All our supplies or services (hereinafter referred to as “service”) and offers – including future – are made solely on the basis of our GTCs. These are part of all contracts with us; they are valid even if they are not specifically referred to in each case. The GTCs can be downloaded as a file from our homepage or printed out. Our GTCs shall apply to businesses (§§ 14, 310 BGB) (German Civil Code). Our GTCs shall apply exclusively. GTCs of the customer shall not apply, even if we do not object to them separately. These shall not become a part of the contract even upon unreserved acceptance or execution of the order.
2 Conclusion of the contract
Unless explicitly declared otherwise, our offers are subject to confirmation. The delivery note is decisive for the scope and subject matter of the service. If it contains changes to the purchase order of the customer, the customer is considered to be in agreement with them if he accepts the service without reservation and fails to object in writing within an appropriate period.
An indication of the technical standards is a description of services and is not a guarantee of quality. Details or illustrations (e.g. weights, dimensions, values in use and technical data) are only approximate, unless exact conformity is necessary for the products to be used for the contracted purpose. Obvious errors, printing, writing, arithmetic and calculation errors are without obligation and do not establish a claim for performance.
3 Prices, payment
Our current list prices shall apply. Unless otherwise agreed, payments are due without any deduction 10 days after the invoice date. In determining timeliness, payment is deemed to be made when our account is credited. The customer may only exercise a right of retention or a right of set-off if his claims against us are undisputed or upheld by final and absolute judgment.
The delivery period is 1 to 2 working days (Mon – Fri, excluding public holidays). The delivery period is considered observed if the shipping company has collected the consignment for shipment within this period. We do not assume any liability for delays caused by the shipping company. We will insure our service or transport at the customer’s expense if so instructed in advance by the customer. We will ship at the customer’s risk and expense without guaranteeing that the cheapest method will be used.
5 Retention of title
We reserve title to the service until all payments owed under the business relationship have been received. In the event of resale, the customer hereby assigns to us all claims resulting from this against his customer or its insurer to the full amount as security. The customer is authorised to collect the account receivable on our behalf; this authorisation is revocable.
6 Rights of complaint
The customer must carefully inspect the received service without undue delay upon receipt. We must be notified of any defects in writing without undue delay (“notice of defects”). Damages sustained in transit must be documented to the shipping company. In other respects, § 377 of the HGB (German Commercial Code) shall apply. If no notice is given, the service is deemed to be free from defects and in accordance with the purchase order, unless the defect in question was not detectable during the inspection. Notice of such defects must be given immediately after discovering them. This does not apply in the case of fraudulent concealment of a defect. The resale or use of an allegedly defective service is deemed approval of the service and indicating performance as contracted, and to that extent precludes the possibility of claims for defects.
By negotiating about notices of defects, we do not waive the defence that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.
We are entitled to deviate from the stipulated quality or quantity standards due to irregularities in materials, or to adapt our service to technical progress in terms of construction, design, dimensions, weight or colour within the customary industry standards, provided this does not restrict the usability of our service for the contracted purpose, no guarantee exists and provided the customer can reasonably be expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances.
The customer is liable for any unjustified notices of defects if the defect’s cause lies within the customer’s area of responsibility and he acted at least negligently in failing to recognize this fact. We will invoice the customer in accordance with our current list prices for any expenses not attributable to us under our liability for defects.
We do not extend any warranties in cases of inappropriate or improper use and/ or remedial work, improper assembly or commissioning by the customer or third parties, failure to follow the processing guidelines or operating instructions, natural wear and tear, improper or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or chemical, electrochemical, electrical or environmental influences, unless we are at fault for such cases. This also applies to any modifications made without our approval to the service, replacements of parts or use of consumables that do not conform to the original specifications, unless the defect is not caused thereby. The right to a price reduction is excluded unless the defect is merely insignificant, was concealed with an intent to deceive or relates to a guarantee as to certain characteristics.
Recourse claims of the customer in accordance with § 478 BGB exist only to the extent that the customer’s agreements with the consumer do not go beyond the statutory claims for defects. The suspension of the statute of limitations in accordance with § 479 BGB applies only if the customer has demonstrably extended a warranty to his own customer.
We are liable in accordance with the statutory provisions without limitation in case of injuries to persons, in accordance with the Product Liability Act, upon acceptance of a guarantee as to certain characteristics, in the case of fraudulent concealment of defects, for damages which are based on intent or insofar as damages are covered by our business liability insurance. We are also liable in accordance with the statutory provisions in the case of a grossly negligent breach of duty, only in the case of a grossly negligent breach of an immaterial contractual duty is our liability limited to the foreseeable damages which are typical for this type of contract.
In the event of ordinary negligence, we are liable in the event of a breach of material contractual obligations and limited in this case to the foreseeable damages which are typical for this type of contract, the arising of which was to be expected. In other respects, our liability is excluded. Material contractual duties are duties whose satisfaction is essential to the proper performance of the contract and upon whose satisfaction the customer regularly relies and may rely.
Exclusions and restrictions of liability shall also apply in favour of our boards, statutory agents, employees and other vicarious agents. The customer is obliged to maintain his own appropriately structured insurances in the amount usual for the sector (e.g. in particular business interruption insurance). The customer must accept a possible contributory negligence.
8 Limitation of liability
If liability is limited to the foreseeable damages which are typical for this type of contract, liability for each damaging event is limited to EUR 50,000.00; for all cases of damage within a calendar year, however, at most double this amount. We will be liable above and beyond this amount if and to the extent our insurer accepts and pays claims for the damage.
The warranty claims of the customer shall become statute-barred in 12 months after handing over/delivery of the service. The statutory time limits shall apply in the case of intentional or fraudulent conduct, in case of injuries to persons and claims in accordance with the Product Liability Act.
Unopened, fault-free services without traces of wear can be returned within 4 weeks from the date of delivery. A copy of the invoice is to be enclosed. The customer shall bear the costs for sending and returning the services. Unfranked postal consignments will not be accepted.
10 Data protection
The customer hereby agrees that his data (communication data, responsible employee, type and size of his purchase orders, etc.) are stored by us for contract implementation. We may also use the data to inform the customer about our products and service if the data is typically used in connection with the products and service which the customer has purchased from us.
11 Final provisions
Any amendments and supplements to this contract that are not based on an individual agreement must be made in writing (including fax). This also applies to a waiver of the written form requirement. Should provisions of these GTCs be or become invalid, the validity of the remaining provisions will be unaffected in other respects.
German law shall apply. The place of performance and jurisdiction for natural and legal persons who are acting in line with their commercial or freelance business operations when concluding the contract (businesses) for all disputes arising from the contract is our registered office. However, we are entitled to bring action against the customer at the court that has jurisdiction over the place of the customer’s residence.
As at 11/2011