- The general law shall apply to all contracts, unless these standard terms and conditions provide to the contrary. Inconsistent terms of the Buyer shall not apply even if we do not take issue over them.
- Our offers are made without obligation on our part.
- Oral agreements or amendments to the contract must be confirmed by us in writing in order to be valid.
- The special terms of section IX. of these Standard Terms and Conditions shall apply to the supply of special machines and shall have priority over the other terms. The Standard Terms and Conditions in Sections I. to VIII., X. and XI. shall be supplementary and apply to all supplies and services.
II. Scope of our duty to deliver
- Our confirmation of the order or an individually negotiated contract for supply shall be applicable. Any information on technical design (for example design drawings and illustrations) only describes the basic function of the subject matter of the contract. If such information contains performance characteristics such performance specifications shall determine what is to be deemed performance for the purposes of the contract. With regard to compliance with performance characteristics our liability shall be determined solely pursuant to Section VII. unless we have expressly assumed a guarantee therefor.
- We reserve the right to change the goods in relation to their structure and design to bring them into line with technical developments providing the performance characteristics of the goods as a whole are not thereby altered. We shall inform the Buyer in advance of material changes in structure and design.
III. Terms of payment
- If the Buyer is a company, a legal person under public law or a special public fund and he is in default with payment of claims due he shall pay default interest of 8 % per annum above the respective basic interest rate (“Basiszinssatz”). If the Buyer is a consumer default interest shall be due at the rate of five percentage points above the respective basic rate (“Basiszinssatz”) of interest per annum.
- A right of set-off or retention of title is only possible if the Buyer’s rights are undisputed or have been recognized by declaratory judgement.
- If the Buyer fails to pay for more than two weeks or its financial situation deteriorates materially all payments owed by the Buyer shall become immediately due and payable. We may demand payment in advance or security for further deliveries.
- If the solvency of our remuneration is dependent on the co-operation of the Buyer and the Buyer does not supply this in time thus creating a delay in the time of payment of the remuneration we can then demand the remuneration at the point at which it would have been due with the regular co-operation of the Buyer. Furthermore, the additional expense incurred by the Buyer’s lack of co-operation is to be compensated for.
IV. Time for delivery and carrying out work
- Periods for delivery and carrying out work do not run until
- all technical details on performance of the contract have been clarified by both parties (for example, securing the floor,connections, extensions, arrangement of switch boxes) and
- we have at our disposal the information and documents belonging to the Buyer which we require to carry out delivery and service, particularly, drawings, procedural data, samples or test material all supplied in the necessary, agreed, flawless condition.
- Dates and time periods shall not be binding unless otherwise specifically agreed.
- If it has been agreed that documents and information or parts will only be available after production has begun on the goods to be delivered, e.g. for function or inspection tests, then the delivery dates and periods shall be extended by the period for which the availability of the necessary, agreed, flawless documents, information or parts was delayed by the Buyer or the Buyer fails to make its payment on time. Should the delay amount to more than three working days, we are then entitled to demand a new agreement on delivery periods and dates, bearing in mind that we must always fully utilise our personnel and other resources.
- Dates and time periods shall be extended by the duration of any industrial action and in cases of force majeure. This does not apply if the actual interruption in business was foreseen at the time the contract was concluded and we failed to take reasonable remedial measures at that time.
- If a non-binding date for delivery or a non-binding period for delivery has not been met, the Buyer can set a reasonable time limit, but a time limit of at least 6 weeks, for delivery. There is no need for the Buyer to set a time limit if the date or period for delivery is agreed to be binding. If performance is not made within the deadline set by the Buyer in accordance with sentence 1 or within the agreed binding deadline the Buyer may not withdraw from the contract or demand compensation unless it has set us a reasonable deadline beforehand stating that it will not accept our performance once the deadline has expired. Claim for performance lapses on expiry of such extended deadline. Extension of a deadline pursuant to sentence 3 is not required if we have categorically and conclusively refused subsequent remedy. Withdrawal from the contract is not possible if the circumstances entitling the buyer to withdraw lie solely or predominantly in the sphere of responsibility of the customer.
V.Passing of risk, delivery in part
- Dispatch shall be from our factory or warehouse at the risk of the Buyer. This applies if freight-paid delivery has been greed or we have undertaken the installation. We are not obliged to take out transportation insurance.
- If dispatch is delayed due to action by the Buyer the Buyer shall bear the risk from the day on which the goods are ready for dispatch.
