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This is an archive document.
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Be sure to also note our legal information and our privacy policy. 1. General Conditions, Application of Terms 1.1 Our conditions of trade shall be the exclusive conditions of trade valid between the Buyer and us; we do not accept any conditions of trade opposing or deviating from our conditions unless we have accepted such conditions expressly in writing. Our Terms and Conditions of Trade also apply if we carry out the delivery to the Buyer without reservation, while being aware of opposing or deviating terms and conditions on the part of the Buyer. 1.2. Our Terms and Conditions of Trade also apply to all future business transactions with the Buyer, including offers, consulting services and other services. 1.3. Technical and operating information on weight, dimensions, other performance and consumption data in our prospectuses, drawings and publications shall be used for general information only, unless reference is made to such information in our offer and/or order confirmation; this, however shall not be considered as a guarantee of a special feature. We reserve property rights and copyrights in connection with cost estimates, drawings and other documents; such documents may only be disclosed to third parties after we have given our approval to such disclosure. 1.4 In the case of changes of the contractual obligations as a result of new or changed legal provisions or requirements of government agencies or inspection institutes after the submission of the offer, the contract shall be amended accordingly, considering the requirements of both parties. 1.5 Any changes of or amendments to a contract must be made in writing in order to take effect. 1.6. The term Consumer in the sense of these General Terms and Conditions of Trade refers to natural or legal persons with whom business relations are established and who are not active as commercial entrepreneurs or self-employed. The term Entrepreneur in the sense of these General Terms and Conditions of Trade refers to natural or legal persons with whom business relations are established and who are active as commercial entrepreneurs or self-employed. The term Buyers in the sense of these General Terms and Conditions of Trade refers to both Consumers and Entrepreneurs. 2. Offers Our offers are offers without engagement, unless otherwise indicated in the order confirmation. 3. Prices, Terms of Payment, Securities 3.1. Unless indicated otherwise in the order confirmation, the prices are calculated EXW (Ex Works) in EUR plus VAT applicable at the time the invoice is issued. They do not include packing, shipment, insurance and other ancillary costs (storage, inspection by third parties). 3.2. Cash discounts must be agreed upon expressly in writing. 3.3 If not agreed otherwise, payments shall be made without any deductions free of charge to our bank account. In case the payment deadlines are not met, an interest corresponding to the current bank interest rates for overdraft facilities will be charged, at least, however the legal interest rates. 3.4. In case payments are delayed or if our claims are endangered due to a reduced credit worthiness of the Buyer, we are entitled to accelerate the maturity of our claims or to demand securities. We are also entitled to demand pre-payment of or securities for any outstanding supplies and services. 3.5 We reserve the right to change our prices reasonably if cost reductions or increases occur after the contract was entered into, in particular due to wage deals or changed material prices, and if more than 6 months have passed between the conclusion of the contract and the fulfillment of our principal duty. We will provide evidence of the cost changes upon the Buyer's request. 3.6 The Buyer shall have the right to retain payments or to offset payments only if the counter-claims are undisputed or have been recognized by declaratory judgment and if such claims are the result of the same contractual relationship. 4. Terms of Delivery 4.1 The delivery time shall start on the day fixed in the order confirmation, however not before all technical issues have been clarified and all relevant documents have been received. In order to meet the delivery deadlines, the Buyer must fulfill all of his or her contractual obligations, in particular the payment of all due amounts. This also includes the provision of all documents and permits, the approval of drawings (if applicable), and the timely payment of any advance payments as well as the timely provision of any payment securities which may have been agreed. Additionally the Buyer must perform all required constructional and assembly advance services. In particular the Buyer must provide power, gas, water supplies as well as the required assistant staff free of charge. 4.2 The agreed deadlines shall be considered as having been met if the Buyer has been informed of the readiness for shipment, but the objects to be supplied cannot be dispatched in due time through no fault of ours. 4.3. We are entitled to make partial deliveries and to charge these. 4.4 If we cannot fulfill our contractual obligations due to an event of Force Majeure affecting us or our suppliers and/or subcontractors and if such event of Force Majeure could not be prevented even with due care, we shall be released from our contractual obligations for the duration of the event and to the extent of its effects. Events of Force Majeure include in particular war, internal unrest, government interventions, natural forces, accidents, non-foreseeable operating disturbances, delayed deliveries or delivery failures by our suppliers, lack of manpower, energy or raw materials, strikes, lockouts and traffic obstructions. In case the event of Force Majeure lasts for more than 6 months, each party to the contract shall be entitled to withdraw from the contract to the exclusion of further claims. 4.5 If we are in default and the Buyer suffers a damage as a result of such default, the Buyer is entitled to claim a compensation for such default. The compensation shall be 0.5 % of the value of the parts of the object of the contract which cannot be used timely or as specified in the contract for each completed week of the default, but not more than 5 % of the value of such parts. If we still are in default when the aforementioned maximum default compensation is reached, the Buyer can withdraw from the contract after allowing a reasonable additional grace period in writing. The same applies in case the delivery or service becomes impossible through our own fault. 