General Terms and Conditions
1. General – Scope of Application
1.1 The terms and conditions apply to all current and future business relationships.
1.2 Consumers in the sense of the business relationship are natural persons with whom a business relationship is entered into without a commercial or self-employed activity being attributable to them.
Entrepreneurs in the sense of the business relations are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into, who act in the exercise of a commercial or self-employed activity.
Clients within the meaning of the Terms and Conditions are both consumers and entrepreneurs.
1.3 Deviating, conflicting or supplementary General Terms and Conditions of the customer shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing and confirmed in the contract.
1.4 The “Special Conditions for Plant Construction” shall apply to the assembly of items supplied by us to be carried out at the customer’s premises.
2. Order Placement
2.1 Our offer is subject to confirmation until the order is placed.
2.2 By ordering, the customer bindingly declares that he wishes to place the order. . We are entitled to accept the contractual offer contained in the order within two weeks of receipt by us. Acceptance may be declared either in writing or by handing over the work to the customer.
2.3 Our written order confirmation is decisive for the execution of the order.
2.4 The written order confirmation specifies the expected delivery date.
2.5 The information given in catalogs, brochures, circulars, advertisements, illustrations and price lists concerning weight, dimensions, capacity, price, performance and the like are only approximate values. They shall become binding if express reference is made to them in the contract.
2.6 The conclusion of the contract shall be subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction has been concluded with our supplier.
The customer will be informed immediately about the non-availability of the service. The consideration shall be refunded without delay.
2.7 Our employees and other agents are not authorized and empowered to make verbal agreements outside the written content of the contract. The content of the contract shall therefore only be that which is recorded in writing as agreed by us or confirmed as such by us in writing.
2.8 All documents that can be brought into connection with the order placement, such as calculations, drawings, etc., are our property and we reserve their copyright. These documents may not be made available to third parties unless the customer has our written consent. If we do not accept the customer’s offer, he is obliged to return the documents to us without delay.
3. Delivery time
3.1 An agreed delivery time is considered to be expected. It commences on the date of dispatch of the order confirmation, provided that all technical questions have been clarified, and shall be deemed to have been complied with if the goods have left our works within a period of two weeks after the date or the possibility of dispatch of the goods has been notified.
3.2 If the contract is amended after our order confirmation has been sent, the delivery time shall start anew with the sending of our confirmation of the order amendment according to the dimensions of this confirmed order amendment.
3.3 The delivery time shall be reasonably extended – even within a possible delay in delivery – in the event of the occurrence of unforeseeable hindrances which we were unable to avert by exercising reasonable care in the circumstances of the case. This particularly applies in the event of operational disruptions – both in our company and in external companies – on which production and transport depend, caused for example by war, strike, lockout, riot, shortage of coal or energy, failure of the means of transport, work restrictions and all other cases of force majeure. We shall notify the customer of such hindrances immediately after they become known, unless the hindrance is already generally known.
3.4 The agreed delivery period shall also be extended by the period during which the customer is in default with its obligations to us under this or any other contract.
This shall be without prejudice to our further rights with regard to the customer’s default.
3.5 The customer is only entitled to withdraw from the contract or to claim damages for non-compliance with the delivery period if he has set us a reasonable period of grace in writing and has issued a warning of refusal. A grace period of two weeks shall be deemed reasonable. If the delay is due to intent or gross negligence, the customer shall be entitled to damages in the amount of the foreseeable loss. In this case, the liability for damages is limited to 50% of the registered damage.
4. Limitations of Liability
4.1 In the case of slightly negligent breaches of duty, our liability is limited to such damages as arise as a result of obtaining the goods elsewhere and to the amount of the purchase price.
We are not liable to companies in the event of a slightly negligent breach of our contractual obligations.
4.2 The limitations of liability do not apply to the customer’s claims arising from product liability. Furthermore, the limitations of liability shall not apply in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the customer attributable to us.
4.3 If unforeseeable events of 3.3 significantly change the economic significance or the content of the delivery or have a significant effect on our operations, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, we shall have the right to withdraw from the contract. If we wish to make use of this right of withdrawal, we shall inform the customer thereof without undue delay after realizing the consequences of the event, even if an extension of the delivery period was initially agreed with the customer.
5.1 The prices are for delivery ex factory excluding packaging and freight costs and plus the statutory value added tax applicable at the time.
5.2 Orders for which fixed prices have not been expressly agreed will be invoiced at the prices applicable on the day of delivery.
5.3 In the case of agreed prices, we reserve the right to demand a corresponding change in the agreed price in the event of a change in material prices, wages, freight rates, energy costs, value added tax, customs duties, unless delivery is made within six weeks, in the case of non-merchants four months, of order confirmation. In the case that cost increases occur in the price change factors, in particular those for pipe materials purchased from the supplier, we may increase the agreed price accordingly under the aforementioned conditions, insofar as the cost increase has occurred by the time of delivery.
5.4 Any changes in a possibly agreed currency or in the exchange rate to the EURO occurring after conclusion of the contract shall be borne by the customer.
