Conditions

§ 1 Validity of the condition

1. The deliveries, services and offers of the seller are provided exclusively on the basis of these terms and conditions. These shall therefore also apply to all future business relationships, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations by the buyer with reference to his or her own terms and conditions of business or purchase are hereby rejected.
2. Deviations from these terms and conditions are only effective if the seller confirms them in writing.

§ 2 Offer and Conclusion of Contract

1. The seller's offers are subject to change and non-binding. Declarations of acceptance and all orders require the seller's written or telex confirmation (order confirmation) to be legally effective. The same applies to additions, amendments or ancillary agreements.
2. Drawings, illustrations, dimensions, weights or other performance data are only binding if this has been expressly agreed in writing. Offer documents of this kind remain the property of the seller in any case.

§ 3 Prices

1. The prices stated in the seller's order confirmation plus the respective statutory value added tax are decisive. Additional deliveries and services will be invoiced separately. This also applies in the event of a fixed price agreement. The subsequent calculation is based on the seller's usual market prices. If, after four months from the conclusion of the contract, there are price increases for goods and services, the contracting parties undertake to renegotiate the increases in material and labour costs.
2. Unless otherwise agreed, prices are ex works. Shipping, freight and packaging are always at the expense and risk of the buyer.
3. Services not expressly included in the offer, which are necessary for the execution of the order or are carried out at the request of the buyer, will be invoiced additionally. This applies in particular to assembly costs, etc.
4. If the buyer requests changes after the order has been confirmed, the additional costs incurred as a result will be invoiced separately in all cases.

§ 4 Delivery and performance times

1. The dates and deadlines stated by the buyer are non-binding, unless otherwise expressly agreed in writing with the order confirmation.
2. The seller shall not be held responsible for delays in delivery and performance due to force majeure and due to events that make it considerably more difficult or impossible for the seller to perform - this also includes subsequent material procurement difficulties, operational disruptions, strikes, lockouts, staff shortages, lack of means of transport, official orders, etc. even if they occur at the seller's suppliers or their subcontractors, the seller is not responsible for agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the unfulfilled part. The above provisions also apply if the seller is already in default.
3. If the hindrance lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled.
4. If the seller is responsible for the non-compliance with bindingly agreed deadlines and dates or is in default, the buyer is entitled to compensation for default in the amount of 0.5% for each full month of default, but not more than 5% of the invoice value of the deliveries and services affected by the default. Any further claims, in particular claims for damages of any kind, are excluded.
5. The seller is entitled to make partial deliveries and provide partial services at any time. The payments due for these may be requested immediately, even in the case of fixed price agreements.
6. The delivery period begins with the sending of the order confirmation. If the buyer has to procure permits, releases or other documents or make a down payment, the delivery period does not begin before the buyer has fulfilled these obligations. The delivery period shall be deemed to have been observed if the delivery item has left the factory or readiness for dispatch has been notified by the time of its expiry.
7. If the fixed date is not met by the forwarding agent, this shall not result in any recourse obligation towards the seller.

§ 5 Transfer of risk

1. Risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the seller's warehouse or the manufacturer's works for the purpose of dispatch. If dispatch becomes impossible through no fault of the seller, the risk shall pass to the buyer upon notification of readiness for dispatch. This also applies if partial deliveries are made or if the seller has taken on other services, e.g. installation and assembly. If the buyer so requests, the transport and the delivery item will be insured at the buyer's expense against theft, breakage, transport, fire and water damage, as well as other insurable risks. If the consignment is handed over to a packaging company, the risk shall pass to the buyer as soon as it is sent to the packaging company.
2. Delivered items are to be accepted by the buyer in any case, without prejudice to the warranty rights according to § 6.
3. The provision in paragraph 1 shall apply accordingly to transport by the seller himself or his agents.

