The following General Terms and Conditions of Contract apply exclusively to all our offers, deliveries and services, including future business with the customer, unless expressly agreed otherwise. Deviating provisions in the customer’s terms and conditions of business shall only apply if we have expressly agreed to their validity in writing.
A. General provisions
I. Contract, prices, delivery and services
1. telephone, telegraphic, telex or verbal additions, amendments or subsidiary agreements to the order require our written confirmation to be effective. If the customer demands changes in performance, the parties shall agree on an appropriate contractual amendment, which the parties shall record in a written supplementary agreement. Otherwise we are entitled to reject the request for change.
2. the agreed prices are net prices “ex works” plus the costs of packaging, cartage, shipping, installation and intermediate assembly and the applicable statutory value added tax.
3. our invoices are due in full 30 days after delivery net cash.
If a preliminary inspection has been agreed, a partial amount of 50 % is due after preliminary inspection. Bills of exchange and cheques shall only be accepted on account of performance. The costs of discounting and collection shall be borne by the customer.
4. the client shall only be entitled to offset or withhold payment if the counterclaims are undisputed or have been legally established. The exercise of the right of retention also requires that the counterclaim of the client is based on the same contractual relationship.
5. a delivery or service date promised in writing shall be deemed to have been met when the readiness for dispatch has been notified or the goods have left the place of dispatch. It shall be postponed in the event of unforeseen hindrances beyond our control in accordance with the duration of such hindrances.
6. partial deliveries and services are permissible, provided that they do not result in disadvantages for use.
7. in case of dispatch, the choice of the mode of dispatch is made at our discretion.
8. transfers of rights and obligations of the customer from the contract concluded with us require our written consent to be effective.
II. compensation for damages and expenses
In the event of a pre-contractual, contractual and non-contractual breach of duty, including tort and producer liability, we shall be liable for damages and reimbursement of expenses in the event of our own fault or the fault of our vicarious agents only in the event of intent, gross negligence and in the event of a slightly negligent breach of a material contractual obligation. E. II. 6. sentence 2 remains unaffected. Our liability is – except in the case of intent – limited to the typical contractual damage foreseeable at the time of conclusion of the contract. The assertion of useless expenses by the customer is not permitted.
2. except for the violation of essential obligations, liability for slight negligence is excluded, but in any case limited to the amount of the remuneration.
3. exclusions and limitations of liability shall not apply in the event of the assumption of a guarantee for the quality of a delivery item within the meaning of § 444 BGB (German Civil Code) in the event of the fraudulent concealment of a defect, in the event of damage to life, limb or health and in the event of mandatory liability under the Product Liability Act. In this respect the statutory provisions shall apply.
All claims for damages against us, regardless of their legal basis, shall become statute-barred at the latest one year after delivery of the delivery item to the customer, in the case of tortious liability from the time of knowledge or grossly negligent ignorance of the circumstances justifying the claim and the person liable to pay compensation. Any shorter statutory limitation periods shall have priority.
III Duration of contract and termination
Permanent contracts begin with the signing and are valid for an indefinite period. The parties may terminate the contract by giving two months’ notice to the end of the month.
Extraordinary termination without notice for good cause is reserved. For us, good cause shall be, among other things, the filing of insolvency proceedings against the assets of the Customer as well as default of payment by the Customer of more than one month.
IV. Place of performance, place of jurisdiction, choice of law
1. place of performance is the respective place from which the goods are dispatched. Place of performance for payments by the customer is our branch in Bocholt.
The place of jurisdiction for all disputes arising from the contract, including actions on bills of exchange, is the court responsible for Bocholt. We are also entitled to take legal action at the customer’s head office.
3 German law shall apply exclusively.
V. Severability clause
Should a provision be or become void, the validity of the other provisions shall remain unaffected.
B. Special provisions for repairs or maintenance in our workshop
1. we provide warranty only for the repaired or replaced parts
2. the client is obliged to cooperate according to the content of the order.
3. a protocol will be drawn up about the acceptance, which will be signed by us.
4 The provisions under E. II No. 1, 5 to 7 shall apply accordingly to claims for defects.
5. before the start of the desired work, the customer is obliged to attach a completed contamination declaration to the components to be repaired, for further use or for the contractor’s attention.
C. Special provisions for maintenance
1. the maintenance services shall be specifically described in separate maintenance protocols depending on the technical design of a system or the object to be maintained. The Contractor shall procure any spare parts required thereafter. Disassembled parts and materials are disposed of by the customer. Necessary services that are not included in the maintenance protocols will be notified to the customer in good time.
2. maintenance services do not include
a) the elimination of malfunctions caused by improper handling, external force (especially vandalism) or operating errors
(b) adaptation or amendment due to new or amended rules
unless we are separately commissioned to do so. If the parties cannot agree on a separate order within three months after determining necessary adjustments due to regulations concerning the construction, operation or maintenance of the contractual facilities, they may terminate the maintenance contract with two months’ notice.
3. the Contractor shall record fault reports from Monday to Thursday between 06:30 and 16:00 hrs and Fridays between 06:30 and 11:00 hrs. If a telephone clarification or solution is not possible, a service technician will be on site within 48 hours after notification, for fault reports on Fridays after 11:00 a.m. and before public holidays, a service technician can be on site within 24 hours on the next working day. In case of necessary air travel or a journey to the customer by car of more than 8 hours due to the distance to the customer, these periods can be correspondingly longer.
