mer shall pro­vi­de a spe­cia­list to car­ry out the assem­bly and com­mis­sio­ning against pay­ment. The cal­cu­la­ti­on is made accord­ing to expenditure.

VI. Pay­ment and Late Payment

(1) In the case of instal­la­ti­ons, 50% of the invoice amount shall be paid on pla­ce­ment of the order and the remai­ning 50% 30 days net after the invoice date.

(2) Pay­ments for spa­re parts and access­ories shall be made net wit­hin 14 days of the date of invoice. Pay­ments for cus­to­mer ser­vices are to be made wit­hin 10 days net.

(3) If the pay­ment dead­lines are excee­ded, an annu­al inte­rest rate of 3% abo­ve the respec­ti­ve dis­count rate of the Deut­sche Bun­des­bank, but at least 7%, shall be charged.

(4) Pay­ments shall be sett­led in the fol­lowing order: 1. Cos­ts, 2. inte­rest, 3. credit fees, 4. purcha­se price.

(5) The Cus­to­mer wai­ves the sta­tu­to­ry rights of reten­ti­on and the right to off­set against coun­ter­c­laims dis­pu­ted by the Contractor.

VII. Deli­very Period

(1) The deli­very date is sta­ted in the order confirmation.

(2) If the Con­trac­tor is unab­le to meet the agreed deli­very dead­line, the Cus­to­mer shall grant a rea­son­ab­le exten­si­on of time — star­ting from the day of rece­i­pt of the writ­ten noti­ce of default by the Cus­to­mer — and may only assert rights under the Agree­ment after the exten­si­on has expi­red. The Cus­to­mer can only claim com­pen­sa­ti­on for dama­ges due to delay if the Con­trac­tor is guil­ty of intent or gross negli­gence. In the­se cases, the Cus­to­mer is enti­t­led, to the exclu­si­on of fur­ther claims, to demand com­pen­sa­ti­on for delay, pro­vi­ded that he has demons­tra­b­ly suf­fe­red dama­ge. This shall amount to 0.5% for each full week, but not more than 5% of the value of that part of the total deli­very which can­not be used for its inten­ded pur­po­se in good time due to the delay.

(3) If the dis­patch of the finis­hed parts is delay­ed at the request of the Cus­to­mer, he will be char­ged the cos­ts ari­sing from sto­rage, begin­ning one mon­th after noti­fi­ca­ti­on of rea­di­ness for dis­patch. The­se amount to at least 0.5% of the invoice amount per mon­th or part the­re­of. After set­ting a rea­son­ab­le dead­line, the Con­trac­tor is enti­t­led to dis­po­se other­wi­se of the deli­very item and to sup­ply the Cus­to­mer with ano­t­her deli­very item of the same type and quality.

(4) Dis­rup­ti­ons in busi­ness ope­ra­ti­ons for which the Con­trac­tor is not respon­si­ble, in par­ti­cu­lar work stop­pa­ges and lock-outs as well as other cases of for­ce majeu­re, both at the Contractor’s and his sup­pliers’ pre­mi­ses, shall extend the deli­very peri­ods accord­in­gly. The Cus­to­mer can­not deri­ve any claims for dama­ges from this. In the­se cases, the Cus­to­mer shall only be enti­t­led to with­draw from the con­tract if, after expi­ry of the agreed deli­very peri­od, he sends the Con­trac­tor a writ­ten remin­der for deli­very and this remin­der is not sent to the Cus­to­mer wit­hin a rea­son­ab­le peri­od of grace after rece­i­pt of the remin­der by the Contractor.

VIII. Trans­fer of Risk

The Con­trac­tor shall bear the risk of loss or dama­ge until the con­trac­tu­al items are loa­ded onto the vehi­cle which will be used for trans­port ex works. From this point in time the pri­ce risk is trans­fer­red to the Cus­to­mer. This shall also app­ly if the Con­trac­tor com­mis­si­ons a for­war­ding agent or the deli­very is made by rail.
If the deli­very is dis­patched by employees of the Con­trac­tor, the pri­ce risk shall also pass to the Cus­to­mer at the time men­tio­ned abo­ve, unless the Cus­to­mer pro­ves that the Con­trac­tor has acted with intent or gross negli­gence to cau­se the goods to perish or damage.

IX. Ship­ping and Packaging

(1) Ship­ment is ex works Neu ‑Ulm at the expen­se and risk of the Cus­to­mer. At the request of the Cus­to­mer, the Con­trac­tor will take out trans­port insuran­ce against reim­bur­se­ment of cos­ts. After rece­i­pt of the deli­very, it must be che­cked for qua­li­ty, quan­ti­ty and weight. Dama­ge must be repor­ted to the car­ri­er immedia­te­ly in writing.

(2) The Con­trac­tor shall char­ge for the pack­a­ging at cost price.

X. Default of Acceptance

(1) If the Cus­to­mer refu­ses accep­t­ance after expi­ry of a peri­od of grace of 10 days set for him or pre­vious­ly express­ly decla­res that he does not wish to accept, the Con­trac­tor may with­draw from the con­tract or claim dama­ges for non-performance.

