General Terms and Conditions
TEXT IN BLACK: generic validity (in both versions)
TEXT IN RED: delivery only (no further services)
TEXT IN GREEN: delivery and construction etc.
§ 1 Validity and form
(1) These general terms and conditions (Allgemeine Geschäftsbedingungen – AGB) are valid for all business relationships between us and our clients. The AGB are only valid if the client is an entrepreneur (Unternehmer in terms of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)), a public legal entity (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen).
(2) The AGB are particularly valid for contracts on the purchase and/or delivery of movable assets, no matter if we are the manufacturer of such product or buy it ourselves from sub-suppliers (sec. 433, 650 of the BGB), as well as contracts for works and services and installation contracts (sec. 631 of the BGB) and, to the extent applicable, service contracts (sec. 611 of the BGB). In the absence of other agreements, these AGB are applicable as framework agreement also to similar future contracts – without us having to explicitly invoke them for each individual case – in the version which is valid upon order or assignment by the client or which has been submitted to the client in textual form most recently
(3) Our AGB are applicable exclusively. Deviating, contradictory or supplementary general terms and conditions of the client will become part of the contract only if and to the extent we explicitly agree to their application. Such requirement of a mandatory agreement applies in any case, for example even if – despite our knowledge of the client’s general terms and conditions – we perform the delivery or render the services to the client unconditionally.
(4) Separate agreements made with the client for an individual case (including specific project agreements, side agreements, supplements or amendments) shall in any case prevail over these AGB. With a view to the contents of such agreements, a written contract or our written confirmation is a mandatory prerequisite.
(5) Legally relevant declarations or notifications of the client in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction by declaration) need to be made in written or textual form (e.g. letter, email, facsimile). Statutory form requirements and further verification, in particular in case of doubt on the legitimation of the declaring party, remain unaffected.
(6) References to the application of statutory provisions shall only have a clarifying meaning. The statutory provisions shall apply even without such clarification unless such provisions are not immediately amended or explicitly excluded by these AGB.
§ 2 Conclusion of contract and general obligations
(1) Our offers are subject to alteration and non-binding. This does also apply if we provide the client with catalogues, technical documentation (e.g. drawings, schedules, calculations, references to DIN norms), other product descriptions or documents, including in electronical form, in which we reserve our ownership and intellectual property rights.
(2) The order or assignment by the client shall be considered as a binding offer to enter into a contract. Unless specified otherwise in the order or assignment, we are entitled to accept such offer within 14 calendar days following receipt.
(3) The acceptance by us can happen either in written form (e.g. by submission of a respective order confirmation) or by performance of the delivery or rendering of the services to the client.
(4) We are entitled, without limitation, to employ suitable sub-contractors for the performance of our contractual obligations. The rejection by the client of specific sub-contractors or sub-suppliers shall only be possible if such rejection is comprehensively substantiated in written form.
(5) The client shall procure and maintain the common project insurances and ensure that we are accordingly co-insured under such insurances.
(6) The soil risk shall by all means be borne exclusively by the client.
§ 3 Deadlines for delivery/performance and delay
(1) The deadlines for delivery/performance shall be agreed individually or, respectively, be indicated by us upon acceptance of the order or assignment.
(2) If and to the extent we are hindered to comply with binding deadlines for delivery/performance (Nichtverfügbarkeit der Leistung) for reasons which are within our responsibility, we will inform the client accordingly without undue delay and, at the same time, communicate the anticipated new deadline for delivery/performance. If, even upon lapse of such updated deadline for delivery/performance, the performance of the delivery or rendering of the services is still not possible, we are entitled to withdraw from the contract in full or partially; payments already made by the client will be reimbursed without undue delay. An example for non-availability in terms of this provision is in particular, but not exclusively, the case that our sub-suppliers fail to deliver in due time, if and to the extent we have entered with them into a congruent coverage transaction (konkruentes Deckungsgeschäft), neither we nor our sub-suppliers are responsible for the non-availability or we have not accepted an obligation for procurement in the individual case.
(3) The legal preconditions for our delay (Verzug) are set forth in the statutory provisions, in each case under consideration of potential adjustments of the deadlines for delivery/performance in accordance with § 3 para. 2 above. A reminder notice (Mahnung) by the client is required in any case. If we are in delay, the client is entitled to demand liquidated damages (pauschalierter Schadensersatz). The liquidated damages shall amount to 0.5% of the agreed net contract value for each full calendar week of delay, up to a total of not more than 5% of the agreed net contract value. The client may not claim any further damages for delay beyond such liquidated damages. We are entitled to prove that the client has not suffered any damage or a significantly lower damage than the liquidated damages set out above. In such case, the liquidated damages will be adjusted accordingly.
