|These conditions form the basis of all our supplies and services together with |
any separate contractual agreements which may arise. This shall also apply to
all future supplies and services, without any separate express reference being
required. Any deviating conditions of purchase of the Customer are not part of
the subject matter of this agreement, even if we do not expressly reject these.
Signing of the contract, scope of service
1. Our offers are always non-binding and subject to change. The scope and implementation
of the supply is subject to the Customer’s order and our written order confirmation. Subsidiary
agreements, changes and amendments to the delivery contract and these terms and
conditions are only legally binding when they are agreed in writing. With the exception
of managers and authorised signatories, our employees are not authorised to consent to
verbal agreements which deviate from this one.
2. We are authorised to make partial deliveries of reasonable quantities.
3. Our services do not include: electrical fittings, foundations and all construction work which
may be necessary. The Customer must provide personnel to help with the unloading.
4. We are entitled to make changes to the construction and to use materials of equivalent
value, should there be a shortage of raw materials, so long as doing this does not impair
the product’s usability for the purpose stated in the contract. We make no guarantee that
subsequent supplies will be an exact colour match. Commercial colour variations within a
single delivery are permissible.
Measurements, weights and conductivity information together with any pictures, drawings
and descriptions included are only to be treated as approximations. Minor deviations from
this are permitted.
5. We retain the ownership and copyright to all estimates, drawings and other documents.
These documents may not be copied or made available to third parties or other companies.
6. Prices are ex works including any necessary packaging and excluding assembly, unless
7. If requested we can provide the Customer with fitters for a charge, should installation
(assembly) and start-up not be included in the price.
If assembly is included in the price our work will generally be conducted during normal
working hours. The Customer shall be billed separately for additional materials and the
increased labour that this generates, as well as for the waiting time and overtime of the
fitters associated with this, and for the fulfilment of any special requests.
8. Unless otherwise agreed, payment is to be made in full. If the meeting of any and all
conditions for the amount becoming due such as delivery, assembly or set-up, are delayed
for reasons for which the Customer is responsible, the due date remains unaltered by the
delay. The same applies if the agreed payment date is not met or if payment is not made
within 6 months of the order if a payment date has not been agreed upon.
9. Failure to meet an agreed payment date will result in interest being billed on arrears. We
are not required to send a reminder. If the Customer is not responsible for failing to meet
the payment date, interest of 5% p.a. is to be paid on the outstanding sum from the date
it becomes due.
10. If the Customer is in arrears with the deposit or payment for two successive instalments
amounting to a total of at least 1/12 of the purchase price, we are entitled to demand the
payment of the entire balance, or to withdraw from the contract after the unsuccessful
expiration of an appropriate grace period. The same applies to an exchange agreement
should the Customer fail to honour or redeem the bill of exchange on time.
11. The Customer is not permitted to offset against counterclaims which are contentious and
have not been established as legally binding. The same applies to the exercising of the
right to withhold performance and right of retention, insofar as these are not aimed at
fulfilling the same contractual relationship, based on our payment claim.
Retention of ownership
12. The supplied products shall remain our property until full payment of all our current and
future outstanding claims against the Customer. If the Customer delays payment, we are
entitled to cancel and the Customer is required to surrender the products. We may then
satisfy our claims through other sales.
13. The Customer shall keep the retained goods safe for us free of charge. The Customer is
obliged to inform us immediately if third parties access the goods subject to retention of
14. As long as we retain ownership, the resale, rental or transfer of use on other legal grounds,
even if the delivered product is modified or provided with other items, is only permitted as
a resale within the normal course of business provided that they are only allowed to sell
under the retention of ownership. The Customer hereby cedes to us all claims resulting
from resale to a third party. This security remains in place until payment of the total
outstanding amount of the resale to third parties. The reseller is only entitled to collect the
assigned claims in trust for us as long as it has met its payment obligations to us.
15. The delivery period shall be deemed to have been met if by that date the products to be
supplied have left the factory or if the Customer has been informed that the items are ready
to be dispatched, or when the delivered products have been assembled within the delivery
period, if assembly is included with delivery, assuming ability to work is not hindered.
