A. Area of application

1. These General Terms and Conditions of Business are applicable for all our offers and other legal declarations, including consultations and other contractual performances. They apply exclusively. We do not recognise conflicting terms of business or terms in deviation of our own unless expressly agreed in writing to the contrary. These terms also apply if, in knowledge of deviating terms of the Customer, we make delivery without making any reservation.

2. In the case of a current business relationship, these terms shall also apply to all future business transactions with the Customer unless otherwise expressly agreed in writing.

 

B. Conclusion of the Contract, Object of the Contract, Scope of delivery, Packaging

1. Our offers are made on a non-binding basis. Drawings, illustrations, weights, amounts and other measurements contained in or attached to the offer or contained in brochures or catalogues contain only approximate values.

2. Contracts between the Purchaser and ourselves as vendor only come into existence through our written confirmation of the order. This also applies to all agreements and orders placed with and through representatives, agents and sales companies instructed by us. Decisive for the content of the contract is our written confirmation of order. Amendments and supplements to the contract require our written confirmation in order to be legally effective.

3. We deliver "ex works" and arrange the carriage in the name and on behalf of the Customer.

4. During the delivery period, we reserve the right to change the design and form provided that neither the object of delivery nor its function or appearance are fundamentally changed thereby and that the Customer may reasonably be expected to accept the changes. With regard to possible price changes, F2 of these Terms and Conditions shall apply.

5. Cost estimates, drawings and similar documents, including their contents, may not be made available to third parties by the Customer.

6. Transport and packaging costs, in particular costs for special packing, such as e.g. for sea or air freight, will be charged to the Purchaser at cost price. The carriage, customs clearance and packaging costs will be charged separately following despatch of the equipment.

 

C. Delivery periods; Delivery time

1. The delivery dates and delivery periods quoted shall be deemed in each case to be agreed as approximate. Should a delivery period (= delivery within a specified number of weeks or months) have been agreed, the same shall commence with the receipt by the Customer of the confirmation of order, but not until the Customer has provided the agreed documents, data, facts, approvals, releases to be procured by him, and not before receipt of any agreed payment on account. The delivery period shall furthermore only commence following clarification of all fundamental technical questions associated with the order. Should these conditions not be met in due time, the delivery period shall be extended corresponding to the delays occurring. Corresponding provisions shall apply in relation to an agreed delivery time (= fixed calendar week/day; also called delivery date).

2. If, following the confirmation of order, additional requirements are stipulated or changes demanded by the Customer with respect to the object of delivery, the delivery period and/or the delivery time shall be extended by the time necessary for the implementation of these requirements or changes.

3. Delivery periods and/or dates shall be deemed to have been met if by their expiration the Customer has been informed of the readiness of the equipment for shipment or delivery.

4. The delivery period shall be extended by a reasonable period in the case of measures within the framework of labour disputes, in particular strikes and lockouts, as well as in the case of force majeure, governmental orders, as well as in the case of the occurrence of unforeseen hindrances beyond our volition, in so far as such hindrances demonstrably have a not insignificant influence on the completion or delivery of the object to be delivered. This shall also apply if such circumstances occur at subcontractors. We shall also not be responsible for the above-mentioned circumstances if they occur during a delay which has already arisen. In important cases, we shall notify the Customer of the beginning and end of such hindrances as soon as possible. Should the completion of the object of the order become impossible due to such unforeseen circumstances, or should it only be possible with considerable extra economic expenditure, we shall, in addition to our statutory rights, be entitled to cancel the contract.

 

D. Delays in delivery

1. Should we be in default with the provision of the performance owed by us, the Customer may set us a reasonable extension of time in writing with the express declaration that he will refuse acceptance of the performance following the expiration of the time limit. Should this extension of time not be met due to our fault, the Customer shall be entitled to cancel the contract if he exercises this right by giving us a written declaration within two months following the expiration of the extension of time.

