Our Terms and Conditions

General Terms and Conditions of Business for deliveries and work or service performances (“Werkleistungen § 631 BGB”)
(March2006)
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1.General provisions
1.1The present Terms and Conditions apply to all our consulting services, offers, sales, deliveries and performances and the entire current and future legal relationships between us and our customer. We hereby explicitly reject any terms and conditions of purchase used by our customer which are, in whole or in part, contrary to our Terms and Conditions or the statutory provisions. They will not even become part of the respective contract in the case that we, being fully aware of such conflicting terms and conditions, should nevertheless perform the delivery or work or service. In the event that our customer should not have received our Terms and Conditions together with our offer or if they should not have been handed over to him on another occasion, they will nonetheless apply if our customer either knew or must have known them from a previous business relationship.
1.2Apart from the present Terms and Conditions, German law will be exclusively applicable to our contractual relationships. The UN Convention on Contracts for the International Sale of Goods will not apply. In the case of work or service performances, the “Verdingungsordnung für Bauleistungen, VOB (Contracting Regulations for Building Work)“, sections B and C, in the current version valid at the time of submitting the offer, will become part of the contract, too; however, the provisions under the present Terms and Conditions will prevail in application.
1.3 There are no supplementary oral agreements. Any agreements which may, in individual cases, diverge from the present Terms and Conditions, especially any agreements with our agents, will not be binding except when confirmed by us in writing.
1.4 All our offers are without engagement. Any contracts, including such concluded at fairs or by our agents, are subject to the contents of our written confirmation of the order and will take effect no earlier than on receipt of such confirmation by our customer.
1.5 The condition of the contractual goods or services will be exclusively specified by our offers, confirmations of the orders and any corresponding documents, without any such specification being deemed a guarantee in terms of § 443 BGB (Bürgerliches Gesetzbuch – German Civil Code).
1.6 Packing, if any, will be charged at cost price and will only be taken back at the respective plant or dispatch warehouse if this is contractually agreed or prescribed by law. The costs for transporting such packing material back to the collection point have to be borne by the customer.
1.7Hired packing will be charged per day unless it is returned to us, freight paid, within 21 days after customer’s receipt of the goods.
2.Prices
2.1Unless explicitly otherwise agreed, our prices for deliveries are ex works free loaded on truck/waggon and do not include VAT and packing.
2.2In the event that, after conclusion of the contract, the basis of calculation should change due to higher wage costs and costs for material, an increase of VAT or other circumstances, especially in the case of changes of calculation for technical reasons, we are entitled to raise the contractual price in such a proportion which is commensurate with the change of the calculation basis. The same applies to contracts for delivery on call (“Abrufaufträge”). However, the present provision does not apply in the case that our customer is a consumer in terms of § 13 BGB and we effect delivery within a period of 4 months after conclusion of the contract.
3.Deliveries and terms of delivery
3.1We will not be liable for any delays in the case that our customer does not or not in time comply with his obligations to cooperate, in particular in the case that he has to procure official permissions, execution plans, documents specifying the contractual goods or services, or arrange for clarification of all technical details and payments on account.
3.2In the event that, after conclusion of the contract, there should be any indication suggesting that the financial capacity of our customer is at risk, such as delay in payment and cessation of payments, filing of a bankruptcy petition, transfer of current assets for security purposes, unfavourable information rendered by banks, credit institutions or credit insurers, we are entitled to refuse performance and – having granted, in vain, a period of time for supplying securities in the form of absolute bank guarantees waiving the defence of lack of prior judicial enforcement (“selbstschuldnerische Bankbürgschaften”) or other bank guarantees or prepayment – rescind the contract and/or claim damages. The aforesaid period of time will not be granted if it is obvious that the financial capacity of our customer is at risk.
3.3The terms of delivery confirmed by us are no binding dates for dispatch. In the case of divisible deliveries, we are entitled to effect partial deliveries in a reasonable extent and, subject to prior notification of our customer, we are also entitled to effect delivery before the due date.
3.4In the case of contracts for delivery on call, an adequate term of delivery is deemed to have been agreed which must not be less than 6 weeks after the delivery has been called. In the event that the terms for production and taking of delivery have not been specifically agreed, we are entitled to demand a binding agreement hereon 3 months after the order has been confirmed at the latest. If our customer does not comply with our demand within a period of 3 weeks after our corresponding notification has been posted, we are entitled to fix an additional period of 2 weeks and, after expiry without compliance by our customer, claim damages and/or withdraw from that part of the contract which has not been performed. The same applies in the case that, after expiry of the term of delivery, the contractual goods or services or parts hereof have not yet been accepted by our customer or could not be delivered by fault of our customer.
