GTC

§ 1 Scope of application

(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter: “Client”). The GTC shall only apply if the Client is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). The GTC shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same customer, without us having to refer to them again in each individual case; in this case, we shall inform the customer immediately of any changes to our GTC.

(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the client shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer’s General Terms and Conditions.

(4) Individual agreements made with the client in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications to be made to us by the client after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.

(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Offer and conclusion of contract

(1) Our offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or commissions placed by the Customer shall be deemed to be a binding contractual offer. Unless otherwise stated in the order or contract, we are entitled to accept this contractual offer within 14 days of its receipt by us.(2) Our information on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

(3) We reserve the right of ownership or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations (in particular circuit diagrams), calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. The client may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our express consent. At our request, he must return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Delivery period and delay in delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. 12 weeks from conclusion of the contract. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation. (2) We are entitled – without prejudice to our rights arising from default on the part of the customer – to demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the customer does not meet his contractual obligations towards us (proof of approvals, down payment, solvency, etc.).

(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (force majeure, non-availability of the service or other events unforeseeable at the time of conclusion of the contract), we shall inform the client of this immediately and at the same time inform the client of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the client. Cases of non-availability of the service in this sense include, in particular, operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect or untimely delivery by suppliers.

(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the client is required. If we are in default of delivery, the client may withdraw from the contract by immediate written declaration, insofar as he cannot reasonably be expected to accept the delivery or service as a result of the delay.

(5) We are entitled to make partial deliveries if

• the partial delivery can be used by the client for the contractually intended purpose,
• the delivery of the remaining ordered goods is ensured and
• the client does not incur any significant additional work or costs as a result (unless we agree to bear these costs).

(6) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions.

(7) The Client’s further rights pursuant to § 8 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery shall be ex works, which is also the place of performance. At the request and expense of the customer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. If we also owe the installation/commissioning, the place of performance shall be the place where the installation/commissioning is to take place.(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment upon delivery of the goods (whereby the start of the loading process shall be decisive). If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the client is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump sum compensation of EUR 180.00 per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.

(4) Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The client shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

(5) Insofar as acceptance is to take place, the purchased item shall be deemed accepted if

• the delivery and, if we also owe the installation/commissioning, the installation/commissioning has been completed,
• we have informed the client of this with reference to the fiction of acceptance in accordance with this § 4 (6) and have requested acceptance,
• twelve working days have passed since delivery or installation or the client has started using the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
• the customer has failed to accept the goods within this period for a reason other than a defect notified to us which makes the use of the purchased goods impossible or significantly impairs them.

§ 5 Prices and terms of payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO ex works plus packaging, statutory VAT, customs duties in the case of export deliveries as well as fees and other public charges. (2) Insofar as the agreed prices are based on our list prices and delivery is to take place more than four months after conclusion of the contract, the list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).

(3) In the case of sale by dispatch (§ 4 (1)), the customer shall bear the transportation costs ex works and the costs of any transportation insurance requested by the customer. If we do not invoice the transportation costs actually incurred in the individual case, a flat rate for transportation costs (excluding transport insurance) in the amount of EUR 2500.00 shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the customer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the customer, with the exception of pallets.

(4) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. Checks shall not be considered payment until they have been cashed. If the customer fails to pay by the due date, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.

(5) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.

(6) We shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security in the amount of 95% of the purchase price, or to withdraw from the contract in accordance with the statutory provisions on refusal of performance (§ 321 BGB) if, after conclusion of the contract, we become aware of circumstances which are likely to significantly reduce the creditworthiness of the customer (e.g. by filing for insolvency proceedings) and which jeopardize the payment of our outstanding claims by the customer from the respective contractual relationship (including from other individual orders).(e.g. by filing for insolvency proceedings) and which jeopardize the payment of our outstanding claims by the client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

§ 6 Retention of title

(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if and insofar as third parties seize the goods belonging to us.

(3) If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

(4) The client is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

(b) The customer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in § 6 (2) of these General Terms and Conditions shall also apply in consideration of the assigned claims.

(c) The client shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the client meets its payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in its ability to pay. If this is the case, however, we can demand that the client informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the client’s request.

§ 7 Claims for defects by the client

(1) The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) shall remain unaffected.(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods; it makes no difference whether the product description originates from the customer, the manufacturer or from us.

(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, we accept no liability for public statements made by other third parties (e.g. advertising statements).

(4) The delivered items must be carefully inspected immediately after delivery to the client or to the third party designated by the client (§§ 377, 381 BGB). With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by the client if we do not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if we do not receive the notice of defects within seven working days of the time at which the defect became apparent; however, if the defect was already recognizable to the customer at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of defects. If the client fails to carry out the proper inspection and/or report the defect, our liability for the unreported defect shall be excluded.

(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.

(6) We are entitled to make the subsequent performance owed dependent on the client paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The client must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.

(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if a defect actually exists; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. However, if a request by the customer to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the customer.

(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand compensation from us for the (domestic) expenses objectively required for this. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(10) If the supplementary performance has failed or a reasonable deadline to be set by the client for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the client may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

(11) In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the client against us shall be suspended.

(12) The warranty shall not apply if

• the delivery item is put into operation, operated or maintained improperly (in deviation from the respective operating instructions),
• the client modifies the delivery item or has it modified by third parties without our consent,
• if the defect is due to a special design prescribed by the client and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the improper installation/use or the modification.

(13) Normal wear and tear, in particular due to mechanical, thermal or chemical effects on the delivery item, shall not be deemed to be a material defect.

(14) Any delivery of used items agreed with the client in individual cases shall be made to the exclusion of any warranty for material defects.

(15) Claims of the client for damages or reimbursement of futile expenses shall only exist in accordance with § 8 of these General Terms and Conditions and are otherwise excluded.

§ 8 Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable

(a) for damages resulting from injury to life, body or health,

(b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.

(4) The client may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the client (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

(5) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.

§ 9 Statute of limitations

(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.(2) However, if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Special statutory provisions for third-party claims for restitution in rem (§ 438 Para. 1 No. 1 BGB), in the event of fraudulent intent on the part of the seller (§ 438 Para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB) also remain unaffected.

(3) The above limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the Client which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Client’s claims for damages pursuant to § 8 above.

§ 10 Choice of law and place of jurisdiction

(1) These GTC and all legal relationships between us and the Client shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title pursuant to § 6 are subject to the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Mühlhausen. However, we are also entitled to bring an action at the client’s general place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision