GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF THEILINGER AUTOMATION UND PAPIERTECHNIK GMBH, NUREMBERG
1. General Provisions
1.1 These General Terms and Conditions shall apply to
- Persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs),
- legal entities under public law or a special fund under public law.
1.2 These General Terms and Conditions shall apply to all – also future – deliveries and services of our company, in particular within the scope of purchase/work and work delivery contracts.
We expressly object to any terms and conditions of business of the purchaser. We shall not be bound by the Purchaser’s terms and conditions even if we have not expressly objected to them again after receipt. Rather, the order shall be deemed to be an unconditional acceptance of our terms and conditions of sale and delivery.
2. Conclusion of contract
2.1 Our offers are always non-binding and subject to change.
2.2 By placing an order, the customer makes a binding declaration that he wishes to purchase the goods ordered. The written order is a binding offer. We shall be entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance shall be effected by our written order confirmation; unless a written contract is concluded. Our written order confirmation/the written contract shall be decisive for the scope of delivery. Other agreements, in particular verbal assurances and/or other ancillary agreements, require our express written confirmation in order to be legally effective.
2.3 The information provided in our catalogs, brochures, drawings, illustrations and other documents, such as technical data, descriptions of weights, dimensions and services, are only approximate. Anything to the contrary shall only apply if they are expressly designated as binding in the order confirmation.
Obvious errors, misprints, miscalculations, typographical errors and calculation errors shall not be binding on us and shall not give rise to any claim for performance.
2.4 We reserve the right of ownership and copyright to our cost estimates, sketches, drawings, illustrations, catalogs, brochures and other documents. They may neither be made accessible to third parties nor used for other purposes, in particular self-production, without our prior written consent. Upon request, they shall be returned to us without delay.
2.5 The customer shall assume sole responsibility and full liability for the binding nature of the documents provided by him, such as drawings, gauges, samples or the like. In any case, the purchaser shall be responsible for ensuring that the working drawings submitted by him do not infringe the rights of third parties. We are under no obligation to the customer to check whether any rights of third parties are infringed by the submission of offers on the basis of drawings and other documents sent by him in the event of execution or for any other reason. Should a claim by a third party nevertheless arise, the customer shall indemnify us against this from the outset.
3.1 Our general price quotations (e.g. brochure, catalog, Internet) are subject to change.
3.2 Our prices are net ex works or ex warehouse. The statutory value added tax applicable at the time and all other costs, e.g. packaging, assembly, insurance premiums, shipping, freight, customs duties, etc. shall be charged in addition.
3.3 Price changes are permissible if the agreed delivery period or the delivery period for which we are not responsible exceeds four months. If wages, material costs, market cost prices or our processing costs increase until completion of the delivery and/or service, we shall be entitled to increase the price appropriately in accordance with the cost increase.
4. Terms of payment, default and set-off/assignment
4.1 Unless otherwise agreed, our invoices shall be due for payment within 14 days after delivery of the goods or occurrence of default in acceptance. A warranty retention is excluded. After expiry of 14 days from delivery, the customer shall be in default of payment; a separate reminder shall not be required. Default in payment shall occur at the latest if payment is not made within 30 days of the due date and receipt of the invoice or the goods. If the customer is in default, we shall be entitled to charge a flat rate of interest on arrears of 8% above the prime rate of the European Central Bank pursuant to Section 247 of the German Civil Code (BGB). If we can prove higher damages caused by default, we shall be entitled to assert such damages. § Section 353 of the German Commercial Code (HGB) shall remain unaffected.
4.2 If the customer is in default of payment, in whole or in part, for more than 30 days, or if an application is made to open insolvency proceedings against its assets, we shall be entitled, without prejudice to further rights, to declare all claims against the customer immediately due and payable, to demand adequate security and to retain all deliveries and services. If, despite being requested to do so, the customer is neither prepared to make concurrent performance nor to provide security, we shall be entitled to withdraw from the contract without being obliged to pay damages. This shall not affect the assertion of the retention of title in accordance with Section 7.