(2) If the delay in accep­t­ance lasts lon­ger than one mon­th, the Cus­to­mer shall pay 2% of the order pri­ce per mon­th without deduc­tion as sto­rage cos­ts. If hig­her sto­rage cos­ts can be pro­ven, the­se can be deman­ded. The Con­trac­tor may also use a for­war­ding agent for storage.

(3) As com­pen­sa­ti­on for dama­ges due to non-per­for­mance in the event of default of accep­t­ance, the Con­trac­tor may demand 25% of the order pri­ce without deduc­tion, unless the Cus­to­mer can pro­ve that no dama­ge was incur­red at all or that the dama­ge was signi­fi­cant­ly lower than the lump sum.

(4) In all other respects, as in the case of cus­tom-made pro­ducts, the Con­trac­tor reser­ves the right to claim hig­her pro­ven damages.

(5) If it beco­mes objec­tively impos­si­ble for the Con­trac­tor to deli­ver during the delay in accep­t­ance, the Cus­to­mer shall remain obli­ged to pay the con­si­de­ra­ti­on, without it being his fault for the occur­rence of the objec­ti­ve impossibility.

XI. With­dra­wal

(1) The Con­trac­tor shall have the right to with­draw from the con­tract if the Cus­to­mer has made incor­rect state­ments about his per­son or about facts rela­ted to his credit­wort­hi­ness or if he stops pay­ments or if bankrupt­cy or insol­ven­cy pro­cee­dings have been filed against his assets. Clau­se XII app­lies to the return of goods.

(2) The Cus­to­mer shall be gran­ted a right of with­dra­wal if the Con­trac­tor allows a rea­son­ab­le peri­od of grace gran­ted to him to reme­dy a defect for which he is respon­si­ble to expi­re without result. The rea­son­ab­le grace peri­od shall not begin befo­re the defect and the Contractor’s obli­ga­ti­on to repre­sent the Cus­to­mer has been ack­now­led­ged or proven.

XII. Taking Back the Deli­very Item

(1) If the Con­trac­tor takes back the deli­very item, regard­less of the legal grounds, any advan­ce pay­ments made shall be refunded.

(2) The expen­ses actual­ly incur­red by the Con­trac­tor as a result of the con­tract shall be bor­ne by the Customer.

(3) The Con­trac­tor is enti­t­led to demand com­pen­sa­ti­on for depre­cia­ti­on of 35% of the order value wit­hin the first half of the year for the use of the deli­very item and, if app­li­ca­ble, to off­set this against claims of the Cus­to­mer. Unless the Cus­to­mer pro­ves that the reduc­tion in value is signi­fi­cant­ly lower.

XIII. War­ran­ty

The Con­trac­tor is liable for defects in the deli­very, which also inclu­des the absence of express­ly war­ran­ted cha­rac­te­ris­tics, to the exclu­si­on of fur­ther claims as follows:

(1) The war­ran­ty peri­od cor­re­sponds to the legal regu­la­ti­on and amounts to two years for new­ly manu­fac­tu­red items and one year for used, revi­sed items. If the purcha­ser is an entre­pre­neur, a legal enti­ty under public law or a spe­cial fund under public law, the war­ran­ty peri­od shall always be one year.

(2) All tho­se parts are to be repai­red or repla­ced free of char­ge at the Contractor’s rea­son­ab­le dis­cre­ti­on and sub­ject to his choice, which are demons­tra­b­ly unus­able or con­si­der­ab­ly impai­red in their usa­bi­li­ty wit­hin 24 mon­ths of com­mis­sio­ning as a result of a cir­cum­s­tance occur­ring befo­re the trans­fer of risk — in par­ti­cu­lar due to faul­ty design, poor mate­ri­als or poor work­manship. The Con­trac­tor must be noti­fied immedia­te­ly in wri­ting of the dis­co­very of such defects. Repla­ced parts beco­me the pro­per­ty of the Con­trac­tor.
(3) If dis­patch, instal­la­ti­on or com­mis­sio­ning is delay­ed without the fault of the Con­trac­tor, lia­bi­li­ty shall expi­re at the latest 24 mon­ths after the trans­fer of risk. For third-par­ty pro­ducts, the lia­bi­li­ty of the Con­trac­tor is limi­ted to the assign­ment of the lia­bi­li­ty claims to which he is enti­t­led against the sup­plier of the third-par­ty product.

(4) No gua­ran­tee is given for dama­ges that have occur­red for the fol­lowing rea­sons: Unsui­ta­ble or impro­per use; faul­ty assem­bly or com­mis­sio­ning by the Cus­to­mer or third par­ties; faul­ty or negli­gent hand­ling, in par­ti­cu­lar exces­si­ve strain; unsui­ta­ble ope­ra­ting mate­ri­als; repla­ce­ment mate­ri­als; defec­ti­ve con­struc­tion work; impro­per electri­cal net­work; elec­tro­me­cha­ni­cal or elec­tro­nic influ­en­ces, unless they are attri­bu­ta­ble to a fault of the Con­trac­tor; con­se­quen­ti­al dama­ge due to fail­u­re to obser­ve the duty of supervision.

