§ 1 General provisions – Area of validity
(1) Our General Terms and Conditions of Business (hereinafter “GTC”) shall be exclusively applicable; we will not acknowledge any adverse provisions or any customer’s provisions deviating from our GTCs, unless we accepted these other provisions expressly in writing. Our GTCs shall apply also in the event that we perform supply to our customer with knowledge of any customer’s provisions adverse to or deviating from our GTCs, but the supply taking place without caveat.
(2) Any and all agreements stipulated between us and the customer for the purpose of performance of this contract are fixed in the Dealer Agreement, duly signed by both parties and these GTC, marked and mentioned as part of the Dealer Agreement.
(3) Our GTCs shall apply only toward contractors in the meaning of section 310 I German Civil Code.
§ 2 Offer – Offer documents – Conclusion of contract
(1) Our offers are subject to change without notice. Any contract shall be considered as awarded only if it was confirmed in writing or if it is being performed already.
(2) Our field service sales people are authorized to accept customers’ orders only. This means, that in particular they are not authorized to stipulate supply contracts with binding effect, to warrant determined delivery deadlines or properties of the goods ordered and to agree on contractual agreements deviating from these general terms and conditions of supply and payment. In addition, they are not authorized to accept on our behalf any money or contractual declarations of intent.
(3) We reserve the property right and the copyright in any pictures, drawings, calculations or other documentations. This shall apply also to such documents defined as “confidential”. The customer shall be required to receive our express consent in writing prior to passing on such documents to any third party.
§ 3 Delivery periods
(1) Delivery periods and delivery deadlines shall be considered as binding only if expressly defined as binding on our confirmation of contract award.
(2) Delivery periods and delivery deadlines refer to the moment of readiness for dispatch. These terms shall be considered as complied with, when the goods are on the way to the customer (in case of the Manufacturer cares for dispatch) or at the moment, the Customer received notice of their readiness for dispatch (in case the Customer arranges shipment) at the moment of expiry of term.
(3) Furthermore, our compliance with delivery obligations is subject to our customer’s timely and orderly performance of duties. Neglects the customer his obligations, we reserve the right to plea of non-performance. We shall be entitled to restitution of any damage or loss including possible extra expenses, should the customer be in delay of acceptance or in the event of the customer’s faulty non-compliance with duty to cooperate. We expressly reserve the right to further claims.
(4) The risk of accidental loss or accidental deterioration of the purchase object shall devolve upon the customer at the moment the customer is in delay of acceptance or in debtor’s delay.
(5) We shall be liable in accordance with the legal provisions insofar as the relevant purchase agreement is a firm bargain in the meaning of Section 286 subsection 2 no. 4 German Civil Code or Section 376 German Civil Code. We shall also be liable in accordance with statutory provisions, insofar as the customer is entitled to enforce cessation of interest in a continuation of contractual performance as consequence of delivery delay in our responsibility. We shall be liable in accordance with statutory provisions, insofar as delay of delivery was by our wilful or grossly negligent non-performance of contract; fault by our representatives or agents shall be considered as our fault. Our liability shall be limited to the foreseeable, typically incurred damage, insofar as the delay of delivery was not caused by any wilful non-performance of contract by us. We shall be liable in accordance with the statutory provisions also in the event of delay of delivery due to faulty non-compliance with a major contractual duty. The liability for damages shall be limited to the foreseeable, typically incurred damage. For the rest, in the event of delivery delay we shall be liable for each expired week of delay in the amount of the lump sum compensation for delay amounting to 2% of the delivery value, however, not more than 10% of the delivery value as maximum. Further statutory claims and titles of the customer shall remain reserved.
(6) Partial deliveries shall be permitted if mutually agreed.
§ 4 Prices and payment conditions
(1) Our prices are calculated ex works, plus package, freight, papers, postage, insurances and respectively applicable value added tax shall apply, unless differing provisions are stated in the confirmation of contract.
(2) We shall reserve the right to change the prices accordingly in the event of decrease or increase of costs after conclusion of contract, particularly due to changes in material prices. We shall submit evidence of such changes upon the customer’s request.
(3) Our delivery invoices shall be paid purely net within 30 calendar days, unless differing provisions were stipulated.
(4) The customer shall be obliged to make payment for the undisputedly non-defective goods, in the event that our delivery included in parts defective goods, unless the partial delivery is of no interest for the customer.