3.5If and to the extent that any circumstances beyond our control should impede, delay or render the execution of any orders taken by us impossible, we are entitled to postpone delivery or, respectively, the remaining or partial delivery by the period of impediment, but no longer than 6 months, or to withdraw from the contract in whole or in part; the customer will not be entitled to claim damages on such grounds. Circumstances which are beyond our control are, for instance, interference of any authorities, interruption of operations, strike, lock-out, disturbance of operations caused by a specific political or economic situation, lack of required raw material and operating supplies, shortage of material, difficulties in energy supply, delay in transport due to traffic disturbances or any other inevitable event occurring with us, our sub-suppliers or other plants on which the maintenance of our own operations depends. The aforesaid also applies in the case that the said events occur at a point in time when we are already in default with performance.
3.6 Our customer is only entitled to fix, towards us, an additional period for delivery in the case that we have exceeded the agreed date for delivery for more than 2 weeks. Such additional period must be of reasonable length and must not be less than 3 weeks. After expiry of such additional period without delivery having been effected by us, our customer is entitled to rescind the contract. Any claims for damages, including any non-contractual claims, against the user of these Terms and Conditions, his employees and other persons or companies employed by him in the performance of his obligations (“Erfüllungsgehilfen”) are excluded if the failure to comply with their duties is due to slight negligence committed by the user of these Terms and Conditions, his employees or other persons or companies employed by him in the performance of his obligations; such exclusion does not apply in the case that the duty in question is of essential importance for reaching the purpose of the contract. The user will not be liable for any damages which cannot be foreseen at the time of conclusion of the contract unless they are due to, at least, gross negligence of the seller, his managing employees or other persons or companies employed by him in the performance of his obligations. The aforesaid limitations do not apply in the case of damages resulting from an injury of the life, body or health. Any obligatory statutory provisions of liability such as, for instance, liability in the case of a guarantee or under the “Produkthaftungsgesetz” (German Product Liability Act) remain unaffected.
3.7 In the case of work or service performances, any agreed “delivery free construction site” includes transport to such construction site. If necessary, our customer will be obliged to ensure proper access roads or streets. The costs for any unloading exceeding 1.5 hours (per vehicle) as well as, in the case of failure to take delivery, the entire costs for return transport and repeated delivery have to be borne by our customer.
3.8In the case of work or service performances, any agreed supply “readily installed” includes making available the required installation staff, lifting tools and equipment for connecting the finished parts and technical processing as described in our performance specifications. Our customer is obliged to make available to us, free of charge and in time, energy and water as well as sufficient area for installation, storage and placing of cranes etc. on the construction site. The course of any underground pipes and canals has to be bindingly specified to us by our customer by indicating exact measurements such as heights and axles; such pipes and canals have to be protected by our customer against any damages due to any cruising on the underground.
4.Dispatch and bearing of risk
4.1The contractual goods will be dispatched by us ex works with customer bearing the risk of transport, even in the case that the freight and other costs are borne by us. We will insure the contractual goods against damage during transport only on explicit written order by and for the account of our customer.
4.2Any agreed collection of the goods must be effected within 8 days after the agreed date at the latest. In the case that the goods are not collected in time, the customer is deemed to thereby declare that he accepts the goods which are ready for collection to be in conformity with the contract.
4.3Any risks will pass to our customer upon hand-over of the contractual goods to our customer, the first carrier or forwarder. This also applies in the case of individual partial deliveries and in the case that we have accepted to bear the forwarding costs.
4.4In the event that dispatch is postponed on demand of our customer or in the case of default with acceptance of delivery, the risk will pass to our customer upon notification of readiness for dispatch. The contractual goods will, in such case, be stored on behalf and at the expense of our customer.
5.Retention of title
5.1We retain title to the contractual goods until full payment of all our claims, including future claims, against our customer. This also applies in the case of payment of specifically indicated claims until any existing current account balance is settled.
5.2The goods which are subject to the retention of title have to be stored properly and separated from the other goods at our customer’s expense; on our demand, they have to be specifically marked and insured against damage, destruction and loss. The corresponding insurance policy has to be submitted to us on our demand. Our customer hereby assigns to us any future claims from the insurance contracts to the extent that the value of the goods to which we retain title is covered, and agrees that any corresponding insurance sum is paid out to us. We are entitled to declare rescission of the contract, collect the goods to which we retain title and, for this purpose, to have the premises of our customer entered by our agents if the customer does not comply with his contractual obligations to pay.
5.3As long as our customer complies with his obligations towards us as agreed, he will, in any case, be entitled to sell the goods to which we retain title to third parties in the course of usual business. Customer’s right to sell the goods is subject to revocation in the case that he does not duly perform his primary contractual duties. In the case of such sale or delivery of the goods to which we retain title to a third party – regardless of the current value or condition of the goods – or in the case of installation of the goods, the customer hereby assigns to us – to the extent that the invoice value of our deliveries is covered and until all our claims from these deliveries will be paid in full – any future claims against the buyer resulting from such sale, delivery or installation, including any ancillary rights and, in particular, any claims for damages possibly arising in connection herewith.