- We may make delivery in part unless otherwise specifically agreed. The provisions of V. and VI. shall apply accordingly.
VI. Retention of title
- We shall retain title to the goods delivered by us (Reserved Goods) until all claims arising from our business relationship with the Buyer have been satisfied. Transfer of the Reserved Goods to a third party is only permissible if the transfer is in the ordinary course of the Buyer’s business and the Buyer retains title to the Reserved Goods until all claims arising from its business relationship with the third party have been met. If the Buyer delays in making payment we may – without withdrawing from the contract – take back the Reserved Goods, make use of them and set off any gains arising from such use against our existing claims.
- The Buyer hereby assigns to us its claims arising from the resale and all ancillary rights to the extent of the purchase price or works fee due to us from the Buyer. The Buyer has the right to collect the sum due under the claim assigned to us in its own name until such right is withdrawn. We may only withdraw such right if the Buyer is in default of payment.
- If the goods are incorporated into other goods so that they become an integral part of the new goods we shall become co-owner of the new goods. We shall in every case become co-owners where new goods are created by incorporating or processing the goods notwithstanding §§ 947, 950 German Civil Code. In both cases the Buyer shall hold the goods for us in safe custody at its own expense. Our share as co-owner shall be determined in both cases by the proportion the invoice value of the Reserved Goods bears to the marketable value of the new goods. Clause 1. above shall apply to the sale of the new goods and the part of the claim corresponding to our share as co-owner shall be assigned.
- If the total value of the Reserved Goods which the Buyer has in its possession plus the value of the claims assigned to us exceed the amount of our claim against the Buyer by 20 % of such claim we shall release the remaining securities at our option.
- We are entitled, until the agreed price has been paid in full, to insure the Reserved Goods sufficiently against theft, destruction and damage at the Buyer’s expense unless the Buyer can show that he has taken adequate insurance at his own expense.
- If the goods we deliver are defective or our performance is poor the Buyer can demand that we remedy the defect or deliver goods in replacement at our option.
- If the Buyer, having made the first demand without result, sets a further time limit stating that the subsequent performance is to be rejected after expiry of the time limit and the defect is still not remedied after two attempts or replacement goods are not delivered, the Buyer may withdraw from the contract or reduce the remuneration for our performance by an appropriate amount. In addition to reducing the remuneration or reversing the contract the Buyer may demand compensation pursuant to No. 8 and Section VIII. It is not necessary to set deadline threatening to refuse acceptance if we have categorically and conclusively refused subsequent performance.
- If it is either impossible for us to remedy the defect by means of subsequent performance or if the defect can only be remedied by subsequent by disproportionate means we are entitled to indicate to the customer ways of avoiding the effects of the defect. If the effects of the defect can thereby be avoided the Buyer may only withdraw from the contract if, in spite of the possibility of avoiding the effects of the defect, it is unreasonable to expect him to comply with the terms of the contract. In as far as the Buyer is entitled to reduce remuneration or to demand compensation adequate account must be taken of the option of avoiding the effects of the defects.
- We shall not be liable for public statements made in our advertising or in the advertising of another manufacturer of the goods supplied or its agents, if and in as far as the Buyer is unable to prove that the statements have influenced its decision to purchase or if we were not and could not be expected to be aware of such statement or if the statement had already been corrected accordingly at the time the Buyer decided to place the order.
- If the defect is caused by a defect in the product supplied to us and the supplier was employed by us as our vicarious agent) our warranty shall be limited to assignment of the claims for defects which we have against the supplier. In the event that the claims for defects are not satisfied even after recourse to the courts claims for defects may than be brought against us. This is not valid if the Buyer instructed us to use deliveries or supplies from a certain supplier and we expressed misgivings on this instruction. If the defect is caused by a defect in the product supplied to us and the supplier did not act as our vicarious agent but we simply forwarded its product onto the Buyer, our guarantee is limited to the assignment of our claims for defects against the supplier. The above sentences do not apply if the defect relates to improper handling of the supplier’s product for which we are responsible.
- We can refuse to remedy the defect or replace the goods until the Buyer has paid the agreed price less an amount corresponding to the economic significance of the defect or the warranted characteristic.
- Notice of the defects must be given in writing and contain a comprehensible description of the defects.
- Claims of the Buyer based on defects become statute-barred after one year. The limitation period begins on handover. If acceptance has been agreed upon the limitation period shall begin on acceptance. For latent defects the limitation period shall commence at the time specified in sentence 2.