4.6. The right to withdraw from a contract which the Buyer may have according to Sections 4.4 or 4.5 only applies to the part of the contract which has not been fulfilled yet. Further rights of the Buyer resulting from default, in particular claims for damages, shall be excluded. This exclusion of liability does not apply in the case of intent or gross negligence by legal representatives or senior staff. 5. Liability for Defects 5.1 If the object to be supplied shows a defect for which we are responsible and if the Buyer is an Entrepreneur, we have the choice of either repairing the defect or replacing the object by one which is free of defects. If we choose to repair the defect, we shall be obliged to bear all costs related to the repair of the defect, in particular transport, traveling, manpower and material expenses up to the amount of the purchase price, provided that the purchased object has not been brought to a place other than the place of performance. 5.2 If the Buyer is a Consumer, he or she has the choice of either having the defect repaired or having the object replaced by one which is free of defects. However, we are entitled to refuse the Buyer's choice if the costs involved are unreasonable and the other rectification alternative does not result in significant disadvantages for the Consumer. 5.3 In case the rectification fails, the Buyer generally has the choice of either reducing the compensation (reduction of purchase price) or terminating the contract (withdrawal). In the case of minor non-compliance with the contract, however, in particular in the case of minor defects, the Buyer shall not have the right to withdraw from the contract. 5.4 Entrepreneurs must notify us in writing of obvious defects within a period of two weeks after the receipt of the supplied object; otherwise the assertion of claims relating to the liability for defects shall be excluded. Timely dispatch of the notification is sufficient to meet the notification deadline. 5.5 Consumers must notify us in writing of obvious defects within a period of two months after the time at which the non-complying condition of the supplied object was detected. The notification must have been received by us within this time. If the Consumer fails to notify us of such defects, any liability for defects shall be terminated after a period of two months after the defect was detected. The burden of proof for the time of detection of the defect is on the Consumer. In the case of used goods, the burden of proof for the defectiveness of the object is on the Consumer. 5.6. For Entrepreneurs, the period for claiming defects shall be one year as from the delivery of the object. For Consumers, this period shall be two years as from the delivery of the object. In the case of used goods, any liability for defects shall be excluded unless the Buyer is a Consumer. In this case the period for claiming defects shall be one year as from the delivery of the object. This does not apply if the Consumer has not indicated the defect in due time (Sections 5.4 and 5.5). 5.7. If the Buyer chooses to withdraw from the contract due to a contractual or material defect, after a rectification has failed, he or she cannot claim further damages due to such defect. If the Buyer chooses to claim damages after a rectification has failed, the goods remain with the Buyer if this is reasonable. The damages shall be limited to the difference between the purchase price and the value of the defective object. 5.8 In addition to the liability mentioned above we shall be held liable only to the extent provided by law if the Buyer asserts claims for damages based on intent or gross negligence including intent or gross negligence of our representatives or vicarious agents. Unless we are accused of intentional breach of the contract, our liability shall be limited to the foreseeable, typically arising loss. 5.9 We shall be liable to the extent provided by law if we culpably violate a major contractual obligation; in this case, our liability shall be limited to the foreseeable, typically arising loss. 5.10 Except for the aforementioned scenarios, liability for damages shall be excluded; in particular we shall not be held liable for defects occurred at the supplied object itself. 6. General Disclaimer of Liability 6.1 Any liability for damages exceeding the scope of liability stipulated in Section 5 shall be excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages as a result of culpa in contrahendo, positive violation of a contractual duty or tortious acts. 6.2 This does not affect claims for damages because of impossibility. The same applies if legal liability provisions are imperative. 6.3 Any exclusion or restriction of our liability for damages also applies to the same extent to the personal liability of our employees and vicarious agents. 6.4 The aforementioned liability restrictions do not affect claims of the Buyer because of product liability or injury of life, body or health. 7. Passing of Risk, Shipment 7.1 If the Buyer is an Entrepreneur, the risk of accidental loss and accidental deterioration of the purchased object passes over to the Buyer as soon as the purchased object is handed over to the haulage contractor or forwarder, at the latest, however, when it leaves the factory. This applies even in the case of partial deliveries or if we agreed to perform other services, too, e.g. dispatch, installation or erection. 7.2 If the Buyer is a Consumer the risk of accidental loss and accidental deterioration passes over to the Buyer as soon as the purchased object is handed over to him or her. 7.3 The interpretation of the trade clauses shall be based on the INCOTERMS valid at the time at which the contract is entered into. 7.4 We shall be free to choose the means of transport and the transport routes as well as the forwarder or haulage contractor. 7.5 The delivery of objects must be requested by the Buyer immediately after the Buyer was informed of the readiness for shipment. Otherwise we are entitled to store them at the expense and risk of the Buyer at our discretion and charge them as having been delivered. 8. Retention of Title 8.1 In the case of contracts with Consumers we retain title to the purchased object until the purchase price has been paid in full. In the case of contracts with Entrepreneurs, we retain title to the purchased object until all claims from a current business relationship have been settled. 