5.5 We may charge the packaging at cost price and do not take it back.
6. Terms of Payment
6.1 Payments shall be made in Euro within 7 days after the invoice date without any discount in cash or by bank transfer to an account designated by us. After the expiry of 10 days after the invoice date, we shall be entitled, after unsuccessful reminder with one week’s notice, but no later than 30 days after the due date and receipt of the invoice, to charge consumers interest on arrears at a rate of 5 percentage points above the prime rate and vis-à-vis entrepreneurs at a rate of 5 percentage points above the prime rate. The assertion of a higher interest claim is not excluded. In addition, we are authorized to withdraw from the contract and/or to take back the goods in case of non-compliance with any demands. After taking back the goods we will utilize them in the best possible way. We shall be entitled and, if the buyer so requests, obliged to have an official valuation report drawn up by a publicly sworn expert.
6.2 We accept bills of exchange, cheques and other documents of instruction only after agreement, on account of performance, without guarantee for protest and under the condition of their discountability. We shall charge discount charges from the due date of the invoice amount. The costs of collection, bank interest and expenses shall be borne by the customer.
6.3 In the case of larger order volumes, we may demand advance payments or payments on account corresponding to the partial performance rendered.
6.4 The customer may not offset counterclaims not recognized by us, unless such counterclaims are undisputed or have been finally decided in favor of the customer by a court of law.
6.5 The customer may only assert a right of retention insofar as it is based on the same contractual relationship.
6.6 In the event of notices of defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may withhold payments only if a notice of defect is asserted about whose justification there can be no doubt. If the notice of defects is unjustified, the supplier shall be entitled to claim compensation from the purchaser for the expenses incurred.
6.7 Payments made shall be offset against the respective older claim against the customer, even if the payment is made for specifically designated goods.
6.8 The customer shall not be entitled to any rights to refuse performance or rights of retention unless the same contractual relationship serves as the basis for the counterclaim.
6.9 If we become aware of circumstances which indicate a low creditworthiness of the customer, we shall be entitled, after conclusion of the contract and beyond § 321 BGB (German Civil Code), to demand immediate sufficient security or payment of the claim. If the client is not in arrears with at least 40% of his obligations, we shall be entitled to declare our entire claims against the client to be due immediately.
7. Delivery, Dispatch, Freight, Transfer of Risk
7.1 Our written order confirmation shall be decisive for the execution of the order.
7.2 If the goods are shipped at the request of the customer, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon delivery to the customer’s shipping agent, but no later than when the goods leave the supplying plant or warehouse, even if the shipment is not made from the place of performance.
7.3 If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt by the customer of the notification of readiness for shipment. It shall be sufficient for us to send the notification by fax and for it to be evidenced by a fax log.
7.4 If the customer does not promptly accept the delivery within a period of 7 working days after notification of completion or in the case of notified dispatch, we shall be entitled to either store the goods ourselves or to store them in a forwarding agent’s or third party’s warehouse at the customer’s expense and risk. The same shall apply if the delivery or shipment of the goods is postponed at the request of the customer or is impossible for a longer period of time due to circumstances for which we are not responsible.
7.5 Unless we take out transport insurance for certain products from the outset at the expense of the customer, we shall only take out such insurance at the request and expense of the customer.
7.6 We shall be entitled to make partial deliveries on the total order to a reasonable extent and to invoice these separately.
7.7 If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand reimbursement of any costs incurred as a result, including any additional expenses. In the event of default in acceptance or culpable breach of duties to cooperate, the risk of accidental deterioration or accidental loss shall pass to the purchaser.
8. Retention of Title
8.1 The delivered goods shall remain our property, irrespective of the customer, until the customer has paid all claims, including future claims, arising from the business relationship with us, in particular also any current account balance. The surrender of a bill of exchange or check shall not be deemed payment until the paper has been cashed. During the period of retention of title, the customer shall bear the risk of loss and deterioration of the goods until they have been paid for in full.
8.2 All rights, in particular ownership, copyrights and the like to technical drawings, assembly instructions and other documents supplied or otherwise handed over to the customer shall remain with us and shall not pass to the customer. The customer may not pass these documents on to third parties unless this is absolutely necessary for the fulfillment of the purpose of the order.
8.3 Our right of ownership shall also extend to any new product or item created by processing, mixing, blending or filling. Any processing, mixing or combining of the reserved goods by the customer shall be carried out on our behalf until payment has been made in full. If, in the case of a combination with goods of third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the value. The customer undertakes to carefully store and secure the goods subject to retention of title for us. The customer shall notify us immediately in writing, in advance by fax, of any seizure or any other impairment of his or our rights by third parties.
8.4 The customer shall be entitled and authorized to resell the goods subject to retention of title in the normal course of business, but not to pledge or assign them as security, if it is ensured that the claim from the resale is transferred to us. For this purpose, the customer already now assigns to us the purchase price claim to which he is entitled from the resale of the goods, including ancillary rights in accordance with section 8.8. If the purchase price claim arising from the resale is in turn included in a current account (current account), the customer hereby assigns to us its claim for payment of the amount resulting from the next determination of the balance in the corresponding amount. We hereby accept this assignment.
