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  2. Terms and Conditions

General Terms and Conditions

General

By placing an order, the terms and conditions below, which have been brought to the attention of the Client, become part of the contract; any deviating purchasing conditions of the Client are thereby excluded, even if their content is not expressly objected to. Deviating agreements require our written confirmation in every case in order to be effective.

I. Offer

The documents pertaining to the offer, such as illustrations, drawings, and weight and dimension specifications, are only approximately authoritative unless they are expressly designated as binding. The Supplier reserves the right of ownership and copyright to offers, drawings and other documents; they may not be made accessible to third parties. The Supplier is obligated to make plans designated as confidential by the customer accessible to third parties only with the customer's consent. If, after conclusion of the contract, circumstances become known to us that give rise to justified doubts as to the Client's ability or willingness to pay, we are entitled to withdraw from the contract or to demand advance payment of the entire order amount.

II. Scope of Delivery

The Supplier's written order confirmation is decisive for the scope of delivery. In the case of an offer by the Supplier with a time limit and acceptance within that time limit, the offer is decisive, provided that no timely order confirmation has been issued. Warranted characteristics, collateral agreements and amendments require the written confirmation of the Supplier. The Supplier reserves the right to make design and shape modifications to the delivery item, provided that the delivery item is not fundamentally changed and the modification is reasonable for the Purchaser.

III. Price and Payment

  1. In the absence of a special agreement, prices apply ex works, excluding packaging. Value added tax at the applicable statutory rate is added to the prices.
  2. The invoiced prices are payable within a payment term of 30 days net.
  3. The withholding of payments or set-off on account of any counterclaims of the Purchaser disputed by the Supplier is not permitted.
  4. For order values of €50,000.00 net or more, the following payment terms apply unless expressly agreed otherwise: 40 percent down payment upon receipt of the order confirmation, 40 percent as soon as the Purchaser has been notified that the main parts are ready for shipment, 20 percent upon commissioning, but no later than 6 weeks after delivery. In the event of default in payment, the customary bank overdraft interest as well as reminder and collection costs will be charged, subject to the assertion of further damage caused by default.
  5. Checks and bills of exchange are accepted only if expressly agreed. Payment is deemed to have been made only when these means of payment have been credited to us. Bill of exchange charges shall be borne by the Purchaser.
  6. Until invoices that have fallen due have been paid in full, we are released from further delivery obligations.
  7. Payments are to be made directly to us or to an authorized representative if the latter has received written authorization to accept payments.

IV. Delivery Time

  1. The delivery period begins with the dispatch of the order confirmation, but not before the documents, permits and approvals to be procured by the Purchaser have been provided, nor before receipt of an agreed down payment.
  2. The delivery period is deemed to have been met if, by its expiry, the delivery item has left the factory or readiness for shipment has been notified.
  3. The delivery period shall be extended appropriately in the event of measures taken in the context of industrial action, in particular strikes and lockouts, and in the event of unforeseen obstacles beyond the Supplier's control, insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item. This also applies if these circumstances occur at sub-suppliers. The Supplier shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. In important cases, the Supplier shall notify the Purchaser of the beginning and end of such obstacles as soon as possible.
  4. If the Purchaser suffers damage as a result of a delay caused by the Supplier's own fault, the Purchaser is entitled, to the exclusion of further claims, to demand compensation for delay. This amounts to 0.5 percent for each full week of delay, but in total no more than 5 percent of the value of that part of the total delivery which, as a result of the delay, cannot be used in time or in accordance with the contract.
  5. If shipment is delayed at the Purchaser's request, the Purchaser shall be charged, beginning one month after notification of readiness for shipment, the costs incurred through storage, but in the case of storage at the Supplier's factory at least 0.5 percent of the invoice amount for each month. However, the Supplier is entitled, after setting a reasonable deadline that has expired without result, to otherwise dispose of the delivery item and to supply the Purchaser within a reasonably extended period.
  6. Compliance with the delivery period is conditional upon the fulfillment of the Purchaser's contractual obligations.

