1 General information
1.1 Our offers, deliveries and services shall be exclusively based on these general business terms.
1.2 Other conditions or counter-confirmations of the client, which supplement or deviate from our general terms and conditions shall only become valid with our express approval. Our lack of response regarding other conditions shall not constitute acknowledgement or approval. Such deviating conditions or counter-confirmations of the client are hereby exclusively excluded.
1.3 Electronically processed and printed correspondence (e.g. order confirmations, invoices, credit statements, payment reminders) is legally binding even when it has not been signed.
1.4 Legally relevant declarations and notifications, which are to be submitted to us by the client after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid. An email does not satisfy this requirement.
2 Conclusion of contract
2.1 Our offers are non-binding and subject to change. We reserve the right to make technical changes after proposal preparation, particularly in case of single-piece production. However, we are not obliged to make such changes to products that have been delivered already. Pictures, drawings, dimensions and weights or other performance data are binding only if this has been explicitly agreed in writing.
2.2 We hereby reserve the ownership, copyright and proprietary rights for all pictures, calculations, drawings and plans, drafts, software descriptions or other documents. The client may copy or use these or pass these on to third parties only with our prior written consent.
3.1 Our prices shall apply net ex works and shall not include packaging, shipping and value added tax. They shall not include the costs for building, assembly, installation and briefing unless this has been explicitly agreed. Any duties, charges, taxes and other public levies shall be borne by the client.
Partial deliveries shall be invoiced separately insofar as nothing different has been explicitly agreed.
3.2 All prices are valid only for an undivided order of the offered services and for uninterrupted assembly followed by commissioning.
4 Payment terms
4.1 Unless different payment terms are agreed upon at the time of contract conclusion, payments shall be made as follows:
30% when placing the order,
60% when the goods are ready for dispatch,
5% at the time of commissioning, however no later than 6 weeks after delivery and
5% at the time of acceptance, however no later than 2 weeks after commissioning.
4.2 In the event of default in payment, we shall charge interest in arrears equivalent to the statutory amount. Assertion of further damage shall not be excluded.
4.3 The client reserves the right of set off and/or right of retention only if its counter-claims are legally binding or ascertained as indisputable.
5 Retention of title
5.1 Our deliveries and services shall be made exclusively subject to the retention of title. The title passes to the client only if he has fully paid all liabilities including all balance demands from our goods deliveries.
5.2 In the event that the client defaults payment and if statutory requirements are met, we shall be entitled to withdraw from the contract, demand surrender of delivered objects and repossess the objects directly or through authorised persons, no matter where the objects are located. In such situations, the client shall be obliged to surrender the delivered goods to us.
6 Deadline/delay/force majeure
6.1 The stated delivery times are not binding. Delivery dates shall not start before complete clarification of the technical and commercial details necessary for the execution of the order and timely provision of advance payments by the client. We shall be in delay with our performance only if payment is due and a written reminder has been sent. The delivery date shall be the day of shipping ex works.
6.2 Delivery and performance delays due to force majeure and/or events that not only temporarily make deliveries much more difficult or impossible – this particularly includes strikes, breakdowns, delays in the delivery of essential raw materials and auxiliary materials, even if they occur at our vendors’ – shall not be our responsibility even if binding dates and deadlines have been agreed on. These circumstances shall entitle us to postpone the delivery by the duration of the hindrance plus an appropriate preparatory period or to withdraw partially or completely from the contract.
If the delivery period is extended or if we are released from our delivery obligation, the client cannot derive any claims for damages from this. We can plead the aforementioned circumstances only if we promptly inform the client about them.
7 Shipping/passing of risk
7.1 The client shall bear the costs of shipping.
7.2 Shipping method and route, transport and packaging or any other securities shall be left to our choice. We shall be entitled but not obliged to insure deliveries on the client’s behalf and for the client’s account.
