Terms and condition

Terms and Conditions

Clause 1 Scope
(1) Our Terms and Conditions are the basis and integral part of all current and future contractual obligations, legal transactions and acts (contract). In the case of existing continuing obligations, the following provisions only apply from 1 January 2016 onwards. Our previous terms and conditions will apply up to that juncture.
(2) Our Terms and Conditions apply exclusively. We do not recognise any conflicting or different terms and conditions from the partner to the contract unless we have explicitly agreed thereto in individual cases in writing.
(3) Contracts will not be influenced by any subsequent conditions imposed by the partner to the contract.
(4) At the request of the partner to the contract we will explain the contract and our Terms and Conditions.

Clause 2 Choice of law and venue

(1) The contract is governed exclusively by the laws of the Federal Republic of Germany, even if other legal systems prevent it from doing so or do not recognise such laws.
(2) Provisions that apply in foreign law do not apply, in particular the UN Convention on Contracts for the International Sale of Goods.
(3) The place of jurisdiction within the framework of the statutory regulations is the court with jurisdiction in the area where our registered place of business is registered. Places of jurisdiction where the law allows us to pursue action against the partner to the contract are not ruled out hereby.

Clause 3 Form

(1) No verbal subsidiary agreements have been made.
(2) Amendments to and a dissolution of the contract, as well as this provision on the form, must be made in writing subject to mandatory statutory regulations.
(3) The partner to the contract cannot invoke any declaration made to us in text form, or sent to us electronically or any other means of telecommunication, if he has not confirmed such declaration in writing immediately.

Clause 4 Conclusion of contract

(1) Our offerings are non-binding and subject to alteration. At our discretion, we can accept any quotes sent to us within 14 days by sending an order confirmation, or the goods ordered, or accept the products or service or reject the quote.
(2) A contract between the partner to the contract and us will only come about due to our acceptance and when our Terms and Conditions are included. Our acceptance only comes into force if it is in writing, or we have provided the key deliverable owed by the contract.

Clause 5 Subject matter of the contract

(1) We reserve the right to make technical and design-based changes to the items delivered, insofar as such changes do not adversely affect the partner to the contract to an extent deemed unreasonable and insofar as they do not affect the ability to use the object delivered.
(2) The partner to the contract can only assert rights because of impairment of business operations if the relevant circumstances relating thereto have been notified to us in writing before conclusion of contract. Awareness thereof does not suffice.
(3) Negotiable termination rights on the part of the partner to the contract are ruled out.
(4) Terminations of contract must be directed to our legal representative in writing. Other persons are not permitted or authorised by us to do so even if the contract is overseen or handled by such persons.
(5) We are entitled to withdraw from the contract should the partner to the contract prove to have no credit rating and our entitlements vis à vis the partner to the contract were to be at risk as a result.

Clause 6 Duties

(1) Should our expenditure exceed the calculation made by us internally by more than 20 percent, we are entitled to a right to refuse performance pursuant to article 275, paragraph 2 of BGB [German Civil Code].
(2) The partner to the contract must inform us regarding:
a) his rights, legal assets and interests affected by the contract;
b) any circumstances known to or identified by him that could provide grounds for rights directed at us due to the contract; in particular also regarding relevant foreign trade regulations and other legislation in the country from which the partner to the contract comes from and about the country in which the products or services are to be delivered;
c) any characteristic as a consumer, as defined under German law, that he has availed himself of;
d) other subjective and objective attributes in his area of operation that could lead to special protection under statute for him;
e) information including advertising messages provided by us or third parties that he is counting on;
f) any intended use that could have an impact on the statute of limitations in terms of rights should deficiencies occur, in particular the use of the object of the contract for a building;
g) any obligations between him and third parties – in particular consumers – that could give grounds for claims to recourse or other rights directed at us;
h) the procedure he plans following a deadline specified by us, which will be at least 14 days, to provide performance or supplementary performance.

