effective as of August 2013
1.1 Our General Terms and Conditions apply to the exclusion of all other terms and conditions. Issues not covered are governed by the law in force. Terms and conditions of contractual partners which conflict with or deviate to our disadvantage from our own General Terms and Conditions or from the law will not be accepted by us unless we have expressly agreed to them in writing. Our General Terms and Conditions also apply in cases where we have performed contractual services or deliveries in awareness of a contractual partner’s terms and conditions conflicting with or deviating to our disadvantage from our own General Terms and Conditions, even if we have made no reservations in this regard.
1.2 Our General Terms and Conditions also apply to all future transactions with our contractual partners.
1.3 Our General Terms and Conditions only apply in relation to entrepreneurs, legal entities constituted under public law or public sector funding companies within the meaning of § 310 Section 1 of the German Civil Code (BGB).
2.1 Our offers and quotations are subject to confirmation and non-binding unless they are expressly designated as binding.
2.2 We retain all rights in relation to all offer and contract documents and in particular to drafts, drawings, picture material as well as samples, models and prototypes unless it follows from the intent and purpose of the contract or has been expressly agreed upon that they are to be granted to the contractual partner. In the event that an order is not placed with us, the relevant offer documents, samples, models and prototypes must be returned to us immediately at our demand. Our contractual partner will have no right of retention in this regard.
2.3 If our contractual partner should request that a contract be altered after its conclusion, we will make every reasonable effort within our operational capacity to accommodate such request in our contractual deliveries and/or services.
If the ensuing examination of the scope for such alteration, or its implementation, has an impact on the balance between performance and counterperformance under this contract (payment, deadlines), the contractual provisions must immediately be adapted accordingly in writing.
If it proves necessary to examine the possibility and terms of a desired alteration, we will be entitled to demand reasonable additional remuneration for performing the examination, provided we have informed our contractual partner of its necessity and received its instructions to this end.
We reserve the right to raise our prices as far as is reasonable if cost increases which are beyond our influence, in particular in connection with collective wage agreements or changes in commodity prices, occur after conclusion of the contract. We will provide proof of such cost increases upon demand by the contractual partner.
3.2 Unless agreed otherwise, our prices apply ex works, excluding postage, shipment, freight, packaging and insurance. Value added tax is charged in addition at the statutory rate.
3.3 Unless agreed otherwise, payments to be made by our contractual partner fall due immediately without deduction. Discounts must have been agreed upon in writing. Payments not made within ten days of the due date will be deemed in arrears without this requiring further notification from us. All further consequences of payment default will be governed by the law in force.
3.4 We are entitled to charge reasonable advance payments including the proportionate amount of statutory value added tax.
3.5 Bills of exchange and checks are only accepted on account of payment, and bills of exchange only upon prior written agreement. Any discount charges, fees as well as any and all costs relating to collection of the amount payable by either check or bill of exchange are to be borne by the contractual partner and become payable immediately. Payment obligations are only deemed fulfilled after payment of the checks or bills of exchange and our release from all liability.
3.6 The contractual partner may claim set-off rights only if its counterclaims have been recognized by declaratory judgment or acknowledged or are undisputed. The contractual partner is entitled to a right of retention only if its counterclaim is based on the same contractual relationship.
4.1 The specified times or delivery or service are only to be regarded as fixed dates if they have been expressly so designated.
4.2 Our delivery and service obligations, including in particular our obligation to meet delivery dates, are contingent on the following:
We reserve the right to claim nonperformance of the contract.
4.3 Delays in delivery or service for which we cannot be held accountable
4.3.1 We will not be held accountable for delays in delivery or service which are attributable to any of the following impediments, unless we have, by way of exception, assumed a risk of procurement or given a guarantee in regard to a specific deadline or date; nor will we be held accountable if such impediments impact our own suppliers or subsuppliers.
Circumstances of force majeure or delays in delivery or service
To the extent that they occur in association with the first above-named conditions, i.e. after conclusion of the contract or unknown to us through no fault of our own, such impediments shall include in particular:
legitimate industrial action (strike, lockout); disruption of operations; scarcity of resources; failure in the supply of operating and auxiliary materials.
4.3.2 The contractual partner will have no right to claim damages in the event of delays in delivery or service within the meaning of clause 4.3.1.
4.3.3 In the event of an ultimate impediment to delivery or service within the meaning of clause 4.3.1 the contract may be cancelled immediately by either party in accordance with the law in force.
4.3.4 In the event of a temporary impediment to delivery or service within the meaning of clause 4.3.1 we will be entitled to defer the deliveries or services for as long as the impediment persists and will be allowed reasonable restart time thereafter. If we are able to prove to the contractual partner that we are faced with unacceptable difficulty in effecting delivery or providing services, this will entitle us to withdraw from the contract. The contractual partner is entitled to withdraw from the contract under the conditions named in clause 4.5 below. Our own right of withdrawal is governed by § 323 Section 4 BGB, while the contractual partner’s right of withdrawal is governed by § 323 Sections 4 – 6 BGB. The legal consequences of a withdrawal are governed by § 326 BGB including the legal references given there. If deliveries or services have been performed without any obligation to do so, we will be entitled to demand restitution subject to the provisions of §§ 346 – 348 BGB.
4.4 Delays in delivery or service for which we are accountable
In the event of delays in delivery or service for which we are accountable we will be liable pursuant to statutory provisions up to the following limit:
4.4.1 Compensation for damages in addition to performance (§ 280 Section 2 in conjunction with § 286 BGB):
If there was no willful or grossly negligent behavior of our own or on the part of our legal representatives or agents, our liability will be limited to lump-sum damages in the amount of 0.5% of the net invoice value of the deliveries or services affected for every complete week of delay, however not exceeding a total of 5% of the net invoice value. In the event of grossly negligent behavior of our own or on the part of our legal representatives or agents our liability will be limited to such damages as may have been foreseeable and might typically occur.
4.4.2 Compensation for damages in lieu of performance (§ 281 BGB):
Unless the delay in delivery or service is attributable to willful or grossly negligent behavior of our own or on the part of our legal representatives or agents, our liability will be limited to such damages as may have been foreseeable and might typically occur.
4.4.3 The above liability limits will not apply
4.5 If we are able to prove that we cannot be held accountable for the delay, the contractual partner will only be entitled to withdraw from the contract
In all other cases § 323 Sections 4 – 6 BGB will apply. The legal consequences of a withdrawal will be governed by the law in force (§§ 346 ff. BGB).
4.6 In the event of impossibility of delivery or of performance of services we will be liable pursuant to statutory provisions up to the following limit:
4.7 We are entitled to make partial deliveries or perform services in part to the extent that the contractual partner can reasonably be expected to accept this.
4.8 If the contractual partner falls in default of receipt or acceptance at the place of fulfillment or in default of collecting or calling off goods – whether these have been delivered in part or in full – or if delivery is otherwise delayed for reasons for which the contractual partner is accountable or if the contractual partner culpably breaches other duties of cooperation, we will be entitled, without prejudice to further legal claims, to demand compensation for any resulting damages, including any additional expenses and will reserve the right to make further claims.
5.1 Where our deliveries fall within the scope of sales law, the risk of accidental loss or accidental deterioration will pass to the contractual partner as soon as delivery has been made to the person or institution designated to collect or to perform the delivery, however at the latest when deliveries leave our company premises. This will also apply for any deliveries effected with our own vehicles on the basis of a special agreement or if freight or carriage paid and packing included has been agreed upon. The same will apply in cases where we have taken on assembly or installation work or other services at the contractual partner's site.
5.2 If the contractual partner falls in default of receipt, acceptance, collection or calling off of goods or in the event of delays in delivery or service for which the contractual partner is accountable, the risk of accidental loss or accidental deterioration will pass to the contractual partner at the time when the contractual partner falls in delay or when the delivery or services could have been performed according to the contract if the contractual partner had acted in accordance with its duties.