4.3 The customer shall only have a right of retention to a permissible extent insofar as it is based on the same contractual relationship. Offsetting against counterclaims of the purchaser recognized by us as existing and due or legally established is permissible.
4.4 The customer may only transfer rights arising from contracts concluded with us or assign claims with our prior consent.
5. Delivery periods and dates, scope of delivery
5.1 Delivery periods and dates shall only be approximate unless we have expressly designated them as binding in writing. They refer in each case to completion at the factory.
5.2 The delivery period shall commence on the date of our order confirmation, but not before all technical and commercial details have been clarified. In particular, the delivery period shall not commence until all preconditions for the execution of the order have been met, in particular all details of the execution have been clarified (including requested plans or samples etc. for the equipment of the ordered machines and devices have been received by us) and both parties agree on all terms and conditions of the contract.
5.3 The delivery period shall not commence until all contractual obligations of the Purchaser have been fulfilled, in particular after receipt of the agreed advance payment.
5.4 Unforeseen events, e.g. war, monetary or trade policy or other sovereign measures, civil unrest, forces of nature, fire, traffic and operational disruptions, strikes, lockouts, rejection of a part that cannot be replaced immediately at our own plant or at the subcontractor’s, non-delivery of input material through no fault of our own or other cases of force majeure shall extend the delivery time by the duration of the hindrance plus a reasonable start-up period. An unforeseen event shall be deemed to be such circumstances which we are unable to avert with reasonable care in the circumstances of the case. In cases of substantial impediment to the fulfillment of the delivery contract or in cases of impossibility due to unforeseen events, we shall be entitled to withdraw from the contract without granting compensation.
The same applies if official or other approvals or documents of third parties required for the execution of deliveries are not received in time.
Any changes in the design of the delivery item requested by the customer within the delivery period shall extend the delivery period accordingly.
5.5 Partial deliveries or services are permissible. Even in the cases of clause 5.4, the Purchaser may not reject partial deliveries and partial services unless it has a justified interest in rejecting them. Partial deliveries or services may be invoiced by us immediately.
5.6 If we are otherwise in default, the customer must set us a reasonable deadline for subsequent performance in writing. If we still fail to dispatch the delivery item within the grace period, the customer shall be entitled to withdraw from the contract after expiry of the grace period for those quantities which had not been dispatched by the expiry of the grace period. If the Purchaser suffers damage due to a delay caused by us, we shall compensate the damage demonstrably incurred, but not more than 0.5% of the price of the overdue delivery for each full month of delay and in no case more than a total of 5% of the value of the overdue or omitted delivery or service. This limitation shall not apply, however, to the extent that we are compulsorily liable in case of intent or gross negligence. A claim for contractual penalty requires our prior written consent.
6. Packaging, dispatch and transfer of risk
6.1 The goods shall be packaged at our discretion in a manner customary in the trade. The packaging will be charged at cost price.
6.2 Delivery shall be ex works or ex warehouse. Shipment of the delivery item shall be at the expense and risk of the purchaser. The risk shall pass to the Purchaser upon handover of the goods. In case of shipment of the goods, the risk shall pass to the customer as soon as we have handed over the goods to the forwarding agent, carrier or other person designated for shipment. The risk shall pass to the customer at the latest when the delivery item leaves our factory or warehouse. This shall also apply in the case of delivery “free place of destination”.
6.3 If the dispatch of the goods is delayed due to the conduct of the purchaser, the risk shall pass to the purchaser at the time of notification of readiness for dispatch. The handover of the goods to the purchaser or forwarding agent etc. shall be deemed to be the same if the purchaser is in default of acceptance. Goods reported ready for dispatch must be called off immediately. Otherwise we are entitled to store them at the expense and risk of the purchaser and to invoice them immediately.
6.4 We reserve the right to choose the shipping routes, means of transport and other temporary protective measures in the absence of corresponding instructions from the customer, whereby we are not obligated to choose the cheapest type of shipping.
6.5 Transport insurance shall only be taken out by us on the basis of a special written agreement for the Purchaser and at the Purchaser’s expense. This shall also apply in the case of agreed delivery “free buyer”.
