1. Supply contract
1.1 Our deliveries and services are provided exclusively on the basis of the following terms and conditions. These terms and conditions are hereby deemed to have been agreed for all future business relationships.
1.2 We are not bound by the purchaser's general terms and conditions. These are hereby expressly rejected.
1.3 If our order confirmation is not rejected immediately upon receipt by the customer, the order shall be deemed to have been placed under the terms and conditions stated in the order confirmation. For this reason, changes and subsidiary agreements shall only be effective if confirmed by us in writing.
1.4 The scope of deliveries and services, the price, and the delivery obligations shall only be valid if confirmed by us in writing. All previous agreements not included in the confirmation letter shall be invalid. Supplementary agreements require our written consent in order to be valid.
1.5 We are entitled to deliver only against advance payment if facts become known that justify reasonable doubts about the customer's solvency.
2. Offer
2.1 Initial offers are generally provided free of charge; further offers and design work will only be carried out free of charge if the supply contract is legally concluded.
2.2 The documents belonging to the offer, such as illustrations, drawings, weight and dimension specifications, are only approximate unless they are expressly designated as binding. The supplier reserves the property rights and copyrights to cost estimates, drawings, and other documents; they may not be made accessible to third parties. The supplier is obliged to make plans designated as confidential by the customer accessible to third parties only with the customer's consent.
2.3 The customer is obliged to inform themselves about the nature and suitability of the product ordered.
3. Price and payment
3.1 Prices are ex works, including loading at the factory, but excluding packaging and plus statutory value-added tax.
3.2 Unless otherwise agreed, payments shall be made in cash and without any deductions in EUR to the supplier's paying agent.
3.3 If payment deadlines are exceeded, annual interest of one percentage point above the respective base interest rate (§247 BGB), but at least 5%, shall be charged without the need for a further notice of default. In the event of default, the customer shall owe interest in accordance with § 288 BGB.
3.4 The customer shall only have a right of retention or a right to offset with regard to its services and payments if its counterclaims are based on the same contractual relationship and are either undisputed or have been established by a court of law.
4. Retention of title
4.1 All deliveries and services are provided exclusively under retention of title. Ownership is only transferred to the customer once they have settled all their liabilities arising from the delivery of goods and installation.
4.2 The purchaser shall not acquire ownership of the goods subject to retention of title pursuant to Section 950 of the German Civil Code (BGB) in the event of the goods subject to retention of title being processed or transformed into a new item. Any processing or transformation shall be carried out by the purchaser on behalf of the supplier without this giving rise to any obligations on our part. The processing of the goods serves to secure the supplier's interests. In the event of combination, mixing, or blending with other goods not belonging to the supplier (§947, 948 BGB), the supplier shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods used for the manufactured items to the sum of all invoice values of the other goods used in the manufacture. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer has transferred co-ownership of the new item to the supplier in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title. The new item created in this way is considered goods subject to retention of title within the meaning of these terms and conditions. The customer shall store the goods subject to retention of title for the supplier free of charge. He shall insure them against usual risks such as fire, theft, and water to the usual extent. The customer hereby assigns to the supplier his claims for compensation against insurance companies or other parties liable for compensation for damages of the above-mentioned type in the amount of his claims. The purchaser's claims arising from the resale of the goods subject to retention of title are hereby assigned to the supplier with all ancillary rights, irrespective of whether they are sold to one or more customers. The assignment or transfer of co-ownership is accepted by the supplier.
4.3 If the assigned claim against the third-party debtor has been included in a current account, the agreed settlement shall also apply to the claims arising from the current account. The assigned claims serve to secure all rights and claims in accordance with Section 4.1.
4.4 In the event that the goods subject to retention of title are sold by the customer together with other goods not belonging to the supplier, whether without or after combination, mixing, processing, or treatment, the purchase price claim in the amount of the price invoiced by the customer for the goods subject to retention of title, including value-added tax, shall be assigned to the supplier, who accepts the assignment.
4.5 If the goods subject to retention of title are used by the customer to fulfill a contract for work or services or a contract for work and materials, the claim arising from the contract for work or services or the contract for work and materials shall be assigned to the supplier in advance to the same extent as stated in the preceding provisions.
4.6 The customer is only entitled and authorized to resell or otherwise use the goods subject to retention of title on condition that the above-mentioned claims are transferred to the supplier. The customer is not entitled to dispose of the goods subject to retention of title in any other way.