5.3 At the contractual partner’s request deliveries will be insured at its own expense against theft, damage through breakage, fire, water or transport as well as any other insurable damage occurring from the time of risk transfer.
6.1 We retain title to the items delivered by us (conditional delivery) until all payments due from our business relationship with the contractual partner have been received. To the extent that we enter receivables due from the contractual partner into a current account (current account reservation), our retention of title will extend to the accepted account balance. If we incur a bill of exchange liability in connection with receiving payment for a conditional delivery, our retention of title will cease no earlier than our liability under the bill of exchange. If a check/bill of exchange procedure has been agreed upon, our retention of title will extend to the contractual partner's honoring of the bill of exchange accepted by us and will not expire when the check received has been credited to our account.
6.2 The contractual partner is entitled to resell conditional deliveries in the ordinary course of its business; in doing so, however, it will assign to us in advance all receivables accruing to it from such resale against its own customers or third parties up to a sum equal to the final invoice amount (including value added tax). If the contractual partner enters receivables accruing to it from the resale of conditional deliveries into a current account maintained with a customer, it hereby assigns to us receivables from that account in the amount of the accepted account balance. The same will apply for any “causal” account balance in the event of insolvency on the part of the contractual partner. The contractual partner is authorized to collect receivables it has assigned. To the extent that legal insolvency regulations do not provide otherwise, this shall not affect our right to collect such receivables ourselves. However, we will undertake not to collect such receivables as long as the contractual partner does not breach its contractual duties but rather in particular meets its payment obligations and does not fall into default of payment and as long as there has been no application for the opening of insolvency proceedings or a cessation of payments. The contractual partner’s right of resale does not extend to pledging or assignment as security.
6.3 If our commitment to refrain from collecting receivables ourselves, as set out in clause 6.2 above, should become invalid, we will be entitled, subject to the provisions of insolvency law, to revoke the permission of resale, retake possession of the conditional delivery or demand that the contractual partner assign to us its right to possession in relation to a third party. Our retaking possession of goods subject to retention of title will constitute a withdrawal from the contract. After retaking possession of conditional deliveries for any of the reasons named above, we will be entitled, subject to the provisions of insolvency law and after giving prior notice and allowing a reasonable grace period, to dispose of the deliveries in reasonable manner. The proceeds of sale will be deducted from the contractual partner's payables less reasonable disposal costs.
Any of the above conditions entitling us to revoke the contractual partner's right of resale will also entitle us to revoke the contractual partner’s right of collection and to demand that the contractual partner disclose to us the assigned receivables along with the debtors and provide us with all information necessary for collection, surrender the relevant documents and inform the debtors (third parties) of the cession.
6.4 The contractual partner must immediately inform us in writing of any damage to or loss of conditional deliveries as well as in the event of a change of ownership or residence. The same will apply correspondingly in the event of garnishments or other third-party interventions, enabling us to file a complaint pursuant to § 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is unable to refund the judicial and extra-judicial costs of a complaint pursuant to § 771 ZPO the contractual partner will be liable to compensate us for any losses we incur as a result. If a release of the conditional delivery is achieved without litigation, the costs incurred in procuring the release may be charged to the contractual partner, as may the costs of returning the distrained conditional delivery.
6.5 Any processing or remodeling of a conditional delivery by the contractual partner will always be deemed to have been performed on our behalf. If a conditional delivery is processed with other objects not belonging to us, we will acquire co-ownership of the new item in proportion to the ratio of the value of the conditional delivery (final invoice amount including value-added tax) to that of the other processed objects at the time of processing or remodeling. In all other respects the provisions which applied to the conditional delivery will apply correspondingly to the item resulting from processing or remodeling. The contractual partner’s right to transfer of title in regard to the conditional delivery will apply correspondingly to the item resulting from processing or remodeling.