(3) The partner to the contract must do as follows:
a) report any obvious errors in the contractual objects to us within fourteen calendar days in writing;
b) provide compensation for any impairment to the contractual objects following proper usage thereof.

(4) The partner to the contract is responsible for carrying out maintenance and repairs on the contractual objects.

Clause 7 Performance

(1) Our registered office is the place of performance and fulfilment. We are permitted to appoint, either wholly or in part, third parties to provide services.
(2) Drawings, diagrams, figures, dimensions, weights, information on service life, usage options and other data to describe the contractual objects and their actual and legal attributes only determine the nature of the contractual objects if explicitly agreed in the contract. Special expectations and purposes must be agreed explicitly in the contract in order to establish the nature of the contractual objects.
(3) We do not accept any guarantees and special risks if not explicitly agreed in the contract. We do not make any pledges not explicitly agreed in the contract. Details on performance dates are approximate and non-binding, unless the binding nature thereof has been explicitly agreed to. Should we experience a delay, the partner to the contract can withdraw from the contract should an extension period have expired without result; should it be impossible for us to provide performance the party to the contract has such right without an extension period. Delay equates to impossibility if performance is not provided for longer than one month following the time given for performance agreed. Entitlements to damages (including for any consequential losses) and reimbursement of expenses are ruled out – with the exception of the restrictions below. Such limitation of liability does not apply if a commercial drop-dead date has been agreed.
(4) Should unforeseen circumstances occur that are not our intention and that we have not, based on the circumstances of the case concerned, been able to prevent by exercising reasonable care, for example in the case of force majeure, delay in the delivery of feedstock, strikes or similar incidents, also insofar as such incidents happen to our pre-suppliers, we are entitled, either wholly or in part, to withdraw from the contract, or extend the period of performance by the period of time that the incident preventing us from providing performance lasts.
(5) Pursuant to article 439, paragraph 1, BGB, we are entitled to a right to choose, if there has been no purchase of consumer goods or recourse on the part of the company exists and if the partner to the contract is not a consumer as defined under German law.

Clause 8 Prices, payment terms

(1) Our prices are non-binding and based on the circumstances prevailing at the time the quotation was given. Our prices explicitly cover only the subjects of performance, however in particular not the expenditure to be met by the partner to the contract, transport and assembly costs plus taxes.
(2) Following conclusion of contract, after the start of performance or after furnishing partial performance, we are entitled to demand an advance payment of up to 50% of the anticipated total remuneration.
(3) Our receivables are due immediately. Should we accept other types of payment in individual cases, such payment is only accepted on account of performance and at the costs of the partner to the contract.
(4) Should the partner to the contract be in default, our rights due to default are based on the statutory regulations. The partner to the contract is in default two weeks after payments are due at the latest and
a) after a payment demand, an invoice or a list of performance of equal value has been received or
b) after receipt of the service in return.
(5) The partner to the contract is only entitle to offset payments, if his counter demands have been established by due legal process, if such demands are not in dispute, or if they have been accepted by us.

Clause 9 Delivery

(1) Products are only shipped by request of the partner to the contract. Partial performance is permitted, if such partial performance can be deemed reasonable for the partner to the contract. Performance, even if the objects include trivial errors, must be received by the partner to the contract.
(2) Should the contractual objects be shipped, we are entitled – even when consumer goods are purchased – to insure the contractual objects at the cost of the partner to the contract.

