1. Scope of application
- 1.1 For the business relationship with our customers, also for information and advice, the following terms and conditions ( GTC ) shall apply exclusively. When our General Terms and Conditions have been introduced into the business with the customer, they shall also apply to all further business relations between the customer and us, unless otherwise agreed in writing. Terms and conditions of the customer shall only apply if and insofar as we expressly acknowledge them in writing. In particular, our silence with regard to such deviating terms and conditions shall not be deemed recognition or consent, not even in the case of future contracts. Our terms and conditions shall also apply instead of any purchasing terms and conditions of the customer if these provide for acceptance of the order as unconditional acceptance of the purchasing terms and conditions, or if we deliver after reference by the customer to the validity of his general purchasing terms and conditions, unless we have expressly waived the validity of our general terms and conditions ́s. By accepting our order confirmation, the customer expressly acknowledges that he waives his legal objection derived from the conditions of purchase.
2. Information, advice, characteristics of the products
- 2.1 Information and explanations regarding our products are provided exclusively on the basis of our previous experience. The values stated here are to be regarded as average values. All information about our products, in particular the illustrations, drawings, dimensional and performance data contained in our offers and brochures as well as other technical information are approximate average values. Also not with tolerances provided characteristic data, as they are contained in catalogs and/or operating instructions as well as pieces of advice and references of our coworkers are subject to industry-usual deviations and changes by technical developments. Our instructions for use have been drawn up with the care customary in the industry, but do not release our customers from the obligation to test the products for the purpose for which they were intended.
- 2.2 We shall only assume an obligation to advise by virtue of a written consulting contract.
- 2.3 A reference to standards, similar technical regulations as well as technical information, descriptions and illustrations of the delivery item in offers and brochures and our advertising shall only constitute a statement of the characteristics of our products if we have expressly declared the condition as a "characteristic" of the products; otherwise it is a matter of non-binding general descriptions of services.
- 2.4 A guarantee shall only be deemed to have been assumed by us if we have designated a property as guaranteed in writing.
3. Samples; models
- The properties of samples or models produced shall only become part of the contract if this has been expressly agreed in writing.
4. Conclusion of contract, scope of delivery, acceptance
- 4.1 Our offers are subject to change without notice unless they are marked as binding. They are invitations to place orders. A contract is only concluded - even in the course of ongoing business - when we confirm the customer's order in writing (also by fax or e-mail). Our order confirmation is decisive for the content of the delivery contract.
- 4.2 All agreements, subsidiary agreements, assurances and contract amendments require the written form. This also applies to the waiver of the written form agreement itself. Oral changes or additions to the contract are null and void.
- 4.3 In the case of call-off orders or customer-related acceptance delays, we shall be entitled to procure the material for the entire order and to manufacture the entire order quantity immediately. Any changes requested by the customer can therefore no longer be considered after the order has been placed, unless this has been expressly agreed.
- 4.4 The customer must inform us in writing of any special requirements for our products in good time before conclusion of the contract.
- 4.5 If acceptance of the products or dispatch is delayed for reasons for which the customer is responsible, we shall be entitled, after setting and expiry of a 14-day grace period, to demand immediate payment of the purchase price at our discretion or to withdraw from the contract or to refuse performance and claim damages instead of full performance. The deadline must be set in writing. We do not have to refer here again to the rights from this clause. In the event of a claim for damages, the damages to be paid shall amount to at least 10% of the net delivery price. We reserve the right to prove another amount of damage or the non-occurrence of damage.
- 4.6 In the event of a delayed delivery order or call-off on the part of the customer, we shall be entitled to postpone delivery by the same period of time as the customer's arrears plus a measured disposition period.
5. Delivery, delivery time, delay in delivery, return of goods
- 5.1 Binding delivery dates and periods must be agreed expressly and in writing. In the case of non-binding or approximate (approx., approx., etc.) delivery dates and periods, we shall endeavour to observe them to the best of our ability.
- 5.2 Delivery periods shall commence upon receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other conditions to be fulfilled by the customer have been met, in particular agreed down payments have been made in full; the same shall apply accordingly to delivery dates. If the customer has requested changes after placing the order, a new delivery period shall commence with the confirmation of the change by us.