6.6 If the conditional delivery is inseparably mixed with or joined to other objects not belonging to us, we will acquire co-ownership of the new item in proportion to the ratio of the value of the conditional delivery (final invoice amount including value-added tax) to that of the other objects mixed in or joined at the time of mixing or joining. If the mixing or joining takes place in such a manner that the item of the contractual partner is to be regarded as the main item, then it will be deemed agreed that the contractual partner transfers co-ownership to us on a pro rata basis; the supplier shall keep the solely owned or co-owned item in safe custody for us.
6.7 In the event of resale of a conditional delivery which has been processed or remodeled the contractual partner will assign to us in advance as security its payment claims in an amount equal to the final invoice value (including value-added tax) of our own claims.
If as a result of processing or remodeling or mixing or joining of the conditional delivery with other items not belonging to us we have only acquired co-ownership as set out in clauses 6.5 or 6.6 above, the contractual partner's payment claims will be assigned to us in advance only in proportion to the ratio of the final invoice value, including value-added tax, charged by us for the conditional delivery to the final invoice values of the other items not belonging to us. In all other respects, any claims assigned to us in advance will be subject to clauses 6.2 through 6.4 above.
6.8 If a retention of title or assignment as laid down herein should be ineffectual under the laws of the country in which the conditional delivery is located, security equivalent to retention of title or assignment in that territory will be deemed agreed upon. If the establishment of such rights is dependent on the contractual partner’s cooperation, the contractual partner will be obliged to take all measures required for establishing and maintaining such rights when requested by us to do so.
6.9 The contractual partner must handle the conditional delivery with care and maintain it in good condition at its own expense. The contractual partner must in particular insure the conditional delivery at its reinstatement value to our benefit against theft, robbery, housebreaking as well as fire or water damage. The contractual partner hereby assigns to us all insurance claims resulting from this in relation to the conditional delivery, and we accept the assignment.
We reserve the right to assert further claims for performance or damages.
6.10 As a security for our own claims, the contractual partner also assigns to us any claims arising against a third party by integration of the conditional delivery into real property.
6.11 We will undertake to release securities to which we are entitled at the request of the contractual partner to the extent that the recoverable value of the securities exceeds the value of the collateralized receivables by more than 10%. The decision which securities to release rests with us.
7.1 If our deliveries or services are governed by service contract law, the contractual partner will be obliged, at our discretion, to give written pre-acceptance at our facility and/or written acceptance at its own facility as soon as the contractual partner has been notified of the completion of the delivery item or, if this has been agreed, its turnkey assembly or after any testing that may have been contractually agreed upon. Acceptance may not be refused on account of insignificant defects.
If the contractual partner breaches its duties by failing to accept our deliveries or services within a reasonable period set by us, they will be deemed accepted.
7.2 Acceptance will release us from liability for obvious defects unless it was given by the contractual partner with reservation of the right yet to assert defects.
7.3 If testing has been agreed upon, the contractual partner will undertake to test the functions of the delivery item during the designated period of time. These tests must not only cover the functions but also include a test of the safety features, thus ensuring that the regulations of the relevant branch of industry such as VDE, Machine Protection Law etc. are met.
7.4 We will be entitled to demand the acceptance for parts of the delivery, unless there are substantive objections to this or the contractual partner cannot reasonably be expected to comply.
8.1 The specifications contained in our descriptions of performance exhaustively and ultimately define the properties of our deliveries and services. In cases of doubt, the descriptions of our deliveries and services constitute agreements on specifications, not guarantees or warranties. In cases of doubt, none of the declarations made by us in connection with this contract constitute a guarantee with the effect of an increase of liability or the assumption of a special obligation of essence. In cases of doubt, only explicit declarations to this effect made in writing may constitute a guarantee or warranty.
8.2 We will assume no liability for damages attributable to any of the following: inappropriate or improper use or operation, faulty assembly by the contractual partner or third parties, wear and tear, faulty or careless handling, use of inappropriate operating resources, use of substitute materials, chemical, electrochemical or electrical influences (to the extent that we cannot be held accountable for them), improper alterations or maintenance work by the contractual partner or third parties for which no permission was given by us in advance.
