The only terms applicable to the contract are our terms of business. We shall not accept any customer terms that conflict with or differ from our own, save only if we have specifically agreed to them. Our not objecting to any order terms or other terms of business of the customer shall in no way constitute agreement to them. In particular, making the delivery and/or providing the contractual service shall not represent any implied consent to the customer's terms of business. Any conditions agreed within the contractual relationship on an individual contract basis shall take precedence over the general terms of business. Any amendments, side agreements and/or addenda within the framework of any individual contracts require our written confirmation. Should any individual provision of these general terms of business be or become wholly or partially unenforceable, the validity of the remaining provisions shall be unaffected by this.
II. Quotation and contract signature
Our quotations are subject to confirmation. No binding contract is entered into until we have provided our written order confirmation. Our written order confirmation is definitive in relation to the content and scope of the contract. This applies also to any side agreements, amendments, addenda, etc. The documents accompanying the quotations, such as illustrations, drawings, weight details, measurements and/or other technical data, or sundry operating or German or foreign standards to which reference is made merely indicate the contract's subject matter. We reserve title rights and copyright to all illustrations, drawings and other documents produced by us in relation to the job. They may be made accessible to third parties only with our written consent. We reserve the right as a result of technical advances to make changes and improvements in respect of the design, materials and finish if the contractual purpose is not significantly changed by this and the change does not appear unreasonable for the customer.
III. Price and payment
The prices stated are ex works, including loading in the works, but excluding packaging and value added tax. The quotation is based on the latest technology and/or relevant regulations or other safety provisions at the time that it is submitted. In the event of any changes pursuant to technical advances occurring in the meantime and before contract signature or shipping, we are to be reimbursed for the resultant additional costs. In the absence of any separate contractual agreement, our invoices are to be paid net and in full within 30 days. If the customer falls into arrears or fails in any other way to meet its payment obligations, e.g. if a cheque or bill of exchange cannot be redeemed, we shall be entitled, regardless of any extension agreements for the term of bills of exchange received but not yet due, to make all financial claims against the customer payable at once. We shall also be entitled to provide any outstanding deliveries or services only against prepayment or the provision of security by the customer. The customer shall have the right to withhold payments or to set off our claims with counter-claims only if the counter-claims are undisputed or have been legally determined without recourse to appeal.
IV. Delivery lead time and delays
The delivery lead time is derived from our order confirmation, which is thus definitive in this regard. Our adherence to this delivery lead time requires that all commercial and technical issues have been clarified with the customer and that the latter has fulfilled all of its obligations, e.g., has acquired the required certificates or permits from government authorities and/or made any contractually agreed advance payment. We shall be deemed to have met the delivery deadline if by that time the products to be delivered have left our factory or the customer has been notified that they are ready to ship. If the customer has to formally accept the product, the definitive date – except in the event of any justified refusal to perform the acceptance procedure – shall be the date of formal acceptance or alternatively of our notification that product is ready for the acceptance process. If the shipment or the acceptance of our product is delayed due to reasons for which the customer is responsible, we shall bill the latter for the costs incurred by the delay, beginning one month following notification of readiness for shipment or acceptance. Any deliveries that are not made or are delayed due to circumstances beyond our control, including a delay in the supply to ourselves of key materials, shall entitle us to make the delivery at a correspondingly later date or to cancel the contract in whole or in part. We shall inform the customer as soon as possible when any such circumstances first arise and when they are over. We do not take back any transportation or other forms of packaging.
The only exception is multi-use pallets. The customer is required to dispose of the packaging at its own expense.
V. Transfer of risk and acceptance
The risk is transferred to the customer when our product has left our factory, including when partial deliveries are being made or we have taken on further matters, e.g., the shipping costs or delivery and installation. If a formal acceptance procedure is to be performed, it is the definitive juncture as regards the transfer of risk. If the product supplied by us or the services that we have rendered need to be formally accepted, the formal acceptance is the definitive juncture as regards the transfer of risk. The acceptance procedure must be performed without delay on the acceptance date, alternatively, following our notification of readiness for acceptance. Any immaterial flaw or deficiency shall not entitle the customer to refuse acceptance. If there is a delay or failure of shipment or acceptance as a consequence of circumstances beyond our control, the risk shall be transferred to the customer as of the date of notification of readiness for shipping or acceptance.
To the exclusion of all other claims, and subject to section VII, we provide the following warranties in respect of defects in quality or title of the products supplied by us and of any installation or repair jobs and any other contractual services:
The customer must inspect the delivered products immediately after delivery and notify us in writing without delay of any defects that exist, otherwise we shall be freed of any liability for defects.
We shall have the right to fulfil our warranty obligation through repair or replacement. If the repair or replacement fails to resolve the issue, the customer shall retain the right to demand a lowering of the payment to be made (a price reduction) or, if it so chooses, to cancel the contract.
The customer shall, in agreement with us, allow us the required time and opportunity to perform any repairs and replacement deliveries that appear necessary to us; otherwise, we shall be released from any liability for any resulting consequences. Only in urgent cases of a threat to operational safety or to prevent the occurrence of disproportionately high losses, when we are to be notified immediately, shall the customer have the right to remedy the defect itself or to have the defect remedied by a third party and to demand reimbursement from us of the expenditure incurred.
