General terms and conditions
§ 1 Scope of application
(1) Our General Terms and Conditions (GTC) apply to the provision of goods and services – including information and advice – to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who acquire the goods or services for commercial or professional use, as well as to legal persons under public law or special funds under public law.
Our General Terms and Conditions shall apply exclusively; we shall not recognise any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions unless we have expressly agreed to their validity. Our General Terms and Conditions shall also apply if we carry out the deliveries and services without reservation in the knowledge that the Client’s terms and conditions conflict with or deviate from our General Terms and Conditions. 3.
If framework agreements have been concluded between the contracting parties, these shall take precedence. They shall be supplemented by these GTC where no special provisions have been made. 4.
(4) Insofar as the following refers to text form, both the written form and the form described in Section 126b of the German Civil Code (BGB) are permissible, i.e. in particular also the fax or e-mail.
5. insofar as the following refers to claims for damages, this also refers to claims for reimbursement of expenses within the meaning of § 284 BGB.
§ 2 Conclusion of contract – declarations – rights
(1) The order placed by the customer shall constitute a binding offer. Offers or cost estimates previously submitted by us are subject to change; they are invitations to place orders. We may accept orders or purchase orders within fourteen calendar days of receipt by us, unless the principal must also regularly expect acceptance by us at a later date (§ 147 BGB). This shall also apply to subsequent orders placed by the customer. 2.
The acceptance of an order or a contract by us shall be subject to the condition that outstanding arrears of payment of the principal are settled and that a credit check of the principal carried out by us remains without negative information. In the event of delivery or performance within the commitment period of the principal (see paragraph 1 sentence 2), our acceptance of the order may be replaced by our delivery, whereby the dispatch of the delivery shall be decisive. 3.
3. verbal commitments by our representatives or other auxiliary persons require written confirmation by us.
(4) Legally relevant declarations and notifications which the customer has to make to us or to a third party must be made in text form.
(5) We reserve all property rights and copyrights to illustrations, drawings, data, calculations, samples and other documents relating to our products and services. This also applies to such written documents which are designated as confidential. The client must obtain our express written consent before using them or passing them on to third parties; otherwise both are prohibited. The documents referred to in sentences 1 and 2 shall be returned to us if an order based thereon is not placed with us. 6.
(6) We reserve the right to insure all transactions by credit insurance and to provide the insurer with the necessary data of the principal and the contractual relationship.
Contractual claims are not transferable on the part of the principal without our written consent, unless the regulation of § 354a HGB (German Commercial Code) applies.
§ 3 Subject matter of contract and performance – quality of goods
Information and declarations regarding our products and services by us or our sales agents shall be made exclusively on the basis of our experience to date. In the absence of an express agreement to the contrary, we do not vouch for the suitability of the products and/or services supplied by us for the processes, applications and other purposes of the customer, in particular in the case of the supply of goods specifically enquired about or described or specified in detail. 2.
We only assume an obligation to provide advice by virtue of a separate consultancy agreement in text form. 3.
(3) Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative and are to be understood as average values, unless the usability for the contractually intended purpose requires an exact match.
The properties of samples or test specimens shall only become part of the contract if this has been expressly agreed in text form. 5.
5. apart from guarantees expressly assumed by us in the contract, there are no other guarantees. In particular, descriptions of the subject matter of the contract or the scope of delivery and performance, specifications of properties and technical data are not binding.
§ 4 Prices and terms of payment
(1) The prices agreed in the contract shall be decisive. In the absence of a stipulation, the prices in our price list valid at the time of conclusion of the contract shall apply. 2.
(2) Price increases are possible if, after the conclusion of the contract, certain difficulties arise for our performance of services which were not communicated to us in text form prior to the submission of the offer.
3. the total remuneration (if applicable after deduction of partial payments made) is due for payment immediately after acceptance and without discount, unless otherwise agreed.
4. the client shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us.
5. the client’s right of retention is excluded unless the client’s counterclaim arises from the same contractual relationship and is undisputed or legally established.
§ 5 Time of performance and provision of services
Binding deadlines for services require our confirmation in text form for purposes of proof. 2.
If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers or from subcontractors, or do not receive them correctly or on time, despite proper cover, or if events of force majeure occur, we shall inform the principal in good time. In this case, we shall be entitled to postpone performance for the duration of the impediment or to withdraw from the contract in whole or in part on account of the part not yet performed, insofar as we have complied with our aforementioned duty to inform and have not assumed the procurement risk or manufacturing risk. Force majeure shall be deemed to include strikes, lock-outs, official interventions, shortages of energy and raw materials, 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, viewed objectively, were not culpably caused by us. 3.
