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.
- The following terms and conditions apply – exclusively – to any contract for the delivery of goods and other services between us and a merchant, a legal entity under public law and a special fund under public law (hereinafter referred to as “Customer”). They shall also apply to all future deliveries, services or offers, even if they are not separately agreed again.
- Terms and conditions of the Customer or third parties shall not apply, even if we do not separately object to their application in individual cases. Even if we refer to a document containing or referring to the terms and conditions of the customer or third parties, this shall not constitute an agreement to the validity of those terms and conditions.
- 3.The contract concluded in text form (e.g. by e-mail, fax, etc.), including these General Terms and Conditions, shall be solely authoritative for the legal relationship between us and the customer. The contract fully reflects all agreements between the parties on the subject matter of the contract. Verbal agreements or promises on our part prior to the conclusion of the contract are legally non-binding and verbal agreements or promises shall be replaced by the contract in text form unless it is expressly stated in each case in the verbal agreements or promises themselves that they shall continue to apply in a binding manner.
- 4.Additions and amendments to the agreements made, including these General Terms and Conditions, must be made in text form in order to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements that deviate from the agreement made in text form.
2.Conclusion of contract, delivery and transfer of risk
- Our offers are subject to change and non-binding, unless they are expressly marked as binding. The contract shall only be concluded, subject to these terms and conditions, when the customer’s order is accepted by us by way of order confirmation.
- Unless otherwise agreed in text form, delivery shall be made “ex works” (Incoterms: EXW) at the place specified in the order confirmation. If it is agreed that the goods will be sent to the customer at the customer’s request (shipping), delivery shall be made “Free Carrier” (Incoterms: FCA) from the place specified in the order confirmation. Shipping (if agreed) and packaging shall be carried out by us at our discretion, but we shall not be liable for the cheapest shipment. We shall only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request and expense of the customer.
- Partial deliveries and corresponding settlements are permissible if the partial delivery is usable for the customer within the scope of the contractual intended purpose, the delivery of the remaining partial deliveries is ensured and the customer does not incur any significant additional expenses or costs as a result (unless we declare our willingness to bear these costs).
- Delivery periods and dates promised by us are always only approximate (so-called circa information), unless they are expressly agreed as “fixed” in text form. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
- The delivery period shall commence upon receipt of the order confirmation by the customer; however, not before the customer has fulfilled any existing obligations to cooperate. These are in particular the provision of the documents to be procured by the customer, a down payment to be made or the agreed call-off of the goods by the customer. Deadlines shall be postponed accordingly by the delay caused by the customer. If the customer is in default with the call-off, we reserve the right to dispatch the goods to the customer against invoice or to store them at our discretion and to invoice the customer for the dispatch or storage at the usual rates.
- Force majeure and other events beyond our control, for which we are not responsible and which may jeopardize timely and punctual delivery, entitle us to extend the delivery period appropriately or to postpone the delivery date appropriately. Such events can be, in particular, delivery delays on the part of our suppliers, traffic and operational disruptions of all kinds, labor disputes, shortages of materials and energy, measures by government authorities as well as import and export restrictions.
- If the aforementioned events seriously jeopardize the fulfillment of the contract or make it impossible, this shall also entitle us to withdraw from the order in whole or – under the conditions of paragraph 3 above – in part, without the customer being entitled to claim damages as a result. However, we can only invoke this if we notify the customer of this and the resulting delivery difficulties in writing immediately after the events become known.
- If the goods are sent to or collected from the customer, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon their dispatch or collection, but no later than upon their leaving the factory or the warehouse, irrespective of whether the dispatch or collection takes place from the place of performance and who bears the freight costs. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. installation). If dispatch or collection is delayed at the customer’s request or for reasons attributable to the customer, the risk shall pass to the customer as soon as he has been notified that the goods are ready for dispatch or collection.
- Insofar as acceptance is to take place, our performance shall be deemed to have been accepted if a) the delivery and any installation owed have been completed, b) we have notified the customer of this with reference to the fiction of acceptance in accordance with this provision and have requested the customer to expressly accept the performance, c) 12 working days have elapsed since delivery (including installation, if applicable) or the customer has started to use the purchased item (for example, has put the delivered system into operation) and in this case 6 working days have elapsed since delivery (including installation, if applicable) and d) the customer has failed to accept within this period for a reason other than a defect notified to us which makes it impossible to use the service or significantly impairs its use. An express acceptance must be declared to us in text form.