16. The delivery period shall be extended as appropriate if we do not receive documents,
clarifications and permits together with partial payments due from the Customer on time.
17. Should the Customer reject acceptance at the end of the delivery period, they must bear
the costs of storage.
18. The delivery period is based on our estimated capacity and is subject to unforeseen
circumstances and obstacles which are beyond our control such as force majeure,
government measures, seizure, uprising, shortage of raw materials, accidental delay in
material deliveries, operating errors, reductions in energy supply, means of transport.
Such events together with industrial action of any kind by us or our subcontractors will
extend the delivery period as necessary.
19. If we are culpable of missing a grace period agreed in writing and the Customer incurs loss
as a result, for each full week of delay the Customer is entitled to demand compensation
of 0.5% up to a total of 5% of the invoice amount for the parts of the order in question
which could not be used as intended. In accordance with this, the compensation to be paid
by us is due with the last instalment. Further claims for compensation by the Customer
20. The Customer has a right to withdraw due to failure to meet the delivery time - even with a
set delivery period - only before accepting the delivery and only then when we have delibe
rately let lapse a written and appropriate grace period with threat of withdrawal
Transfer of risk
21. Risk passes to the Customer not later than the time at which the consignment leaves
the factory or depot, even if carriage paid delivery has been agreed. For delivery with
assembly, the risk of accidental loss, theft, etc., passes to the Customer upon delivery
to the construction site
22. When shipment is delayed for reasons caused by the Customer, risk passes to the
Customer at the time at which notification is given that the product is ready for delivery.
Warranty and liability
23. Within the 12 month warranty period we will redress any defect in the product delivered.
The warranty period begins when the Customer receives the shipment or, if assembly
forms part of the delivery service, once assembly has been finished by our fitters,
regardless of formal acceptance. The commercial deadlines for notice of defects shall
remain unaffected. The statutory limitation period applies to claims for damages due to
injury to life, body or health together with claims for gross negligence.
24. We will either repair the damaged parts or replace them at our discretion. The warranty
covers the free replacement of materials. The fitters’ expenses for travel and working
time together with agreed allowances for the fitter, travelling expenses, expenses and
also the freight costs are charged to the Customer in accordance with our rates at the
time of the repair. This does not apply under the warranty when assembly is completed
by us incorrectly. If the set-up cannot be carried out at the installation site, the product
delivered is to be sent to us or to a place named by us, carriage paid. Any parts removed
shall become our property.
25. The warranty does not cover defects caused by materials supplied or required by Customer
including third-party products or for example by a design ordered by the Customer,or
damages which arise through non-compliance with critical loads or usage guide lines as
per our sales documents.
26. If the remedy of a defect which is covered under the warranty fails or is completely
impossible, the Customer has the right to a reduction in price. In the case of other services
such as construction work, the Customer can withdraw from the contract if its interest in
the delivery has objectively ceased due to the defect.
27. Our liability for compensation, irrespective of the legal basis, is limited to intent, gross
negligence and negligent breach of contractual obligations. Contractual obligations are
obligations that the Customer may rely on their being met and the fulfilment of which
generally facilitates the proper performance of the contract. Our liability for negligent
breach of contractual obligations and for gross negligence is limited to typical and
foreseeable damages. Our liability for injury to life, body or health remains unaffected by
the above provisions as well as liability under the Product Liability Act.
28. The above disclaimers and limitations of liability also apply to the same extent in relation
to our executive bodies, legal representatives, employees and other vicarious agents.
29. Compensation claims against us, irrespective of the legal basis, are limited to the amounts
covered by the insurance policies concluded by us.
30. Any ineffective provisions in these terms and conditions of supply shall not affect the
validity of the remaining provisions.
31. The place of jurisdiction for all legal disputes between the contractual partners which
may arise from the contract - insofar as the Customer is a trader or has no general place
of jurisdiction in Germany - shall be Bad Hersfeld. We may also choose to bring cases
before the competent court for the residence or company headquarters of the Customer.
Last amended: February 2012 D