General Terms & Conditions

1. General

1.1 The contract between the parties shall be based exclusively on the following General Terms & Conditions. The General Terms & Conditions of the contracting party which are different from these General Terms & Conditions shall only apply if they are expressly approved by us in writing. Neither acceptance of a delivery or service nor the execution of a payment transaction nor the completion of an order or the like signifies approval of the General Terms & Conditions of the contracting party.

1.2 These General Terms & Conditions apply for all types of transactions, particularly sales contracts, work and delivery contracts and contracts for work with our contracting party, including suggestions, advice and other fringe benefits.

1.3 The actual conclusion of a contract including any changes, even if it takes place during implementation of the contract, is only binding if it is confirmed by us in writing or the delivery is carried out by us.

1.4 Right of retention and right of set-off are only due to the contracting party if its counterclaim is determined without further legal recourse or it is undisputed.

2. Conditions of purchase

2.1 Deliveries must be made free of charge to the receiving office specified by us. The supplier shall bear the transport risk. If collection of goods outside of the Federal Republic of Germany is agreed, the supplier must ensure at its own cost that all documents and authorization necessary for the export are handed over to us and/or to the relevant authorities in good time. The supplier shall bear costs due to missing documents and/or authorization. Partial deliveries or deliveries before the agreed delivery date shall only be permitted if this is agreed in writing.

2.2. Agreed delivery dates shall be binding. If it is foreseeable that the delivery date can not be adhered to, we are to be informed about this immediately by the supplier stating the reason and expected duration of the delay; claims due to delay in delivery shall remain unaffected by this.

2.3. Upon delivery the goods shall become in principle our unrestricted property. If a retention of title in favour of the supplier was agreed in writing, this initially has the effect of a simple retention of title; we shall be entitled to use the goods, to process them and/or to dispose of them unrestrictedly at any time as well as to transfer the ownership of the goods to third parties, despite the retention of title.

2.4 The agreed prices shall be considered fixed prices and include free delivery to the receiving office specified by us, including packaging, insurance, freight, unloading and other additional costs. If no prices are stated, the list prices of the supplier with the customary deductions at the time of the order shall apply.

2.5 Invoices are to be sent to us in single copy immediately after delivery. Besides order number and order date, they must contain all information necessary according to the provisions in terms of German commercial and tax law as they apply at the time of delivery. Concerning the payment deadline, unless otherwise agreed (e.g. collection), invoice amounts shall be due 60 days after receipt of the invoice properly issued as per the preceding paragraph and complete and defect-free delivery of the goods ordered. For payment within four weeks after receipt of the proper invoice and complete delivery of the goods ordered, the supplier shall give a 3 % discount. The performance of our transaction shall determine the timeliness of payments. Payments made by us do not signify approval of the billing, freedom from defect or timeliness of delivery.

2.6 The supplier shall conduct a careful goods issue inspection before delivery. Goods which have not passed the inspection may not be delivered. We shall examine the goods after their delivery only with regard to their type (identity check), the quantity as well as for any transport damage and other obvious defects; further inspection shall not be our responsibility. In this respect, the supplier shall waive the objection to violation of inspection obligation.

2.7 Deliveries must comply in every respect with the contractually agreed condition, the laws regarding product and environmental protection of the Federal Republic of Germany, the relevant safety procedures, regulations and provisions of the authorities and trade associations as well as with the latest level of science and technology, and must be suitable according to kind and quality of premium grade and for contractually assumed or customary use.

2.8 Claims due to defects shall expire within three years from the statutory beginning of the limitation period, unless a longer limitation period applies according to law in particular according to § 438 para. 1 No. 1. (right in rem of a third party), §§ 438 para 1 No. 2, 634 a para. 1 No. 2 (structures and objects which have been used for a struc-ture), §§ 438 para. 3, 634 a para. 3 (fraud). As a result of correction of defects by the supplier, newly delivered or repaired delivery items shall be subject in this res¬pect once to a new beginning of the limitation period of 24 months for claims for defects; however should the original, remaining limitation period be longer, this shall apply.

2.9 For notices of defects in the time not subject to a limitation period, the limitation period of the claims for defects shall be inhibited until it is agreed with the supplier concerning the elimination of the defects and any results; however the inhibition shall end 6 months after the supplier has finally rejected the defects in writing.

2.10 The place of fulfilment for deliveries is the receiving office indicated by us, unless otherwise agreed.

3. Additional conditions for the purchase of services

3.1 The contractual prices are fixed. All additional works necessary for the performance of the service as well as costs for tools, equipment etc. (including scaffolding for example) are included in the prices.

3.2 After defect-free completion, an official inspection of the service is to be conducted in each case. We can declare approval up to 6 weeks after notification of the completion of the work. There shall be no claim for partial inspection. We are entitled to refuse approval of a defective service. The implementation of a delivery or its use does not alone constitute approval. Apart from that our obligations regarding approval are determined by the legal provisions.

3.3 Partial payments can be requested for partial services, if these are invoiced verifiably and the approved invoice amount comes to at least €25,000 net. A payment for partial invoices shall occur within 18 working days after receipt of the partial invoice up to an amount of 90 % of the approved invoice amount.

3.4 After completion and approval, the contractor must issue an auditable final invoice within 2 months. The final payment must occur 60 days at the latest after receipt of the final invoice.

3.5 For the duration of the limitation period of any defects, we shall withhold 5 % of the gross final invoice amount, unless the contractor provides security in the same amount through guarantee of a large German bank or savings bank under public law.

