Condiciones Generales de Venta - General Terms & Conditions
1.1 All our business transactions are subject to the following Terms and Conditions to the extent that they do not conflict with mandatory provisions of the national law.
1.2 Any contracts we conclude shall be subject solely to these General Terms and Conditions. Other conditions shall not be deemed provisions of the contract, even if we do not expressly reject them. For taking effect, any collateral agreements shall be made in writing only. This also applies to this written form clause.
1.3 Our offers are non-binding and subject to change. We reserve the right to make technical alterations and improvements. We may electronically store and process data relevant for concluding and processing contracts.
1.4 Unless the customer has undisputed legally confirmed counterclaims, he shall neither be entitled to offset nor to withhold payments for deliveries received.
1.5 Place of performance shall be our plant in Limbach-Oberfrohna. Place of jurisdiction shall, at our discretion, be Chemnitz or the competent court at the customer’s corporate location. The applicable law shall be German law to the exclusion of the UN Convention of the International Sale of Goods (CISG).
2. Transfer of risk, freight charges:
2.1 The risk shall pass to the customer as soon as the goods leave our premises, even if we assume the tasks of shipping, export and installation.
2.2 The customer shall bear transport, packaging and insurance costs.
3. Delivery periods, default, delay
3.1 Terms of delivery are ex works. Lead time periods shall begin only after all technical issues have been clarified that required clarification upon entering into a contract, after receipt of all documents to be supplied by the customer, such as drawings or permits, or after receipt of due down payments and release for production. Deliveries are subject to correct and prompt supplies being made to us. We will immediately inform the customer about the unavailability of the item to be supplied.
3.2 Force majeure as well as strikes, lockouts, operating breakdowns, shortages of supplies, for which we are not responsible, including delayed deliveries or failure of delivery by our suppliers shall extend the delivery periods by the period of delay thereby occasioned. The same shall apply in the case of additional or changed performance/services requested by the customer.
3.3 Before claiming that we are in default with our delivery, the customer shall issue a formal demand note, setting a reasonable extension of time for performance.
3.4 In the case of damage suffered through default, we limit our liability for damages in addition to the performance to 5%, and for damages in lieu of performance to 10% of the value of our delivery/performance. The limitation shall not apply in the case of deliberate intent, gross negligence and/or in the case of injury to life, body or health.
3.5 The provisions of this paragraph shall also apply to mounting or installation periods. Mounting or installation periods shall start only after all and any preparatory works have been completed.
4. Prices, conditions of payment, provision of security
4.1 Our prices are quoted exclusive of the statutory value added tax, which is to be added thereto, and apply ex works. Where a period of more than four months lies between the conclusion of the contract and delivery, we may, within the scope of our equitable discretion, demand a surcharge in accordance with § 315 German Civil Code corresponding to our cost increases up to delivery.
4.2 Subject to any separate written agreement, invoices are due for payment immediately without any deduction. We accept cheques only on account of performance and at the expense of the customer.
4.3 In the case of any delay in payment and/or justified doubts as to the creditworthiness of the customer, we may at any time make any individual delivery dependent upon its settlement in advance or upon the provision of security in the amount of the respective invoice sum.
4.4 If a lump sum was not agreed for mounting and installation work, we will bill at the then applicable field service rates. Lump sums for mounting and installation shall cover agreed works only. Any additional work and waiting time we are not responsible for will be billed according to our field service rates. The same shall apply to the case of temporary assignment of installation personnel.
5. Reservation of title, advance assignment
5.1 The goods delivered shall remain our property until unconditional payment has been made for the same in full. Should we also have further claims against the customer, the reservation of title shall continue in existence until they have been settled.
5.2 The customer may re-sell goods subject to the reservation of title in the normal course of business provided it has not assigned, pledged or otherwise encumbered its claims arising from the re-sale.
5.3 The customer may not combine the goods subject to the reservation of title with other items in relation to which rights of third parties exist. Should goods subject to the reservation of title nevertheless become a component part of a new (complete) object through combination with other items, we shall become a proportionate co-owner of the same directly, even where it is to be regarded as the main object. Our share of co-ownership shall be determined according to the ratio of the invoice value of the goods subject to the reservation of title to the value of the new object at the point in time of the combination.
5.4 Connecting the delivered goods to any real estate property will only take place for a temporary purpose in the sense of §95 BGB – German Civil Code until complete payment of the purchase price has been effected. The customer shall keep our co-ownership share in custody, free of charge.
5.5 By way of security, the customer assigns to us already in advance the claims against its purchasers arising from the sale of goods subject to the reservation of title (clause 5.1) and/ or the newly created objects (clause 5.3) in the amount of our invoice for the goods subject to the reservation of title. As long as the customer does not fall into default with payment for the goods subject to the reservation of title, it may collect the assigned claims in the normal course of business. It may, however, only use the proportional proceeds for the purpose of payment to us of the goods subject to the reservation of title.
5.6 On customers’ request, we shall release securities of our choice if and to the extent the nominal value of the total securities exceeds 120 % of the nominal value of our open claims against the customer.