4. the customer is obliged to cooperate according to the content of the order, in particular to provide the necessary information. He must grant us access and provide us with the facilities, connections, operating materials such as electricity, water, fuels and – if necessary – personnel free of charge. The maintenance environment must comply with the statutory, in particular occupational safety and accident prevention regulations and promote maintenance with regard to temperature, humidity, ventilation, lighting, noise and similar. The client shall take the measures required within the scope of what is reasonable to determine malfunctions and their causes.
5. services not included in the maintenance records shall be charged additionally according to expenditure in accordance with general assembly rates. Replaced plant components that we procure will be charged separately. The parties shall be entitled to an adjustment of the remuneration in proportion to changed costs for the year following the current contractual year if they claim this at least four months before the end of the contractual year. If it is unreasonable for the other party, the latter may terminate the maintenance agreement with one month’s notice to the end of the first quarter of the following year.
6. the provisions under E. II No. 1, 5 to 7 shall apply accordingly to claims for defects.
D. Special provisions for rent and loan
1. the client is only entitled to use the subject of the contract for the intended purpose. The client shall bear the expenses necessary for the use.
2. if the client is prevented from using the subject matter of the contract without this being our responsibility, agreed counterperformance shall remain unaffected.
3. the client is not entitled to make changes to the subject of the contract without our consent.
4. the client shall be liable without limitation for damage caused by improper use by him or third parties.
5. if the object of the contract is not returned in due time and in the proper manner, the client shall be liable for compensation for use, in the case of rent in the amount of the agreed rent. He reserves the right to prove that no damage or less damage has been incurred.
E. Special provisions for the sale of new, replacement and wearing parts
I. Reservation of title
1. we reserve the right of ownership of the delivery item until payment has been made.
2. the assertion of the retention of title as well as the seizure of the delivery item by us shall not be deemed to be a withdrawal from the contract, unless expressly declared by us in writing.
3. the customer is obliged to keep the delivery item for the duration of the ownership.
4. the customer is entitled to resell the delivery item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the purchase price agreed between us and the customer (including VAT) which accrue to the customer from the resale, irrespective of whether the delivery item is resold without or after processing. The customer is authorized to collect these claims after their assignment, as long as he is not insolvent, in default of payment or our satisfaction is not otherwise endangered. Notwithstanding our authority to collect the claims ourselves, we undertake to collect the claims as long as the claims are not collected. Otherwise, we may also demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment. In this case, goods that have not yet been further delivered shall be returned to us free of freight and expenses upon request. Based on the consent of the customer hereby granted, we shall be entitled to remove the goods and to sell them by auction or private sale by a person determined by the Chamber of Industry and Commerce and to offset the proceeds against the net price.
5. processing or transformation of the delivery item by the customer shall always be carried out for us. If the delivery item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of our delivery item to the other processed items at the time of processing.
6. if the delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other mixed items. If the mixing is carried out in such a way that the object of the customer is to be regarded as the main object, it is deemed to be agreed that the customer transfers proportional co-ownership to us.
7. the customer shall store our sole or joint ownership resulting from processing, alteration or mixing for us free of charge.
8. the customer also assigns to us the claims for securing our claims against him, which arise against a third party through the connection of the delivery items with a property.
9. the customer may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the customer must inform us immediately and provide us with all information and documents required to protect our rights. Enforcement officers or third parties must be informed of our ownership.
10.we undertake to release the securities to which we are entitled at the request of the customer to the extent that their value exceeds the claims to be secured by more than 20%, insofar as these have not yet been settled.
II. liability for defects
The warranty period for claims for defects is 12 months from the transfer of risk.
2. in the case of an acceptance, the delivery item shall be deemed to have been approved despite existing defects if the defects were recognisable and the client does not reserve any defect rights in the acceptance protocol. In all other respects, the obligation to give notice of defects in accordance with § 377 (2) HGB (German Commercial Code) shall apply. The notification of defects must be made in writing.
3. warranty is excluded for used goods.
4. public statements made by the manufacturer (§ 4 ProdhaftG) or his assistants, especially in advertising or in labelling about certain properties, do not establish a certain target quality of the delivery item.
5. in the event of a justified complaint within the time limit, the customer shall initially only be entitled to subsequent performance while reasonably safeguarding his interests. We can demand that the client carries out work covered by our warranty obligation himself according to our instructions, insofar as this is reasonable for him. The costs incurred shall be borne by us if the complaint proves to be justified, otherwise by the customer.
6. if further attempts at subsequent performance are unreasonable for the client, he may instead demand cancellation of the contract or reduction of the remuneration. Our warranty does not entitle to compensation. The client is only entitled to withdraw from the contract – insofar as withdrawal is not excluded by law – or to reduce the remuneration after the unsuccessful expiry of a reasonable deadline set by him for subsequent performance, unless the setting of a deadline is dispensable according to the statutory provisions (§ 323 Para. 2 BGB, § 440 BGB, § 441 Para. 1 BGB). In the event of withdrawal, the client shall be liable for deterioration, loss and undrawn benefits for any negligent and intentional fault.
7. the remedying of one of the defects by way of subsequent performance by removal of the defect or the delivery of a defect-free item shall not constitute an acknowledgement. If the delivery item is partially renewed by way of subsequent performance, the period of limitation shall start anew only with regard to the renewed parts.