Legally important notice:
All agreements shall be in German. German law applies exclusively. The German version of these general terms and conditions is binding. The English version is for information purposes only.
- (1) Each contract for the delivery of goods and other services that we enter into with a merchant, a legal entity under public law, or a special fund under public law (that counterparty, the ‘Customer’) is governed exclusively by the following conditions. They also apply to all future deliveries, services, and offers even if they are not agreed again separately.
- (2) Terms of business of the Customer or a nonparty (meaning anyone not a party to the respective contract) apply only insofar as they do not contradict our conditions. This applies even if we do not oppose their applicability in a separate, individual case. Even if we refer to a document that contains or refers to the Customer’s or a nonparty’s terms of business, this does not mean we accept their applicability.
- (3) The legal relationship between us and the Customer is governed exclusively by the contract entered into in text form (through email, telefax, etc.), including these General Terms of Business. That contract constitutes the entire agreement between the parties regarding its subject matter. Oral agreements or promises that we make or enter into before the contract is formed are legally nonbinding. Once entered into, the contract in text form replaces oral agreements or promises unless it explicitly follows from those oral agreements or promises that they continue to apply as binding.
- (4) Any amendments to the agreements that have been entered into, including these General Terms of Business, must be in text form to be effective. Our employees are not authorised to enter into oral agreements that deviate from the agreement made in text form unless the employee in question is a managing director or ‘Prokurist’ [see § 49 et seqq. of the German Commercial Code].
2. Contract formation; Delivery; Cooperation; Transfer of risk
- Our services are nonbinding and subject to change unless they are expressly designated as binding. The contract, which includes these terms, will be deemed entered into only when we have accepted the Customer’s order through an order confirmation.
- Unless otherwise agreed in text form, the delivery will be made ‘Ex Works’ (Incoterms: EXW) to the place named in the order confirmation. If it is agreed that the goods will be sent to the Customer at its request (shipment), the delivery will be made ‘Free Carrier’ (Incoterms: FCA) to the place named in the order confirmation. We shall take care of shipping (if agreed) and packaging at our due discretion but are not required to use the cheapest shipping. We shall insure the shipment against theft; damage from breakage, transport, fire, and water; or other insurable risks only at the Customer’s express request and expense.
- Partial deliveries and corresponding invoices are permissible if the Customer can use the partial delivery within the scope of the contractual purpose, the delivery of the remaining partial deliveries is ensured, and the partial delivery will not incur any considerable additional expense or additional costs for the Customer (unless we agree to assume those costs).
- Delivery periods and deadlines that we propose are always approximate (‘approximate data’) unless they have been expressly agreed in text form as ‘firm’. If shipping has been agreed, delivery periods and delivery deadlines refer to the time of handover to the freight forwarder, carrier, or other nonparty commissioned with the transport.
- Delivery periods begin to run when the Customer receives the order confirmation, but not before the Customer meets its existing obligations to cooperate. These include without limitation providing the documents the Customer shall provide, any downpayment the Customer shall make, and the agreed retrieval of the goods by the Customer. Deadlines will be postponed according to the delay effected by the Customer. If the Customer defaults on retrieving the goods, we may ship them to the Customer or store them, at our discretion, and charge the Customer the typical rates for the shipping or storage.
- If force majeure or other events for which we are not responsible and which are beyond our control make it questionable whether the delivery can be made by the deadline or the time limit, we may postpone the deadline or time limit accordingly. Such events include without limitation delivery delays by our upstream supplier, traffic or operational disruptions of all types, labour disputes, lack or materials and energy, measures taken by government agencies, and import and export restrictions.
- If the preceding events named in paragraph 6 make contract performance questionable or impossible, this will also entitle us to withdraw from the contract in full or (under the conditions of paragraph 3) in part without entitling the Customer to any claims for damages by so doing. We may assert this right, however, only if we notify the Customer in writing of the event in question and of the delivery difficulties it is causing without undue delay after we learn of the event.
- If the goods are sent to or picked up by the Customer, the risk of accidental loss or accidental deterioration of the goods will pass to the Customer when the goods are shipped or picked up, but at the latest when the goods leave the factory or warehouse, regardless of whether the shipping or pickup occurs at the place of performance and who bears the shipping costs. This applies even if partial deliveries are made or we have still taken on other services (such as installation). If the shipment or the pickup is delayed at the Customer’s request or for reasons caused by the Customer, the risk will be transferred to the Customer as soon as the Customer is notified that the goods are ready to be shipped or picked up.