8.2 In the case of non-conforming behavior of the Buyer, in particular in the case of delayed payments, we are entitled to withdraw from the contract and to reclaim the purchased object. 8.3 The Buyer is obliged to take out, at his or her own expense, an insurance policy against theft, breakage, fire, water and other losses for the duration of his or her obligation to us and to provide the relevant evidence upon request. The Buyer hereby irrevocably assigns all of his or her rights from such insurance contracts to us until all of the Buyer's obligations are fulfilled. We accept this assignment. 8.4 If the Buyer fails to fulfill his or her obligations as specified in the above section, we shall be entitled to take out the aforementioned insurance policies to the extent we deem necessary at the expense of the Buyer, subject to the provision that the rights from the insurance contracts are due to us directly. 8.5 In the case of seizure of property by court authorities or other interventions of third parties, the Buyer must inform us of such actions immediately to enable us to assert our title to the purchased objects against the third party. If the third party is not able to compensate us for our expenses in and/or out of court, the Buyer shall be liable for these expenses. 8.6 The Buyer is obliged to maintain the goods to which we retain title in a perfect condition and to have any repair work that may be required carried out by expert companies immediately. The Buyer must provide information on the goods to which we retain title at any time, in particular as regards its current location. We are entitled to access the location of the goods to which we retain title at any time. Where necessary, the Buyer will provide access to the location of the goods to which we retain title for us or anyone authorized by us. The Buyer may sell, pledge, assign by way of security, rent or let in another way or change the goods to which we retain title or change its location indicated to us only after we have given our approval of such action in writing. 8.7 The Buyer is obliged to notify immediately if our property is in jeopardy. 8.8 If the Buyer violates the obligation of Article 8, we are entitled to accelerate maturity all outstanding payments for the goods to which we retain title or to claim securities. If the Buyer fails to pay all outstanding debts within 7 days after notification by us, or if he or she fails to provide the requested securities within this period, his/her right to use the goods to which we retain title shall be null and void. In this case we are entitled to claim the immediate return of the goods to which we retain title at the expense of the buyer, exclusive of any rights of retention. The Buyer hereby irrevocably gives us his/her permission to access the location of the goods to which we retain title and entitles us to take them back. 8.9 If the Buyer wants to sell the purchased object, he or she herby assigns to us all claims against the purchaser or third parties which arise as a result of the sale in the amount of the total invoice amount of our claims including VAT, regardless of whether the purchased object is sold without or after further processing. We accept the assignment. The Buyer remains entitled to assert these claims even after this assignment. This does not affect our right to assert the claim ourselves. However, we undertake that we will not assert the claim ourselves at the third party as long as the Buyer fulfills his or her payment obligations, does not delay payments and, in particular, as long as no application for the opening of insolvency or settlement proceedings has been filed. In this case we can demand that the Buyer should disclose the assigned claims and the debtors, make all information required for collection, hand over the relevant documents and disclose the assignment to his or her debtors or other third parties. 8.10 Any processing or conversion of the purchased object by the Buyer shall always be carried out in our name. If the purchased object is processed with other objects which do not belong to us, we acquire the ownership to the new object in the proportion of the value of the purchased object compared to the value of the other objects processed at the time of the processing. For the object resulting from the processing, the same provision shall apply as for the purchased object to which we retain title. 8.11 In case a retention of title is not legally effective according to the laws of the Buyer's country, the provisions governing the retention of title in this country shall be valid to the greatest possible extent. If the retention of title to the supplied object is not guaranteed in the Buyer's country to the same extent as in the case of domestic trade, we are entitled to demand advance payment or the provision of securities in the amount of the value of the goods. If not agreed upon otherwise, securities must always be irrevocable, confirmed letters of credit or irrevocable, absolute guarantees issued by a large bank which is established in the Federal Republic of Germany. 9. Place of Performance Place of performance with regard to our deliveries is Bad Camberg. If we also have to provide services (e.g. installation), the place of performance with regard to these services is the place at which the services are provided. With regard to the payment obligation of the Buyer, the place of performance shall be the domicile indicated on the invoice. 10. Place of Venue, Applicable Law 10.1 For all legal relationships between the Buyer and us, the laws of the Federal Republic of Germany shall be applied exclusively. The provisions of the Vienna UN-Convention on Contracts for the International Sale of Goods (UN Sales Convention) dated 11 April 1980 shall not be applied. 10.2 If the Buyer is a merchant, the place of venue for all disputes, including proceedings resulting from bills of exchange or checks is Limburg a.d. Lahn, Federal Republic of Germany. However, we can also sue the Buyer at the courts of his or her general place of venue. 10.3. Should individual provisions of the contract with the Buyer including these General Terms and Conditions of Trade be or become invalid, fully or partially, the validity of all remaining provisions shall remain unaffected. The provision which is fully or partially invalid shall be replaced by a provision whose economic effect reflects the invalid provision to the greatest possible effect. Date 17 August 2002
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