Clause 10 Retention of title

(1) We retain ownership to the objects forwarded – subject to full payment of our receivables, as specified by contract, by the partner to the contract. Should seizures of assets or other legal or actual interventions by third parties occur, the partner to the contract must inform us immediately in writing and notify such third parties of our rights. Any processing or transformation of the objects concerned will always be performed by us. Should the goods subject to retention of title be combined, blended or amalgamated with other items and if the other items are deemed to be the principal items within the meaning of the contract, proportionate, unencumbered ownership thereto must be transferred to us. At the request of the partner to the contract, we will release collaterals to be selected by us insofar as the value of our securities exceeds the nominal value of the receivables to be secured by 30%. Any resale of the objects subject to retention of title requires our consent in writing and is only permitted if the entitlements to appropriate recompense are assigned to us unencumbered by any rights of third parties.
(2) Rights to be transferred will only be assigned on condition of complete payment, as specified by contract, of our receivables by the partner to the contract. Paragraph (1) applies accordingly. Should the partner to the contract breach the contract, in particular due to default in payment, we are entitled to withdraw the object of performance; the partner to the contract agrees to such return of the object in such case upon conclusion of contract. The return of such objects only constitutes a withdrawal if explicitly declared as such. The partner to the contract must meet costs incurred by us resulting from the return of the objects.
(3) Usage rights, to be granted or transferred, to rights protected by copyright or other comparable means, or only granted in a common, are only given in a non-transferrable and limited form related directly to the purpose of the contract, but only however during the period in which the contract takes effect and for the term thereof.

Clause 11 Liability for deficiencies in performance, liability for secondary obligations and other liability

We accept liability for deficiencies in performance on condition that the obligations on inspection and notification of defects stated in article 377 HGB [German Commercial Code] have been properly fulfilled within fourteen calendar days after receipt of performance by the partner to the contract – without prejudice to the right to recourse from the manufacturer – as follows:
(1) If a deficiency in the object purchased or service agreed by contract is present, we may use our discretion to eliminate the deficiency or deliver a flawless product. In the case of services agreed by contract, the partner to the contract has the right, pursuant to article 637 BGB, to fulfil such service himself; such entitlement is ruled out if we are also permitted to refuse supplementary performance. The condition therefor is that such deficiency is one that is not an inconsiderable. We are entitled to refuse supplementary performance should it be impossible or deemed unreasonable. Furthermore, we may refuse supplementary performance as long as the partner to the contract has not met those payments in full that represent the flawless section of performance. Should supplementary performance be impossible or fail twice, the partner to the contract is entitled to reduce the price or withdraw from the contract.
(2) Unless otherwise specified by the provisions below, any further entitlements on the part of the partner to the contract, for whatever legal reason, even regarding our culpability in not fulfilling accessory obligations agreed by contract and in each case regardless of the type of damage, are ruled out. The aforesaid provisions also apply when another object is delivered, or a smaller quantity thereof and in the case of reimbursement of expenses.
(3) Entitlements to supplementary performance, damages and reimbursement for expenditure on objects reach the statute of limitations one year after the object has been delivered or acceptance of the service issued. Entitlements to a reduction in price or the right to withdraw are neither ruled out nor restricted. The partner to the contract can withdraw from the contract if it becomes impossible or he is unable to provide performance. There is no right to withdraw from the contract if the partner to the contract is primarily responsible for the circumstances entitling a right to withdraw or he is in default of acceptance. In such cases, we retain our right to demand a service in return.

Clause 12 Restriction in the exclusion of liability

(1) Exclusion of liability does not apply to losses if the cause of such losses is due to intent or gross negligence on our part, equally to loss of life, injuries or impairment to health if we are responsible for breach of duty and to losses that are based on an intentional or grossly negligence breach of duty on our part. Our legal representatives or vicarious agents are deemed equally responsible for breach of contract.
(2) Should we have culpably breached a major duty in the contract, liability is not ruled out, but merely limited to the predictable damage typical of the contract.
(3) Furthermore, exclusion of liability does not apply in cases of liability pursuant to the Produkthaftungsgesetz [German Product Liability Act], or where a guarantee is accepted or deficiencies are fraudulently concealed, should a deficiency affected thereby cause us to be liable.
(4) The partner to the contract must prevent or decrease any conceivable damage, in particular by adopting suitable steps and purchasing insurance policies. The partner to the contract must take the rights of third parties and statutory regulations into account.

Clause 13 Partial invalidity

Should some of the contract be or become unenforceable, or should a lack of provisions transpire, the rest of the contract will not be prejudiced thereby.

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