- 5.3 Deliveries before expiry of the delivery period are permissible. In
the case of hollow debts, the day of notification of readiness for
dispatch shall be deemed the day of delivery, otherwise the day of
dispatch of the products. We are entitled to make partial deliveries.
In the absence of any other written agreement, the interest in our performance shall only lapse if we do not deliver essential parts or deliver them delayed.
Unless otherwisgreed, delivery shall take place within the agreed delivery period at our discretion in the case of long-term contracts with call-off as well as in the case of individual contracts. We may tender the goods on the 1st working day after conclusion of the contract and at any time within the delivery period during normal business hours.
- 5.4 If we are in default of delivery, the customer must first grant us a reasonable grace period of at least - unless unreasonable - 7 days for performance. If this period expires fruitlessly, claims for damages due to breach of duty - for whatever reason - shall only exist in accordance with the provision in Clause 11.
- 5.5 If we have not rendered the service on a date specified in the contract or within a period specified in the contract, the customer may only withdraw from the contract if he has bound his interest in performance in the contract to the timeliness of the service.
- 5.6 We shall not be in default as long as the customer is in default with the fulfilment of obligations towards us, including those arising from other contracts.
6. Reservation of self-delivery; force majeure and other hindrances
- 6.1 If, for reasons for which we are not responsible, we do not receive delivery or performance from our sub-suppliers, or do not receive delivery or performance correctly or on time, or if events of force majeure occur, we shall inform our customer in writing in good time. In this case, we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled, provided that we have complied with our above obligation to provide information and have not assumed the procurement risk. The higher authority shall be equal to strike, lockout, official intervention, energy and raw material shortage, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, e.g. due to fire, water and machine damage, and all other hindrances which, from an objective point of view, have not been culpably caused by us.
- 6.2 If a binding delivery date or delivery period has been agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events according to 6.1, the customer shall be entitled to withdraw from the contract due to the unfulfilled part after a reasonable grace period has elapsed without result, if it is objectively unreasonable for him to continue to adhere to the contract. Further claims of the customer, in particular claims for damages, are excluded in this case.
7. Delivery and passing of risk
- 7.1 Unless otherwise agreed in writing, the goods shall be dispatched by us uninsured and at the risk and expense of the customer in the event of a debt of God or fate. We reserve the right to choose the transport route and the means of transport.
- 7.2 The risk of accidental loss or accidental deterioration shall pass to the customer when the products to be delivered are handed over to the customer, the forwarder, the carrier or any other company designated to carry out the shipment, but at the latest when the goods leave our works, the warehouse or the branch office, unless a debt of performance has been agreed.
- 7.3 If the shipment is delayed because we make use of our right of retention due to total or partial default of payment on the part of the customer, or for any other reason for which the customer is responsible, the risk shall pass to the customer at the latest from the date of notification that the goods are ready for shipment.
8. Breach of duty / warranty
- 8.1 Recognizable defects must be notified to us in writing by the customer immediately, but no later than 12 days after performance - also with regard to a part of the service which can be used by the customer - of hidden defects immediately after discovery, but no later than within the warranty period in accordance with Section 8.6. A non Complaints in due time or form exclude any claim of the customer arising from breach of duty due to poor performance.
- 8.2 In addition, the transport company must be notified of any defects that are recognizable upon delivery and the transport company must arrange for the defects to be recorded. Complaints must contain a detailed description of the defect to the best of the carrier's ability. A complaint that is not made in due time or form excludes any claim by the customer for breach of duty due to poor performance. Insofar as defects in quantity and weight were already identifiable at the time of delivery in accordance with the aforementioned inspection obligations, the customer shall notify the carrier of these defects upon receipt of the products and have the complaint certified. A complaint which is not made in due time or form also excludes any claim by the customer arising from breach of duty due to poor performance in this respect.
- 8.3 Other breaches of duty must be promptly remedied in writing by the customer before asserting further rights, setting a reasonable remedy period.
- 8.4 If a defect exists, it shall be remedied at our discretion - with
the exception of the case of delivery recourse pursuant to §§ 478, 479
BGB (German Civil Code) - by repair or replacement free of charge -
whereby we shall be entitled to two attempts at subsequent performance.
Defects for which the customer himself is responsible and unjustified complaints shall be made by us, insofar as the customer is a merchant, on behalf of and at the expense of the customer.
