GENERAL TERMS OF BUSINESS
1.1 (Deadline for objections). The contents of our confirmation of order or letter of confirmation are deemed to have been accepted by the customer, if no disclaimer in writing of the content of the confirmation has been received by us within one week of dispatch (postmark).
1.2 (Form of communication). Any agreements or promises which vary from the content of our written quotation accepted by the customer or our confirmation of order if these have not been disclaimed within the term by the customer, or other documents (including if they have been made or confirmed by us in writing the same applies to variations from these General Terms of Business.
1.3 (Conflicting Terms of Business). These terms of business in all instances prevail over the conflicting terms of the customer and are even valid if we do not expressly contradict such terms. They also apply to our subsequent business with the customer.
1.4 (Reservation of right to modifications). We reserve the right to make technical improvements to design, dimensions, weight, material and form.
1.5 (Industrial property rights). We reserve all industrial property rights and copyrights in the products, designs, patterns samples, goods and services, drawings and other documents furnished by us. Documents and know-how made available to the customer must not be divulged to third parties.
1.6 (Quotations). Initial quotations are made free of charger or obligation. Engineering services rendered within the framework of contractual negotiations at the request of the customer can be charged to him in accordance with GOI if they do not result in an order.
1.7 (VDE Conditions). The VDE conditions are also applicable to electro-technical equipment.
2 Delivery and erection times and periods
2.1 Delivery times, periods and dates are quoted ex works.
2.2 An agreed delivery time or period does not begin until all the necessary documents are received from the customer, the approved drawings are returned and the agreed down-payment has been received.
2.3 Acts of God, strikes, not caused by our responsibility, lock-outs, work stoppages and interruptions, breakdowns, shortage of raw materials or supplies and failures by our suppliers to deliver which are outside our control give rise to a corresponding extension of the delivery period or date and release us from our obligation to deliver if delivery is thereby rendered impossible.
2.4 If in the event of our default the customer sets us a reasonable period of extra time, and if no response is received within this deadline, he may withdraw from the contract.
2.5 The customer only has a claim for damages in respect of delay on our part if we or one of our employers has contributed to the default deliberately or through gross negligence. Our liability is limited to compensation for damages which are foreseeable at the time when the contract is concluded.
2.6 The provisions of this section likewise apply to times and periods set for erection. An erection period does not come into effect until all preparatory work has been completed and the customer has met his obligations under 7.1 and 7.2 of these terms.
3. Delivery, risk, packing, dispatch, spare parts.
3.1 The risk is transferred to the customer when the goods leave our works, or if the customer fails to take delivery immediately after being notified of readiness for dispatch or operation. The risk for the equipment being erected is borne solely by the customer even during interim storage. We disclaim all liability for damage in transit.
3.2 Part shipments are permissible.
4. Prices, payments
4.1 Our prices are quoted ex works, excluding packing. Erection work will be charged for monthly.
4.2 In the event of our costs having increased between the order being placed and the goods being delivered, we are entitled to make an extra charge commensurate with the percentage increase in costs. In case of price increase more than 20 % the customer has the right to refrain from contract.
4.3 In the event of delayed payment, we can demand the normal interest charged by banks.
4.4 The customer is not entitled to exercise a possessory lien in response to our demands for payments or to claim the right to offset, if his claims have not been accepted or judged to be legal.
4.5 In the event of doubt as to the credit-worthiness of the customer we are entitled to demand cash payment or the furnishing of security prior to delivery.
4.6 A firm price for erection only covers the agreed work, any additional work of waiting times for which we are not responsible will be charged at our normal rates.
4.7 Any personnel seconded for any period of time, either at the request of the customer or on our own initiative, will be charged for at our normal rates.
4.8 If any work has to be carried out under abnormally difficult conditions, such as heat, dust or height, an extra 25 % can be charged.
5. Reservation of ownership, preliminary assignment
5.1 The goods supplied remain our property until paid for in full.
5.2 In the event of our having any outstanding claims against the customer, our reservation of ownership lasts until these are repaid. The same applies to accounts payable for erection work.
5.3 The customer may only combine the goods supplied with order articles or process them to make other articles before payment has been made, if the other items are not subject to third party rights (such as fiduciary assignments, liens etc), and are not incorporated into a building or piece of land. If he does this nevertheless, such incorporation may only be carried out for temporary purposes until the payment is made in full (§ 95 BGB Civil Code).
5.4 If we should lose ownership of the goods supplied due to combination with or processing into other articles, we become joint owners of the new item made by combination or processing commensurate with the purchase price of the goods supplied by us up to value of the new item. The customer will hold the new article in safe keeping without charge for us.
5.5 The customer may dispose of the goods subject to reservation of ownership in accordance with 5.1 and 5.4 in the normal course of business, provided he has not already assigned his right arising out of such sale or these have no other charges on them. He assigns to us by way of security all his rights arising out of the disposal there of up to amount of our claim. Should our claims on the goods subject to reservation of ownership under 5.4 conflict with the rights of other suppliers, the assignment is deemed to be partial commensurate with our right of joint ownership.
5.6 Payments received on the basis of prior assignment may in the first instance only be held for us separately by the customer and used for paying back amounts owed to us.
5.7 If the value of our security should exceed our claim by more than 20%, we shall release the excess security on demand.