The customer shall have the right to cancel the contract, within the scope of statutory provisions, if we – taking into account the statutory exceptions – allow a reasonable deadline set for us to provide the repair or replacement pursuant to a quality defect to pass without said remedy being provided. If the only defect is of no material significance, the customer shall have only the right to a reduction of the contract price. The right to reduction of the contract price is excluded in all other cases.
In the following situations we accept no liability:
- improper or incorrect use or flawed installation and/or commissioning by the customer or a third party, natural wear and tear, incorrect or careless handling or incorrect maintenance,
- unsuitable operating materials, deficient building works, unsuitable subsoil, chemical, electrochemical or electrical influences, insofar as they are beyond our control. Failure to adhere to the operating instruction that we provided with the product rules out any form of liability.
- If the customer or a third party that it commissions performs any repairs, we shall not be liable for any consequences arising from this. The same shall apply to any modifications made to the product without our prior consent.
Defects of title
If the use of the product supplied by us leads to the infringement of industrial property rights or copyrights in Germany, we shall acquire at our expense the right for the customer to continue to use it or shall modify the product in a way that is reasonable for the customer and that ensures that there is no longer any infringement of industrial property rights.
If this cannot be done in a reasonable way from a business perspective or within a reasonable length of time, the customer shall be entitled to cancel the contract. We shall also have the right to cancel the contract under the conditions described above.
The obligations relating to us in the above provision are, subject only to the provisions of section VII, our full obligations in relation to any breach of copyright or industrial property rights.
Said obligations are effective only if
- the customer notifies us immediately of any claimed infringements of industrial property rights or copyrights,
- the customer gives us all reasonable support in defending any claim that is made and/or enables us to carry out modifications as per the above provision,
- we retain the right to take any measures to defend ourselves against the claim, including out of court settlements,
- the defect of title is not related to any instruction from the customer, and
- the breach of rights was not caused by the customer making alterations to the product supplied by us without our consent or by using it in ways other than as intended by the contract.
If any case arises of warranty or liability in relation to the products or services that we supplied, we are to be involved without delay in the investigation of the loss. If as a result of us being responsible for not or incorrectly carrying out any proposals made or advice given before or after contract signature
or through the breach of any other secondary contractual obligations - especially instruction on operating and maintaining the product - the product supplied by us cannot be used by the customer as intended by the contract, then, to the exclusion of any further claims from the customer, the provisions of sections VI and VIII, point 3 shall accordingly apply.
We shall not be liable - on any legal basis - for any damage that arises not on the product supplied by us itself, except
- in the event of intent,
- in the event of gross negligence by the owner / management boards or executive employees,
- in the event of culpable injury to life, body or health,
- in the event of deficiencies that we fraudulently conceal or of a breach of a guarantee of the properties of the product,
- in the event of defects in the product supplied by us, if pursuant to the Product Liability Act we are liable for personal injury or material damage to privately used items.
In the event of a culpable breach of a material contractual obligation, we shall be liable even in the case of gross negligence by staff who are not senior executives and in the event of minor negligence. In the latter case our liability shall be limited to the cover provided by our extended product liability insurance policy and to 5 million euros per claim. In each instance our contractual obligation shall be limited to the reasonably foreseeable losses for contracts of this type. No other claims shall be entertained. Insofar as our liability is excluded or limited, the same shall also apply to the personal liability of our employees, trade representatives and other agents.
VIII. Retention of title
The goods supplied shall remain our property until all invoices arising from the business relationship have been paid in full. If the item supplied is processed or combined with items not belonging to us, we shall acquire joint title to the new object in proportion to the value of the item we supplied compared to that of the other items at the time of the processing, combining, etc. The same shall apply to the object created through processing, combining, etc. as for the item supplied by us subject to retention of title.
The customer shall be entitled to sell on the purchased item in the normal course of business. Under no circumstances, however, may the item be ceded in the normal course of business as security to any third party. In the event of the item being sold in the normal course of business, the purchase price paid shall take the item's place. The customer assigns to us even now all receivables arising from any sale up to the level of our final invoice amount inclusive of value added tax. The customer shall be authorised to collect these receivables for as long as it meets its payment obligations towards us. In view of the extended title retention (advance assignment of the respective purchase price claim) any assignment to a third party, especially to a bank, is against the terms of the contract and therefore not permissible. We shall be entitled to check the customer's sales literature at any time and to inform its customers of the assignment. If the value of the securities pursuant to the above provision is for the foreseeable future in excess by over 10% of the amount of the outstanding receivables secured by them, the customer shall be entitled to demand of us the release of securities equal to said excess. The customer expressly grants us the right to take back the item with retained title and for this purpose to access its premises, facilities and workplaces etc. without such taking back being seen as cancellation of the contract. The latter shall apply only if we expressly declare it in writing.
IX. Applicable law and jurisdiction
The applicable law for the contractual relationship shall be German law. There shall be no application of the UN Convention on Contracts for the International Sale of Goods. The courts of Braunschweig shall have jurisdiction for any and all claims made by either party arising from the business relationship with a sole trader, a corporate entity or special public body. All obligations arising from the contractual relationship are to be fulfilled in Braunschweig.