- To ensure that our products will function in the Customer’s system without problems, our technical department must integrate and validate the offered products in cooperation with the Customer. This means the Customer shall cooperate in integrating and validating our products in its system to the necessary extent, particularly by providing the necessary data, information, and system components for testing purposes. The expense for the electrical and mechanical integration is determined before the order is awarded as part of a feasibility assessment that serves as the basis for the offer. To that end, we need the technical documentation of the Customer’s system insofar as our products will come into contact with the the Customer’s system. A nondisclosure agreement (NDA) will be entered into in advance as a basis for the exchange of the relevant data. As part of the integration, we ensure that the individual system components are fully compatible through our measurements and tests to grant the final release. At the end of the integration and validation we give the Customer a release log in which all measurements, tests, and the structure of the overall system that is essential and relevant for the product is documented. The Customer shall not use our products before receiving the release log or in any manner other than in the system documented in the release log.
- Insofar as an acceptance must take place, our performance will be deemed accepted if a) the delivery and any owed installation have been completed, b) we have notified the Customer of this under reference to the assumed acceptance in accordance with this regulation and prompted the Customer to declare express acceptance, c) 12 workdays have passed since the delivery (including installation, if applicable) or the Customer has begun using the purchase object (by setting the delivered system into operation, for example) and in this case 6 business days have transpired since delivery (including Installation, if applicable) and d) the Customer has neglected to declare acceptance within this period for a reason other than a defect that has been shown to us that precludes or significantly impairs the use of the performance. Express acceptance must be declared to us in text form to be effective.
- Reusable pallets, special crates, and other special packaging remain our property and must be returned to us carriage paid immediately after becoming free, without any interim use. If these items are not returned within eight weeks after delivery, we may invoice the Customer for arm’s length prices.
3. Defect claims
- We ensure that the materials used are free of material defects and the execution will be technically flawless. Insofar as we dispense any technical information or are active in an advisory capacity, and that information or advice does not belong to the scope of services we owe under the contract, this information or advice will be given free of charge and we will not be liable for it. And such information or advice does not exempt the Customer from inspecting our products and procedures to make sure they suit the Customer’s purposes. The latter especially applies to compliance with country-specific requirements and statutory regulations in case our delivery is used outside the Federal Republic of Germany.
- The delivered items must be carefully inspected without undue delay after being delivered to the Customer or a nonparty the Customer specifies. They will be deemed accepted by the Customer in regard to obvious defects (or other defects that would have been identifiable if a careful inspection had been performed without undue delay) unless we receive a notice of defects in text form within 7 workdays after delivery or handover. Regarding other defects, the delivered goods will be deemed approved by the Customer if we do not receive the notice of defects within 7 business days after the time at which the defect becomes apparent. But if the defect could have been identified on an earlier date, assuming normal use, that earlier date is determinative for the beginning of the complaint period.
- Delivered goods about which a complaint has been made must be returned to us carriage paid at our request. If a justified notice of defects is made, we shall reimburse the Customer for the costs the Customer incurred for the cheapest shipping route. If we arrange for the delivered goods about which a complaint has been made to be shipped, and we pay the costs for that shipment, we will charge the Customer a reasonable handling fee if the complaint turns out to be unjustified. In both cases, the Customer will be charged if the costs increase because the delivered goods are in a location other than the location of the intended use.
- If there are defects of any kind, we shall initially provide subsequent improvement or a replacement delivery, at our discretion, within a reasonable period. Insufficient quantities will be delivered later as part of subsequent improvement. If a subsequent improvement is impossible, we may provide a replacement delivery. If delivered goods breach commercial or other ancillary copyrights (trademarks rights, design rights, copyrights, patent rights, or utility model rights), we may alter or exchange the delivered goods or licence the lacking ancillary copyrights at our discretion and expense and within a reasonable period. If the supplementary performance fails, the Customer may choose between withdrawing from the contract or reasonably reducing the purchase price. The supplementary performance is deemed to have failed, for example, if a) we allow a reasonable grace period we have been given lapse without having attempted the supplementary performance, b) we unjustifiably refuse to provide the supplementary performance or delay it in a way the Customer cannot be reasonably expected to accept, or c) the second supplementary performance remains in vain.
- If nonparty components in, on, or in connection with our products are delivered, and those components contain defects that we cannot rectify for licensing or actual reasons, we shall at our discretion either assert our warranty claims against that nonparty on the Customer’s behalf or assign those claims to the Customer so the Customer can assert them. In the event of such defects, warranty claims against us exist under the other conditions and based on these GTB only if the legal enforcement of the aforementioned claims against the manufacturer and supplier has failed or is futile from the start (due to insolvency, for example). During such a legal dispute, the statute of limitations regarding the Customer’s warranty claims against us is suspended.