5.8 In the event of delayed payment on the part of the customer, all payments outstanding on our favour become due immediately. We can prohibit him from further processing, combination with other articles or disposal of the goods subject to reservation of ownership. We are also entitled to collect the goods subject to reservation of ownership. The customer has to this extent no right of ownership in the goods subject to reservation (including those covered by 5.4). We can also collect the debts in accordance with 5.5. If requested, the customer must inform us without delay to whom he has sold the goods subject to reservation of ownership and who is exercising the rights thereto.
6. Guarantee, compensation
6.1 The customer can only invoke guaranteed, performance quality and acceptance of obligations, if we have stated this explicitly in writing. Information given in publicity material, operational instructions or reference to industrial standards, is not binding and does not constitute a guarantee as to properties. If the customer requires our goods for particular purposes it is incumbent upon him to check on suitability for this purpose himself. Failure to carry out such a check excludes in all avoidable claims for compensation by the customer in respect of any loss or damage resulting therefrom, or attaching thereto, with particular reference to consequential damages.
6.2 The customer must inspect the goods supplied and the erection services rendered immediately on receipt for any shortcomings and notify any such defects in writing 2 weeks of receipt. Hidden defects are to be notified in writing within 2 weeks of discovery. Failure to meet these deadlines, or after a period of 6 months has elapsed from the receipt of the good or services, all claims under guarantee and for damages in respect of apparent or hidden defects are excluded.
6.3 With regard to failure with regard to guaranteed properties see also 6.2.
6.4 All claims for damages or under guarantee on the part of customer are null and void if he has improperly treated the goods supplied or had them repaired by third parties without our approval.
6.5 In the event of a justified complaint made in due form and within the deadlines stated, appertaining to faults or failure to provide guaranteed properties, we shall free of charge at our discretion. Repair, make good, improve, replace, or exchange any parts which are demonstrably unusable as a result of circumstances obtaining prior to the transfer of risk, with particular reference to defects of manufacture, poor materials or inadequate workmanship. This liability does not extend to normal wear and tear. We shall reassemble any items which are not properly assembled. Should such measures carried out under guarantee be unsatisfactory, the same applies to the continuing or additional defects.
6.6 With regard to consequential damage in respect the absence of guaranteed characteristics, we only accept liability in accordance with 6.1 if the customer has expressly drawn our attention to the possible risk of consequential damages on the conclusion of the contract and we have given him a specific inclusive undertaking in this regard. The claim for damages is limited to a maximum of the foreseeable total loss or damage at the time of the conclusion of the contract.
6.7 Claims arising out of positive violation of contract, failures at conclusion of contract, consulting operational instructions, unlawful handling or other legal grounds (e.g. consultancy) are only permissible against us in the case of premeditation or gross negligence by us or one of our employees. Those claims become prescriptive after 6 months after delivery of erection with the exception of unlawful handling which become prescriptive after 3 years.
6.8 With regard to products made by others which we merely resell without any processing, claims against us under guarantee we may have against the supplier of these part made by other to the customer
6.9 Nor are we liable for any damage or defect, arising out of work carried out by our erection personnel, to the extent that such work is not connected with the erection work ordered from us, or the erection work involved goods not supplied by us or the work giving rise to the damage or defect is attributable to actions taken or arrangements made by the customer which we have neither confirmed nor approved.
6.10 If we have the obligation to keep spare parts available, then this obligation will expire 5 years after delivery.
7. Special terms applicable to erection.
7.1 The customer must provide for us at the required and pay the costs of:
a) auxiliary personnel, including skilled workers (brick layers, mechanics, electricians) in such numbers as we consider necessary,
b) all excavation, masonry and scaffolding work, inclusive of materials,
c) lighting, power, compressed air, water, welding current and heating, including the necessary connecting points on site,
d) electrical installation to connect up the equipment and control units supplied by us and also a manually operated switch for completely switching off the whole plant.
e) the necessary equipment (such as for lifting and welding),
f) lockable premises in which to store materials, tools and clothing during the erection work.
7.2 At the start of erection all the necessary parts must be present on site. They are to be protected and carefully preserved by the customer. The premises provided for control desks and switchgear must be in such a condition as to permit assembly in a dust free atmosphere and protected from the weather.
7.3 The erecting engineers must be requested in due time (at least 14 days prior to the start of the work).
7.4 Should our personnel be unable to start the work on the date set for reasons outside our control, we reserve the right to claim the contractually agreed remuneration. In such a case we reserve the right to temporarily use our engineers elsewhere. The customer will then bear the costs involved for travelling both ways.
7.5 Our personnel are instructed as far as possible to comply with the working hours obtaining on site. The minimum working day is 8 hours.
7.6 On completion of the erection work or in the case of long-term work, at the end of each, the service rendered by our personnel are to be confirmed on the work sheets submitted and the data required for charging is to marked thereon. In the event of refusal to confirm, the information given by our erector will be binding on both prices. If the erector has received an advice from the customer, the amount thereof is to be stated on the work sheet.
8. Place and choice of jurisdiction
8.1 The place of performance for delivery and payment and the place of jurisdiction for all disputes arising out of or in connection with the subject of the contract, including misconduct on the part of our employees, and also for summary payment enforcement proceedings in respect of cheques and bills is Wertheim. We can also take legal action against the customer at his registered office.
8.2 German law is exclusively applicable to these contractual relations. If this is opposed by conflicting foreign law, the latest versions of incoterms will be applicable thereto. The provisions of the standard consumer legislation are expressly excluded.