I. General Provisions
(1) The following Terms and Conditions of Sale and Delivery shall apply exclusively, unless otherwise agreed in writing on a case-by-case basis. Any agreements recorded in writing shall take precedence insofar as they deviate from these Terms and Conditions of Sale and Delivery, without otherwise affecting the validity of the remaining provisions.
(2) The following Terms and Conditions of Sale and Delivery shall be deemed accepted by the Customer upon receipt of our quotation documents, even if no contract is ultimately concluded. This shall apply in particular to Section II(3) of these Terms and Conditions.
III. Quotations and Conclusion of Contract
(1) All quotations are non-binding with regard to price, delivery time and availability for delivery. Agreements made orally or by telephone shall become effective only upon written confirmation by the Contractor.
(2) Documents accompanying a quotation, such as illustrations, drawings, weight specifications and dimensions, shall be deemed approximate only unless expressly confirmed as binding.
(3) We reserve all ownership rights and copyrights in cost estimates, drawings and other documents. Such documents may not be made accessible to third parties without our express permission. We shall likewise make documents provided to us by the Customer accessible to third parties only with the Customer’s consent.
II. Scope of Delivery
(1) If delivery of the subject matter of the contract becomes impossible before the transfer of risk, the contract shall be rescinded and the parties shall be restored to their pre-contractual positions.
(2) Claims for damages shall be admissible only where the party responsible for these Terms and Conditions has acted intentionally or with gross negligence.
IV. Prices
(1) Prices are quoted ex works Neu-Ulm, plus value added tax (VAT) at the applicable statutory rate. Packaging, transport, assembly and commissioning costs, as well as any additional costs for customs duties and insurance, are not included in the prices.
(2) If delivery is agreed to take place more than four months after conclusion of the contract, the Contractor shall be entitled to charge the list price applicable on the date of delivery. If the price increases, the Customer shall be entitled to withdraw from the contract within 14 days of being notified of the price increase.
(3) The Contractor shall be entitled to correct pricing errors and calculation errors, even where such errors are not immediately apparent.
V. Assembly and Commissioning
Upon request and against payment, the Customer shall provide a specialist to carry out assembly and commissioning. Charges shall be calculated on the basis of the work actually performed.
VI. Payment and Default in Payment
(1) For systems and equipment, 50% of the invoice amount shall be payable upon placement of the order, with the remaining 50% payable net within 30 days of the invoice date.
(2) Payments for spare parts and accessories shall be made net within 14 days of the invoice date. Payments for customer service work shall be made net within 10 days of the invoice date.
(3) In the event of payment default, interest shall be charged at an annual rate of 3 percentage points above the applicable discount rate of the Deutsche Bundesbank (German Federal Bank), subject to a minimum rate of 7% per annum.
(4) Payments received shall be applied in the following order: (1) costs, (2) interest, (3) credit charges, and (4) purchase price.
(5) The Customer waives statutory rights of retention and the right to set off claims disputed by the Contractor.
VII. Delivery Period
(1) The delivery date shall be specified in the order confirmation.
(2) If the Contractor is unable to meet the agreed delivery period, the Customer shall grant a reasonable extension of time, commencing on the date on which the Contractor receives the Customer’s written notice of default. The Customer may assert rights arising from the contract only after the extension period has expired. The Customer may claim damages for delay only in cases of intent or gross negligence on the part of the Contractor. In such cases, and provided that the Customer has demonstrably suffered damage, the Customer shall be entitled to claim liquidated damages for delay, to the exclusion of any further claims. Such damages shall amount to 0.5% for each full week of delay, subject to a maximum of 5% of the value of that part of the total delivery which cannot be used for its intended purpose in a timely manner as a result of the delay.
(3) If dispatch of completed items is delayed at the Customer’s request, storage costs shall be charged to the Customer beginning one month after notification that the goods are ready for dispatch. Such costs shall amount to at least 0.5% of the invoice amount for each month or part thereof. After setting a reasonable deadline, the Contractor shall be entitled to dispose of the subject matter of the delivery otherwise and to supply the Customer with another item of the same type and quality.