- Any liability for defects arising from natural wear and tear or improper handling of the products is excluded. This also applies to damage arising from incorrect or negligent treatment, excessive use, and disregard of our recommendations for handling, inspecting, and storing our products.
- The warranty is void if the Customer alters or arranges for nonparties to alter the delivered goods without our consent and this makes it impossible or unreasonable to rectify the defects. In any case, the Customer shall bear the additional costs for curing the defect incurred by the alteration.
- The warranty period amounts to one year from delivery or, if an inspection and acceptance procedure is necessary, from acceptance. This period does not apply to Customer claims for damages arising from injury to life, limb, or health; or from an intentional or grossly negligent breach of duty committed by us or our vicarious agents.
- Any delivery of used items is made under exclusion of any guarantee for material defects.
4. Protection of secrecy; Confidentiality; Ownership rights for products provided free of charge
- Products provided free of charge remain our property and must be returned to us on request. Except with written consent, the Customer shall not use the product provided free of charge other than for its intended use, alter its substance, damage or dismantle it, or pass it on to others in full or in part. In the event of noncompliance, the Customer shall compensate us for the damage caused by this conduct in breach of contract even if the damage exceeds the impairment of the substance of our product, without prejudice to our ownership claims.
- The Customer shall not observe, inspect, dismantle, or test our products to discover and obtain information overall, or information about the type and manner of the construction of our products that is not generally known or readily accessible (business secrets), even if the Customer is the lawful owner. This prohibition will end only if we have made our product publicly available or the lawful owner is not subject to any restrictions regarding the obtaining of business secrets. Our products are deemed publicly available if ownership of them has been procured for nonparties as part of a legal transaction. The lawful owner is deemed not subject to any restrictions if that owner has been given permission through a written declaration to observe, inspect, dismantle, or test our products to discover and obtain apparent information.
- Product-specific information of any kind that is given to the Customer and not apparent from the product as a whole or from the type and manner of its construction is deemed a business secret that the Customer shall not use for itself or for others or pass on to nonparties. The Customer shall also be responsible for the compliance with the obligations as per item 4 by its executive bodies, legal representatives, employees, and other vicarious agents.
- In the event of culpable contravention against paragraphs 2 and 3, the Customer shall compensate us for the damage arising from its actions unless exceptions pursuant to § 5 of the German Act on Protecting Secrecy (Geheimnisschutzgesetz, GeschGehG) have been constituted.
- If the Customer learns that nonparties have attempted to procure generally accessible information concerning our products or business secrets connected with them, the Customer shall inform us thereof extensively and without undue delay.
- Our liability to compensate for damage for which we are culpable is unrestricted pursuant to this section 5, regardless of legal grounds, including but not limited to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duty during contract negotiations, and tort.
- We are not liable for ordinary negligence committed by our executive bodies, legal representatives, employees, or other vicarious agents, unless material contract duties have been breached. Material duties are the obligation to deliver and install the delivered goods promptly and free of defects of title and such material defects which impair their functionality or usability more than insignificantly, as well as advising, protection, and care obligations that allow the Customer to use the delivered goods in accordance with the contract or aim to protect life, limb, or property from significant damage.
- If we are liable on the merits to compensate for damage pursuant to the preceding paragraph 2, that liability is limited to damage that we foresaw (or, if using customary diligence, should have foreseen) when the contract was entered into as a possible consequence of a breach of contract. Indirect damage and consequential damage resulting from defects in the delivered goods are compensable only if such damage can be typically expected if the delivered goods are used as intended.
- If we are liable for ordinary negligence, our obligation to compensate for property damage and the resulting additional financial loss is limited to an amount of 200,000 euros per event of damage even if one or more material contract obligations have been breached.
- The preceding exclusions and restrictions of liability apply to the same extent in favour of our executive bodies, statutory representatives, employees, and other vicarious agents.
- The preceding exclusions and restrictions of liability do not apply to our liability based on intentional conduct; for guaranteed characteristics; based on injury to life, limb, or health; or pursuant to the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG).
6. Purchase price; Payment conditions; Default; Setoff
- Unless otherwise agreed in writing, purchase prices are in euros ‘Ex Works’ (EXW) and do not include packaging, applicable statutory VAT, customs fees for exports, fees, or other public charges.