- 8.5 Insofar as the breach of duty does not exceptionally relate to a work performance on our part, rescission shall be excluded insofar as our breach of duty is insurmountable. With the exception of liability for defects, rescission shall also be excluded if we are not responsible for the breach of duty.
- 8.6 For demonstrable material, manufacturing or construction defects, we warrant for a period of one year, calculated from the day of the statutory commencement of the limitation period, unless something to the contrary has been expressly agreed or a case of § 478 BGB (right of recourse) exists. This does not apply to claims for damages due to injury to life, limb or health, intentional or fraudulent actions.
- 8.7 The above limitation period shall also apply to competing claims arising from unlawful acts as well as to any claims arising from consequential harm caused by a defect.
- 8.8 Our warranty shall lapse if the serial number on the object of purchase is removed by the purchaser.
- 8.9 If the customer or a third party carries out improper repairs, there shall be no liability on our part for the resulting consequences. Repairs must only be carried out by the manufacturer. The same applies to changes to the delivery item made without our prior and written consent.
- 8.10 Further claims of the customer due to or in connection with defects or consequential damage caused by defects, for whatever reason, shall only exist in accordance with the provisions in Clause 11, insofar as these are not claims for damages under a guarantee which is intended to protect the customer against the risk of any defects. In this case, too, we shall only be liable for typical and foreseeable damage.
- 8.11 Our warranty and liability shall be excluded insofar as defects and related damages cannot be proven to be due to faulty material, faulty design or workmanship or defective assembly instructions. In particular, the warranty and liability are excluded for the consequences of incorrect use (in particular in the case of assembly or installation contrary to the assembly instructions which does not correspond to the state of the art), failure to carry out the required maintenance work or unusual wear and tear of the products, excessive use or unsuitable operating materials, unhealthy site and/or environmental conditions as well as for example the consequences of chemical, electromagnetic, mechanical or electrolytic influences which do not correspond to the intended average standard influences.
- 8.12 We do not provide warranty for parts which wear out during proper use of the products and / or have to be replaced regularly by the customer in order to maintain proper function, or are subject to consumption or wear and tear, or for consumables whose best-before date is limited and exceeded, insofar as the malfunction is caused by wear and tear.
- 8.13 We do not guarantee for the following defects:
- damage resulting from the use of accessories, consumables, hardware and software that do not comply with the manufacturer's specifications
- errors resulting from misuse or use of the system or improperly installed systems
- Faults beyond the manufacturer's control, such as fire, water and lightning damage
- Errors caused by the transport of the system.
- 8.14 Warranty claims do not exist in the case of only insignificant deviations from the agreed or customary condition or quality.
- 8.15 The recognition of breaches of duty, in particular in the form of material defects, shall always require the written form.
9. Prices, terms of payment, plea of uncertainty
- 9.1 All prices are always quoted in Euro excluding packaging, freight and any surcharge for small quantities ex works or warehouse, plus value added tax to be borne by the customer at the statutory rate.
- 9.2 Services which are not part of the agreed scope of delivery shall be performed, unless otherwise agreed, on the basis of our currently valid general price lists.
- 9.3 We are entitled to unilaterally increase the remuneration appropriately (§ 315 BGB) in the event of an increase in material procurement costs, wage and ancillary wage costs as well as energy costs and costs due to environmental regulations, if there are more than four months between conclusion of the contract and delivery. An increase in the aforementioned sense shall be excluded insofar as the increase in costs for the aforementioned factors is offset by a reduction in costs for other of the aforementioned factors in relation to the total cost burden for the delivery.Interest on arrears in the amount of 8 % above the respective base interest rate shall be charged upon occurrence of the default. The date of payment shall be the date on which the money is received by us or credited to our account. We reserve the right to assert further claims for damages.
- 9.4 Delay of the customer causes the immediate maturity of all payment claims from the business relation with the customer. In this case, all liabilities of the customer towards us are immediately due for payment, regardless of deferment agreements, bill of exchange and instalment payment agreements.
- 9.5 If terms of payment are not complied with or if circumstances are known or recognisable which, according to our dutiful commercial discretion, give rise to justified doubts as to the creditworthiness of the customer, including such facts which already existed at the time the contract was concluded but which were not known to us or should have been known to us, we shall be entitled in these cases without prejudice to further statutory rights, to cease further work on current orders or delivery and to demand advance payments or the provision of collateral for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable grace period for the provision of such collateral - without prejudice to further statutory rights. The customer is obliged to compensate us for all damages arising from the non-execution of the contract.