8.3 The contractual partner will have no warranty claims in the event of insignificant deviations from agreed-upon secifications or insignificant impairment of the utility of our deliveries or services.
8.4 The contractual partner may only assert warranty claims if it has duly observed its statutory duties pursuant to § 377 of the German Commercial Code (HGB) to duly examine and give notice of defects.
8.5 In the event of a defect we will be entitled to provide supplementary performance, at our discretion, by either eliminating the defect or delivering a new item free of defects. If one or both of these means of supplementary performance should be impossible or unreasonable we will be entitled to refuse supplementary performance.
We will also be entitled to refuse supplementary performance for as long as the contractual partner is in default of its payment obligations in an amount equivalent to the defect-free part of the delivery or service.
We will be obliged to bear all expenses associated with supplementary performance, in particular transport, travel, labor and material costs, as long as these are not increased by the delivery being stored at a different place than the place of original delivery without this being necessary for its intended use.
We will be entitled to have defects remedied by third parties. Replaced parts will become our property.
8.6 In the event of impossibility or failure of subsequent performance, culpable or unreasonable delay, or serious and ultimate refusal of subsequent performance the contractual partner will be entitled, at its discretion, to demand a reduction in price (price reduction) or to withdraw from the contract (withdrawal).
8.7 To the extent that clauses 8.8 or 8.9 below do not provide otherwise, further claims by the contractual partner in connection with defects in our deliveries or services will be excluded, regardless of their legal grounds (in particular claims for damages on account of defects or breaches of duty, tort claims for compensation for damage to property and claims for reimbursement of expenses); this will apply in particular to claims for damages outside the delivery items, e.g. damages to the contractual partner’s property or claims for loss of profit.
8.8 The liability disclaimer clause 8.7 above will not apply
8.8.1 to damages from harm to life or health or personal injury which are attributable to a culpable breach of duty on the part of ourselves, our legal representatives or our agents;
8.8.2 in cases of mandatory liability pursuant to product liability legislation;
8.8.3 in cases where a defect has been fraudulently concealed, a guarantee assumed or a specific feature promised, if a defect covered by this specifically triggers our liability;
8.8.4 if a material contractual obligation or a “cardinal duty” has been culpably breached by ourselves, our legal representatives or our agents; to the extent that the contract was not breached willfully or by gross negligence, our liability for damage will however be limited to such damages as may have been foreseeable and might typically occur.
8.8.5 to any other claim by the contractual partner for compensation for damages in lieu of performance where accountability for the damage rests with ourselves or our legal representatives or agents; to the extent that the contract was not breached willfully or by gross negligence, our liability for damage will however be limited to such damages as may have been foreseeable and might typically occur.
8.8.6 to any other damages resulting from a willful or grossly negligent breach of duty by ourselves or our legal representatives or agents; to the extent that the contract was not breached willfully, our liability for damage will however be limited to such damages as may have been foreseeable and might typically occur.
8.9 Clause 8.8 will apply correspondingly when reimbursement of expenses is claimed.
8.10 The statutory regulations on the burden of proof remain unaffected by the provisions of clause 8 and in particular of clauses 8.7 through 8.9 above.
If the contractual partner is unable to use the delivery item as contemplated by this contract due to ourselves or our legal representatives or agents culpably failing to provide suggestions or consultancy or culpably providing faulty suggestions or consultancy or performing other secondary contractual duties in a faulty manner prior to conclusion of the contract, the provisions of clauses 8.7 through 8.10 will apply accordingly and any further claims by the contractual partner will be excluded.
10.1 The following provisions apply to claims of the contractual partner outside liability for defects and do not constitute a limitation or waiver of our own statutory or contractual rights and claims.