- Reusable pallets, special crates, and other special packaging remain our property and are to be returned to us freight paid immediately after being released without interim use. If these items are not returned within eight weeks after delivery, we are entitled to charge them to the customer at the usual market price.
3. claims for defects
- We guarantee the use of material free of material defects and the technical execution free of material defects. Insofar as we provide technical information or advice and such information or advice is not part of the contractually agreed scope of services owed by us, this shall be provided free of charge and to the exclusion of any liability. Such information or advice shall also not release the customer from the obligation to check our products and processes for their suitability for his purposes himself. The latter shall apply in particular to compliance with country-specific specifications and statutory regulations in the event that our delivery is used outside the Federal Republic of Germany.
- The delivered items are to be carefully inspected immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the customer if we do not receive a notice of defect in text form within 7 working days after delivery or handover. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if we do not receive notification of the defect within 7 working days of the time at which the defect became apparent. If the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the commencement of the period for giving notice of defects.
- At our request, a delivery item which is the subject of a complaint shall be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the customer for the costs incurred by him for the most favorable shipping route. If we arrange for the shipment of the delivery item complained about and incur the costs for this, we shall charge the customer an appropriate handling fee if the complaint proves to be unjustified. In both cases, it shall be at the expense of the customer if the costs increase because the delivery item is located at a place other than the place of intended use.
- In the event of defects of any kind whatsoever, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. Missing quantities shall be delivered subsequently within the scope of the rectification of defects. If rectification is not possible, we shall have the right to make a replacement delivery. In the event that a delivery item infringes industrial or other intellectual property rights (trademark, design, copyright, patent or utility model rights), we shall be entitled, at our discretion, to modify or replace the delivery item at our expense within a reasonable period of time or to re-license the missing intellectual property rights at our expense. In the event of failure of subsequent performance, the customer may withdraw from the contract or reasonably reduce the purchase price. Subsequent performance shall be deemed to have failed, for example, if we a) allow a reasonable period of grace granted to us to elapse without having attempted to remedy the defect, if we b) refuse to remedy the defect without justification or unreasonably delay remedying the defect, or if c) the second attempt to remedy the defect also remains unsuccessful.
- In the event of defects in components supplied by third parties in or on or in connection with our products and which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, either assert our warranty claims against such third parties for the account of the customer or assign such claims to the customer for the customer’s own assertion. In the event of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or if such enforcement – for example due to insolvency – is futile from the outset. During the duration of such a legal dispute, the statute of limitations of the affected warranty claims of the customer against us shall be suspended.
- Liability for defects due to natural wear and tear and improper handling of the products is excluded. The same applies to damage caused as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, non-observance of our recommendations for the handling, testing and storage of our products.
- The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
- Any delivery of used items shall be made to the exclusion of any warranty for material defects.
4.Protection of secrets, confidentiality, property rights for products provided free of charge
- Products provided free of charge shall remain our property and shall be returned to us upon request. The customer is prohibited from using the product provided free of charge other than for its intended use, from changing its substance or damaging or disassembling it, or from passing it on to others in whole or in part, without written permission. In the case of disregard, the customer is obligated to compensate us for the damage resulting from this conduct in violation of the contract, in addition to the claims under property law, even if the damage to the substance of our product goes beyond this.
- Observing, examining, deconstructing or testing our products in order to uncover and obtain information as a whole or about the way in which our products are constructed which is not yet generally known or readily accessible (trade secrets) is prohibited, even if the customer is the rightful owner. The prohibition ends only when our product has been made publicly available by us or the rightful owner is no longer subject to restrictions on obtaining trade secrets. Our products are deemed to have been made publicly available when third parties have been given ownership of them in a legal transaction. The rightful owner is not restricted from observing, examining, disassembling or testing our products to discover and obtain information therefrom by written declaration.
- Product-specific information of any kind provided to the customer which is not apparent from the product as a whole or from the manner in which it is constructed shall be trade secrets which the customer may not use for itself or for others and/or disclose to third parties. The customer shall be responsible for ensuring that the obligations set out in Clause 4 are also complied with by its executive bodies, legal representatives, employees or other vicarious agents.
- In the event of a culpable infringement of subsections 2 and 3, the customer shall be obligated to compensate us for any damage resulting from its actions, unless exceptions exist pursuant to § 5 of the German Secrets Protection Act.