3.6 In the course of an order, material handed over to the suppliers for handling or processing remains our property (goods subject to retention of title).. The goods subject to retention of title may only be used for our orders. They are to be stored separately free of charge and labelled as our property. Handling or processing shall occur for us as manufacturers. If the retained goods are processed, combined or amalgamated with other goods, we shall acquire joint ownership of the new objects in the ratio of the objective value of the retained goods (purchasing price including VAT) to the objective value of the other goods used. If our ownership expires through combination or amalgamation, the supplier shall transfer to us the ownership rights it now has over the new objects in the ratio of the objective value of the retained goods to the objective value of the other goods used and shall store them for us free of charge. Tools and other resources provided by us remain our property, are to be labelled as such and stored separately and made available to us at any time. The supplier shall bear the risk for loss, destruction or damage of the material, tools or other resources provided.

4. Sales conditions

4.1 Offers are always subject to alteration. Subject to prior sale.

4.2 The delivery shall occur ex works or ex warehouse, unless expressly agreed otherwise. If a sale by dispatch is agreed, we shall choose the shipment route and method as well as the shipping agent or carrier at the risk of the customer The Customer must unload the delivery promptly and properly. Any waiting periods must be refunded by the customer.

4.3 In the event of delay of deliveries or other services, our liability shall be determined by the statutory provisions under the following conditions. The delay damages of the customer is limited for every full week of delay to 0.5 % of the net order value, in total a maximum of 5 % of the net order value. This limitation shall not apply for deliberate or grossly negligent behaviour on our side. A change in the burden of proof is not linked with the above-mentioned regulation.

4.4 Until complete payment of the delivered goods and the fulfilment of all requirements which are due to us in the context of the business relationships, this shall remain our property. However, the customer is authorised to dispose of the purchased goods in the proper course of business if it is not in default of payment. The retention of title shall extend to the products arising through processing, amalgamation or combination of our goods to their full value, whereby we shall be considered as the manufacturers (extended retention of title).. If during processing, amalgamation or combination with the goods of a third party their property rights remain unaffected, we shall acquire joint ownership in proportion to the invoice values of these processed goods. Claims against third parties arising from resale shall be assigned by way of the security by the Customer to us here and now in total or in the amount of any co-ownership share (extended retention of title).. The customer is entitled to collect this assigned claim until withdrawal by us or until termination of its payments to us for our invoice. We are entitled to withdrawal if the customer has violated obligations from the contractual relationship or insolvency proceedings are opened concerning the assets of the customer. The customer is not authorised to assign these claims to third parties. If the value of the securities of our claims exceeds 10 %, we shall release securities in this respect at our choice and discretion and at the request of the customer.

4.5 The limitation period for claims and rights because of defect as to quality or defect of title, for whatever legal reason particularly claims due to unauthorised action and restitution claims, shall amount to 1 year calculated from the date of transfer of risk... Notwithstanding, the statutory limitation period shall apply with regard to all claims and rights of the customer in the case of § 438 para. 1 No. 1 BGB (German Civil Code) (rights in rem of third parties who are entitled to delivery of objects), § 438 para. 1 No. 2 (Structures and objects), § 479 para. 1 BGB (Claim to recourse) or a fraudulent concealment of the defect by us as well as in the case of claims for damages including for injury to body, life or health, claims according to product liability law as well as grossly negligent or deliberate committed violations of obligation.

4.6. Claims for damages and reimbursement of expenses made by the customer for whatever legal reason shall be excluded- particularly due to defects, violation of obligations under the contractual obligation as well as unauthorised action. This disclaimer of liability shall not apply a) if the damage is not caused by deliberate or grossly negligent actions, b) if we are liable because of product liability law as well as c) because of culpable injury to life, body or health. We are moreover liable according to the statutory provisions in the case of negligent violation of an essential contractual obligation (i.e. of such obligations the fulfilment of which primarily allows the proper execution of the contract and on the adherence to which the customer relies and may rely).. The aforementioned limitations of liability also apply with regard to the liability of employees, subcontractors and vicarious agents and legal representatives. If our liability is given, the claim of the customer is limited - except in cases of intention and gross negligence, injury to life, body or health or liability according to product liability law for foreseeable damages the occurrence of which must typically be calculated.

5. Place of Fulfilment, Place of Jurisdiction, Applicable Law, Confidentiality

5.1 If the contracting party is a businessman, a legal entity under public law or a special fund under public law, the place of fulfilment is Düsseldorf, if not otherwise regulated in these General Terms & Conditions.

5.2 If the contracting party is a businessman, a legal entity under public law or a special fund under public law, the place of jurisdiction for all mutual obligations arising from the contractual relationship is Düsseldorf. However, we can also take legal action against the contracting party at its general place of jurisdiction or at any other relevant court. In relation to non-traders Düsseldorf is the place of jurisdiction if the contracting party transfers its place of residence or usual residence abroad after conclusion of the contract or its place of residence or usual residence is unknown at the time of the legal raising of our claims.

5.3. The legal relationships of the parties are subject exclusively to the law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law) shall not apply.
5.4 The contracting party is obliged to keep our know-how and our trade secrets which it learns during implementation of this contract, including our offers, cost estimates, designs and implementation proposals, and any know-how which is not generally known ("information") confidential from third parties. Excluded from this obligation is information which (a) was verifiably already known to the contracting party at conclusion of the contract or afterwards becomes known by third parties, without a confidentiality agreement, statutory provisions or official decrees being violated through this; (b) is publicly known at conclusion of the contract or afterwards is made publicly known, if this does not depend on violation of this contract; (c) must be disclosed because of legal obligations or because of a court order or order of a public authority.

Stand 07/2014