(4) Disruptions to business operations for which the Contractor is not responsible, in particular strikes and lockouts, as well as other events of force majeure affecting either the Contractor or its upstream suppliers, shall extend the delivery periods accordingly. The Customer shall have no claims for damages arising from such circumstances. In these cases, the Customer shall be entitled to withdraw from the contract only if, after expiry of the agreed delivery period, the Customer has formally requested delivery in writing and delivery has still not taken place within a reasonable additional period following receipt of the written notice by the Contractor.
VIII. Transfer of Risk
The Contractor shall bear the risk of loss of or damage to the contractual goods until they have been loaded onto the vehicle designated to transport them from the Contractor’s premises. From that point onwards, the risk of accidental loss or deterioration of the goods shall pass to the Customer. This shall also apply where the Contractor engages a freight carrier or delivery is made by rail.
Where the goods are transported by employees of the Contractor, the risk of accidental loss or deterioration shall likewise pass to the Customer at the point specified above, unless the Customer proves that the loss or damage was caused by the Contractor’s intent or gross negligence.
IX. Dispatch and Packaging
(1) Dispatch shall be made ex works Neu-Ulm, at the Customer’s expense and risk. At the Customer’s request, the Contractor shall arrange transport insurance against reimbursement of the associated costs. Upon receipt of the delivery, the Customer shall inspect the goods for condition, quantity and weight. Any damage shall be reported to the carrier in writing without delay.
(2) Packaging shall be charged at cost price.
X. Default in Acceptance
(1) If, after expiry of an additional period of 10 days granted to the Customer, the Customer refuses to accept the delivery or expressly declares beforehand that it will not accept the delivery, the Contractor may withdraw from the contract or claim damages for non-performance.
(2) If the delay in acceptance continues for more than one month, the Customer shall pay storage charges amounting to 2% of the order price per month, without deduction. If higher storage costs can be demonstrated, the Contractor may claim such higher costs. The Contractor may also arrange for a freight forwarding company to store the goods.
(3) As compensation for non-performance resulting from default in acceptance, the Contractor may claim 25% of the order price, without deduction, unless the Customer proves that no damage has occurred or that the damage incurred is substantially lower than the fixed amount.
(4) The Contractor reserves the right to claim higher damages, duly substantiated, including in cases involving custom-made products.
(5) If delivery becomes objectively impossible while the Customer is in default of acceptance, the Customer shall remain obliged to perform its payment obligation, irrespective of whether the Customer is at fault for the occurrence of the objective impossibility.
XI. Withdrawal from the Contract
(1) The Contractor shall be entitled to withdraw from the contract if the Customer has provided incorrect information concerning its identity or circumstances relevant to its creditworthiness, suspends payments, or if insolvency or composition proceedings have been applied for in respect of the Customer’s assets. The return of goods shall be governed by Section XII.
(2) The Customer shall be entitled to withdraw from the contract if the Contractor fails to remedy a defect for which it is responsible within a reasonable additional period granted to it. Such additional period shall not commence until the defect and the Contractor’s responsibility for it have been acknowledged or established.
XII. Return of the Subject Matter of Delivery
(1) If the Contractor takes back the subject matter of the delivery, irrespective of the legal grounds for doing so, any advance payments made shall be refunded.
(2) The Customer shall bear the expenses actually incurred by the Contractor as a result of the contract.
(3) The Contractor shall be entitled to claim compensation for depreciation resulting from the use of the subject matter of the delivery in an amount equal to 35% of the order value during the first six months and, where applicable, to set off such compensation against claims held by the Customer. This shall not apply if the Customer proves that the depreciation is substantially lower.
XIII. Warranty and Liability for Defects
The Contractor shall be liable for defects in the delivery, including the absence of expressly warranted characteristics, as follows, to the exclusion of further claims:
(1) The warranty period shall be governed by the applicable statutory provisions and shall be two years for newly manufactured goods and one year for used or reconditioned goods. Where the Customer is an entrepreneur, a legal entity under public law or a special fund under public law, the warranty period shall be one year in all cases.
(2) At the Contractor’s discretion, acting reasonably, all parts that demonstrably become unusable or substantially impaired in their usability within 24 months of commissioning as a result of circumstances existing prior to the transfer of risk, in particular defective design, inferior materials or faulty workmanship, shall be repaired or replaced free of charge. Such defects must be reported to the Contractor in writing without delay. Replaced parts shall become the property of the Contractor.