2. In the case of default in performance or impossibility of delivery, any claims for damages to which the Purchaser is entitled shall be limited in such way that compensation may only be claimed for the foreseeable damage. The above limitation on liability shall not apply where the reason for the default in performance or the impossibility of performance is a result of wilful intent or gross negligence on the part of one of our legal representatives or one of our servants or agents.

 

E. Acceptance of delivery; Acceptance; Default of acceptance; Cancellation of order

1. In the case of delivery "ex works", the Customer shall be obliged to accept a consignment as soon as he is informed of its readiness for despatch; otherwise upon delivery. At this date, the risk of accidental destruction of the object bought shall pass to the Customer.

2. Should the Customer fail to comply with his obligations in accordance with para. (1), he shall bear the additional costs caused thereby (e.g. storage and preservation costs). Following the expiration of a reasonable period of time set by us, we may cancel the contract without prejudice to further-reaching claims, and otherwise dispose over the object of delivery and claim damages. In the case of a serious and final refusal of acceptance by the Customer, it shall not be necessary to set a period of time. In both cases, the risk of accidental destruction or accidental deterioration of the object of delivery shall pass to the Customer at the point in time at which he becomes in default of acceptance.

3. Should works ordered be discontinued at the request of the Customer, the Customer shall, following presentation of the invoice, be obliged to make payment for the works performed up until then, subject to deduction of payments already made.

 

F. Prices and conditions of payment; VAT

1. The prices apply "ex works" plus the respective statutory VAT applicable at the date of issuing the invoice, and excluding any ancillary costs within the meaning of para. (3). In the absence of any written agreement to the contrary, invoice amounts shall be payable within 30 days from the date of the invoice without any deduction.

2. In the event of changes to our price lists following receipt of the confirmation of order by the Customer, the list prices applicable at the date of delivery shall apply where a period of more than 4 months has elapsed between the conclusion of the contract and the date of delivery and we are not responsible for the delay in delivery.

3. All ancillary costs such as e.g. transport insurance, loading, handling, customs clearance, shall be borne by the Customer.

4. The Customer shall become in default if he has not settled the invoice amount without deduction within the agreed period. The decisive date for this purpose shall be the date of credit of the invoice amount to our account. As from the commencement of the default, we shall be entitled to charge interest in the amount of 8 % above the base lending rate prevailing for the time being. We reserve the right to claim damages of a provably higher interest rate. The Customer shall have the right to prove to us that we have suffered a lower sum of damage.

5. In the case of first orders and development orders, a pre-payment/payment on account in a reasonable amount may be demanded in respect of the delivery.

6. The Customer shall only be entitled to exercise rights of set-off or retention against our claims if his counter-claims have been judicially determined and have become final and legally binding, are undisputed or have been recognised by us.

7. Payments may not be made to our salesmen or representatives. In each case, payment shall only be deemed to have been made upon credit of the amount owed to our bank account.

8. Bills of exchange will only be accepted following special agreement. Unless otherwise agreed in writing to the contrary, the acceptance of cheques or bills of exchange shall only be regarded as payment after they have been honoured. The Customer shall bear all bank charges and fees, reverse debit entry costs and any processing costs unless in individual cases a contrary agreement has been made in writing.

 

G. Reservation of title

1. We reserve ownership in all objects purchased until payment has been made in full of all claims to which we are entitled from the business relationship with the Customer. In the case of a running account, the entire goods subject to the reservation of title shall serve to secure the balance due.

2. Where the Customer uses the object of delivery in his own firm, he shall not, as long as the reservation of title exists, be permitted to re-sell or pledge the goods or to transfer the goods by way of collateral, either in whole or in part, without our permission.

3. If a Customer has acquired an object as a trader for the purpose of re-sale, the re-sale is permitted within the normal course of business.

4. In each case of re-sale of an object subject to reservation of title, the Customer already assigns to us now in the full extent his future claims against his purchaser from the re-sale. We accept this assignment. The Customer remains authorised to collect the claim. We shall also be entitled to exercise this right; we shall, however, only exercise the same if the Customer fails to comply with his payment obligations, or if a serious deterioration of the assets of the Customer occurs which severely jeopardises his payment obligations. This shall e.g. be the case if the Customer makes an application for insolvency. In such case, the Customer shall upon first demand provide us with all information and documents necessary to collect the claims.