(5) In the event that the customer should fall into payment delay upon receipt of a written reminder and/or according to section 284 III German Civil Code 30 days after due date and receipt of any invoice or any similar demand for payment, we shall be entitled to suspend fulfilment of our obligation until receipt of payment upon written notice. In this case we shall also be entitled to withdraw from contract upon granting of a reasonable extension of time. The amount of delay interest shall be determined in accordance with section 288 II German Civil Code; it shall be 8% above the base interest rate of the European Central Bank.
(6) We shall be entitled to first set off the customer’s payments against his older debts. If we already incurred costs or interests, we shall be entitled to set off the payment first against these costs, then against the interests and finally against the main service.
(7) In the event of the customer’s payment delay, we shall be entitled, until complete compensation of our claim, to withhold follow-up orders or partial supplies still to be delivered, revoke our consent to further selling to the customer’s end customer, take back goods supplied by us, at our discretion, up to the value of our claim. In this case, the customer shall be credited an account in the amount of the customary sale value at the moment of taking-back of the objects taken back.
§ 5 Costs for devolution of risk and Packaging
(1) Unless otherwise stated in the written confirmation of order, delivery ex factory shall be considered as agreed upon. Goods declared ready for delivery shall be collected by the customer immediately; otherwise we shall be entitled to deliver the goods at our discretion or to store the goods at costs customary for freight carriers and at the customer’s risk. The risk of deterioration or accidental loss shall devolve upon the customer one week after notification of goods ready for delivery and after hand-over to the railway, the freight carrier or haulage contractor, however, not later than with exit from factory or warehouse. The choice of means of transport and of the transportation route shall be at our discretion, unless otherwise stipulated or in the event of lack of any particular instruction.
(2) Upon the customer’s request, transportation insurance will be taken out for the delivery, at the customer’s expense.
§ 6 Liability for damages
(1) Technical information in advertisements, offers etc. are subject to permanent changes. Therefore, such data shall not constitute any guaranteed properties. We shall reserve the right to technical changes, deviations in dimensions and colour, as far as these changes are reasonable under consideration of the customer’s interests.
(2) Wear and tear, third party intervention, employment of unauthorized accessories or the consequences of improper storage or utilization by the customer shall not be covered by any warranty.
(3) The customer shall inspect the goods immediately upon receipt and notify any possible defect immediately (at present section 377 German Civil Code). The customer shall not be entitled to claims for defects, unless he complied with his obligation properly (at present section 377 German Civil Code). Did the customer fail to comply with his obligation, than the goods shall be considered as approved, unless defects could not be detected even after thorough inspection or defects were fraudulently not disclosed.
(4) In the event of any defect existing in the object of purchase, the customer shall be entitled to choose at his own discretion either subsequent performance by way of elimination of defects or supply of a new object free of defects. Should the customer choose elimination of defects, we shall be obliged to carry any and all expenses required for such purpose, in particular transportation, freight, work and material costs, as far as these costs are not increased due to the fact, that the goods were delivered to a different place than the agreed place of performance. In the event of failure of subsequent performance, the customer shall be entitled to request withdrawal or decrease at his own discretion.
(5) We shall be liable in accordance with statutory provisions, as far as the customer asserts claims for damages caused by intent or gross negligence of our representatives or agents. We shall be liable in accordance with statutory provisions, as far as we faulty failed to comply with any major contractual duty; however, in the cases described above our aggregate liability shall be limited to the foreseeable, typically occurring damage.
(6) Liability for faulty damage to life, body or health shall remain unaffected; this provision shall also apply to the statutory liability under the product liability law.
(7) The period of statute of limitation regarding claims for defects shall be 12 months as of the moment of devolution of risk.
§ 7 Aggregate liabilities
(1) Any liability for damages exceeding the provisions under section 6 shall be excluded, irrespective of the legal nature of the asserted claim. This shall in particular apply to claims for damages from faulty action on the date of contract due to other failure to comply with obligations or due to tortuous claims for replacement of damages in accordance with section 823 German Civil Code. This limitation shall also apply in the event the customer requests replacement of useless expenses instead of asserting a claim for damages.
(2) Insofar as the liability for restitution of damages toward us is excluded or limited, this provision shall also apply to personal liability for damages of our employees, worker, representatives and agents.
§ 8 Reservation of property rights
(1) We shall reserve the property in the object of purchase until receipt of any and all payments under the delivery contract. In the event of non-compliance with contract by the customer, we shall be entitled to take the object of purchase back. The taking-back of the object of purchase includes a withdrawal from contract. We shall be entitled to make use of the object of purchase taken back; the yield form the use shall be charged up against the customer’s liabilities – minus reasonable utilization costs.