(4) The client’s rights under § 8 of these AGB and our statutory rights, in particular in case of release of either party’s obligations due to e.g. impossibility (Unmöglichkeit) or unreasonableness (Unzumutbarkeit) of delivery/performance and/or rectification (Nacherfüllung), shall remain unaffected.
§ 4 Delivery, transfer of risk, taking over, default in acceptance
(1) If a delivery is part of the contractual obligations, such delivery shall take place ex works (EXW in accordance with Incoterms 2010). Upon request by and at the expense of the client, the goods can be sent to another place by sales shipment (Versendungskauf). Unless agreed otherwise, we are entitled to determine the details of shipment (in particular carrier, transport route, packaging).
(1) The delivery of goods and components which are necessary for the execution of the works shall take place free site (DAP in accordance with Incoterms 2010).
(2) Place of performance (Erfüllungsort) for the delivery or performance and a potential rectification is our place of business (Geschäftssitz).
(2) Place of performance (Erfüllungsort) for the delivery or performance and a potential rectification is the place where the delivery or performance actually takes place, typically the construction site.
(3) The risk of accidental loss and deterioration (Gefahr des zufälligen Untergangs und der zufälligen Verschlechterung) of the goods shall be transferred to the client latest upon handover. In case of a sales shipment, though, the risk of accidental loss and deterioration of the goods as well as the risk of delay shall already be transferred to the client upon handover of the goods to the forwarder, carrier or any other person or entity appointed to perform the delivery. If and to the extent a formal taking over (Abnahme) is agreed or customary, such taking over shall be the relevant point in time for the transfer of risk. Apart from that, in terms of an agreed or customary taking over, the statutory provisions of the law on contracts for works and services (Werkvertragsrecht) shall apply accordingly or directly. The client’s default in acceptance (Annahmeverzug) replaces the handover or taking over, respectively, and shall have the same legal consequences.
(4) If the client is in default of acceptance, refrains from performing his duties to cooperate or if our delivery or performance is delayed for other reasons attributable to the client, we are entitled to claim the respectively suffered damage, including additional expenses (e.g. storage costs). For the purpose of performance of our contractual obligations, the client is obliged to grant and safeguard unrestricted access to the construction site.
(5) The use of the goods for their intended purpose or their commissioning shall be considered as an implied taking over by the client. In such case, the client waives the requirement to explicitly declare taking over.
§ 5 Prices and payment conditions
(1) Unless agreed otherwise in the individual case, our prices are valid as published at the time of conclusion of the contract, ex works and exclusive of value-added tax (VAT). The deduction of early payment discounts (Skonto) is permitted only if explicitly agreed in written form.
(2) In case of a sales shipment (§ 4 para. 1 sentence 2) the client shall bear the transport costs ex works and, if requested by the client, the costs for any transport insurance. Customs, fees, tax and other public duties shall be paid by the client.
(3) The payment of the contract price is due and payable within 14 calendar days following invoicing and delivery/performance or taking over of the goods or services. However, even in the course of an ongoing business relationship, we are entitled at any time to perform a delivery or render services – in full or partially – solely against payment in advance. A respective condition will by declared by us latest upon confirmation of the order.
(4) Upon fruitless lapse of above payment deadlines, the client is in delay (Verzug). During such delay, interest in the amount of the currently applicable statutory interest rates shall be paid on the agreed contract price. We reserve our rights to claim further damages for delay. Our rights to claim mercantile interest on maturity from entrepreneurs remains unaffected (sec. 353 of the German Commercial Code (Handelsgesetzbuch – HGB)).
(5) The client may only invoke set-off or retention rights to the extent his claim has been confirmed in a legally binding form or is undisputed. In case of defects in the delivery/performance, the client’s reciprocal rights resulting from particularly § 7 para. 6 sentence 2 of these AGB remain unaffected.
(6) If after conclusion of the contract it becomes obvious (e.g. by filing of insolvency proceedings) that our claim for the agreed remuneration is endangered due to a lack of financial capability on the client’s side, we are entitled to reject delivery/performance in accordance with the statutory provisions and – if applicable following the setting of a deadline – to withdraw from the contract (sec. 321 of the BGB). In case of contracts on the manufacturing of non-fungible goods (custom-built products) we may declare the withdrawal immediately; the statutory provisions on the dispensability of setting deadlines shall remain unaffected.