V. Acceptance Tests

Acceptance tests agreed in the contract shall, in the absence of any agreement to the contrary, be carried out at the place of manufacture during normal working hours.
If the contract does not contain any provisions on technical details, the general practice of the relevant industry in the country of manufacture shall be decisive for the tests.
The Supplier must notify the Purchaser of the acceptance test in writing in sufficient time to enable the Purchaser to be represented at the tests. If the Purchaser is not represented, the Purchaser shall receive a test report from the Supplier, the accuracy of which the Purchaser can no longer dispute.
If the delivery item proves to be not in conformity with the contract during the acceptance tests, the Supplier shall remedy any defect without undue delay in order to bring the delivery item into the condition required by the contract. The Purchaser may demand a repetition of the tests only in cases of material defects.
The Supplier shall bear all costs of the acceptance tests carried out at the place of manufacture. However, the Purchaser shall bear all travel and living expenses incurred by its representatives in connection with the tests.

VI. Transfer of Risk and Acceptance of Delivery

  1. The risk passes to the Purchaser no later than upon dispatch of the delivery parts, even if partial deliveries are made or the Supplier has assumed other services, e.g. the shipping costs or carriage and installation. At the Purchaser's request and expense, the Supplier will insure the shipment against theft, breakage, transport, fire and water damage, and other insurable risks.
  2. If shipment is delayed as a result of circumstances for which the Purchaser is responsible, the risk passes to the Purchaser from the day of readiness for shipment; however, the Supplier is obligated, at the Purchaser's request and expense, to take out the insurance requested by the Purchaser.
  3. Delivered items must be accepted by the Purchaser, even if they have insignificant defects, without prejudice to the rights under Section VII.
  4. Partial deliveries are permitted.

VII. Retention of Title

  1. The Supplier retains title to the delivery item until all claims of the Supplier against the Purchaser arising from the business relationship, including claims arising in the future, also from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims of the Supplier have been included in a current account and the balance has been struck and acknowledged. In the event of conduct by the Purchaser in breach of contract, in particular default in payment, the Supplier is entitled to take back the delivery item after a reminder, and the Purchaser is obligated to surrender it. Unless the Installment Sales Act (Abzahlungsgesetz) applies, the taking back or the seizure of the item by the Supplier constitutes a withdrawal from the contract only if the Supplier expressly declares this in writing. In the event of seizures or other interventions by third parties, the Purchaser must notify the Supplier in writing without undue delay and provide all necessary information.
  2. The Purchaser is entitled to resell the delivery item in the ordinary course of business. However, the Purchaser hereby assigns to the Supplier all claims, together with all ancillary rights, accruing to the Purchaser from the resale against the buyer or against third parties, irrespective of whether the goods subject to retention of title are resold without or after processing. The Purchaser remains authorized to collect these claims even after the assignment. The Supplier's authority to collect the claims itself remains unaffected; however, the Supplier undertakes not to collect the claims as long as the Purchaser duly meets its payment obligations. The Supplier may demand that the Purchaser disclose the assigned claims and their debtors, provide all information required for collection, hand over the related documents and notify the debtors of the assignment. If the delivery item is resold together with other goods that do not belong to the Supplier, the Purchaser's claim against the buyer is deemed assigned in the amount of the delivery price agreed between the Supplier and the Purchaser.

VIII. Liability for Defects of the Delivery

The Supplier is liable for defects of the delivery, to the exclusion of further claims and without prejudice to Section IX, 4., as follows:

