1.1. Unless we expressly agree in writing to any amendments or exclusions, these Terms and Conditions shall apply to all contracts and deliveries made and to all other services rendered by us. The Terms and Conditions of our contractual partners must be in writing to take effect.
1.2. Our terms shall also apply to all future agreements, alterations of contract, deliveries and services even if they are not made available in writing again to our contractual partner (hereinafter: customer) as part of our offer or our order confirmation.
2. Quotation and conclusion of contract
2.1. Our quotations shall – subject to an agreement to the contrary – be without obligation.
2.2. Contracts and other agreements shall not become binding until confirmed in writing by us or by our delivery/service. The same shall apply to any changes and supplements to contracts, side agreements and declarations of agents acting without authority (cf. item 2.5). The customer shall be entitled to setting an appropriate confirmation deadline. If we do not respond within this deadline, the confirmation shall be deemed denied.
2.3. The order confirmation must be reviewed immediately upon its receipt as its content alone is binding for order processing. Exclusions to our return and exchange shall apply, in particular, to customised products and single/custom orders if disagreements arise following the conclusion of the contract.
2.4. We shall retain all property and copyrights to drawings, models and other documents, which must not be made available to third parties and must be returned to us postage paid and without delay upon our request or in case the order is not awarded.
2.5. Members of the field staff, installers and sales representatives shall not have the right to make legally binding declarations on our behalf unless authorised in writing on a case-bycase basis.
2.6. We shall be entitled to contracting the services of other companies as agents if we need help executing professional services that we cannot complete using our own personnel.
2.7. The goods delivered by us require regular maintenance to retain their operability.
3. Scope of delivery obligation
During order execution, we shall not be bound by any dimensions, illustrations, drawings and performance specifications which we did not expressly confirm in writing. All specifications of gross weight and crate dimensions are provided as estimates to the best of our knowledge, but without obligation.
4. Right to withdraw from contract
4.1. We shall have the right to withdraw from the contract if its fulfilment is hindered by technical difficulties that cannot be overcome despite the use of the highest possible amount of diligence and effort or if the resolution of such difficulties would require an amount of expenditure that is disproportionate to the real value of the service to be rendered by us. An amount of expenditure shall be deemed disproportionate if exceeding the order volume by more than 15 %. The customer must be notified without delay – if possible, as early as the time the contract is concluded – about any identified issues that may hamper the technical implementation, and the contract must, accordingly, be entered into with reservation. Any payment already received from the customer must be refunded insofar as they are related to the non-rendered service.
4.2. The right to withdraw shall also apply if the customer fails to settle the agreed advance payments within the allotted time.
5. Prices, maturity, terms of payment
5.1. All prices shall be given in Euro. Prices shall not include the value added tax required by law. The applicable rates shall be charged separately.
5.2. We shall reserve the right to adjust and, in particular, raise the agreed price if our calculation has to be modified, resulting in changes to our prices, on account of price increases of our suppliers or fluctuations of foreign currencies against the Euro or changes to the wage or salary agreement applicable to our company.
5.3. Payments to which we are entitled must generally be made at the time the contractual service is provided. If the customer is in default of acceptance, the payments shall become due with the notification that the goods are ready to ship.
5.4. If we are forced to suspend the performance of our service for reasons that fall into the customer’s area of responsibility, the portion of the remuneration to which we are entitled for the service rendered shall become due.
5.5. Payments must be made within the period allowed as per the invoice. Any extensions of the payment period must be agreed upon in writing.
5.6. In cases of failure to comply with the due date for payment, we shall have the right without sending additional reminders to charge the customer at least statutory default interest for any damage arising from such default at the applicable rate above the base rate of the European Central Bank. This provision shall not apply if the customer is not responsible for the delay. If payments are deferred, the customer shall also be required to pay interest at the rate stipulated by law from the time they miss the payment deadline set forth in the invoice.
5.7. Claims the customer may be entitled to cannot be set off against our right to remuneration unless the customer’s claim made to offset our claim has been found to be indisputable or legally valid. Corporate customers shall, furthermore, be denied the right to refuse payment if the underlying claim is not undisputed or, in the event of a justifiable notice of defect, not limited to an extent that is in due proportion of the defects incurred.
6. Delivery period
6.1. Delivery dates and periods shall not be binding unless agreed upon by us in writing. If the delivery data is stated expressly (e.g. “Delivery in four weeks”), the delivery period shall begin on the day order confirmation is given and with the clarification of all details of performance. Deliveries before the end of the delivery period as well as partial deliveries shall be permissible.
6.2. We must be granted an adequate period for making arrangements with regard to setting the delivery date and, in particular, rescheduling on the customer’s request. This period must factor in our order situation and our organisation. If increases in price and cost occur between the originally scheduled date of performance and the date adjourned as requested by the customer, we shall reserve the right to adjust the price previously agreed upon.
6.3. Delivery periods shall be reasonably extended in the event of force majeure and cases of unforeseen hindrances (e.g. strike) that occur after the contract has been concluded and that are beyond our control unless such hindrances have a major impact on the time of performance. The above provisions shall also apply if the circumstances leading to the delay occur at our suppliers or their sub-suppliers.
6.4. We shall be released from our obligation to perform if we are altogether kept from rendering the contractual service (in a timely manner) without being responsible for our failure to perform.