- If a consumer has received our defective supply or service by way of further sale from the customer or another purchaser the above limitations or claims based on defects shall not apply if
- sale of our supply and services has been effected to the consumer has been effected solely by companies;
- the Buyer asserts claims for defectiveness in our deliveries or supplies in its capacity as a company involved in sale of our deliveries and services and
- the Buyer is asserting claims for defectiveness in our deliveries or supplies – including the claim for compensation for expenditure incurred by it vis-à-vis its contractual partners for remedying defects (§ 478 (2) German Civil Code).
In this case the Buyer’s claims for defects shall not become statute-barred prior to expiry of two months after the Buyer has satisfied the claims for defects asserted against it or later than five years after we have delivered the subject of the contract to the Buyer.
VIII. Liability, Compensation
- We have unrestricted liability for damage caused by intent or gross negligence. The same shall apply to culpably caused damage arising from injury to life, body or health.
- With regard to warranties we are liable solely subject to any individual warranty agreement.
- We are liable for damages caused by the infringement of cardinal obligations. Cardinal obligations are obligations which are fundamental to the contract and which were prerequisites to conclusion of the agreement whereby Buyer had implicit confidence in the fulfilment of such obligations. If we infringe cardinal obligations owing to slight negligence, the resultant liability for damages is limited to foreseeable damage typical of this type of contract.
- In the event of product liability claims we shall be liable pursuant to the Product Liability Act (Produkthaftungsgesetz).
- We shall not accept any other liability irrespective of the legal ground.
IX. Special terms for special machinery
- If the goods have been produced for the particular requirements of the Buyer and which we have never produced in this form for the purpose given by the Buyer and the Buyer is aware of this fact the following special terms apply.
- If delay in delivery results from unforeseen difficulties of a structural or other technical nature we shall only be deemed in default following expiry of a further period of time according to the special circumstances.
- The goods are capable of being accepted regardless of the agreed performance characteristics if, considering the relevant technical difficulties of the material to be worked and the efficiency for the Buyer, they can perform adequately. The Buyer can demand a reduction in price to the extent that the goods which are capable of being accepted do not achieve the agreed performance if such a reduction is reasonable.
- Should it be economically impossible to fulfil the contract we may refuse performance. The Buyer is entitled to withdraw from the contract and may – subject to Section VIII. – demand compensation.
X. Protection of data and know how, Right of use
- We are entitled to store in the sense of the Federal Data Protection law, revise and pass on to third parties in the course of carrying out the contract, data which we have received from the Buyer as part of the business relationship, whether from a Buyer or third party.
- The Buyer will treat as highly confidential information about our operational know-how, particularly but not solely, any business secrets, and not reveal these to third parties, unless contractual obligations require this. Should it be necessary to reveal our operational know-how to a third party to fulfil a contractual obligation, then the Buyer must inform us of this.
- As far as computer programs, regardless of the form they take, form part of our deliveries and services, the rights granted to the Buyer on delivery are restricted to use of the programmes in connection with the goods delivered, exclusively in connection with the running of the Buyer’s business. If the Buyer passes the software to a third party the Buyer shall contractually impose on such third party the obligation not to use the software other than in compliance with the scope of utilisation granted previously to the Buyer and shall inform us without undue delay accordingly, providing details of the third party (name, address, for legal entities name/s of authorised representative/s) and to delete irreversibly any remaining copies of our software. The Buyer is prohibited from using the software with which we provided it for the purpose of operating one machine at for several machines the same time and from leasing it to third parties. For programmes which we have obtained from third parties, the limitations granted on licence by the respective third party apply in addition; we informed the Buyer of these limitations on conclusion of the contract.
- The contract shall be performed and payment shall be made at our registered office. The courts of Recklinghausen shall have jurisdiction. This applies only if the Buyer is businessman (Kaufmann) and is not a legal person or a special fund for public law purposes (juristische Person des öffentlichen Rechts oder öffentlich-rechtliches Sondervermögen).
- German law shall apply exclusively. The Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply.
- If individual provisions of the contract including these General Terms and Conditions of Business should be or become invalid in whole or in part this shall not affect the validity of the other provisions. In such an event the Buyer is obliged to cooperate with us in establishing legally valid substitute provisions which reflect as closely as possible the economic intent of the invalid provision. (Status 2002)