(7) We reserve our rights to adjust the prices if costs for workforce or goods and materials increase demonstrably and significantly between offer and contractual performance due to unforeseeable circumstances. In case documentation provided by the client turns out to be inaccurate or incomplete and, as a result, an unforeseeable change by us to the originally agreed works becomes necessary, we are also entitled to make a reasonable adjustment to the prices. The same applies in case of changes in statutory provisions or changes in technical standards or guidelines after conclusion of the contract.
§ 6 Reservation of title
(1) Until final payment of all current and future claims resulting from the contract and an ongoing business relationship (secured claims), we reserve the title in all delivered goods.
(2) Goods which are subject to the reservation of title shall neither be pledged for the benefit of third parties nor transferred for security purposes prior to the payment of all secured claims. The client shall notify us immediately in written form when a filing for insolvency proceedings is being initiated or in case third parties take hold of the goods owned by us, irrespective of the form (e.g. by means of pledge).
(3) In case of breach of contract by the client, in particular non-payment of the due remuneration, we are entitled to withdraw from the contract and/or claim restitution of the goods based on the reservation of title in accordance with the statutory provisions. The claim for restitution does not necessarily include a declaration of withdrawal; we are entitled to claim only restitution of the goods and at the same time reserve our right to withdraw. If the client does not pay the due remuneration, we may only invoke such rights if we have set the client a reasonable deadline for payment which has lapsed without effect or if the setting of a deadline is not required by the statutory provisions.
(4) The client shall be entitled until further notice in accordance with below (c) to re-sell and/or process the goods affected by our reservation of title in the ordinary course of business. In such case, below provisions shall apply additionally.
(a) The reservation of title extends to the products which are the result of the processing, mixture or combination of our goods in the amount of the full value of such new products, whereas we shall be considered to be the manufacturer. If in the course of such processing, mixture or combination with goods of third parties such third parties’ ownership rights remain in effect, we will be granted co-ownership (Miteigentum) pro rata the invoice values of the processed, mixed or combined goods. Apart from that, the so created goods shall be subject to the same regulations as the goods delivered under the reservation of title.
(b) The client assigns to us (abtreten) as security already at this stage any claims against third parties resulting from the re-selling of the goods or the products, in total or in the amount of our potential portion of co-ownership, in accordance with the preceding paragraph. We accept such assignment. The obligations of the client set out in para. 2 above shall also apply to the assigned claims.
(c) The client shall remain entitled besides us to collect the claims. We are obliged not to collect the claim as long as the client fulfils its payment obligations against us, does not show any default in its capability to perform and we do not invoke the reservation of title by exercising a right in accordance with para. 3 above. If this is the case, we may demand from the client to notify us on the assigned claims and their debtors, to provide all information required for the collection of claims, to hand over all related documents and to inform the debtors (third parties) about the assignment. Furthermore, in such case we are entitled to revoke the client’s permission to re-sell and process the goods to which the reservation of title extends.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will – upon request by the client – release securities at our option.
§ 7 Claims for defects by the client
(1) The client’s rights in case of defects in quality and defects in title (Sach- und Rechtsmängel), including wrong and short delivery as well as improper construction or incorrect construction guidelines, are subject to the statutory regulations, unless agreed otherwise in the following provisions.
(2) The basis for our liability for defects (Mängelhaftung) is in particular the agreement on the quality (Beschaffenheit) of the goods. Solely product descriptions which are object of the individual contract are to be considered an agreement on the quality of the goods.
(3) If and to the extent the quality has not been agreed, the existence of a defect (Mangel) shall be assessed in accordance with the relevant statutory provisions. We do not accept any liability, though, for public announcements of the manufacturer or other third parties (e.g. advertising statements).
(4) The client’s claims for defects mandatorily require that the client has fully observed his statutory inspection and notification obligations (sec. 377, 381 of the HGB). If a defect is detected upon delivery, inspection or at any later point in time, the client is obliged to notify us of such defect in written form without undue delay. If the client fails to perform a proper inspection and/or to send a notification of defects, our liability for the defects which have not been notified, notified with delay or improperly notified shall be excluded in accordance with the statutory provisions.
(5) In case the delivered product is defective, we may freely choose the way of rectification, either by remedying the defect (Nachbesserung) or by delivery of a non-defective product (Ersatzlieferung). Our right to refuse the rectification in accordance with the statutory provisions shall remain unaffected.