10.2 With regard to liability for damages the provisions of clauses 8.7 and 8.8. above will apply accordingly, subject to the special provisions on liability for delay (clause 4.4) and impossibility (clause 4.6). Any further liability for damage, regardless of the legal nature of the claim being made, will be excluded. This will apply in particular to claims for damages in addition to performance and claims for damages in lieu of performance on account of breaches of duty and to tort claims for compensation for damage to property pursuant to §823 BGB.
10.3 The limitation contained in clause 10.2 will also apply to claims made by the contractual partner for reimbursement of expenses.
10.4 Any fault of our legal representatives or agents may be attributed to us.
10.5 The statutory provisions on the burden of proof remain unaffected.
10.6 To the extent that liability on our part is excluded or limited, this will also apply to personal liability for damages on the part of our employees, staff, co-workers, representatives and agents.
10.7 The contractual partner may only withdraw from the contract under statutory provisions if we are accountable for the breach of duty. In cases covered by clause 8.6 above (failure of subsequent performance etc.) and in cases of impossibility the statutory provisions will apply. The contractual partner’s right of withdrawal in cases of delay in delivery or service is governed by clauses 4.3.3, 4.3.4 and 4.5 above. In the event of a breach of duty the contractual partner must declare, within a reasonable period of being requested by us to do so, whether it will withdraw from the contract on account of the breach of duty or insists on delivery.
We have exclusive rights to all secret, advanced knowledge of high value (know-how) and inventions as well as any related industrial property rights already existing or acquired at our company during the performance of the contracts concluded with us, subject to any special agreements and subject to the intent of this contract regarding the use and application of the delivery items by the contractual partner.
We do not guarantee that no industrial property rights will be violated by the use, installation or resale of the delivery items; however we do affirm that we are not aware of any such industrial property rights existing in regard to the delivery items.
13.1 The period of limitation for any claims and rights relating to defects in our deliveries or services, on whatever legal grounds, will be one year; in the case of multi-shift operation the above period of limitation will be shortened to six months. However, this will not apply in cases covered by §§ 438 Section 1 No. 1, 438 Section 1 No. 2, 479 Section 1 and 634 a) Section 1 No. 2 BGB; in all these cases the period of limitation will be three years.
13.2 The periods of limitation laid down in clause 13.1 will also apply to all claims for damages raised against us in connection with the defect, regardless of their legal grounds. To the extent that any claims for damages, of whatever nature, exist in connection with something other than a defect, their period of limitation will be as provided in clause 13.1 sentence 1 above.
13.3 The periods of limitation laid down in clauses 13.1 and 13.2 above will not apply
13.4 Unless expressly agreed otherwise, the statutory provisions on the commencement of the period of limitation and the suspension of expiry, interruption and resumption of periods will remain unaffected.
13.5 Claims for price reductions and the exercise of rights of withdrawal will be excluded where the pertinent claim for supplementary fulfillment has expired. In this case the contractual partner may however refuse to pay remuneration to the extent that the expired right of withdrawal or price reduction would have entitled it to do so.
Claims against us relating to deliveries or services to be performed by ourselves may only be assigned with our prior written consent.
15.1 Unless otherwise agreed, the place of performance will be exclusively our principal place of business.
15.2 If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity constituted under public law or a public sector funding company, the legal venue for all obligations arising from or in connection with the contractual relationship, including matters concerning bills of exchange and checks, will be our principal place of business or, at our discretion, that of the contractual partner. The above agreement on the legal venue will also apply for contractual partners domiciled abroad.
15.3 All rights and obligations arising from and in connection with the contractual relationship will be governed exclusively by the laws of the German Federal Republic, without giving effect to its conflict of law provisions and to the exclusion of UN commercial law (CISG: Convention on Contracts for the International Sale of Goods dated 04/11/1980).
15.4 If any provision in these GENERAL TERMS AND CONDITIONS or any provision in any other agreement between us and the contractual partner should be or become ineffective, the remaining provisions or agreements will remain unaffected by this.
15.5 Contractual partners domiciled in an EC member state who engage in intra-Community acquisitions must compensate us for any damage that may arise from