Every contract we enter into shall be governed by the following terms and conditions. They shall apply to all future business connections, even without an explicit agreement on their application.
Authoritative for construction and interpretation of these Terms and Conditions shall be the German version only, even if a translation is furnished to the customer.
Any changes or variations of these terms shall only apply with our written consent. General conditions of the other party shall only apply if we have expressively agreed to them. Without this agreement, any other partie’s terms do not apply, even without our express objection.
We will inform our customers about changes of these terms in writing. They shall be considered approved if the customer does not object in writing. We will advise our customers of this consequence in particular. The objection has to be sent within one month after we announced the changes to the customer.
I. OFFERS, SCOPE OF DELIVERY
- Our offers are subject to confirmation. Oral agreements and agreements by phone shall only be binding with written confirmation.
- „Written form“ in terms of these conditions includes the text form (fax / email).
- Documents, which accompany our offer, such as illustrations, drawings or dimensions are not binding unless we have expressly described them as binding. We are the owner and hold all copyrights and trademark rights concerning our cost estimates, drawings and other documents. They shall not be disclosed to third parties without our consent.
- Delivered parts shall comply with the laws and standards applicable in the Federal Republic of Germany.
- The scope of delivery shall be defined by our written confirmation of order. If no confirmation of order exists, the scope of delivery shall be defined by our offer. Additional agreements or changes are subject to our written confirmation.
II. PRICES AND PAYMENT TERMS
- Our prices include the costs of delivery to the customer’s installation site. Any additional costs of transport shall be borne by the customer. If the costs of material or wages increase within a period of four months after the contract conclusion, these costs shall be passed on to the customer.
- If we deliver to a customer abroad, any duties, fees, taxes, costs of technical inspections etc., which accrue outside the Federal Republic of Germany, shall be passed on to the customer.
- Bills of exchange and checks are accepted only on account of performance. When we accept bills of exchange that are paid abroad or in out-of-town locations, we do not accept any liability for the timely filing of protests. Discount charges are calculated from the due date of the invoice. If the customer defaults on his / her payment obligations, in particular if a bill of exchange or a draft is not honoured duly, we reserve the right to claim the total amount due, even if we have accepted checks and bills of exchange. In addition, we reserve the right to deliver only against payment in advance.
- Set-off with counterclaims or assertion of any rights of retention shall only be admissible where the purchaser’s claims are undisputed or legally valid.
- We accept orders based on the assumption of creditworthiness. If it is evident, following the conclusion of the agreement, that our claims are at risk, based on the inability of the purchaser to meet the payment conditions, especially in cases of long-term seizures or other compulsory enforcement measures or in cases of court or out-of-court bankruptcy proceedings, we shall be entitled to deliver exclusively against immediate full payment or securities. If the customer refuses to meet these terms, we shall be entitled to withdraw from the contract.
- If the delivery value amounts to less than 1.600,00 Euros, we shall be entitled to request cash on delivery. If we deliver systems or if the delivery value amounts to more than 5.500,00 Euros, one third of the agreed price is due for payment upon receipt of the order confirmation, a further third upon delivery, and the remainder within ten days after delivery with two percent (2 %) discount, otherwise thirty days after issuing of the invoice.
III. DELIVERY TIME
- The deadlines stated in our order confirmations or agreed otherwise with the customer apply. To meet these deadlines, it is necessary that all the documents to be provided by the customer are received timely and that the customer complies with the terms of payment and other obligations. If these conditions are not met on time, the delivery time shall be extended by the duration of the resulting delay.
- The time of delivery is met if the goods leave our house before the deadline. If the delivery is delayed because of circumstances attributable to the customer, the time of delivery shall be met if we notify the customer of the completion or readiness to deliver within the agreed time.
- Partial deliveries are permissible to an extent reasonable to the customer.
- If we are prevented from fulfilling our obligations due to the occurrence of unforeseen exceptional circumstances that we could not avoid despite reasonable care, whether these occurred in our factory or at any of our suppliers, – e.g. blockages, breakdowns, administrative intervention, delays in the supply of essential raw materials and building materials or power supply problems – the delivery will be extended by the duration of the obstruction. If the circumstances mentioned above prevent the completion of the delivery or service we shall be released from the obligation to deliver. If the customer encounters any of the above circumstances, the same conditions shall apply to his / her acceptance obligation. We may only invoke the circumstances mentioned above if we notify the customer immediately.
- If shipment or delivery is delayed at the customer’s request, we shall be entitled to claim storage costs at half a percent of the net invoice amount for each month, starting one month after notice of completion or readiness for delivery. These storage costs shall be limited to five percent of the net invoice value, unless we can prove higher costs.
IV. DISPATCH AND PASSING OF RISK
- The risk will pass to the customer upon dispatch. In the event of a delay for reasons attributable to the customer or his / her auxiliary person, the risk will pass to the customer upon the date on which the items are ready for delivery.
- We will only contract transport insurance upon a written request by the customer and only against advance payment.
V. RETENTION OF TITLE
- Property in goods shall not pass to the customer, until he / she has paid in full the agreed price including all claims resulting from the business relation and all future claims and until bills of exchange or checks are redeemed.
- The customer is entitled to collect debts arising from the resale of delivered goods. If the customer fails to meet his payment obligations towards us or if we become aware of circumstances that according to dutiful commercial judgment cast doubt on the customer’s creditworthiness, we shall be entitled to withdraw this right to collect debts.