(3) If dispatch, installation or commissioning is delayed through no fault of the Contractor, liability shall expire no later than 24 months after the transfer of risk. In respect of products manufactured by third parties, the Contractor’s liability shall be limited to the assignment of warranty and liability claims to which the Contractor is entitled against the supplier of such third-party products.
(4) No warranty shall be assumed for damage arising from any of the following causes: unsuitable or improper use; incorrect installation or commissioning by the Customer or third parties; incorrect or negligent handling, in particular excessive stress or use; unsuitable operating materials; replacement materials; defective construction work; an unstable or unclean electrical supply; electromechanical or electronic interference, unless attributable to fault on the part of the Contractor; or consequential damage resulting from failure to fulfil supervisory duties.
(5) The Customer shall, after consultation with the Contractor, provide the time and opportunity necessary for all repairs and replacement deliveries that the Contractor reasonably considers necessary. Failure to do so shall release the Contractor from liability for defects. Only in urgent cases involving a risk to operational safety, of which the Contractor must be notified immediately, or where the Contractor is in default in remedying the defect, shall the Customer be entitled to remedy the defect itself or through third parties and claim reasonable reimbursement of the resulting costs from the Contractor.
(6) Where a complaint is justified, the Contractor shall bear the direct costs arising from the repair or replacement delivery to the extent that such costs relate to the replacement part, including shipping, as well as the reasonable costs of removal and reinstallation. Furthermore, where reasonably justified by the circumstances of the individual case, the Contractor shall bear the costs of providing its own installation technicians and assistants. All other costs shall be borne by the Customer.
(7) Repairs or other remedial work performed by the Contractor shall not constitute acknowledgement of the validity of a warranty claim unless expressly stated otherwise. Any claims for damages shall be limited to cases of intent or gross negligence, unless such claims arise from an express contractual guarantee.
(8) The Contractor may refuse to remedy defects for as long as the Customer has failed to fulfil its obligations.
(9) The Contractor shall not be liable for consequences arising from modifications or repair work improperly carried out by the Customer or third parties without the Contractor’s prior approval.
(10) Any guarantee of a particular characteristic of the subject matter of the delivery must in all cases be expressly identified as such in writing.
XIV. Retention of Title
(1) The Contractor reserves title to all delivered equipment, spare parts and consumables until the purchase price has been paid in full.
(2) Any processing or transformation of the goods shall always be carried out for the Contractor as manufacturer within the meaning of Section 950 of the German Civil Code (BGB). If the Contractor’s ownership is extinguished as a result of the goods being combined with other items, it is hereby agreed that the Customer’s ownership shall pass proportionately to the Contractor according to the invoice value of the goods supplied.
(3) The Customer shall be entitled to resell goods subject to retention of title in the ordinary course of business. Pledging or transfer by way of security shall not be permitted. The Customer hereby assigns to the Contractor, by way of security, all claims arising from the resale of goods subject to retention of title or from any other legal grounds relating to such goods. The Contractor revocably authorises the Customer to collect the assigned claims in the Customer’s own name and for the Customer’s own account.
(4) In the event of third-party claims or enforcement measures affecting goods subject to retention of title, the Customer shall draw attention to the Contractor’s ownership and notify the Contractor without delay. Any resulting costs and damage shall be borne by the Customer.
(5) At the Customer’s request, the Contractor shall release the aforementioned securities to the extent that their value exceeds the secured claims by more than 25%.
XV. Place of Performance and Jurisdiction
The place of performance for all mutual obligations shall be Neu-Ulm. The laws of the Federal Republic of Germany shall apply. The place of jurisdiction for both parties shall be Neu-Ulm. If the Contractor brings an action as claimant, it shall also be entitled to bring proceedings before the court having jurisdiction at the Customer’s registered office.
XVI. Severability Clause
If any of the foregoing provisions is or becomes invalid, the remaining provisions shall nevertheless remain in force. The invalid provision shall be replaced by the applicable statutory provision. If no statutory provision applies, the parties shall be obliged to agree on a provision that comes as close as possible to the commercial purpose intended and pursued by the invalid provision.