7. Transfer of risk
7.1. The risk shall be transferred to our contractual partner on the date the goods are shipped from our factory. This provision shall not apply if shipping is handled by our own employees or our employees are responsible for the loss or damage of the goods.
7.2. If shipping is postponed by request of our contractual partner or delayed for reasons for which our contractual partner is responsible, the risk shall be passed on to our contractual
7.3. Insurance policies against damage during transport shall be taken out at the expense of the purchaser.
8. Retention of title and security interests
8.1. We shall retain the title to the goods delivered until full settlement of our claims against the customer arising from the business relationship, including any claims that may arise in future. We shall release this security on request at our discretion provided its nominal value exceeds our claims sustainably and by more than 10 %.
8.2. The contractual partner shall be entitled to selling the conditional commodity within an orderly business transaction and combine it with the objects of third parties. Our contractual partner shall already now assign to us any claims arising from the sale, combination or from some other legal ground regarding the conditional commodity fully or in proportion to our sole ownership or co-ownership rights regarding the sold or processed object.
8.3. Subject to revocation, we shall authorise the contracting partner to collect the claims assigned to us. Our contracting partner shall pay to us the amounts collected without delay as far as and as soon as our claims become due. Our authority to collect the claims ourselves shall remain unaffected. At our request, our contracting partner shall be obliged to submit to us all information about the assigned claims and their debtors as well as the associated documentation and to give us all details necessary for the collection. If we are entitled to collect the claims, our contractual partner shall be obliged to give us all information required for their collection.
8.4. If payments are suspended, an application is filed for insolvency proceedings or insolvency proceedings are opened and in case of the implementation of an extra-judicial debt regulation procedure, the rights of our contracting partner to resell, process, mix or install the conditional commodity as well as the authorisation to collect the assigned claims shall expire – even without revocation on our part.
8.5. Our contracting partner shall notify us without delay if third parties gain access to the conditional commodity and the assigned claims. Any costs of interventions or their prevention are to be borne by the contractual partner.
8.6. The contractual partner shall be required to treat the conditional commodity with care and take out insurance at their own expense for the replacement of the conditional commodity that will cover fire and water damage as well as theft.
8.7. In case of any breach of contract by the contractual partner, in particular in case of delay in payment, we shall be entitled to demand return of the conditional commodity at the expense of the contractual partner or the contractual partner’s assignment of the claim for return against third parties without us having to declare rescission of contract before or at the same time. Especially instances where we take back or seize the conditional commodity shall not constitute a withdrawal from the contract by unless we expressly declare our withdrawal in writing.
8.8. If our reservation of proprietary rights should be extinguished by export of the goods or for other reasons, or should we lose the ownership of the reserved conditional commodity for any reason, our contractual partner shall be obliged to grant to us without delay another security for the reserved conditional commodity or another security for our claims which is effective according to the law applicable at the customer’s place of business and which comes closest to the reservation of ownership according to German law.
9.1. If the object of purchase has a defect, we shall have the right to choose between subsequent performance in the form of rectification of the defect or delivery of a new item.
9.2. If the supplementary performance fails, the customer shall be entitled to choose between requesting to withdraw from the contract or demanding a price reduction.
9.3. Any claims by the customer for defects of goods delivered by us shall become timebarred with the expiry of one year after transfer of risk. Notwithstanding, the delivery of refurbished goods shall be subject to a period of limitation of 6 months after transfer of risk.
9.4. The customer’s rights to compensation for damages shall be governed by item 10 of these Terms and Conditions.
10. Obligation to give notice of defects
10.1. The customer, who is an entrepreneur, shall be required to report any apparent faults and defects without delay – usually, within 7 days by written notice or, in case of imminent danger, over the phone. If failing to comply with this provision, the customer shall lose any warranty claims they may have.
10.2. If the defects materialise at a later point in time, item 9.1 shall apply accordingly.
11.1. Our liability for damages in connection with injury to the life, body, health or freedom of our customer arising from a culpable breach of contractual obligations shall neither be excluded nor limited.
11.2. Our liability for any other damages sustained by our customers shall be limited to willful or grossly negligent breaches committed by us or one of our legal representatives or agents.
11.3. If the damages can be attributed to slight negligence on our part, we shall only be liable if the negligent act constitutes a substantial breach of contractual obligations. Our liability in this case shall, furthermore, be limited to the foreseeable damage for the corresponding type of contract. Any other claims for damages brought forward by our customer based on a breach, tort or other legal ground shall be excluded.
11.4. The above limitations on liability shall not apply to failure to provide assured characteristics, if and insofar as such a guarantee was designed to protect the customer from loss or damage other than that arising from the supplied goods themselves.
11.5. The aforementioned exemptions from liability shall, in any case, also apply to consequential damage. They shall, however, not apply to claims made based on the Product Liability Act.
11.6. If our liability is excluded or limited, such exclusions and limitations shall also apply to the personal liability of our employees, agents (subcontractors) and sales representatives.
12. Final provisions and place of jurisdiction
12.1. If one of the provisions of these Terms and Conditions and the further contracts reached should be or become ineffective, this shall not affect the validity of the remainder of the Terms and Conditions.
12.2. These Terms and Conditions shall be governed by the laws of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.
12.3. The place of performance for both parties and the place of jurisdiction shall be Wuppertal. Mandatory legal regulations about exclusive jurisdiction shall remain unaffected. We shall, however, also be entitled to file claims at the customer’s domicile or place of habitual residence or in the place where they hold their assets.
Last revision: October 2018