  1. All those parts that prove to be unusable, or whose usability is significantly impaired, as a result of a circumstance occurring before the transfer of risk – in particular due to faulty design, poor materials or defective workmanship – shall be repaired or replaced free of charge at the Supplier's option, exercised at its reasonable discretion. The defects must be reported to the Supplier without undue delay. Replaced parts become the property of the Supplier. The Supplier's liability ends upon expiry of the statutory period. If shipment, installation or commissioning is delayed through no fault of the Supplier, liability expires no later than 12 months after the transfer of risk. For significant third-party products, the Supplier's liability is limited to the assignment of the liability claims to which the Supplier is entitled against the supplier of the third-party product.
  2. The Purchaser's right to assert claims based on defects becomes time-barred in all cases 6 months from the date of the timely notice of defect, but not before expiry of the warranty period.
  3. No warranty is assumed for damage arising from the following causes: unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, substitute materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless they are attributable to fault on the part of the Supplier, and furthermore incorrect information provided by the Purchaser or its advisors regarding the operational and technical requirements and the chemical-physical conditions for the use of the delivery item.
  4. To carry out all repairs and replacement deliveries that the Supplier, at its reasonable discretion, deems necessary, the Purchaser must, after consultation with the Supplier, grant the necessary time and opportunity; otherwise the Supplier is released from liability for defects. Only in urgent cases where operational safety is at risk and to prevent disproportionately extensive damage, in which case the Supplier must be notified immediately, or if the Supplier is in default with remedying the defect, does the Purchaser have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from the Supplier.
  5. Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear – insofar as the complaint proves to be justified – the costs of the replacement part including shipping. All further costs shall be borne by the Purchaser.
  6. The warranty period for the replacement part and the repair is 3 months, but runs at least until expiry of the original warranty period for the delivery item. The period of liability for defects of the delivery item is extended by the duration of the operational interruptions caused by the remedial work.
  7. Modifications or repair work carried out improperly, for example by the Purchaser or third parties, without the Supplier's prior approval shall void the Supplier's liability for the resulting consequences.
  8. Further claims of the Purchaser, in particular a claim for compensation for damage that has not occurred to the delivery item itself, such as production downtime, lost profit, loss of use, contractual losses or any other consequential or indirect damage, are excluded to the extent permitted by law.

IX. Liability for Ancillary Obligations

If, through the fault of the Supplier, the delivered item cannot be used by the Purchaser in accordance with the contract as a result of the omitted or faulty implementation of suggestions and advice given before or after conclusion of the contract or of other contractual ancillary obligations – in particular instructions for the operation and maintenance of the delivery item – the provisions of Sections VII and IX shall apply accordingly, to the exclusion of further claims of the Purchaser.

X. Purchaser's Right of Withdrawal

  1. The Purchaser may withdraw from the contract if the entire performance becomes definitively impossible for the Supplier before the transfer of risk. The Purchaser may also withdraw from the contract if, in the case of an order for items of the same kind, part of the delivery becomes impossible in terms of quantity and the Purchaser has a legitimate interest in rejecting a partial delivery; if this is not the case, the Purchaser may reduce the consideration accordingly.
  2. If there is a delay in performance within the meaning of paragraph 4 of the terms of delivery, and the Purchaser grants the Supplier in default a reasonable grace period with the express declaration that the Purchaser will refuse acceptance of the performance after expiry of this period, and the grace period is not met, the Purchaser is entitled to withdraw from the contract.
  3. If the Purchaser is in default of acceptance, with or without its own fault, the Purchaser remains obligated to render the consideration.
  4. To the extent permitted by law, all other further claims of the Purchaser are excluded, in particular claims for rescission (Wandlung), termination or price reduction and for compensation for damage of any kind, including damage that has not occurred to the delivery item itself.

XI. Supplier's Right of Withdrawal

In the event of unforeseen events within the meaning of Section IV of the terms of delivery, insofar as they significantly change the economic significance or the content of the performance or have a considerable effect on the Supplier's business, and in the event of impossibility of performance that subsequently becomes apparent, the contract shall be adjusted appropriately. Where this is not economically justifiable, the Supplier has the right to withdraw from the contract in whole or in part. The Purchaser shall have no claims for damages on account of such withdrawal. If the Supplier wishes to exercise its right of withdrawal, it must notify the Purchaser of this without undue delay after recognizing the implications of the event, even if an extension of the delivery period was initially agreed with the Purchaser.

XII. Place of Jurisdiction

For all disputes arising from the contractual relationship, if the Purchaser is a registered merchant (Vollkaufmann), a legal entity under public law or a special fund under public law, legal action shall be brought before the court having jurisdiction for the principal place of business of the Supplier or for the branch of the Supplier carrying out the delivery. The Supplier is also entitled to bring an action at the Purchaser's principal place of business. If the Purchaser is not a registered merchant (Vollkaufmann), the court having jurisdiction for the principal place of business of Heinbokel & Müller GbR is agreed for the order for payment proceedings (Mahnverfahren). The law of the Federal Republic of Germany applies to transactions concluded with foreign contracting parties.

XIII. Data Storage

Data arising in connection with the contractual relationship may be stored by us.