If a performance date or a performance period has been agreed as binding and if the agreed performance date or the agreed performance period is exceeded by more than four weeks due to events pursuant to the above paragraph 2 or if, in the case of a non-binding performance date, adherence to the contract is objectively unreasonable for the client, the client shall be entitled to withdraw from the contract due to the part not yet fulfilled. Further rights of the client, in particular claims for damages, do not exist in this case. 4.
We are entitled to award subcontracts.
§ 6 Obligations of the client to cooperate
(1) All work shall be carried out during normal working hours with free access in one construction phase for the fitters, assembly vehicles and assembly equipment in terms of location and time.
2. electricity, water and toilet facilities shall be provided free of charge by the client, as well as scaffolding and working platforms from an assembly height of two metres.
3. the client is responsible for securing the construction site against vandalism and theft, both with regard to the equipment used by us (tools, machines and material) and our trades until acceptance. For this purpose, the client is obliged to take out construction work insurance and fire insurance with a minimum insurance sum for property damage of 500,000 euros and for personal injury of 1 million euros per claim. The costs of this insurance shall be borne by the client.
4. in the event of a breach of the obligation to secure the construction site, the principal shall indemnify us against claims of third parties, unless the principal proves that the damage is due to our predominant fault or the predominant fault of another party involved in the construction.
§ 7 Default of the Contractor
1. insofar as the assertion of rights of the principal requires the setting of an appropriate period of grace, this period of grace shall be at least two weeks. 2.
If we are in default, our liability for compensation for the damage caused by the delay shall be limited to 5% of the contract price in the event of simple negligence. Further claims of the client remain unaffected. 3.
Contractual penalties due to delayed delivery or performance are excluded.
§ 8 Obligation to represent in the case of generic debts and withdrawal
1. insofar as the item to be delivered is only determined by generic characteristics, we shall only be liable for compensation for damage if we cannot prove that we are not responsible for the non-performance, the delay in delivery or the poor performance. The provisions of § 14 of these GTC shall apply in addition. 2.
The client may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the breach of duty.
§ 9 Remuneration in the event of termination by the client
(1) If the principal terminates the contract for any reason whatsoever for which we are not responsible, we shall be entitled to demand a lump-sum payment or compensation amounting to 10% of the total price agreed at the time of termination if the termination takes place before we have commenced performance.
(2) If the client terminates the contract after the commencement of performance for reasons for which we are not responsible, we shall be entitled to demand 10% of the remuneration for the part of the work not yet performed as compensation in addition to the pro rata remuneration for the services performed.
In both cases (paragraphs 2 and 3), the client or we reserve the right to provide evidence of a different amount of damages in individual cases.
§ 10 Distribution of risk
1. we shall bear the risk until acceptance of the performance only if the work performance is within our sole sphere of risk and influence. If the performance executed in whole or in part is damaged or destroyed before acceptance due to force majeure, war, riot or other objectively unavoidable circumstances for which we are not responsible, we shall be entitled to payment for the parts of the performance executed. 2.
2. if the goods or the work are shipped to another destination at the request and expense of the customer, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the customer upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
3. if the principal is in default of acceptance, this shall be deemed equivalent to acceptance with regard to the passing of risk.
§ 11 Formal acceptance
If formal acceptance is provided for in the contract, the effect of acceptance shall also arise if the principal has been requested once in text form to carry out acceptance in vain and in a reasonable manner. Acceptance shall take effect twelve working days after receipt of the request if we have pointed out the consequences of an acceptance which has not been declared or which has been refused without stating defects.
§ 12 Default of the client
(1) If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation amounting to 0.25% of the invoice amount of the delivery items to be stored per elapsed week, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The client shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump sum. 2.
If the acceptance of the goods or their dispatch is delayed for a reason for which the principal is responsible, we shall be entitled, after setting and expiry of a fourteen-day grace period, to demand immediate payment of remuneration or to withdraw from the contract or to refuse performance and to demand damages in lieu of the entire performance, at our discretion. In the event of the aforementioned claim for damages, we may claim 15% of the agreed net remuneration for the costs incurred in processing the order and for loss of profit. The client is entitled to prove that we have not incurred any damage at all or that the damage is significantly lower than the lump sum.
§ 13 Claims in the event of defects (warranty)
(1) The customer shall be entitled to the statutory claims, unless otherwise provided for or supplemented in paragraphs 2 to 5.
2. claims of the client due to material defects are excluded for the consequences of faulty use (in particular in the case of assembly not in accordance with the state of the art or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable operating materials as well as the consequences of physical, chemical or electrical influences which do not correspond to the intended, average standard influences. 3. claims for defects do not exist in the case of only minor damage to the goods or in the case of a defect in the goods.
