General terms and conditions
§ 1 Validity
(1) All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as "Customer") for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
(2) Terms and conditions of the customer or third parties shall not apply, even if the seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter which contains or refers to the terms and conditions of the Client or of a third party, this does not imply any agreement with the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the seller are subject to confirmation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt.
(2) The legal relationship between Seller and Buyer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This reproduces all agreements between the parties to the contract relating to the subject matter of the contract in full. Verbal promises made by the seller prior to the conclusion of this contract are legally non-binding and verbal agreements between the parties to the contract shall be replaced by the written contract unless it is expressly stated in each case that they continue to be binding. Supplements and amendments to the agreements made, including these terms and conditions, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the employees of the seller are not entitled to make any verbal agreements deviating from this. Transmission by fax or e-mail is sufficient to comply with the written form.
(3) Information provided by the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations thereof (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose.
(4) The Seller reserves the ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The customer may not make these objects accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the Seller's request, he shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EURO ex works plus packaging, statutory value-added tax, customs duties for export deliveries and fees and other public charges.
(2) Insofar as the agreed prices are based on the Seller's list prices and delivery is not to take place until more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoiced amounts are to be paid within 14 days of the invoice date without any deduction unless otherwise agreed in writing. The date of receipt by the seller is decisive for the date of payment. If the customer fails to pay on the due date, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the assertion of higher interest rates and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the customer or retention of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
(5) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are suitable to significantly reduce the creditworthiness of the Customer and which endanger the payment of the outstanding claims of the Seller by the Customer from the respective contractual relationship (including from other individual orders to which the same framework contract applies).
§ 4 Delivery and delivery time
(1) Deliveries shall be made ex works.
(2) Periods and dates for deliveries and services promised by the seller are always only approximate, unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The seller may - without prejudice to his rights arising from the default of the customer - demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the customer does not fulfil his contractual obligations towards the seller.
(4) The Seller shall not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, shortages of labour, energy or raw materials, difficulties in procuring the necessary official permits, official measures or the lack of, incorrect or untimely delivery by suppliers) for which the Seller is not responsible. Insofar as such events substantially impede or render impossible the Seller's delivery or performance and the impediment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or service cannot reasonably be expected of the customer, he may withdraw from the contract by immediate written declaration to the seller.
(5) The Seller shall only be entitled to make partial deliveries if
- the partial delivery can be used by the Customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the Customer does not incur any considerable additional expenses or costs as a result thereof (unless the Seller declares its willingness to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him for whatever reason, the Seller's liability shall be limited to damages in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of Performance, Shipping, Packaging, Passing of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be Rheine, unless otherwise specified. If the Seller also owes the installation, the place of performance shall be the place where the installation is to take place.
(2) The mode of dispatch and packaging are subject to the dutiful discretion of the seller.
(3) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the freight forwarder, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has taken over other services (e.g. dispatch or installation). If dispatch or handover is delayed as a result of circumstances for which the Client is responsible, the risk shall pass to the Client from the day on which the Seller is ready for dispatch and has notified the Client accordingly.
(4) Storage costs after transfer of risk shall be borne by the customer. In case of storage by the seller, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to assert and prove further or lower storage costs.
(5) The consignment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at the Customer's expense.
(6) To the extent that acceptance is to take place, the purchased item shall be deemed to have been accepted if
- the delivery and, if the Seller also owes the installation, the installation has been completed,
- the Seller has informed the Customer of this with reference to the fiction of acceptance in accordance with this § 5 (6) and has requested the Customer to accept it,
- twelve working days have elapsed since delivery or installation or the Customer has begun using the purchased item (e.g., if the Customer has not fulfilled its obligations under this § 5 (6)), or if the Customer has not fulfilled its obligations under this § 5 (6), - the Customer has not fulfilled its obligations under this § 5 (6). the delivered plant has been put into operation) and in this case six working days have elapsed since delivery or installation, and
- the Customer has omitted acceptance within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or substantially impairs it.
