GENERAL TERMS AND CONDITIONS
I. General
(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delivery of the subject matter of the contract has become impossible before the transfer of risk, the contract shall be rescinded.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.