- 9.6 The customer shall only have a right of retention or set-off in respect of counterclaims which are not disputed or have been legally established, unless the counterclaim is based on a breach of material contractual obligations on our part.
- 9.7 A right of retention can only be exercised by the customer if his counterclaim is based on the same contractual relationship.
- 9.8 We only accept bills of exchange offered in exceptional cases by virtue of express agreement and only on account of performance. We charge discount charges from the due date. of the invoice up to the expiry date of the bill of exchange as well as exchange costs. Interest and costs for the discounting or collection of bills of exchange shall be borne by the customer. In the case of bills of exchange and cheques, the day on which they are honoured shall be deemed the day of payment. If our house bank refuses to discount the bill of exchange or if there are reasonable doubts as to whether the bill of exchange will be discounted during the term of the bill, we shall be entitled to demand immediate cash payment by taking back the bill of exchange.
10. Retention of property rights/ lien
- 10.1 We reserve title to all equipment and goods supplied by us (hereinafter referred to as "reserved goods") until all our claims arising from the business relationship with the customer, including future claims arising from contracts concluded at a later date, have been settled. This shall also apply to a balance in our favour if individual or all of our claims are included in a current account and the balance has been struck.
- 10.2 The customer shall adequately insure the reserved goods, in particular against fire and theft. Claims against the insurance company in the event of damage to the reserved goods are hereby assigned to us in the amount of the value of the reserved goods.
- 10.3 The customer is entitled to resell the delivered products in the
ordinary course of business. He shall not be permitted to dispose of the
goods in any other way, in particular by pledging or assigning
ownership by way of security. If the reserved goods are not immediately
paid for by the third party purchaser upon resale, the customer shall be
obliged to resell only subject to retention of title.
The right to resell the reserved goods shall automatically lapse if the customer suspends payment or defaults on payment to us.
- 10.4 The customer hereby assigns to us all claims, including securities and ancillary rights, which arise against the end user or against third parties in connection with the resale of goods subject to retention of title. He may not enter into any agreement with his customers which in any way excludes or impairs our rights or which nullifies the advance assignment of the claim. In the event of the sale of reserved goods with other items, the claim against the third party buyer in the amount of the delivery price agreed between us and the customer shall be deemed to have been assigned, unless the amounts attributable to the individual goods can be determined from the invoice.
- 10.5 The customer shall remain entitled to include the claim assigned to us until revoked by us, which shall be permissible at any time. At our request he shall be obliged to provide us with the information and documents necessary for the collection of assigned claims and, if we do not do this ourselves, to inform his customers immediately of the assignment to us.
- 10.6 If the customer includes claims from the resale of reserved goods in a current account relationship existing with his customers, he hereby assigns to us a recognised final balance in his favour to the amount corresponding to the total amount of the claim from the resale of our reserved goods included in the current account relationship.
- 10.7 If the customer has already assigned claims arising from the resale
of the products delivered or to be delivered by us to third parties, in
particular on the basis of genuine or unreal factoring, or has made
other agreements on the basis of which our current or future security
rights may be impaired in accordance with Clause 10, he must notify us
of this immediately.
In the event of a false factoring, we shall be entitled to withdraw from the contract and demand the return of products already delivered; the same shall apply in the event of a false factoring if the customer cannot freely dispose of the purchase price of the claim according to the contract with the factor.
- 10.8 In the event of conduct contrary to contract, in particular default in payment, we shall be entitled - without having to withdraw from the contract beforehand - to take back all reserved goods; in this case the customer shall be obliged to surrender them without further ado. In order to determine the stock of the goods delivered by us, we may enter the customer's business premises at any time during normal business hours. The taking back of the reserved goods shall only constitute withdrawal from the contract if we expressly declare this in writing or if this is provided for by mandatory statutory provisions. The customer must inform us immediately in writing of any access by third parties to reserved goods or claims assigned to us.
- 10.9 If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice at the customer's request.
11. Exclusion and limitation of liability
- 11.1 We shall not be liable, in particular not for claims of the customer
for damages, irrespective of the legal basis, in particular in the
event of breach of duties arising from the contractual obligation and
from unlawful acts.