- Any goods that are our property shall not be used as a security or collateral. In the event that third parties lay claim to the goods, in particular seizures, the customer shall immediately indicate that we are the legal owners of the goods and notify us by providing us with a copy of the seizure order.
- In the event of a delay in payment or breach of other contractual obligations, we shall be entitled to reclaim the delivered goods after requesting payment and setting an appropriate payment deadline. This shall not be considered as a withdrawal from the contract. Moreover, we shall be entitled to resell or otherwise dispose of such reclaimed goods or any other securities without judicial proceedings while considering the interests of the customer as best as possible. We shall notify the customer at least fourteen days in advance.
- If the value of the securities given to us exceeds our claims by more than twenty percent (20 %), we shall be obliged to return or release such securities according to our choice at the request of the customer.
VI. CUSTOMER’S RIGHTS IN CASE OF DEFECTS
- The customer’s claims for defects expire within 12 months starting from the date of delivery or final acceptance. This does not apply if the provisions in sections 438 par. 1 No. 2, 479 par. 1 and 634a par. 1 No. 2 of the German Civil Code (Bürgerliches Gesetzbuch) stipulate extended periods. The shortening of the expiration period shall not apply if we can be reproached with serious fault, or if we should be answerable for harm to body or health, or for the loss of life of the customer or his / her auxiliary persons.
- We assign any claim against suppliers of essential foreign products to the customer. The customer can only hold us liable for these defects if a prior legal action against the external suppliers has not been successful.
- If the purchase is a commercial transaction for the customer, he/she is obligated to notify any identifiable defects of the delivered products without undue delay, at the latest within a period of one week upon receipt of the goods. Any defect that could not be detected by a thorough examination within this period shall be notified to us in writing immediately after detection
- In the case of a legitimate claim, we have the right to rectify the defect or to deliver a replacement at our discretion within a reasonable period of no less than 14 days. Should the remedy fail, the customer may claim mitigation or withdraw from the contract. The same applies if we fail to meet an appropriate later deadline, which was set for us for the improvement or substitute delivery.
- Claims for damages of defective goods are limited as follows:
We are not liable for a slightly negligent violation of non-material contractual obligations.
Our liability for consequential damages is excluded except in cases of intent, gross negligence or breach of material contractual duties. Insofar as we are liable for consequential damages, the liability is limited to foreseeable damages not caused by exceptional circumstances.
Claims arising out of physical damage or damage to health as well as the loss of life of customers or employees, which are attributable to us, shall not be limited.
The limitation of liability does also not extend to claims based on the German Product Liability Act (Produkthaftungsgesetz) or on the fraudulent concealment of a defect.
These limitations of liability do not apply to personal damages or damages to private property due to defects in the goods supplied for which we are liable according to the German Product Liability Act. Moreover, the exclusion is not valid for the lack of expressively warranted properties if we assured them specifically to indemnify the customer against consequential damages.
VII. LIABILITY CLAUSE
- The following limitations apply to our contractual and non-contractual liability as well as to our liability based on fault during the contract settlement (culpa in contrahendo). We shall bear the burden of proving the facts establishing a limitation or exclusion of liability.
- We are not liable for slightly negligent violations of non-material contractual obligations. Our liability in case of breach of material contractual duties is limited to contract-typical foreseeable damages except in cases of intent or gross negligence.
- The limitation of liability does not extend to damages to life, body or health and to claims based on the German Product Liability Act.
VIII. CUSTOMER’S OBLIGATIONS
- We will provide advice to the customer regarding the requirements of installations. The customer shall prepare the installation, the facilities required for the electricity supply, the power cables and connectors as well as the cable connection at his own cost and responsibility in advance. They have to comply with the applicable technical standards and our installation guidelines, which we will provide to our customers.
- The customer shall ensure data backup and uninterrupted power supply.
IX. SPECIAL PROVISIONS FOR THE USE OF SOFTWARE
- Programs, which we have compiled, remain our property. Insofar software programs are part of the delivery, the customer acquires a simple right of use. He / she will respect all rights to the goods and will pass any limitation of use on in cases of resale. Using the software in connection with the internet requires a special enlarged license. The use of the software is subject to a license fee.
- We will deliver an executable program in object code including all accompanying documentation. The customer shall confirm the provision of software / documentation upon delivery of the program carriers / documentation by signing a correspondent declaration. All programs shall be considered approved if the customer does not notify us in writing of any defects within fourteen days after he / she received the software.
- The customer is entitled to free rectification of defect software for six months from delivery on. This shall only apply if the customer uses the software with the stipulated hardware, on the program carriers approved by us and in accordance with the documentation.
- The customer shall only be entitled to change or adapt the software and / or the documentation with our prior written consent. The customer is not entitled to decompile or process the software.
- Other services (training, advisory services, customer support etc.) have to be contracted and remunerated separately according to our price list.
X. FINAL PROVISIONS
- The customer undertakes to transfer his / her contractual rights only with our prior written consent.
- We shall be entitled to store data of the customer related to individuals necessary to conduct business in our data processing. The customer is hereby informed according to section 33 of the German Data Protection Act (Bundesdatenschutzgesetz).
XI. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW
- The place of performance for all obligations resulting from the contract is Herford, Germany.
- Herford shall be the place of jurisdiction for all disputes arising from the contractual relation provided the customer is a merchant, a legal person in public law or a public-law fund. We shall be entitled to apply to the court responsible for the seat of the customer instead.
- German law shall exclusively apply. The application of the United Nations Convention on the International Sale of Goods of April 11, 1980 is excluded.