5.7 In the case of default in payment, we shall be entitled to cancel the contract and/or, even without cancellation, to demand the return of any goods subject to the reservation of title which are still in the customer‘s possession and to collect the assigned claims ourselves. For the purpose of establishing our rights, we may have all documents/books of the customer relating to the goods subject to our reservation of title inspected by a person bound by a duty of professional secrecy.
6. Warranty claims and claims for replacement
6.1 We shall be liable for ensuring that the goods we deliver are free from defects at the time of the passing of risk. Immaterial deviations from the agreed quality or insignificant impairments to the usability are, however, to be disregarded. The quality, durability and use in respect of the goods we deliver shall be determined exclusively according to the agreed written specifications, product description and/or operating instructions. Statements made above and beyond the foregoing, in particular in preliminary discussions or advertising, and/or industrial norms to which reference is made, shall only become an integral part of the contract through express written inclusion.
6.2 Should the customer wish to use the goods delivered for purposes other than those agreed it shall itself, upon its own responsibility, carefully examine the suitability and/or the admissibility of the goods for such purposes. We exclude all liability for any use not expressly confirmed by us in writing. The customer shall examine whether or not any emissions from the production carried out or intended inside the buildings (e.g. chemicals and/or temperature) may in any way impair the plastics/synthetic material offered by us. The customer confirms that such impairments are excluded.
6.3 The customer shall, without delay following receipt, carefully inspect the goods delivered - also with regard to product safety - and notify any evident defects or failings in writing without delay. Hidden defects are to be notified without delay following their discovery. The customer shall report any transport damage immediately to the carrier. In the case of failure to observe these obligations of inspection and notification, warranty claims of the customer shall be excluded.
6.4 Our liability for defects or failings is, as a basic principle, limited to subsequent performance. Subsequent performance consists, at our option, either of elimination of the defect or the delivery of goods free from defects. In the event of refusal, impossibility or the failure of the subsequent performance measures, the customer shall have the right to claim a reduction in the price or, in case of construction services, to cancel the contract.
6.5 Our liability for ordinary negligence shall be limited to claims on account of injury to life, body or health, to claims arising from the Produkthaftungsgesetz [Product Liability Act] and to claims arising from the culpable breach of fundamental contractual duties through which the purpose of the contract is jeopardised. Further, our liability for the breach of fundamental contractual duties through ordinary negligence shall be limited to such damage as is foreseeable for us at the time of the conclusion of the contract and may typically arise.
6.6 Further, we shall not be liable for the consequences of improper handling, use, maintenance or operation by the customer or its vicarious agents of the goods delivered, or for normal wear and tear. This also applies, in particular, in relation to the consequences of thermal, chemical, electro-chemical or electrical influences, and to breaches of our operating instructions.
6.7 Warranty claims against us for works on buildings shall lapse by limitation two years after acceptance of the construction works. In case of maintenance works, as well as for movable goods, especially pneumatic, mechanic and/or electrical parts, warranty claims against us shall lapse by limitation one year following the delivery of the goods to the customer. The same applies to claims from violations of secondary obligations and/or for compensations of property damage or pecuniary losses to things other than the delivered goods or deliverables.
Claims from violations of secondary obligations and/or for compensations of property damage or pecuniary losses to things other than the delivered goods or deliverables must be made before acceptance (in case of works carried out on a building/structure) or until the time of delivery (in case of moveable goods).
The before-mentioned restriction of the limitation period shall not apply for claims by reason of the fraudulent concealment of a defect, for claims under the Produkthaftungsgesetz [Product Liability Act] or for damage arising from injury to life, body or health or for other damage resulting from deliberate intent or gross negligence.
6.8 Should it prove, during our examination of a defect reported by the customer or in the course of our rectification works, that the complaint was lodged without justification through gross negligence, we may demand reasonable remuneration for the examination and/or repair works.
6.9 If we are under obligation to maintain stocks of spare parts, this obligation shall be limited to a period of 2 years following the delivery of the original product.
7. Industrial property rights, Secrecy
7.1 We reserve the right of ownership as well as all industrial property rights and copyright in relation to all our designs, samples, illustrations, technical documents, quotations and offers, even where the customer has assumed the costs for the designs etc. The customer may only use the designs etc. in the manner agreed with us. Without our written consent, it may not itself manufacture the goods delivered or have the same manufactured by third parties.
7.2 Where we deliver goods in accordance with designs prescribed by the customer, it shall be liable as towards ourselves if he is at fault for ensuring that no industrial property rights or other rights of third parties are infringed through the manufacture and delivery of the same. If the customer is at fault he shall reimburse us all damage resulting from any such infringements of rights.
7.3 The customer shall maintain secrecy towards third parties in relation to all knowledge acquired through the business relationship with ourselves which is not public knowledge.
8 Severability clause
If individual parts of these General Terms and Conditions are or become invalid or not applicable in particular cases for contractual or legal reasons, the validity of the remaining provisions shall remain unaffected. § 139 BGB (German Civil Code) is waived in this respect.