5. Should the value of the security existing in our favour exceed the claims against the Customer by more than 20 %, we shall, upon the request of the Customer, be obliged to release a corresponding amount of the security according to his choice.

6. The Customer shall be obliged, as long as the reservation of title exists, to insure the object of delivery adequately against fire and water damage and also against theft.

7. The Customer shall be obliged to notify us immediately in writing of any levy of execution against an object subject to the reservation of title and to forward us copies of any distress warrants and protocols. He shall, in addition, take all measures in order to avert the implementation of the execution. Should we institute interpleader proceedings under § 771 ZPO [Civil Proceedings Ordinance], the Customer shall be obliged to reimburse the judicial and extra-judicial costs if the third party is not in a position to do so.

8. Should the Customer become in default with his purchase price payment or should he fail to comply with his obligations under the reservation of title, we may set a reasonable period of time for performance or subsequent performance. Should this period of time expire without result, we shall be entitled to cancel the contract and re-possess the goods delivered. Should these objects be in the possession of a third party, the Customer shall be obliged upon first demand to inform us of the whereabouts of the object of delivery, and he also agrees that in such case we may take possession of the objects.

 

H. Customer's complaints; Warranty

1. Within a period of twelve months from delivery, defects in the item delivered shall be remedied by us following a corresponding notification by the user. This shall, at our option, having regard to the interests of the Purchaser, take the form of either remedial measures or a replacement free of charge. In the case of replacement, the Customer shall be obliged to return the defective item.

2. Should it not be possible to remedy the defect within a reasonable period of time, or should the remedial measures or replacement delivery have to be regarded as a failure for other reasons, the Customer may at his option demand a reduction in the price or cancel the contract. Remedial measures shall only be regarded as having failed where we have been afforded an adequate opportunity to carry out the remedial measures or provide a replacement without the desired success having being achieved, where the remedial measures or replacement delivery are impossible, where such are refused or unreasonably delayed by us, where justified doubts exist as to the prospects of success or where for other reasons the Customer cannot reasonably be expected to accept such measures. Remedial measures shall, unless otherwise apparent from the type of defect or other circumstances, be regarded as having failed after the second unsuccessful attempt.

3. The Customer shall be obliged to examine the goods delivered for obvious defects which would be conspicuous to an average customer without further measures. Obvious defects shall also include the absence of manuals as well as considerable, easily visible damage to the goods. They shall also include cases where another item has been delivered or where there has been a short delivery. Such obvious defects are to be notified to us in writing within four weeks of delivery.

4. Defects which only become evident later must be notified to us within four weeks following their discovery by the Customer.

5. In case of breach of the above duty of examination and notification, the goods shall in relation to the relevant defect be regarded as accepted.

6. The property in parts which are exchanged by us within the framework of the warranty shall pass to us upon their removal.

 

I. Liability

We exclude our liability for negligent breaches of duty where these do not relate to fundamental contractual duties, damage arising from injury to life, body or health, or where warranties or claims under the Product Liability Act are affected. The same shall apply to breaches of duty on the part of our legal representatives or servants or agents. Liability for deliberate or grossly negligent breaches of duty is not excluded. In any event, our liability shall be limited to the typically foreseeable damage.

 

J. Prohibition on assignment

Claims of the Customer against ourselves may not be assigned.

 

K. Place of performance; Court venue; Applicable law

1. The place of performance shall be the registered office of our company.

2. Oberhausen shall be the court venue for all disputes where the Customer is a Vollkaufmann [i.e. a businessman to whom the provisions of the German Commercial Code apply without restriction], a legal person under public law, a public body with special assets or where the Customer has no court venue in inland.

3. Unless otherwise provided in the above provisions, the substantive uniform law of the UN Convention relating to Contracts concerning the International Sale of Goods (CISG) shall apply to the handling of legal transactions between ourselves and legal persons with no registered office in inland.