7. Retention of title
7.1 We retain title to the goods delivered until the purchase price has been paid in full and all claims arising from the current business relationship have been settled.
7.2 The purchaser is obliged to treat the goods with care. If maintenance and inspection work is required, the Purchaser shall carry this out regularly at its own expense.
7.3 The Purchaser shall only be entitled to resell, pledge, assign as security, lease or transfer the Retained Goods abroad with our prior written consent. If the resale to third parties is part of the Purchaser’s ordinary course of business, the Purchaser shall exceptionally be entitled to resell the delivered goods in the ordinary course of business. The use of the goods subject to retention of title for the performance of contracts for work and services and contracts for work and materials shall also be deemed to be a resale.
7.4 The Purchaser hereby assigns to us all claims and claims for compensation (insurance, tort, etc.) to which it is entitled with respect to the Retained Goods in the amount of the invoice value of the Retained Goods. We accept the assignment. The purchaser is authorized to collect as long as he duly meets his payment obligations and does not fall into arrears. At our request, the purchaser is obliged to inform his customers and business partners immediately in writing of the assignment to us, unless we do this ourselves. Copies of the notification letters shall be sent to us free of charge. The customer shall provide us with all information and documents required for the collection of the claim and make them available to us.
7.5 The processing of the goods by the Purchaser shall always be carried out in our name and on our behalf as manufacturer within the meaning of § 950 BGB (German Civil Code), without any obligation on our part. If the goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods delivered by us to the other processed items. The same shall apply if the goods are mixed with other objects not belonging to us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of clause 7.1.
7.6 In the event of access by third parties to the goods subject to retention of title or the processed new item, the customer shall immediately draw attention to our ownership. In addition, in such cases the Purchaser shall be obliged to notify us in writing without delay.
7.7 In the event of a breach of contract by the Customer, in particular in the event of default in payment, we shall be entitled – even without setting a reasonable deadline for performance – to withdraw from the contract, to collect the reserved goods at the Customer’s expense and to enter the place of storage or use of the goods for this purpose. We may also demand transfer of indirect possession of the goods at the Purchaser’s expense. The customer shall waive the rights to which he would be entitled from unlawful interference and shall allow us access to the rooms in which the goods subject to retention of title are located.
Even without withdrawal from the contract, we shall be entitled to recover the reserved goods at the customer’s expense and to realize them at our best discretion, in particular also by private contract. The proceeds of the sale, less any costs and interest incurred, shall be credited against the outstanding purchase price claim. Any surplus shall be paid to the customer.
7.9 We may collect claims assigned to us directly from the third party. The collected claims shall be set off against the purchase price less the costs and interest incurred by us. Any surplus shall be paid to the customer.
8. Warranty, duty to examine and to give notice of defects
8.1 The information contained in catalogs, brochures, circulars, advertisements, illustrations and comparable public promotions regarding performance, dimensions, weights, prices and the like shall not be binding and shall in particular not constitute a contractual statement of the quality of the goods unless they expressly become part of the contract.
8.2 As a matter of principle, only our specific product description shall be deemed agreed as the quality of the goods. In the event of manufacture/delivery in accordance with a design specified to us by the customer or in accordance with the customer’s specifications or drawing, we shall not assume any responsibility for the intended use of the goods by the customer. In this case, our responsibility shall only extend to designs in accordance with the drawing.
8.3 The customer shall inspect the goods immediately after delivery. If a defect becomes apparent, this must be reported to us immediately in writing and specifically. The period for giving notice of defects shall not exceed 14 days; the date of receipt of a written notice of defects by us shall be decisive. This also applies to other complaints, e.g. of weight and quantity. If the defect does not become apparent until later, the written notification must be made to us immediately after discovery of the defect. § Section 377 of the German Commercial Code (HGB) shall remain unaffected. The Purchaser shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. If the customer fails to meet these obligations, the assertion of the warranty claim shall be excluded.