 
§ 6 Warranty

1. The seller warrants that the products are free of manufacturing and material defects; the warranty period is six months.
2. The warranty period begins on the delivery date. If the seller's operating or maintenance instructions are not followed, if changes are made to the products, if parts are replaced or if consumables are used that do not meet the original specifications, all warranties shall become void. This applies in particular to unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, faulty or negligent treatment, unsuitable operating materials, replacement materials, defective construction work, chemical, electrochemical or electrical influences, provided that they are not attributable to the fault of the seller.
3. The buyer must notify the seller of defects in writing without delay, but no later than 5 days after receipt of the delivery item. Defects that cannot be discovered within this period, even with careful examination, must be reported to the seller in writing immediately after discovery. When transporting with Deutsche Bahn AG or Post AG, the goods must be checked for correctness immediately upon acceptance. Complaints about defects are only justified if the usability of the contractual object is significantly impaired. Breakage and shrinkage within the customary limits cannot be objected to.
4. In the event of notification by the buyer that the products do not comply with the warranty, the following shall apply:
   1. For delivery items or parts of delivery items for which it becomes apparent within six months of commissioning that they are unusable or significantly restricted in their usability as a result of a circumstance occurring prior to the transfer of risk – in particular due to defective design, poor materials or defective workmanship – the seller shall, at his reasonable discretion, either repair these items free of charge or replace them.
   2. The buyer shall, in agreement with the seller, allow the necessary time and opportunity for the purpose of such repair work or replacement deliveries. In the event of a breach of these obligations to co-operate, the seller shall be released from the warranty obligation. The buyer shall only be entitled to rectify the defect or have it rectified by third parties and demand that the seller reimburse the necessary costs if there is a risk of default (e.g. a risk to operational safety) and in order to avoid the occurrence of disproportionately large damages, in which case the seller must be notified immediately and in any case before a third party is contracted, or if the seller is in default of remedying the defect.
   3. Of the direct costs of the warranty, the seller shall bear the costs of the replacement parts, including the costs of shipping and reasonable costs of removal and installation, provided that the notification of defects was justified and that the seller's fitters and assistants can reasonably be required to make the necessary provision, and otherwise the costs shall be borne by the buyer.
   4. The warranty period for deliveries or services provided under the warranty is three months; however, it shall run at least until the original warranty period for the purchased item has expired. Further claims by the buyer, in particular a claim for compensation for damages that have not occurred to the delivery item itself, i.e. indirect damages and lost profit, are excluded.
5. If the buyer requests that the warranty work be carried out at a location of his choice, the seller can comply with this request, whereby the parts covered by the warranty will not be charged, while working hours and travel expenses are to be paid at the seller's standard rates.
6. The warranty does not apply to wear parts, i.e. objects subject to natural wear and tear.
7. Only the direct buyer is entitled to make warranty claims against the seller; these are not transferable.

§ 7 Retention of title

1. The seller is granted the following securities until all (including balance) claims that the seller and its companies are entitled to for any legal reason against the buyer and its (group) companies now or in the future have been fulfilled.
2. The goods remain the property of the seller. Processing or remodelling is always carried out for the seller as manufacturer, but without obligation for him. If the seller's (co-)ownership expires due to combination, it is agreed now that the buyer's (co-)ownership of the combined item is transferred to the seller in proportion to the value (invoice value). The buyer stores the seller's (co-)owned property free of charge. Goods in which the seller has a right of ownership or co-ownership are hereinafter referred to as reserved goods.
3. Pledging or transfer of ownership by way of security of the reserved goods is not permitted. The buyer hereby assigns to the seller, by way of security, all claims arising from the reserved goods on any legal grounds (insurance, tort) in their entirety. The seller irrevocably authorises the buyer to collect the claims assigned to the seller for the seller's account in the buyer's own name. At the seller's request, the buyer shall disclose the assignment and provide the seller with the necessary information and documents.
4. In the event of access by third parties to the reserved goods, the buyer shall refer to the seller's ownership and notify the seller immediately. Costs and damages shall be borne by the buyer.
5. If the buyer acts in breach of contract – in particular, if the buyer is in default of payment – the seller is entitled to take back the reserved goods at the buyer's expense or, if necessary, to demand assignment of the buyer's claims for surrender against third parties. The taking back or attachment of the reserved goods by the seller does not constitute a withdrawal from the contract, unless the German Instalment Purchase Act (Abzahlungsgesetz) applies.

§ 8 Payment

1. Subject to any other provision in the order confirmation, the seller's invoices are payable 30 days after the invoice date without deduction. The seller is entitled, despite any of the seller's provisions to the contrary, to initially offset payments against older debts. If costs and interest have already been incurred, the seller is entitled to initially offset the payment against the costs, then against the interest and finally against the main service.
2. A payment is deemed to have been made only when the seller can dispose of the amount. In the case of cheques or bills of exchange, payment is deemed to have been made only when the cheque is cashed or the bill of exchange is discounted.
3. If the buyer is in default, the seller is entitled to charge interest from the relevant point in time at the interest rate charged by commercial banks for open overdrafts, but at least 5% above the respective discount rate of the German Federal Bank, plus statutory sales tax.
4. If the buyer does not meet his payment obligations, in particular if a cheque is not honoured or a bill of exchange is not discounted or if he stops payments, or if the seller becomes aware of other circumstances that cast doubt on the buyer's creditworthiness, the seller is entitled to demand payment of the entire remaining debt, even if he has accepted cheques or bills of exchange. In this case, the seller is also entitled to demand advance payments or the provision of securities.
5. The buyer is only entitled to set-off, retention or reduction, even if complaints or counterclaims are asserted, if the seller has expressly agreed to this in writing or if the counterclaims have been legally established.
6. The buyer shall agree to the offsetting of his claims and liabilities against the seller and his company. In the same way, claims and liabilities of the buyer's companies can also be offset.

 
§ 9 Design changes

The seller reserves the right to make design changes at any time; however, he is not obliged to make such changes to products that have already been delivered.

 
§ 10 Limitation of liability

Claims for damages against both the seller and his agents or assistants arising from impossibility of performance, from positive breach of an obligation, from culpa in contrahendo and from unauthorised action are excluded, unless intentional or grossly negligent action is involved.

 
§ 11 Applicable law, place of jurisdiction, place of performance, severability

1. The law of the Federal Republic of Germany shall apply to this business relationship and the entire legal relationship between seller and buyer.
2. To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the court responsible for the seller's registered office.
3. Should one or more provisions of these terms and conditions or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall remain unaffected.
4. The place of fulfilment is Rinteln.