§ 6 Warranty
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items shall be carefully inspected immediately after delivery to the customer or to a third party designated by the customer. They shall be deemed approved if the Seller has not received a notice of defects with regard to obvious defects or other defects which were recognisable in an immediate, careful inspection within seven working days of delivery of the delivery item, or otherwise within seven working days of discovery of the defect or the time at which the defect was recognisable for the Customer during normal use of the delivery item without closer inspection, in the form specified in § 2 (2) sentence 6. At the Seller's request, the delivery item complained about shall be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favourable dispatch route; this shall not apply if the costs increase because the delivery item is located at a location other than the location of the intended use.
(3) In the case of material defects of the delivered items, the seller is initially obliged and entitled to remedy the defect or make a replacement delivery at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is based on the fault of the seller, the client can claim damages under the conditions specified in § 8.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against the Seller shall be suspended.
(6) The warranty does not apply if the customer changes the delivery item or has it changed by a third party without the consent of the seller and the removal of the defect is thereby made impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect incurred as a result of the change.
(7) Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty.
§ 7 Property rights
(1) The Seller warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at his option and expense, modify or exchange the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement. If he fails to do so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages by the Customer shall be subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringement of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and sub-suppliers for the account of the Customer or assign them to the Customer. In these cases, claims against the Seller pursuant to this § 7 shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile, for example due to insolvency.
§ 8 Liability for damages due to culpa in contrahendo
(1) The Seller's liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8 to the extent that this depends on culpability.
(2) The Seller shall not
be liable a) in the event of simple negligence on the part of his executive bodies, legal representatives, employees or other vicarious agents;
b) in the event of gross negligence on the part of his non-executive employees or other vicarious agents, insofar
as this is not a breach of material contractual obligations. Essential to the contract are the obligation to timely, faultless delivery and installation as well as consultation, protection and care obligations, which are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client's personnel or third parties or the property of the client from considerable damage.
(3) Insofar as the Seller is liable for damages on the merits pursuant to § 8 (2), this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which, taking into account the circumstances of which he was aware or which he should have been aware, he should have foreseen using customary care. Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected from the intended use of the delivery item.
(4) In the event of liability for simple negligence, the Seller's liability for damages to property or personal injury shall be limited to an amount of EUR 10 million per claim (corresponding to the current coverage amount of its product liability insurance or liability insurance), even if it is a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 shall not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ 9 Retention of title
(1) The following agreed retention of title serves to secure all existing current and future claims of the Seller against the Buyer arising from the supply relationship between the contracting parties (including balance claims arising from a current account relationship limited to this supply relationship).
(2) The goods delivered by the seller to the buyer shall remain the property of the seller until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title which take their place in accordance with this clause are hereinafter referred to as goods subject to retention of title.
(3) The Buyer shall store the reserved goods free of charge for the Seller.
(4) The purchaser is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (paragraph 9) occurs. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and that the seller directly acquires the ownership or - if the processing is carried out from materials of several owners or the value of the processed object is higher than the value of the reserved goods - the co-ownership (fractional ownership) of the newly created object in the ratio of the value of the reserved goods to the value of the newly created object. In the event that no such acquisition of ownership should occur with the seller, the buyer already now transfers his future ownership or - in the above relationship - co-ownership of the newly created object to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall assign to the Buyer, to the extent that the main item belongs to him, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the reserved goods, the buyer hereby assigns to the seller by way of security the resulting claim against the purchaser - in the event of co-ownership by the seller of the reserved goods pro rata in accordance with the co-ownership share. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorises the buyer to collect the claims assigned to the seller in his own name for the account of the seller. The seller may only revoke this direct debit authorisation in the event of a sale.
(7) If third parties have access to the reserved goods, in particular by seizure, the buyer shall immediately inform them of the seller's ownership and inform the seller thereof in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for such costs.
(8) The Seller shall release the reserved goods as well as the items or claims replacing them at his discretion upon request, insofar as their value exceeds the amount of the secured claims by more than 50%.
(9) If the seller withdraws from the contract in the event of conduct contrary to the terms of the contract on the part of the buyer - in particular default in payment - (case of realisation), he shall be entitled to demand the return of the reserved goods.
§ 10 Final provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be at our discretion (Rheine) or the registered office of the Customer. Rheine shall be the exclusive place of jurisdiction for legal actions against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the seller and the client are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed for filling these loopholes which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery had they been aware of the loophole.
The Customer acknowledges that the Seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the performance of the contract.