1. Validity of the terms and conditions
Our deliveries, performances and offers are carried out solely on the basis of these terms and conditions. They are also valid for all future business relationships, even if they are not expressly agreed again. Contrary confirmations from the purchaser or notice of his own terms or purchasing conditions is hereby refuted. These will not become a constituent part of the contract, even through our silence or our performance.
2. Offers, order confirmation and indication of quality
2.1 Our offers are subject to change and non-binding provided that nothing is otherwise expressly agreed. Orders require our written confirmation in order to become legally effective. This is also valid for supplements, modifications or collateral agreements and for assurances by our employees and representatives. Only our written order confirmation is decisive for the scope of the delivery or performance.
2.2 Drawings, illustrations, dimensions, weights or other service data are approximate values as usual in our industry and are only binding if this is agreed expressly in writing. This is also valid for qualities that the purchaser expects from our public statements, particularly on the basis of advertising, marking or custom. These properties are only part of the agreed qualities if this is confirmed expressly in writing. This is also valid for guarantees. We reserve the right to make changes to construction and form during the delivery time, particularly changes that can be ascribed to improvements in technology or demands by legislators, if the goods are not substantially altered by the change and the suitability of the goods is not impeded for the contractually presumed or standard use.
Our prices are valid in Euros and are net prices plus the relevant statutory value added tax ex factory, including loading but not including packing, unloading and assembly. If assembly is agreed with the purchaser then he must pay the additional costs that this entails. The level of these costs is determined in accordance with item 14.5 of these terms and conditions if nothing is agreed to the contrary.
4. Payment conditions
4.1 Insofar as nothing else is agreed the following must be paid for a machine delivery:
4.1.1 following receipt of the order confirmation 30 %,
4.1.2 following acceptance of the machine at the factory, or at the latest eight days after receipt of the acceptance demand 60 %,
4.1.3 following receipt of the notice or readiness for shipping 10 %.
4.2 Our invoices are due with immediate effect and within ten days calculated from the invoice date strictly net if nothing is agreed to the contrary. The date of payment receipt is decisive for the punctuality of payment. All payments must be made only to the accounts listed in the invoices.
4.3 If the purchaser defaults on a payment then we are entitled to charge interest at a rate 8 % above the relevant base rate, but at least 10%. If the default interest determined in this way exceeds the legal rate of interest then the purchaser is entitled to prove that we have not suffered damage that exceeds the legal interest rate. We are also entitled to prove greater damage.
4.4 A right of retention on the part of the purchaser is excluded where it is not based on the same contractual relationship. The purchaser may only offset if the counterclaim is undisputed or has been established as legally valid. The purchaser is only entitled to other security retainers if these have been agreed.
4.5 In order to secure our payment claims, we are entitled at any time to demand suitable payment security (e.g. bank guarantees). If the purchaser defaults on the provision of the demanded securities then we are entitled to withdraw from the contract and/or to demand compensation for non-fulfilment.
5. Delivery and performance time
5.1 Our named delivery dates and delivery periods are non-binding provided that nothing is agreed to the contrary. Adherence to agreed delivery and performance times assumes the punctual and orderly fulfilment of the purchaser's obligations, in particular that all the documents, permits and approvals are submitted, all technical details clarified and any agreed payment securities received. An agreed delivery or performance period shall never begin prior to order confirmation except where this is expressly agreed.
5.2 We are entitled to make partial deliveries at any time insofar as these are economically reasonable for the purchaser.
5.3 If no binding delivery times have been agreed, we shall be in default of delivery through a written request from the purchaser at the earliest six weeks after the end of the delivery period. In the event of delivery default caused by only slight negligence, the default compensation is 0.5 % for each complete week of default, to a maximum of 5 % of the net order value of the delivery and performance affected by the default. This regulation of the default compensation is also valid if we are responsible for failure to adhere to agreed limits and dates. The prerequisite for default compensation is always that the purchaser has suffered default damage up to the level of the highest payment. Demands beyond this are excluded except if the default was not only caused by slight negligence on our part.
5.4 We are not responsible for delays in delivery and performance caused by force majeure or other events that not only make the delivery substantially more difficult or impossible for a short period – in particular these include strike, lockout, official directives, subsequently occurring difficulties procuring materials etc. – even if they occur at our suppliers or their sub suppliers, even in the case of bindingly agreed limited and dates. In this case, even the delivery and performance times will be extended accordingly by the duration of the delay or interruption cause by the hindrance and additionally entitle us to withdraw from the contract fully or in part because of the part that has not yet been fulfilled. If the hindrance lasts longer then three months then the purchaser is also entitled to withdraw from the contract with respect to the part that has not been fulfilled following reasonable extension. If the delivery time is extended or if we are released from our obligation because we or the purchaser withdraw from the contract then the purchase cannot derive any damage compensation from this. The above-mentioned circumstances are also not our responsibility if they occur when we are already in default. However we can only invoke the above-mentioned circumstances if we immediately notify the purchaser of this and of the beginning and end of such hindrances.