5.4In the event that the goods to which we retain title should be worked or processed or transformed or mixed with other things, such working or processing or, respectively, mixing or transforming is deemed to be effected on our behalf, without any warranty being granted by us. In the case that the customer processes the said goods by integrating other objects which do not belong to us, we will become co-owner of the new goods, namely to such an extent which is commensurate with the proportion of the value of the goods to which we have retained title as compared to that of the other integrated objects at the time of processing. In the case that the goods to which we retain title are mixed with other objects, we will become co-owner of the new goods to such a proportional extent which is commensurate with the value of the goods to which we have retained title at the time of mixture.
5.5In the case that a prohibition of assignment should be agreed when selling or installing the goods or in the case of default with payment, our customer is obliged to notify the third buyer of the fact that the corresponding claims have already been assigned before. In the event that the goods delivered by us to which we retain title are sold to a third party together with other goods, our customer is obliged to accordingly separate the individual items for the invoice. If no separation is made in the invoice, such part of the overall invoiced amount which corresponds to the amount invoiced for our delivery is deemed to be assigned to us. The aforesaid retention of title will persist even in the case that any individual claims of our customer against the third buyer are included in a current invoice. For such a case, our customer hereby assigns to us any future balance in his favour. In the case that the customer is in default with payment, we are entitled to directly collect the assigned claim from the third party.
5.6Any extraordinary dispositions by our customer such as pledging, assignment for security purposes and transfer of title with regard to the goods to which we retain title are inadmissible. Our customer is obliged to give us immediate notice in the event that third parties try to attach any goods and claims to which we are entitled by way of, for instance, seizure, or in the case of any other interference with our property. The customer will have to bear the costs of any action for intervention if the attachment was due to his fault.
5.7 If the value of the overall security granted to us from the business relationship should exceed the amount of our claims by more than 110 % of the obtainable value of the goods to which we retain title or 150 % of the decisive estimated value of the goods which have been transferred for security purposes, we are, insofar, obliged to reassignment at customer’s demand. The securities to be reassigned will be selected by us.
6.Payment
6.1Unless otherwise agreed, invoices have to be paid in the agreed currency without deduction within 30 days from the date of the invoice. Discount will only be granted in the case of a corresponding prior agreement.
6.2Payments are only deemed to be effected if we can actually dispose of the amount. Payment by bill or cheque will only be accepted on account of performance (and not in lieu of performance) and is subject to a corresponding prior agreement. In any case, bill or cheque charges have to be borne by our customer. In the event that payment by bill is agreed, the maturity date shall not exceed 90 days from the date of the invoice.
6.3Any incoming payments will be used, at our option, for settling either the oldest or the least secured claims.
6.4Partial deliveries will be charged immediately and are individually due for payment, regardless of the time of completion of the entire delivery. Unless otherwise agreed in writing, any payments on account made upon conclusion of a contract will be credited against the claims resulting from the respective oldest partial deliveries.
6.5Set-off against any counterclaims is only permissible if such counterclaims have been admitted by us or established by a final non-appealable decision. The same applies to the assertion of any rights to withhold any amounts from our invoices.
7.Damages and rescission of the contract
7.1In the case that the customer does not observe the agreed dates for payment, we may claim the rights under § 288 BGB (claiming of default interest). Moreover, we are entitled to agree on new periods of payment for future performances.
7.2In the event that our customer is in default with acceptance of delivery or performance or in default with payment, we are entitled - having granted a reasonable additional period for compliance - to rescind the contract in whole or in part and/or claim damages amounting to 20 % of the purchase price, without prejudice to our right to submit evidence proving a specific higher damage, in particular costs for taking back the goods, except for the case that the customer proves that we have incurred less damage. It is dispensable to grant an additional period for compliance, if, after conclusion of the contract, there is any indication suggesting that the financial capacity of our customer is at risk as described under sec. 3.2 above.
8.Warranty
8.1The agreed condition of the contractual goods or services to be complied with by us is exclusively specified by the contractual agreements with our customer and not by any other advertising statements, prospectus, consulting services or the like. The aforesaid agreements do not imply any guarantee such as, for instance, in terms of § 443 BGB.
8.2We render consultancy to the best of our knowledge on the basis of our experience, excluding, however, any liability in connection herewith. Any specifications and information regarding the fitness for use and application or, respectively, the use of the contractual goods are not binding, unless they are explicitly agreed as a condition in terms of sec. 8.1. They do not release the customer from his duty to execute examinations on his own.