- Unless otherwise agreed, the purchase price must be paid net without any deductions within thirty days after the invoice date. Payment by bill of exchange is allowed only if agreed with us in advance. We accept bills of exchange and cheques only as conditional payment; they will be deemed payment only after they have been redeemed with no reservations.
- The Customer will enter default if it fails to pay within thirty days after the invoice date or on a calendar-based payment date specified in the contract. If the Customer defaults, we may charge default interest amounting to 8 percentage points above the applicable base interest rate.
- We may set off the payments made by the Customer against the oldest due claim even if the Customer has specified another repayment provision.
- We may refuse to render outstanding deliveries or services unless an advance payment or security is provided if, after the contract has been entered into, we learn of circumstances that would tend to significantly impair the Customer’s creditworthiness and jeopardise the Customer’s payment of our unpaid receivables arising from the respective contract relationship (including those arising from other individual orders governed by the same framework agreement).
- The Customer may setoff its liabilities, or withhold payments, based on its counterclaims only if those counterclaims are uncontested or have been finally adjudicated or arise from the same order under which the service in question was rendered.
- We may assign the claims arising from our business relationship.
7. Retention of title; Reservation of rights
- The goods we deliver to the Customer will remain our property until all the secured claims pursuant to paragraph 2 of this section have been completely paid for. The goods, and the goods replacing them that are encompassed by the retention of title pursuant to the following provisions, are referred to hereinafter as the ‘Reserved Goods’.
- The retention of title initially serves to secure all the claims to which we are entitled from the respective delivery (including default costs, etc.). It also serves to secure all our current and future claims against the buyer arising from all the supply relationships existing between us.
- The Customer shall keep the Reserved Goods for us free of charge.
- The Customer may process and resell the Reserved Goods in regular business transactions until the enforcement event pursuant to paragraph 9 of this section occurs. However, the Customer shall not pledge them or transfer them by way of security.
- If the Customer processes the Reserved Goods, the processing will be deemed to have been performed on our behalf and for our account as the manufacturer and we will acquire ownership or – if the processing uses materials from multiple owners and the value of the other processed items is higher than the value of the Reserved Goods — the co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Reserved Goods to the value of the newly created item. If we do not acquire such ownership, the Customer hereby assigns to us by way of security its future ownership or, in the ratio specified above, co-ownership in the newly created item. If the Reserved Goods are combined or inextricably mixed with other items into one unified item, and one of the other items is deemed the main item, the Customer shall assign to us its proportionate co-ownership in the unified item, in the ratio specified above, provided the buyer owns the main item.
- In case the Reserved Goods are resold, the Customer hereby assigns to us by way of security the claims against the buyer arising from that resale. The ratio specified above applies to co-ownership. Other claims that replace the Reserved Goods or otherwise arise regarding the Reserved Goods will be assigned as well, such as insurance claims or claims arising from tort in the event of loss or destruction. We revocably authorise the Customer to collect in its own name the claims assigned to us. We may revoke this authorisation to collect only if an enforcement event occurs.
- If any nonparties lay claim to the Reserved Goods, particularly by pledging them, the Customer shall inform the nonparty of our ownership without undue delay and notify us so we can enforce our ownership rights. If the nonparty is not in a position to reimburse us for the court costs or out-of-court costs incurred in this context, the Customer shall by liable for those costs.
- We shall release the Reserved Goods if their value exceeds the amount of the secured claims by more than 50%. We may choose the items to be released.
- If we withdraw from the contract because the Customer breaches it (enforcement event), particularly by defaulting in payment, we may demand that the Reserved Goods be returned and may collect on our behalf the claims assigned in place of the Reserved Goods.
- Withdrawal from the contract is not necessary to assert the retention of title unless the Customer is a consumer.
8. Place of performance; Forum; Applicable law
- The place of performance for all obligations arising from the order is the location of the delivering plant or warehouse. If we also owe installation, the place of performance is the location at which the installation must take place.
- The sole forum is Hamburg, Germany. This regulation does not affect compulsory statutory provisions concerning exclusive forums.
- The legal relationships between us and the Customer are governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) does not apply.
- Finding one or more provisions to be ineffective or unenforceable, now or after the contract is entered into, will not render the other provisions ineffective. If an ineffective or unenforceable provision is found, it must be replaced by an effective, enforceable regulation whose effects come closest to the economic objective we pursued with the replaced provision. This applies mutatis mutandis if these provisions are found to contain loopholes.Status: June 2022