(2) The customer shall be obliged to treat the purchase object with care; in particular, he shall be obliged to take out, at his own expense, a fire, water and theft insurance in the amount of the fixed value of the objects to be insured. Necessary maintenance and inspection works shall be carried out by the customer in due time and at his own expense.
(3) In the event of attachment or other interventions by third parties, the customer shall be obliged to notify us immediately in writing in order to enable us to institute third party claim proceedings in accordance with section 771 German Code of Civil Proceedings. Insofar as the third party is not able to reimburse to us the costs for the court or for the out-of-court proceedings in accordance with section 771 German Code of Civil Proceedings, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the purchase object in the ordinary course of business; however, the customer shall assign to us already now any and all claims accruing to him from the resell to his buyers or to any third party in the amount of our final invoice (including value added tax), irrespective of whether the purchase object was resold without or under any agreement. The customer shall remain entitled to collect this receivable also after the assignment. This provision shall not affect our right to collect the receivable ourselves. However, we shall be obliged to refrain from collecting the receivable, as long as the customer complies with his payment obligations from the gained earnings, as long as he is not in delay with his payments and in particular as long as no insolvency proceedings are instituted against him or payments were not suspended. But, in any of the events described above, we shall be entitled to request from the customer information on the assigned claim and its debtor, any and all information required for collection, to surrender the appertaining documents and to notify the debtor (third party) about the assignment.
(5) Processing or transforming of the purchase object is always performed on our behalf until Section 8, No. (1) first sentence, (full payment) is fulfilled. Until the Customer met it’s full payment obligations, we shall gain co-ownership in the new object in the ratio of the value of the purchase object if the purchase object is processed by means of other components not belonging to us, (final amount of invoice including value added tax) to the value of the other, new components at the moment of processing. For the rest, the same provision as for the purchase object supplied under reservation shall apply to the object resulting from processing. If the purchase object is mixed inseparably with other objects not belonging to us, we shall gain co-ownership in the new object in the ratio of the value of the purchase object (final amount of invoice including value added tax) to the other admixed components at the moment of adding. If the admixing is performed in such a way, that the customer’s object must be considered as principle object, it shall be understood and agreed, that the customer assigns to us co-ownership in the appropriate ratio. The customer shall safekeep for us the sole ownership or co-ownership generated by the processing. This claim expires upon receipt of full payment.
(6) The customer shall assign to us also the claims for securing of our claim against him, which arises from the connection of the purchase object with a plot against any third party.
(7) If so requested by the customer, we shall be obliged to release the securities due to us, insofar as the realizable value of our securities exceeds the claim to be secured by more than 10 %; selection of securities to be released shall be at our discretion.
§ 9 Exclusion of set-off
(1) The customer shall be entitled to set-off only against undisputed counterclaims or counterclaims recognized by declaratory judgement.
(2) The customer shall be entitled to set-off only as far as his counterclaims are recognized by declaratory judgement, undisputed or recognized by us. The customer shall also be entitled to withholding right insofar as his counterclaim is based on the same contractual relationship.
§ 10 Doubtful claims
(1) Our obligation shall be limited to step-by-step performance of the (remaining) delivery against cash payment of any and all open invoice amounts or against granting of appropriate securities, in the event, that facts become known for complete performance of delivery agreement, that give reason to anticipate loss of our payment claims.
§ 11 Cancellation of contract
(1) Should we be entitled to cancellation of a contract for any reason in the customer’s responsibility, the customer shall pay, apart from the consequences of cancellation, a lump sum for damages in the amount of 10% of the net value of the goods of the order including value added tax. It shall be at the customer’s discretion to produce evidence not having incurred any damage or a damage of lower value to us. The same provision shall apply to the event that the customer should intend to suspend and/or cancel the contract without authorization.
§ 12 Place of jurisdiction and place of performance
(1) In accord with Section 10 of the Dealer Agreement, place of jurisdiction and place of performance is the Manufacturers headquarter.
(2) The law of the Federal Republic of Germany shall govern the business relationship, UN sales law shall be excluded.
(3) Unless otherwise stated in the confirmation of order, the place of performance shall be our headquarters.
§ 13 Severability clause
(1) Should any of the provisions of the GTCs be ineffective or void in part or in whole, then the contractual partners agree to stipulate a provision that comes closest to the meaning and purpose of the ineffective or void provision.