- If the customer becomes aware that third parties are attempting to obtain generally accessible information about our products or related business secrets, he undertakes to inform us immediately and comprehensively.
- Our liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Section 5, insofar as fault is involved in each case.
- We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that it is free from defects of title and material defects which impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect life or limb or to protect property from significant damage.
- Insofar as we are liable on the merits for damages in accordance with the above paragraph 2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item shall only be compensable insofar as such damage is typically to be expected when the delivery item is used as intended.
- In the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of € 200,000.00 per case of damage, even if this involves a breach of material contractual obligations.
- The above exclusions and limitations of liability shall apply to the same extent in favor of our executive bodies, legal representatives, employees and other vicarious agents.
- The above exclusions and limitations of liability shall not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
6. Purchase prices, terms of payment, default, set-off
- Unless otherwise agreed in writing, the purchase prices are quoted in Euro “ex works” (EXW), plus packaging, the applicable statutory value-added tax, customs duties in the case of exports, as well as fees and other public charges.
- The purchase price shall be paid net within thirty days of the invoice date without any deductions, unless otherwise agreed. Payment by bill of exchange is only permissible after prior agreement with us. Bills of exchange and cheques shall only be accepted by us on account of performance and shall only be deemed to be payment after unconditional encashment.
- The customer shall be in default if he fails to make payment within thirty days of the invoice date or at a payment date specified in the contract in accordance with the calendar. In the event of default, we shall be entitled to charge interest on arrears at a rate of 8 percentage points above the base interest rate applicable at the time.
- We shall be entitled to set off payments made by the customer against the oldest claim due, even if the customer has stipulated otherwise.
- We shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which jeopardize the payment of our outstanding claims by the customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
- Offsetting against counterclaims of the customer or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have become res judicata or arise from the same order under which the relevant service was rendered.
7.reservation of title, reservation of rights
- The goods delivered by us to the customer shall remain our property until full payment of all claims secured in accordance with subsection 2 of this section. The goods, as well as the goods taking their place in accordance with the following provisions and covered by the retention of title, are hereinafter referred to as reserved goods.
- The retention of title shall first serve to secure all claims to which we are entitled from the respective delivery (including default costs, etc.). It also serves as security for all our existing current and future claims against the customer arising from all delivery relationships existing between us.
- The customer shall store the reserved goods for us free of charge.
- The customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the case of realization according to para. 9 of this section arises. However, pledging and transfer of ownership by way of security shall not be permitted.
- If the reserved goods are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or – if the processing is carried out from materials of several owners and the value of the other processed items is higher than the value of the reserved goods – 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. In the event that no such acquisition of ownership should occur on our part, the customer shall already now transfer to us its future ownership or, in the above-mentioned ratio, its co-ownership of the newly created item 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 customer shall transfer to us, insofar as the main item belongs to him, his co-ownership of the uniform item on a pro rata basis in the above-mentioned ratio.
- In the event of resale of the reserved goods, the customer hereby assigns to us by way of security the claims against the purchaser arising therefrom. In the case of co-ownership, this shall apply in the above-mentioned ratio. Likewise assigned are 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 in tort in the event of loss or destruction. We revocably authorize the customer to collect the claims assigned to us in his own name. We may only revoke this collection authorization in the event of realization.
- If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the customer shall immediately notify the third parties of our ownership and inform us thereof in order to enable us to enforce our ownership rights. If the third party is not in a position to reimburse the judicial or extrajudicial costs incurred by us in this connection, the customer shall be liable for them.
- We shall release the reserved goods insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at our discretion.
- If we withdraw from the contract in the event of a breach of contract by the customer, in particular in the event of default in payment (enforcement event), we shall be entitled to demand the return of the goods subject to retention of title as well as to collect the claims in our name which have taken the place of the goods subject to retention of title.
8.Place of performance, place of jurisdiction and applicable law
- The place of performance for all obligations arising from the order shall be the place of the supplying plant or warehouse. If we also owe the installation, the place of performance shall be the place where the installation is to take place.
- The sole place of jurisdiction is Hamburg, Germany. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
- The legal relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) shall not apply.
- Should individual provisions be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which most closely approximate the economic objective we pursued with the invalid or unenforceable provision. This shall apply accordingly in the event that these provisions prove to be incomplete.
Status: October 2020