8.4 We shall not be responsible for any damage resulting from the following causes:
Force majeure, improper or unsuitable use, overloading, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling/maintenance, excessive stress, unsuitable operating materials, use of non-original individual and spare parts, improperly performed repairs, unauthorized structural modifications, ingress of foreign bodies, chemical, electrochemical or electrical effects, defective work or deliveries by third parties or external influences, provided they are not within our sphere of responsibility.
8.5 All claims of the purchaser due to defects shall become null and void if serial number, type designation or similar markings are removed or made unrecognizable, since in such cases a reconstruction of the cause of the defect as well as recourse measures against upstream suppliers shall be rendered impossible for us.
8.6 In the event of a justified and immediate notice of defect, we shall initially provide warranty by rectification or replacement delivery at our discretion. We shall be granted a period of at least 20 days to remedy the defect. We shall be entitled to make several attempts to remedy the defect, provided that this is reasonable for the customer.
8.7 If we fail to comply with our obligation under clause 8.6 or if a repeated attempt to remedy the defect also fails, the customer shall be entitled to a reduction of the purchase price or, at its option, to rescind the contract within the framework of the statutory provisions.
8.8 Other or further claims are excluded. This shall also apply to the claim for compensation for damage which has not occurred to the delivery item itself; i.e. consequential damage caused by a defect.
8.9 We shall only be liable for defects in third-party products to the extent that the manufacturer/supplier has given us a warranty in terms of time and subject matter.
8.10 In the case of defective assembly instructions, the warranty shall be limited to the delivery of assembly instructions free of defects, insofar as proper assembly has not taken place.
8.11 If the purchaser makes an unjustified warranty claim against us without a warranty claim, he shall reimburse us for all costs incurred in connection with the inspection of the goods, provided that he is responsible for our claim being reckless, grossly negligent or intentional.
8.12 The warranty period shall be 1 year from delivery of the goods. Claims for damages by the purchaser shall become statute-barred 1 year after delivery of the goods. This shall not apply if we can be accused of fraudulent intent. In the case of used objects of purchase, any liability for material defects shall be excluded; this shall not apply if we can be accused of fraudulent intent or in the event of a breach of warranty.
9.1 The Purchaser shall not receive any guarantees in the legal sense from us.
9.2 Insofar as the manufacturer provides a guarantee for the quality of the goods or that the goods will retain a certain quality for a certain period of time, the Purchaser shall be entitled to the rights arising from the guarantee exclusively against the manufacturer under the conditions stated in the guarantee declaration and the relevant advertising, without prejudice to statutory claims.
10. Liability and Limitation of Liability
10.1 In case of slightly negligent breaches of duty, our liability shall be excluded, unless such breaches are attributable to us and result from injury to life, body, health or a material contractual duty (cardinal duty).
10.2 Insofar as we are liable for breaches of duty on the merits, our liability shall be limited – except in the case of intent – to the direct average damage that is foreseeable and typical for the type of goods. In the event of slight negligence, liability shall be limited to the amount of the purchase price.
10.3 If or insofar as our liability is excluded or limited in accordance with the above clauses 1 or 2, liability on the part of our legal representatives and vicarious agents shall also be excluded.
10.4 The foregoing limitations of liability shall not affect any claims of the Purchaser based on product liability.
11. Cancellation costs
If the customer cancels an order without justification, we shall be entitled to claim 10% of the sales price for the costs incurred in processing the order and for loss of profit, without prejudice to the possibility of claiming higher actual damages. The customer reserves the right to prove a lower damage.
12. Final Provisions, Place of Performance and Jurisdiction
12.1 The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
12.2 Nuremberg is agreed as the place of performance for the services to be rendered by the contracting parties and as the place of jurisdiction for all disputes between the parties, insofar as agreements on this are legally permissible. The same shall apply if the Purchaser has no general place of jurisdiction in Germany.
12.3 Should individual provisions of the contract with the Purchaser, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
12.4 In accordance with the Federal Data Protection Act, we would like to point out that we store and process data of the customer disclosed to us in connection with the business relationship.