4.7 The purchaser is authorized to collect the claims from the resale despite the assignment. The supplier's authority to collect remains unaffected by the purchaser's authorization to collect. However, the supplier shall not collect the claim itself as long as the customer duly meets its payment obligations. At the supplier's request, the customer shall notify the supplier of the amount of the assigned claim, provide the necessary information and documents, and notify the debtors of the assignment. In the event of default in payment, the filing of insolvency proceedings, the submission of an affidavit pursuant to § 807 ZPO (German Code of Civil Procedure), payment difficulties or the disclosure of a significant deterioration in the financial circumstances of the purchaser, the purchaser's powers to resell the goods subject to retention of title and to collect the claims assigned to the supplier shall expire with immediate effect.
4.8 The retention of title in accordance with the above provisions shall also remain in force if individual claims of the supplier are included in a current account and the balance has been struck and acknowledged.
4.9 The retention of title in accordance with the above provisions shall expire when all claims specified in Section 4.1 have been fulfilled. Ownership of the goods subject to retention of title shall then pass to the customer, and the customer shall be entitled to the assigned claims.
4.10 If the customer fails to fulfill its obligations under the retention of title, all payment obligations shall become due immediately.
4.11 If the realizable value of all securities existing for the supplier exceeds the supplier's claims by more than 20% on a sustained basis, the supplier shall be obliged, at the request of the customer, to release securities of the supplier's choice.
5. Delivery time
5.1 The delivery period shall commence upon dispatch of the order confirmation, but not before the customer has provided the necessary documents, approvals, and releases, and not before receipt of any agreed down payment.
5.2 The delivery period shall be deemed to have been met if, by the end of the delivery period, the delivery item has left the factory or notification has been given that it is ready for shipment.
5.3 The delivery period shall be extended appropriately in the event of unforeseen obstacles beyond the supplier's control, whether at the supplier's plant or at its subcontractors, e.g. operational disruptions, rejects, delays in the delivery of essential raw materials and building materials, insofar as such obstacles can be proven to have a significant influence on the completion or delivery of the delivery item. The supplier shall also not be responsible for the aforementioned circumstances if they arise during an already existing delay. In important cases, the supplier shall inform the customer of the beginning and end of such obstacles as soon as possible.
5.4 Compliance with the delivery period is subject to the purchaser fulfilling their contractual obligations.
6. Transfer of risk and obligation to accept performance
6.1 The risk shall pass to the customer at the latest upon dispatch of the delivery items, i.e. upon handover of the goods to the forwarding agent, carrier, or other person designated to carry out the shipment, even if partial deliveries are made or the supplier has assumed other services, e.g., the shipping costs for delivery and installation. At the request of the customer, the shipment will be insured by the supplier against breakage, transport, fire, and water damage at the customer's expense.
6.2 If shipment is delayed due to circumstances for which the supplier is not responsible, the risk shall pass to the purchaser on the day the goods are ready for shipment, but the supplier shall be obliged, at the purchaser's request and expense, to take out the insurance required by the purchaser.
6.3 Delivery shall be deemed to have taken place if the customer is in default of acceptance.
6.4 Partial deliveries are permitted.
7. Warranty
The supplier shall be liable for defects in delivery and performance, including the absence of expressly warranted characteristics, to the exclusion of further claims, as follows:
7.1 Parts that are unusable or impaired in their usability shall be repaired or replaced free of charge by the supplier at our discretion. Replaced parts shall become the property of the supplier. For third-party products, the supplier's liability shall be limited to the assignment of the liability claims to which it is entitled against the supplier of the third-party product.
7.2 The customer must inspect the goods immediately after delivery by the supplier, insofar as this is feasible in the ordinary course of business, and—if a defect is found—notify the supplier immediately. If the customer fails to notify the supplier, the goods shall be deemed to have been approved, unless the defect was not apparent during the inspection. If such a defect becomes apparent later, notification must be made immediately after discovery of the defect; otherwise, the goods shall be deemed to have been approved with regard to this defect. Defects can only be reported in writing. To preserve the rights of the purchaser, it is sufficient to send the notification in good time.
7.3 The warranty period is one year from delivery.
7.4 We shall not provide subsequent performance for damage arising from the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling—in particular excessive strain—unsuitable operating materials, replacement materials, defective construction work, chemical, electronic, or electrical influences, unless they are attributable to the supplier's fault.