(6) We are entitled to make the owed rectification dependent on the payment of the due remuneration by the client. However, the client shall have the right to retain a portion of the remuneration which is reasonable in relation to the respective defect.
(7) The client shall grant us the time and opportunity required for the owed rectification, in particular hand over to us the rejected goods for the purpose of inspection. In case of delivery of a non-defective product, the client is obliged to return to us the defective goods in accordance with the statutory provisions.
(8) If the client has integrated the delivered and defective goods according to their nature and their intended use into another product or mounted them to another product, we are obliged in the course of the rectification works to also reimburse the client for necessary expenses in relation to dismantling of the defective goods and re-assembly of the remedied or delivered non-defective goods (Aufwendungsersatz). The rights of the clients are excluded if he was aware of the defect upon integration or mounting of the defective goods. If the client does not have knowledge of a defect due to gross negligence he may only invoke rights based on such defect in case we have fraudulently concealed the defect or in case we have provided a guarantee for the quality of the goods. In case of unreasonably high costs for dismantling and re-assembly, we are free to refer the client to a reimbursement in an accordingly reasonable amount instead of reimbursement for the actual costs for dismantling and re-assembly. Such amount shall be calculated on the basis of the value of the respective non-defective goods and the importance of the defect, whereas at the same time we are obliged to ensure that the client’s right to claim costs for dismantling and re-assembly are not circumvented.
(8) If required and applicable, the rectification of defects comprises also the dismantling of the defective goods and the re-assembly of the non-defective goods.
(9) We pay or reimburse the expenses which are necessary for the inspection and rectification, in particular costs for transport and logistics, labour costs and material costs as well as potentially costs for dismantling and re-assembly in accordance with the statutory regulations, if a defect finally exists. Otherwise we may claim from the client the reimbursement of costs resulting from an unjustified request for the rectification of defects (in particular costs for inspections and costs for transport and logistics), unless the non-existence of a defect was not recognisable for the client.
(10) The client is not entitled to remedy the defects on his own.
(10) The client is entitled only in urgent cases, e.g. in case of a risk to operational safety or for the purpose of avoiding disproportionate damages, to remedy the defects on his own and to claim reimbursement of the related and objectively necessary expenses from us. The client is obliged to inform us without undue delay, if possible in advance, about such remedial measures. The client’s right to execute own remedial measures is excluded if we were entitled to refuse the respective remedial works in accordance with the statutory provisions.
(11) If the rectification does not succeed or a respective reasonable deadline set by the client for the rectification has lapsed without success or is not required under the statutory provisions, the client may withdraw from the contract or reduce the contract price by declaration towards us. In case of a minor defect, the right to withdraw shall be excluded.
(11) If the rectification does not succeed or a respective reasonable deadline set by the client for the rectification has lapsed without success or is not required under the statutory provisions, the client may terminate the contract or reduce the contract price by declaration towards us. The right to withdraw shall be excluded.
(12) The client’s claims for damages or reimbursement for useless expenses shall be applicable also to defects only in accordance with § 8 and are excluded apart from that.
(13) Guarantees for a product beyond our liability for defects under this § 7 shall only apply if agreed by us in written form explicitly and specifically for a project.
§ 8 General liability; exclusion of ordinary termination rights
(1) Unless agreed otherwise in these AGB including the following provisions, we shall be liable for the breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) Within the principles of fault-based liability we can be held liable for damages – no matter on which legal basis – in case of wilful misconduct (Vorsatz) and gross negligence (grobe Fahrlässigkeit). In case of simple negligence (einfache Fahrlässigkeit) we shall be liable – subject to a lower degree of liability – only in accordance with the statutory provisions (e.g. for due diligence and care in own matters)
a) for damages resulting from death, bodily injury or impairment of health,
b) for damages resulting from the material breach of a major contractual obligation (obligations without the fulfilment of which the proper performance of the contract is not possible and on the adherence by which the contracting party typically trusts and may trust); in such case our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability set out in para. 2 above shall also apply to breaches of duty by or for the benefit of persons whose fault lies within our responsibility in accordance with the statutory provisions. They shall not apply if and to the extent we have fraudulently concealed a defect or provided a guarantee for the quality of a product and for claims of the client in accordance with the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
(4) On the basis of a breach of duty which is not a defect the client may only withdraw from the contract or terminate the contract if we are responsible for the breach of duty. An ordinary termination right of the client (in particular in accordance with sec. 648 of the BGB) shall be excluded. Apart from that, the statutory provisions and legal consequences shall apply.
(4) On the basis of a breach of duty which is not a defect the client may only terminate the contract if we are responsible for the breach of duty. An ordinary termination right of the client (in particular in accordance with sec. 648 of the BGB) shall be excluded. Apart from that, the statutory provisions and legal consequences shall apply.
(5) Our liability for all claims of the client in relation to this contract shall be limited to the contract value.
§ 9 Statute of limitation
(1) The statute of limitation for claims resulting from defects in quality and defects in title will be agree for each project individually. In the absence of an agreement on the statute of limitation, the corresponding statutory provisions shall apply.
(2) Special statutory regulations with a view to the statute of limitations (such as sec. 444, 445 b of the BGB) shall in any case remain unaffected.
(3) The respectively applicable statutes of limitation shall also apply to contractual and non-contractual claims for damages of the client which are based on a defect of the goods or the works, unless the application of the regular statutory limitation (sec. 195, 199 of the BGB) would result in a shorter statute of limitation in the individual case. However, claims for damages of the client under § 8 para. 2 sentences 1 and 2(a) and under the ProdHaftG shall be time barred solely in accordance with the statutory provisions.
§ 10 Choice of law and place of jurisdiction
(1) These AGB and the contractual relationship between us and the client shall be governed by and construed in accordance with German law under exclusion of international uniform laws, in particular UN sales law (CISG).
(2) If the client is a businessman in terms of the HGB, a public legal entity or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. The same applies if the client is an entrepreneur in terms of sec. 14 of the BGB. In any case we are entitled to file a lawsuit at the place of performance of our delivery obligation in accordance with these AGB or a prevailing individual agreement or at the general place of jurisdiction of the client. Prevailing statutory provisions, in particular as to exclusive competences, shall remain unaffected.
§ 11 Force majeure
(1) In case of force majeure, the affected party shall notify the respectively other party without undue delay and by stating the full details. The affected party shall also notify the respective other party as soon as it is not affected by the force majeure event any longer.
(2) Force majeure means all circumstances which are beyond the responsibility of either party and which cannot be controlled by the parties, such as, for example, war, terrorism, natural catastrophes or strike.
(3) If the parties are hindered in the performance of their contractual obligations by force majeure or other circumstances the elimination of which is impossible or unreasonable, such contractual obligations shall be suspended for the duration of the respective occurrence. The agreed deadlines for delivery/performance shall be extended accordingly.
§ 12 Intellectual property
(1) If products are being manufactured in accordance with drawings or sketches provided by the client or other instructions by the client, the client shall be fully responsible to ensure that no intellectual property rights of third parties are infringed.
(2) The client may not claim against us on the basis of the infringement of intellectual property rights resulting from our compliance with documents provided by the client or the client’s instructions.
(3) If third parties claim against us for any such infringement of intellectual property rights, the client shall hold us harmless to the fullest extent from such claims.
§ 13 Confidentiality
(1) The parties are obliged to treat all confidential information which they have received directly or indirectly in relation to this contract with utmost confidentiality and not to hand over or disclose to unauthorised persons such confidential information without the prior written consent of the respective other party. Furthermore, the parties are obliged to make proper arrangements for the protection of the confidential information and against the unauthorised access by third parties.
(2) Confidential information in terms of § 13 para. 1 of these AGB is all information on the object of the contract which has been made accessible to a party, irrespective of the form of such confidential information.
(3) Information shall not be considered as confidential if it was already in the public knowledge or accessible to the recipient at the time of disclosure.
(4) The following persons are authorised to receive confidential information: The contracting parties, their institutions (e.g. shareholders, supervisory board, executive board) and their employees, but in the latter case only if and to the extent such employees are bound themselves by respective confidentiality obligations. Further authorised persons shall be those persons who are bound by statutory confidentiality obligations (e.g. tax advisors, external auditors, lawyers).
§ 14 Final provisions
(1) If one or more of the provisions of these AGB are held to be fully or partially invalid, this shall have no impact on the validity of the remaining provisions.
(2) Amendments or supplements to the agreement concluded between the parties are only valid if made in written form.
(3) The client shall not assign the contract, neither fully nor partially, to a third party without our prior written consent.
(4) Wherever a German translation is added in brackets to the English language wording, such German language terminology shall always prevail in case of any ambiguous or unclear interpretation.