8.5 Notwithstanding the assignment, which shall initially not be notified to the third party purchaser of the principal, the principal shall be entitled to collect the assigned claim as long as his obligations towards us are fulfilled and he does not fall into financial collapse. However, we shall have the right at any time to revoke the authorization to collect this claim and to assert the claim ourselves. Upon request, the customer shall provide us with individual declarations of assignment, specify the third-party purchasers and confirm or notify them of the assignment. In addition, the customer shall provide us with all information necessary for the assertion of the assigned claims.
8.6 If the goods subject to retention of title are resold together with other goods, the provision set out in clause 8.4 and Clause 8.5 shall apply only to the value of the goods subject to retention of title which serve as security for us and which are resold together with the other goods.
8.7 The assignment or rights to a newly created item shall be liable for the claims due to us from the business relationship up to an amount exceeding the outstanding claims by 15%. Beyond this, the assignment of the claims to us shall not take place and we shall release securities of our choice at the request of the customer. This shall also apply to the accrual of co-ownership shares and a resulting claim in the event of resale, so that the claim shall only be secured up to the amount of the co-ownership shares plus 15% of our claims.
8.8 The customer shall inform us without delay of any legal or actual seizure by third parties of the goods subject to retention of title or the claims assigned in advance, handing over the documents necessary for an intervention. In the same way, he shall inform us immediately in writing of any damage to or loss of goods subject to retention of title. In the event of access by third parties, the seizure protocol or the seizure conclusion must be submitted to us.
8.9 The authorization of the customer to resell the reserved goods in the ordinary course of business shall expire if the customer defaults on its obligations, if it becomes insolvent or if judicial composition, bankruptcy or similar proceedings are instituted against it.
8.10. At our request, the customer must have the goods insured to the extent customary in the industry at its own expense, carry out maintenance and inspection work at its own expense and treat the purchased item with care as long as ownership has not yet passed to the customer. Particularly in the case of the purchase of vehicles, the customer is obliged to take out comprehensive insurance. If he does not do so within the given period, we are authorized to take out insurance for the customer.
8.11. We agree to release securities to which we are entitled in the event of a claim by the customer, insofar as the value of the securities exceeds the value of the object of sale to be secured by 20%. In the event of such a claim, we shall release the excess securities.
9. Warranty, Limitation Period, Guarantee
9.1 We shall provide warranty for defects of the goods mentioned in writing, which have arisen despite all due care, initially at our discretion by rectification or new production.
9.2 If we seriously and finally refuse performance, refuse to remedy the defect and subsequent performance due to disproportionate costs, subsequent performance fails or is unreasonable for the customer, the customer may, at its option, only demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) and damages within the scope of the limitation of liability instead of performance.
9.3 Pursuant to §377 of the German Commercial Code (HGB), the customer shall immediately notify us in writing of any material defects.
9.4 Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or as a result of special external influences not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or maintenance work, there shall also be no claims for defects for these and the resulting consequences.
9.5 If we are not responsible for the breach of duty due to a defect, the customer shall not be entitled to withdraw from the contract.
9.6 Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses are increased because the object of the delivery was subsequently brought to a location other than the customer’s branch office, unless the transfer is in accordance with its intended use.
9.7 The customer’s right of recourse against us pursuant to §278 BGB (recourse of the company) shall only exist to the extent that the customer has not entered into any agreements with its customer exceeding the statutory claims for defects. Furthermore, Art. 9.5 shall apply mutatis mutandis to the scope of the customer’s right of recourse against the supplier pursuant to §478 para. 2 BGB.
9.8 Rights of the customer due to defects which do not concern a building or a work consisting in the provision of planning and supervision services for it shall become time-barred one year after acceptance of the work / object of repair. The short limitation period shall not apply if we can be accused of gross negligence or in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the client. Our liability of the contractor under the Product Liability Act shall also remain unaffected.
9.9 In the event of fraudulent concealment of defects or the assumption of a guarantee for the quality, further claims shall remain unaffected.
9.10. The customer shall not receive any guarantees in the legal sense from us.
9.11. Claims for damages shall otherwise be governed by Art. 4. Further claims or claims other than those governed by this Art. 4 of the customer against us and our vicarious agents due to a material defect shall be excluded.
9.12. Our installation and processing recommendations for our PL products are entirely without guarantee and were made according to the latest state of the art.
10. Final Provisions, Miscellaneous
10.1 The law of the Federal Republic of Germany shall apply. The application of the international sales law is excluded.
10.2 In the case of contracts with entrepreneurs, the place of performance for deliveries and payments shall be exclusively our registered office.
10.3 In the case of contracts with entrepreneurs, the place of jurisdiction for all disputes arising from the contract shall be exclusively our registered office.
The same shall apply if the customer does not have a general place of jurisdiction in Germany or if the customer’s place of residence or habitual abode is unknown at the time the action is brought.
10.4 The customer’s data shall be processed and stored electronically.
10.5 Should individual provisions of the contract with the customer, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced/be replaced by a provision between the parties whose economic success comes as close as possible to that of the invalid provision.