(5) The Cus­to­mer shall, after con­sul­ta­ti­on with the Con­trac­tor, give the Con­trac­tor the necessa­ry time and oppor­tu­ni­ty to car­ry out all repairs and spa­re parts deli­ve­ries which the Con­trac­tor deems necessa­ry at its rea­son­ab­le dis­cre­ti­on, other­wi­se the Con­trac­tor shall be released from lia­bi­li­ty for defects. Only in urgent cases of dan­ger to ope­ra­tio­nal safe­ty, of which the Con­trac­tor must be infor­med immedia­te­ly, or if the Con­trac­tor is in default in reme­dy­ing the defect, shall the Cus­to­mer have the right to reme­dy the defect its­elf or have it reme­di­ed by third par­ties and to demand rea­son­ab­le reim­bur­se­ment of its cos­ts from the Contractor.

(6) Of the direct cos­ts ari­sing from the repair or repla­ce­ment deli­very, the Con­trac­tor shall bear — inso­far as the com­p­laint pro­ves to be jus­ti­fied — the cos­ts of the repla­ce­ment part inclu­ding dis­patch as well as the rea­son­ab­le cos­ts of dis­mant­ling and instal­la­ti­on; fur­ther­mo­re, if this can be rea­son­ab­ly deman­ded accord­ing to the situa­ti­on of the indi­vi­du­al case, the cos­ts of any necessa­ry pro­vi­si­on of his fit­ters and assi­stants. In all other respects the Cus­to­mer shall bear the costs.

(7) The jus­ti­fi­ca­ti­on of the war­ran­ty claim for defects shall not be reco­gnis­ed by the Con­trac­tor as a result of rec­ti­fi­ca­ti­on work per­for­med by the Con­trac­tor, unless this is done express­ly. Pos­si­ble claims for dama­ges are limi­ted to intent and gross negli­gence, unless they are based on a con­trac­tu­al assurance.

(8) The Con­trac­tor may refu­se to reme­dy defects as long as the Cus­to­mer does not ful­fil his obligations.

(9) Any impro­per modi­fi­ca­ti­ons or repair work car­ri­ed out by the Cus­to­mer or third par­ties without the pri­or appro­val of the Con­trac­tor shall inva­li­da­te any lia­bi­li­ty for the resul­ting consequences.

(10) The assuran­ce of a pro­per­ty of the deli­very item always requi­res a cor­re­spon­ding writ­ten identification.

XIV. Reten­ti­on of Title

(1) The Con­trac­tor reser­ves the right of owners­hip of the deli­ve­r­ed equip­ment, spa­re parts and con­sum­a­bles until the purcha­se pri­ce has been paid in full.

(2) Pro­ces­sing or remo­del­ling shall always be car­ri­ed out for the Con­trac­tor as manu­fac­tu­rer (§ 950 BGB) (Ger­man Civil Code). If the Contractor’s owners­hip expi­res due to com­bi­na­ti­on, it is her­eby agreed that the Customer’s owners­hip shall pass to the Con­trac­tor in pro­por­ti­on to the invoice value of the deli­ve­r­ed goods.

(3) The Cus­to­mer is enti­t­led to sell the goods deli­ve­r­ed under reser­va­ti­on in the ordi­na­ry cour­se of busi­ness. Pled­ges or trans­fers by way of secu­ri­ty are not per­mit­ted. The Cus­to­mer her­eby assigns to the Con­trac­tor by way of secu­ri­ty any claims ari­sing from the resa­le or any other legal grounds with regard to the goods deli­ve­r­ed under reser­va­ti­on of tit­le. The Con­trac­tor revo­ca­b­ly aut­ho­ri­ses the Cus­to­mer to collect the assi­gned claims in his own name and for his own account.

(4) In the event of access by third par­ties to the goods deli­ve­r­ed under reser­va­ti­on of tit­le, the Cus­to­mer shall draw atten­ti­on to the Contractor’s owners­hip and noti­fy the Con­trac­tor immedia­te­ly. Cos­ts and dama­ges shall be bor­ne by the Customer.

(5) At the request of the Cus­to­mer, the Con­trac­tor shall release the afo­re­men­tio­ned secu­ri­ties if their value exceeds the claims by more than 25%.

XV. Place of Per­for­mance and Jurisdiction

The place of per­for­mance for all mutu­al claims is Neu-Ulm. The law of the Federal Repu­blic of Ger­ma­ny app­lies. The place of juris­dic­tion for both par­ties is Neu-Ulm. If the Con­trac­tor acts as plain­tiff, he is enti­t­led to seek recour­se from the court at the Customer’s regis­tered office.

XVI. Severa­bi­li­ty Clause

Should one of the abo­ve clau­ses be inef­fec­ti­ve, the remai­ning con­di­ti­ons shall nevertheless remain valid. The inef­fec­ti­ve clau­ses will then be repla­ced by the sta­tu­to­ry pro­vi­si­on. In the absence of a sta­tu­to­ry pro­vi­si­on, the par­ties shall be obli­ged to reach an agree­ment which comes clo­sest to the pur­po­se inten­ded and eco­no­mi­c­al­ly pur­sued by the inva­lid clause.