Claims for defects do not exist in the case of only insignificant deviations from the agreed quality or in the case of only insignificant usability of the goods or services. 4.
The client is obliged to notify us of obvious defects within fourteen days of receipt of the goods or services; dispatch of the notification within the deadline is sufficient to meet the deadline. Defects occurring later shall be notified immediately. The defects must be described in as much detail as possible for the client. Defects recognisable on delivery must also be notified to the transport company and the recording of the defects must be arranged by the latter. 5.
The acknowledgement of breaches of duty in the form of material defects shall always require text form. 6.
(6) If a notice of defect was unjustified because the client recognised or negligently failed to recognise that the cause of symptoms behind which he suspected a defect lay in his own area of responsibility, we shall be entitled to demand reimbursement from the client of the expenses incurred by us, for example for the examination of the item or the repair requested by the client.
§ 14 Liability for damages
(1) We shall be liable without limitation for damages – irrespective of the legal grounds – in the following cases
a) in case of intent,
b) in case of culpable injury to life, body or health,
c) in the event of delay, insofar as a fixed date of delivery and/or fixed date of performance was agreed,
d) in the case of defects which we have fraudulently concealed or the absence of which we have guaranteed,
e) in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items. 2.
(2) In the event of culpable breach of material contractual obligations, we shall also be liable, but in the case of simple negligence limited to the damage 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 and attention and which is typically to be expected when using the delivery item for the intended purpose.
(3) Material contractual obligations are obligations which protect the legal positions of the customer which are material to the contract and which the contract is intended to grant him in accordance with its content and purpose, and obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the customer has regularly relied and may rely.
We shall also be liable for damage caused by gross negligence. However, if other than essential contractual obligations have been breached and legal interests other than life, body or health are also affected, our liability in the event of gross negligence shall also be limited to the damage 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 and attention and which is typically to be expected in the case of use of the delivery item for the intended purpose.
(5) In the event of our default in performance, the limitation of liability set out in § 7 (2) of these GTCs shall apply in addition.
6. further claims are excluded.
(7) The exclusions and limitations of liability set out in paragraphs 1 to 5 above shall also apply to corresponding breaches of duty by our vicarious agents.
(8) Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our executive bodies, legal representatives, employees and other vicarious agents.
(9) The above provisions do not imply a change in the burden of proof to the detriment of the customer.
§ 15 Retention of title
(1) In the case of contracts with consumers, we retain title to the materials supplied by us until the remuneration has been paid in full.
2. we retain title to the materials supplied by us until all claims arising from an ongoing business relationship have been settled in full.
3. if objects subject to retention of title are installed as essential components in the property/building of the client, the client hereby assigns to us the claims arising from any sale of the property or of property rights in the amount of the invoice value of the objects subject to retention of title together with all ancillary rights.
§ 16 Lien
(1) We have a right of lien for our claims arising from the contract on the items manufactured by us or on the movable items of the customer repaired by us if they have come into our possession during manufacture or for the purpose of repair.
The right of lien according to paragraph 1 can also be asserted by us on the basis of claims from services previously performed, insofar as they are connected with the item according to paragraph 1. The right of lien shall only apply to other claims arising from the business relationship with the client if and insofar as these are undisputed or have been established by a court of law. 3.
3. the right of lien according to paragraph 1 also arises under the conditions stated there if we obtain possession in another way.
§ 17 Use of software
1. to the extent that software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use on more than one system is prohibited. 2.
The client may only copy, revise or translate the software or convert it from the object code into the source code to the extent permitted by law (§§ 69a ff. UrhG). The client undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without our prior express consent. 3.
All other rights to the software and the documentation, including copies, shall remain with us or with the software supplier. The granting of sub-licences is not permitted.
§ 18 Industrial property rights of third parties
(1) If a third party asserts claims against the customer based on industrial property rights or copyrights (hereinafter referred to as property rights) through the products delivered by us and if the contractual use of the products by the customer is impaired or prohibited as a result, the customer shall notify us immediately. The purchaser shall not acknowledge the alleged infringement and shall conduct any dispute with the third party regarding the infringement of the property right only in agreement with us. If the customer discontinues the use of the product in order to mitigate damages or for other important reasons, he shall be obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights. 2.
The customer shall not be entitled to any claims for infringement of industrial property rights if the infringement of industrial property rights is his own fault, is based on special specifications of the customer, is caused by an application not provided for in the product documentation or is caused by the fact that the product is modified by the customer or is used together with products not supplied by us.
§ 19 Choice of Law – Place of Jurisdiction
(1) This contract shall be governed by the laws of the Federal Republic of Germany, with the exception of those norms which refer to another legal system and the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for contracts with merchants, legal entities under public law or special funds under public law is the court responsible for our registered office.