7.5 Once a defect has been identified, the supplier must be notified immediately in writing and granted a reasonable period of time to repair or replace the goods. This period begins at the point in time at which the defect and the supplier's liability for damages are acknowledged or proven. If the defect is not reported immediately or if the supplier is not given the opportunity to repair or replace the goods immediately after the defect has occurred, the supplier shall be released from liability for defects. Only in urgent cases where operational safety is at risk and the supplier is in default with the rectification of the defect shall the purchaser be entitled to rectify the defect itself or have it rectified by third parties and to demand reasonable compensation for its costs from the supplier.
7.6 The replacement part and the repair shall be warranted in the same manner as the delivery item. The period of liability for defects in the delivery item shall be extended by the duration of the interruption of operations caused by the repair work.
7.7 If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claims for damages due to the defect. If the customer chooses compensation after subsequent performance has failed, the goods shall remain with the customer if this is reasonable. The compensation shall be limited to the difference between the contract price/purchase price and the value of the defective item. This shall not apply if we have caused the breach of contract maliciously.
7.8 Only the manufacturer's product description shall be deemed agreed as the quality of the goods. Public statements, promotions, or advertising by the manufacturer do not constitute contractual specifications of the quality of the goods or the delivery item. We do not provide the customer with a warranty in the legal sense.
7.9 If the customer receives defective assembly instructions from us, we are only obliged to deliver fault-free assembly instructions, and only if the defect in the assembly instructions prevents proper assembly.
7.10 If the customer or third parties carry out modifications or repair work without the prior consent of the supplier, this shall terminate any liability.
7.11 Further claims by the customer, in particular claims for compensation for damage not caused to the delivery item itself, are excluded, subject to the provision in Section 10.
8. Right of withdrawal for the customer
8.1 The customer may withdraw from the contract if the supplier is ultimately unable to deliver the entire shipment and service before the transfer of risk.
8.2 If there is a delay in delivery and payment within the meaning of Section 5 of the Terms of Delivery, and if the Purchaser grants the Supplier in default a reasonable grace period with the express declaration that it will refuse to accept the performance after expiry of this period, and if the grace period is not met through the fault of the Supplier, the Purchaser shall be entitled to withdraw from the contract.
8.3 If the originally agreed total delivery and service becomes impossible through the fault of the customer, the customer remains obligated to pay consideration. The same applies during default of acceptance.
8.4 The customer may withdraw from the contract if the subsequent performance has failed despite the supplier granting a reasonable period of time. However, in the case of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract.
8.5 All other further claims by the customer are excluded, in particular claims for rescission, termination, or reduction, as well as claims for compensation for damages of any kind, including damages that did not occur to the delivery item itself, unless otherwise specified in Section 10.
9. Right of the supplier to withdraw from the contract
In the event of unforeseen circumstances within the meaning of Section 5 of the Terms and Conditions of Delivery, insofar as they significantly alter the economic significance or content of the service or have a significant impact on the supplier's operations, and in the event of subsequent impossibility of performance, the supplier shall be entitled to withdraw from the contract in whole or in part. The customer shall have no claims for damages due to such withdrawal. If the supplier wishes to exercise its right of withdrawal, it must notify the customer immediately after becoming aware of the significance of the event, even if an extension of the delivery period had initially been agreed with the customer.
10. Liability
The supplier shall only be liable for financial losses incurred within the scope of this contractual relationship, regardless of the legal basis (in particular due to delay, impossibility, breach of duty, and tort), if the supplier (including its legal representatives and/or vicarious agents) has caused the damage intentionally or through gross negligence. The supplier's liability is excluded in cases of slight negligence. However, this exclusion does not apply if the supplier violates essential contractual obligations (cardinal obligations). In such cases, liability is limited to the amount of damage typical for this type of contract that was reasonably foreseeable at the time the contract was concluded.
Liability for consequential damages is excluded. The exclusions of liability do not apply to injury to life, limb, or health. Liability under the Product Liability Act remains unaffected in all cases. If and to the extent that the supplier's liability is excluded, this also applies to any personal liability of its employees, staff, representatives, and vicarious agents.
11. Law/Place of jurisdiction
German law applies. To the extent permitted by law, Krefeld shall be the place of performance. For all disputes arising from the contractual relationship, Krefeld shall be the place of jurisdiction, to the extent permitted by law.
12. Binding nature of the contract
Should one or more provisions of this contract be invalid, this shall not affect the validity of the remaining provisions; however, the contracting parties undertake to replace the invalid provision with an agreement that comes as close as possible to the economic content of the invalid provision.