This shall not apply where liability is mandatory by law, in particular:
- for own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
- for the violation of essential contractual obligations (and in the case of impossibility and significant breach of duty for which we are responsible);
- if, in the event of a breach of other obligations within the meaning of § 241 para. 2 BGB, the customer can no longer be reasonably expected to accept our performance;
- in the event of injury to life, limb and health, also by legal representatives or vicarious agents;
- in the event of default, if a fixed date was agreed;
- insofar as we have assumed the guarantee for the quality of our goods, or the existence of a performance success, or a procurement risk, as well as in the case of liability under the Product Liability Act.
"Material contractual obligations" are those obligations which protect material contractual legal positions of the customer which the contract has to grant him according to its content and purpose; further material contractual obligations are those obligations the fulfilment of which makes the proper execution of the contract possible in the first place and the observance of which the customer has relied on and may rely on regularly.
- 11.2 In other cases we shall be liable for all claims against us for damages or reimbursement of expenses arising from the present contractual relationship due to culpable breach of duty, regardless of the legal basis, not in the case of slight negligence.
- 11.3 In the event of the above liability pursuant to Clause 11.2 and liability without fault, in particular in the event of initial impossibility and defects in title, we shall only be liable for the typical and foreseeable damage.
- 11.4 We shall only be liable for the assumption of a procurement risk if we have expressly assumed the procurement risk by virtue of a written agreement.
- 11.5 Liability for indirect damage and consequential damage caused by a defect is excluded unless we have breached a material contractual obligation or unless we, our employees or vicarious agents are accused of intentional or grossly negligent breach of duty or a case of injury to life, limb or health exists.
- 11.6 With the exception of intent and injury to life, limb or health and
other legally mandatory, deviating liability sums, our liability is
limited to the total amount covered by our business liability insurance.
The sum insured is currently:
- - for personal injury - and property damage: € 1.3000.000,--
- At the customer's request, we shall provide the customer with a copy free of charge at any time and without obligation.
- insurance policy for this purpose.
- 11.7 The exclusions or limitations of liability in accordance with the above Clauses 11.2. to 11.6. shall apply to the same extent in favour of senior and non-executive employees and other vicarious agents as well as our subcontractors.
- 11.8 Claims of the customer for damages arising from this contractual relationship can only be asserted within a preclusive period of one year from the beginning of the statutory limitation period. This shall not apply if we are guilty of malice, intent or gross negligence or if there is a case of injury to life, limb or health.
- 11.9 A reversal of the burden of proof is not associated with the above provisions.
- 11.1 We shall not be liable, in particular not for claims of the customer for damages, irrespective of the legal basis, in particular in the event of breach of duties arising from the contractual obligation and from unlawful acts.
12. Place of performance; place of jurisdiction; applicable law
- 12.1 The place of performance for all contractual obligations shall be the registered office of our company. The exclusive place of jurisdiction for all disputes shall be Dresden, Germany, to the extent permitted by law. However, we are also entitled to sue the customer at his general place of jurisdiction.
- 12.2 All legal relationships between the customer and us shall be governed exclusively by the laws of the Federal Republic of Germany, in particular excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
13. Changes / Opening of insolvency proceedings / Severability clause
- 13.1 The customer shall be notified in writing of any changes to these terms and conditions. They shall be deemed approved by the customer if the customer does not object in writing within the prescribed period. We must draw special attention to this legal consequence in the notification of change. The customer must send the objection to us within six weeks of receipt of the notification of change.
- 13.2 An application to open insolvency proceedings against the customer or the customer's suspension of payments not based on rights of retention or other rights shall entitle us to withdraw from the contract at any time or to make the delivery of the purchased item dependent on the prior fulfilment of the payment obligation. If the goods have already been delivered, the purchase price shall become due immediately in the aforementioned cases. We are also entitled to reclaim the object of purchase in the aforementioned cases and to retain it until the purchase price has been paid in full.
- 13.3 Should any present or future provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons other than §§ 305-310 BGB, the validity of the remaining provisions of this contract shall not be affected thereby. The same shall apply if, after conclusion of the contract, there is a gap that needs to be filled. The parties shall replace the ineffective/null/unenforceable provision or gap to be filled with an effective provision which corresponds in its legal and economic content to the ineffective/null/unenforceable provision and the overall purpose of the contract.
Dresden, January 2019