8.3In the case of purchase, we assume liability for defects, to the exclusion of any further claims, as set forth hereinafter:
a)Our customer is obliged to carefully examine the contractual goods immediately on receipt and, if necessary, to take random examples. The customer has to give detailed and written notice of any obvious defects immediately after receipt and before use of the contractual goods, in no case later than 8 days after receipt. Even in the case of a complaint, the customer is obliged to take delivery of the contractual goods. The latter have to be stored properly and returned to us only on our explicit demand.
b)Defects which cannot be detected at first despite thorough examination, must be notified to us in the same way immediately after detection. In the case of failure to render notification in due form and/or in time, the contractual goods are deemed to have been accepted.
c)Our customer must grant our agents the opportunity to inspect and examine the contractual goods which customer has complained about. Otherwise, any warranty claims will lapse.
d)We grant warranty for faultless material and skilful production for a period of 1 year from delivery unless statutory provisions provide for an obligatory longer period of warranty.
e)We do not grant any warranty in the case of improper use and handling of the contractual goods. Furthermore, any warranty claims will lapse in the case of damaging or destruction of the contractual goods by improper handling or storage after the risk has passed to the customer. Notwithstanding any statements or guidelines which we have included in the contract, any warranty claims against us will lapse.
f)Any deviations in measurements and material which are usual in trade practice or due to technical production requirements do not entitle the customer to file a complaint for defect. As to tolerances, any relevant DIN standards and our works standards will apply.
g)Excess and short deliveries as to volume and quantity are permissible up to a variation of 10 %, except in the case of delivery of sleepers; they do not entitle the customer to file a complaint for defect.
h)Defects will be removed, at our option, either by subsequent remedy or by substitute delivery. Our customer has to grant us a reasonable period and opportunity to remove the defect. If the customer refuses to do so, any warranty claims against us will lapse. In the case that subsequent performance should fail several times, our customer is also entitled to rescind the contract or demand reduction of the price. As to any further claims, the provisions under art. 3.6 apply accordingly.
i)We do not grant any warranty for special manufacturing on the basis of our customer’s specifications, calculations or construction papers if and to the extent that any occurring defects are due to such specifications, calculations or construction papers.
8.4In the case of construction work, we grant warranty as follows:
a)Our warranty is based on § 13 VOB/B. Thus, we grant warranty, to the exclusion of any further claims of our customer, as follows: Defects which are detected within a period of 2 years after acceptance of the work will be removed within a reasonable period by subsequent remedy. Rescission of the contract is excluded. We will only be obliged to perform subsequent remedy after our customer has complied with his obligation to pay except for an amount which is adequate with regard to the defective part of the performance.
b)Acceptance of the work is based on § 12 no. 5 VOB/B. Thus, our work performance is deemed to be accepted upon expiry of 12 working days after written notification of completion of the work. In the case that our customer has already used our work or a part hereof, the work is deemed to be accepted upon expiry of 6 working days from the start of use.
9.Property rights
9.1Drawings, tools, printed, stamped or embossed pieces and special devices which are manufactured by us remain our property.
9.2In the case that we have to manufacture and deliver goods on the basis of specifications, drawings, models, samples or by using parts made available by our customer, the latter is liable for any possible infringement of property rights of third parties occurring in connection herewith. We will notify our customer of any such property rights known to us. Our customer is obliged to indemnify us against any and all claims asserted by third parties and render compensation for any damages. Any costs incurred by us up to that time have to be borne by our customer. In the case that production or delivery is prohibited to us by a third party relying on an alleged property right, we are entitled to stop work without verification of the legal situation. The costs of any possible litigations have to be borne by our customer.
9.3Any drawings and samples made available to us without any order being placed afterwards, will be returned to our customer on his demand and at his expense; otherwise, we are entitled to destroy them after expiry of 3 months after submission of our offer.
9.4We hold any copyrights and industrial property rights in the models, forms and devices, sketches and drawings designed by us or a third party on our behalf; this applies even in the case that our customer has borne the costs related herewith.
10.Miscellaneous
10.1We are entitled to process any data received from our customer in connection with our business relationship according to the provisions of the “Bundesdatenschutzgesetz” (German Federal Data Protection Act), including in particular the right to transfer to the credit insurer any data required for the purposes of credit insurance.
10.2Any assignment of claims to which our customer is entitled against us from our business relationship is hereby excluded.
10.3In the event that any of the preceding provisions should be invalid, the validity of the other provisions and the contract will remain unaffected. Any invalid provision will be replaced by new provisions which have the same economic intent. If any provisions did not become part of the contract, the contract will, insofar, be subject to the statutory provisions.
10.4Place of performance (“Erfüllungsort”) of delivery is our respective plant which has to effect the delivery in question; in the case of construction work, place of performance of delivery is the construction site. Place of performance of payment is Neumarkt.
10.5The court having jurisdiction for the place of performance of payment, will have jurisdiction in any case, even in the case of future claims from the business relationship including any claims from bills, cheques and other instruments.

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