5.5 If the delivery is delayed for reasons for which the purchaser is responsible or if the purchaser is otherwise in default of acceptance, then we are entitled to charge storage costs to the purchaser. These costs will be at least 1% of the total net order value for each complete month. This does not rule out proof from the purchaser that we incurred lesser costs for the storage. Instead of charging the storage costs, we are also entitled to dispose of the delivery item otherwise and to supply the purchaser with a reasonable extension. The latter requires that the purchaser is given a reasonable extension and is notified of this possible consequence.
6. Place of fulfilment and transfer of risk
6.1 The place of fulfilment for all performance obligations is our registered office. This is also valid for assembly and repair work where this is associated with our delivery.
6.2 For deliveries the risk is transferred over to the purchaser as soon as the goods are transferred to the shipper or another transportation person. This is also valid in the event that we, by way of exception, bear the shipping costs as per an agreement. If the shipping is delayed at the request of the purchaser then the risk is transferred to the purchaser with the notification of readiness for shipping.
7. Retention of title
7.1 We retain ownership of the goods until full payment of the purchase price and all other claims due when the contract is agreed as a result of the business relationship with the purchaser. Processing or transformation is always carried out on our behalf but without obligation for us. If our ownership expires through combination, then it is agreed with immediate effect that the property of the purchaser, as a proportion of the unified item, will be transferred to us in proportion to the value. The purchaser will store our thus justified property free of charge.
7.2 We hereby authorise the purchaser to dispose of the goods within the scope of the proper course of business, including processing or sale. However the purchaser assigns to us with immediate effect all claims from his customer or other third parties that he received from onward sale, processing, transformation or combination, independently of whether the goods are sold onwards without or following processing, transformation, combination or other work. The purchaser remains authorised to collect these claims following assignment. Our power to collect these claims ourselves remains unaffected. However we undertake not to collect claims as long as the purchaser fulfils his payment obligations from the collected proceeds, the asset situation of the purchaser does not worsen substantially, the purchaser is not in default and, in particular, no application is made to initiate insolvency proceedings or insolvency exists. However, if this is the case or if there is another important reason, we are entitled to demand that the purchaser names claims assigned to use and the relevant debtors and provides all the necessary information necessary for collection, submits the corresponding documents to us and notifies the debtor of the assignment. This advance assignment includes the claim, provided securities and any financial claim substitutes (e.g. insurance claims). No other disposal of the goods is permitted and obligate the purchaser to pay compensation.
7.3 If the purchaser is in default then we are also entitled, after fruitless expiry of an extension period, to reclaim the reserve title goods. This measure does not signify withdrawal from the contract, so that our claims remain to the prior extent. We reserve the right to withdraw from the contract with express declaration. However the declaration of withdrawal does not require specification of a new deadline or any extension of previous deadlines. If we withdraw from the content, we can demand reasonable payment for the duration of use of the goods.
7.4 The purchaser is obliged to point out our rights and notify us immediately in the event of any access to the goods by third parties, in particular attachments. If the third party is not in a position to compensate us for court or out of court costs of appeal, then the purchaser is liable for these costs.
7.5 The purchaser is obliged to store the goods carefully for us, maintain and repair them at his own cost and to insure them at his own cost against loss and damage at the less of coverage expected from a prudent businessman. He herewith assigns his claims from the insurance contracts to us in advance. If maintenance and inspection work is necessary then the purchaser must carry these out in good time at his own cost where nothing is agreed to the contrary.
8. Notices of defects
8.1 The purchaser is obliged to provide notification to us in writing of visible defects immediately, at the latest within one week of receipt of the goods, and of concealed defects at the latest within one week of their discovery. These periods are preclusion periods.
8.2 Unimportant defects do not entitle the purchaser to refuse acceptance. The natural wear of the delivered goods is not a defect.
9. Liability for defects
9.1 If the delivery is defective, we are entitled to perform improvement or to deliver replacement (supplementary performance). The supplementary performance will take place without recognition of legal obligation and does not cause commencement of a new limitation period. This also applies if replacement parts are installed in the course of the improvement. If the supplementary performance fails then the purchaser is entitled to choose to either withdraw from the contract or to demand a reasonable reduction in purchase price.
9.2 We accept no liability for defects that are caused by unsuitable or incorrect use or by incorrect assembly or initial start-up by the purchaser or by third persons not commissioned or authorised by us (including in relation to intervention in the software), natural wear, incorrect or negligent handling, unsuitable operating materials, replacement materials, deficient foundations or other unsuitable premises or chemical or electrical influences if we are not culpable for the same. Defect claims are also excluded if they can be traced back to alterations to the goods or incorrect repair by the purchaser or by a third party commissioned by the purchaser.
9.3 If used goods are the subject of the contract (including demonstration models) then any liability for defects is excluded as long as we are not guilty of fraudulent behaviour.
9.4 If it is found in the course of examining alleged defects that there is no defect or that we are not responsible for the defect then the purchaser is obliged to pay the costs incurred through the examination. These costs are determined in accordance with item 14.5 in these terms and conditions if no agreement was reached to the contrary.
