1. General
1.1 (Area of validity) These General Terms and Conditions of Business are only intended for use in commercial transactions with business entities.
1.2 (Conflicting conditions, written form, ancillary agreements) These Terms and Conditions of Business are applicable for the contract; no other conditions shall become a constituent part of the contract, even if we do not expressly contradict them. The customer may only invoke ancillary agreements made prior to or at the conclusion of the contract where the samehave been confirmed in writing without delay.
1.3 (Reservation of right to make changes, data collection) Our offers are made free of obligation. We reserve the right to make technical improvements to our products. We may store information which is important for the performance of the contract in data processing systems.
1.4 (Set-off, right of withholding) The exercise of rights of set-off or of withholding by the customer shall only be admissible against undisputed counterclaims or against counterclaims which have been judicially decided and are final and legally binding.
1.5 (Place of performance, court venue, choice of law) The place of performance shall be our works in Wertheim; the court venue shall, at our option, be Wertheim/Mosbach or the court competent for the district where the registered office of the customer is located. The applicable law shall be German law to the exclusion of the UN Convention on the International Sale of Goods (CISG).
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2. Risk; Transport costs
2.1 Risk shall pass to the customer when the goods to be delivered leave our works, even where we assume the tasks of despatch, export or installation.
2.2 The customer shall bear all packing, transport and insurance costs to the place of delivery.
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3. Delivery periods, Force majeure
3.1 Delivery periods are quoted ex works. They shall only start to run following clarification of all technical questions still open at the point in time of the conclusion of the contract, following receipt of all documents to be procured by the customer, such as drawings and approvals, and/or following any advance payments to be made, as well as any production releases. A pre-condition is the correct and punctual delivery of materials to ourselves. We shall inform the customer without delay of the unavailability of the object of delivery.
3.2 Force majeure and also strikes, lockouts, operating breakdowns, shortages of supplies for which we are not responsible, including delayed deliveries or failure of delivery by our suppliers, compliance with national and international statutory provisions, obligations to obtain consents or the imposition of official orders ( e.g. export control law ) shall extend the delivery periods by the period of delay thereby occasioned. The same shall apply in the case of additional or changed performances requested by the customer.
3.3 Before claiming that we are in default with our delivery, the customer shall issue a formal demand, setting a reasonable extension of time for performance.
3.4 In the case of damage suffered through default, we limit our liability for damages in addition to the performance to 5 %, and for damages in lieu of performance to 10 % of the value of our delivery/performance. The limitation shall not apply in the case of deliberate intent, gross negligence and/or in the case of injury to life, body or health.
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4. Prices; Conditions of payment; Provision of security
4.1 Our prices are quoted exclusive of the statutory value added tax, which is to be added thereto, and apply ex works. Where a period of more than four months lies between the conclusion of the contract and delivery, we may, within the scope of our equitable discretion, demand a surcharge in accordance with § 315 BGB [Bürgerliches Gesetzbuch – German Civil Code] corresponding to our cost increases up to delivery.
4.2 Subject to any separate written agreement, invoices are due for payment immediately without any deduction. We accept bills of exchange or cheques only on account of performance and at the expense of the customer.
4.3 In the case of any delay in payment and/or justified doubts as to the creditworthiness of the customer, we may at any time make any individual delivery dependent upon its settlement in advance or upon the provision of security in the amount of the respective invoice sum.
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5. Reservation of title; Advance assignment
5.1 The goods delivered shall remain our property until unconditional payment has been made for the same in full. Should we also have further claims against the customer, the reservationof title shall continue in existence until they have been settled.
5.2 The customer may re-sell goods subject to the reservation of title in the normal course of business provided it has not assigned, pledged or otherwise encumbered its claims arising from the re-sale.
5.3 The customer may not combine the goods subject to the reservation of title with other items in relation to which rights of third parties exist. Should goods subject to the reservation of title nevertheless become a component part of a new (complete) object through combination with other items, we shall become a proportionate co-owner of the same directly, even where it is to be regarded as the main object. Our share of co-ownership shall be determined according to the ratio of the invoice value of the goods subject to the reservation of title to the value of the new object at the point in time of the combination.
5.4 By way of security, the customer assigns to us already in advance the claims against its purchasers arising from the sale of goods subject to the reservation of title (Clause 5.1) and/ or the newly created objects (Clause 5.3) in the amount of our invoice for the goods subject to the reservation of title. As long as the customer does not fall into default with payment for the goods subject to the reservation of title, it may collect the assigned claims in the normal course of business. It may, however, only use the proportional proceeds for the purpose of payment to us of the goods subject to the reservation of title.
5.5 At the demand of the customer, we shall release securities of our choice if and to the extent the nominal value of the total securities exceeds 120 % of the nominal value of our open claims against the customer.
5.6 In the case of default in payment, we shall be entitled to cancel the contract and/or, even without cancellation, to demand the return of any goods subject to the reservation of title which are still in the customer‘s possession and to collect the assigned claims ourselves. For the purpose of establishing our rights, we may have all documents/books of the customer relating to the goods subject to our reservation of title inspected by a person bound by a duty of professional secrecy.