10. Limitation period
The limitation period for the defect claims, insofar as they are justified in accordance with item 9, is 12 months from the transfer of risk. It is also valid for claims for compensation for consequential damage caused by defects where no claims are asserted for unauthorised action or fraudulent intent.
11. Liability limitations (exclusion and limitation of liability)
11.1 We are not liable for damage caused by slight negligence except in the event of violation of essential contractual obligations or cardinal obligation, in a way that endangers the purpose of the agreement or if a guarantee is assumed.
11.2 In the following cases our liability is limited to foreseeable damage for this type of contract:
11.2.1 in the event of slightly negligent violation of essential cardinal obligations or cardinal obligation that endangers the purpose of the agreement,
11.2.2 in the event of grossly negligent violation by ordinary vicarious agents (not officers or executive staff),
11.2.3 if a guarantee is assumed where we do not expressly assume a guarantee for the quality of the goods as seller fur the purchaser as buyer.
11.3 In the cases in item 11.2 our liability is limited to a maximum of twice the net order value for the relevant delivery or performance, however limited to 25,000.00 Euros.
11.4 Compensation claims for the purchaser are limited in the cases in item 11.2 at the latest two years from the time when the purchaser became aware of the damage and/or, not taking this awareness into account, at the latest three years from the time that the damaging event occurred. This is not valid for claims for any defect in the goods. For these cases the limitation remains as in item 10.
11.5 Items 11.1 to 11.4 are also valid provided that goods are only specified as to kind.
11.6 Except in the event of liability in accordance with the law on product liability, cases of damage to life, limb and health, assumption of a guarantee for the quality of goods or for fraudulent concealment of defects the above liability limitations are valid for all claims for compensation independently of their legal basis, including claims for unauthorised action. The above liability limitations are also valid in the event of a compensation claim by the purchaser against our employees or agents.
12. Cancellation costs
If the purchaser withdraws from an agreed contract then we can demand 10% of the gross order value for costs incurred for the processing of the order and profit foregone, without prejudice to the possibility of asserting greater actual damage. The purchaser retains the right to provide that we did not suffer this level of damage.
Illustrations, drawings, samples or other documents are subject to our copyright. If the scope of the delivery or performance also includes controls with corresponding software then the controls are transferred to the ownership of the purchaser with the other parts of the system together with the goods subject to the reservation of title in item 7 of these terms and conditions. All rights for the software, particularly the copyright and exploitation rights, remain with us where they are not expressly transferred to the purchaser. The purchaser receives only the limited right to use the software in accordance with the contract purpose and – depending on the scope – also in line with another software licence contract, to be agreed separately.
14. Assembly and repair conditions
If we are also to carry out assembly and repair work in accordance with the order confirmation then the following conditions also apply:
14.1 commencement of our work assumes that the purchaser has provided all preliminary services as agreed in the order confirmation or elsewhere, correctly and in full. This is valid in particular for necessary foundation work or building conversions including the supply and return lines that are necessary to carry out the assembly or repair, in accordance with the assembly plans supplied by us. If assembly or repair work is to be carried out on a computer system, we are only obliged to begin this performance after the purchaser has saved all data that could be impeded by this work on separate data carriers and has confirmed this backup in writing.
14.2 The transportation, unloading and unpacking of the goods for assembly is not in our scope of services and must therefore be carried out by the purchaser at his own cost if nothing to the contrary has been agreed.
14.3 For the duration of the assembly, the purchaser must provide us with dry, heated, lockable facilities and ensure the power that is required for the assembly and/or repair.
14.4 Parts that are exchanged in the course of repair work will become our property. The remainder value of the exchanged part will only be offset if so agreed.
14.5 If nothing to the contrary is agreed with the purchaser, work will be charged on the basis of working hours and material used plus any cost for travelling and waiting time as well as accommodation, travel and release costs. The prices will be determined by our valid price list if these costs are not proven in individual receipts.
14.6 The purchaser must accept the assembly and repair work. If the purchaser fails to appeal the work in writing within one week of receiving the notice of completion for the assembly or return then this is equivalent to express acceptance.
14.7 Defect claims are initially limited to subsequent performance (improvement or delivery of replacement). If we provide supplementary performance then the purchaser is not entitled to withdraw from the contract on the grounds of assembly or repair work or to demand reasonable reduction of remuneration except if the resolution of the defect has finally failed.
15. Applicable law and court of jurisdiction
15.1 The law of the Federal Republic of Germany is valid exclusively for the business relationship between us and the purchaser with the exclusion of any referral rules according to the German International Private Law and the UN Agreement on the international sale of goods (CISG). This is also valid if the purchaser's company is headquartered abroad.
15.2 If the purchaser is a fully qualified merchant, in the sense of the commercial code, a legal entity under public law or a separate estate under public law or if the purchaser has no general place of jurisdiction in the Federal Republic of Germany then Magdeburg shall be the exclusive court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship (including those relating to bills of exchange or cheques). We retain the right to also assert claims against the purchaser at a court that has jurisdiction for him.