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6. Warranty claims and claims for replacement
6.1 We shall be liable for ensuring that the goods we deliver are free from defects at the time of the passing of risk. Immaterial deviations from the agreed quality or insignificant impairments to the usability are, however, to be disregarded. The quality, durability and use in respect of the goods we deliver shall be determined exclusively according to the agreed written specifications, product description and/or operating instructions. Statements made above and beyond the foregoing, in particular in preliminary discussions or advertising, and/or industrial norms to which reference is made shall only become an integral part of the contract through express written inclusion.
Should the customer wish to use the goods delivered for purposes other than those agreed, it shall itself, upon its own responsibility, carefully examine the suitability and/or the admissibility of the goods for such purposes. We exclude all liability for any use not expressly confirmed by us in writing.
6.2 Our liability for defects is, as a basic principle, limited to subsequent performance. Subsequent performance consists, at our option, either of elimination of the defect or the delivery of goods free from defects. In the event of refusal, impossibility or the failure of the subsequent performance measures, the customer shall have the right to claim a reduction in the price or, at its option, to cancel the contract. Increased expenses for the subsequent performance which arise through the goods delivered having been transferred to a place other than the agreed place of performance following their delivery shall be borne by the customer.
6.3 The customer shall, without delay following receipt, carefully inspect the goods delivered - also in relation to product safety - and notify any evident defects in writing without delay. Hidden defects are to be notified without delay following their discovery. The customer shall report any transport damage immediately to the carrier. In the case of failure to observe theseo bligations of inspection and notification, warranty claims of the customer shall be excluded.
6.4 Further, we shall not be liable for the consequences of improper handling, use, maintenance or operation by the customer or its vicarious agents of the goods delivered, or for normal wear and tear. This also applies, in particular, in relation to the consequences of thermal, chemical, electro-chemical or electrical influences, and to breaches of our operating instructions. The same shall apply if the defects result from interventions or arrangements made by the customer which have not been confirmed by us.
6.5 Our liability for ordinary negligence shall be limited to claims on account of injury to life, body or health, to claims arising from the Produkthaftungsgesetz [Product Liability Act] and to claims arising from the culpable breach of fundamental contractual duties through which the purpose of the contract is jeopardised. Further, our liability for the breach of fundamental contractual duties through ordinary negligence shall be limited to such damage as is foreseeable for us at the time of the conclusion of the contract and may typically arise.
6.6 Warranty claims against us shall lapse by limitation one year following the delivery of the goods to the customer. The same shall apply correspondingly for claims for damages, regardless on what legal ground.
The restriction of the limitation period shall not apply for claims by reason of the fraudulent concealment of a defect, for claims under the Produkthaftungsgesetz [Product Liability Act] or for damage arising from injury to life, body or health or for other damage resulting from deliberate intent or gross negligence.
6.7 Should it prove, during our examination of a defect reported by the customer or in the course of our rectification works, that the complaint was lodged without justification through gross negligence, we may demand reasonable remuneration for the examination and/or repairworks.
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7. Spare parts
Our obligation to maintain / deliver spare parts shall be limited to a period of five years following the delivery of the original product. Spare parts shall be charged at our currently valid list prices.
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8. Waste disposal
We offer our customers within Germany to take back free of charge our old appliances falling under the Elektrogesetz [Electrical Appliances Act] which were brought onto the market after13 August 2005, and to assume the task of recycling/waste disposal. If the customer does not have the disposal carried out through us, it shall assume at its own expense the duty of waste disposal under the statutory provisions, and shall indemnify us from the obligation under §10, para. 2, ElektroG (Duty of the manufacturer to take back the appliances) and from claims of third parties associated therewith.
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9. Industrial property rights; Secrecy
9.1 We reserve ownership as well as all industrial property rights and copyrights in relation to all our designs, samples, illustrations, technical documents, quotations and offers, even where the customer has assumed the costs for the designs etc. The customer may only use the designs etc. in the manner agreed with us. Without our written consent, it may not itself manufacture the goods delivered or have the same manufactured by third parties.
9.2 The customer may not change the delivered goods, nor connect them to or combine them with other objects or use them in any other way, if this would involve the infringement of the protective rights of third parties. The customer shall exempt us of all claims filed against usby third parties due to the infringement of protective rights through customer use in the sense of sentence 1, and shall reimburse any costs incurred to us as a result thereof. This particularly applies in the case of claims filed on the grounds of the direct infringement of patent rights.
9.3 Where we deliver goods in accordance with designs prescribed by the customer, it shall be liable as towards ourselves if he is at fault for ensuring that no industrial property rights or other rights of third parties are infringed through the manufacture and delivery of the same. If the customer is at fault he shall reimburse us all damage resulting from any such infringements of rights.
9.4 The customer shall maintain secrecy as towards third parties in relation to all knowledge acquired through the business relationship with ourselves which is not in the public domain.