7.3 The risk of accidental loss or accidental impairment of the delivered goods shall be passed on to the client once they are handed over to the forwarding agent or to the third party commissioned to execute the shipment. This shall also apply in case of partial deliveries or if the service scope includes other services in (e.g., on-site assembly).
If the shipping or handover is delayed due to circumstances for which the client is responsible, the risk shall pass to the client with an intimation regarding the readiness of dispatch.
If the client does not accept the ordered goods after an intimation regarding the readiness of dispatch, we shall be entitled to store the goods at the expense of the client.
7.4 Unloading of the goods shall take place at the expense of the client.
7.5 The security obligation shall be the responsibility of the client after delivery/assembly.
8 Claims for defects
8.1 The claims of the client based on defects shall require that the client has properly fulfilled its legal inspection and complaint obligations (§§ 377, 381 of the German Commercial Code (HGB)). In the event that a defect is detected during the inspection or at a later date, we must be notified without delay. The notification is considered to be immediate if it takes place within two weeks, whereby compliance with this deadline is met if notification is sent in good time. Irrespective of this inspection and complaint obligation, the client must notify in writing about obvious defects (including wrong and short deliveries) within two weeks from delivery, whereby in this case too, compliance with this deadline is met if notification is sent in good time. If the client fails to carry out the proper inspection and/or report the defects within the stipulated period, we shall not be liable for the defects that have not been brought to our notice or brought to our notice too late.
8.2 We shall bear the expenses incurred for the validation and fulfilment of justified claims for defects, particularly transport, road, labour and material costs (not assembly and disassembly costs), if a defect actually exists. However, if a client’s demand for the repair of a defect turns out to be unjustified, we can demand refund of the incurred costs from the client.
8.3 Normal wear and tear shall not be considered as defect.
8.4 If aggressive media (water, air, etc.) are to be used for operating the provided plant and damages are caused as a result, we shall not be liable for these if the client failed to inform us about this situation in writing when placing the order at the latest.
8.5 If, at the request of the client, already installed water distribution plants are put into operation prematurely, the client shall take appropriate protective measures in case of a risk of sudden frost. We shall not be liable for damage to the plant that has been prematurely put into operation, if the damage was caused because the client did not take protective measures or took inadequate protective measures.
8.6 After acceptance if the client gets work done on the plant by a third party, we shall not be liable for any resulting damage or consequential damage.
8.7 In the event of damage that is caused by the client or the third party due to incorrect or defective installation, commissioning, handling, operation, maintenance or due to the use of materials that were not stipulated, the claims for defects made by the client against us shall not be justified. This shall also apply to damage caused by overload and corrosion.
9 Claims for damages
9.1 We shall be liable for damages – no matter for what legal grounds – in case of wilful intent and gross negligence.
In case of minor negligence, we shall be liable only for
a) damage resulting from the destruction of life, personal injury or health damage,
b) damage caused by the breach of an essential contractual obligation (obligation whose fulfilment actually enables the proper implementation of the contract and in whose compliance the contractual partner trusts and may trust on a regular basis); in this instance, however, our liability is limited to the reimbursement of foreseeable, typically appearing damages. Claims cannot be made for loss of profits, expenditure saved, from claims for damages of third parties, or for any other direct or consequential damage.
9.2 The limitations of liability stated in clause 9.1 shall not apply if we fraudulently conceal a defect or have given a quality guarantee for the delivery item. The same shall apply to claims of the client in accordance with the product liability law.
9.3 The client can withdraw from or terminate the contract because of the violation of an obligation not constituted by a defect only if we are responsible for the violation of the obligation. A free right of termination for the client (particularly in accordance with §§ 651 and 649 of the German Civil Code (BGB )) is excluded. Otherwise the legal preconditions and legal consequences shall apply.
10 Period of limitation
10.1 The period of limitation for claims arising from material defects and defects of title shall be one year from delivery. If an acceptance procedure has been agreed upon, the period of limitation shall start with the acceptance.
10.2 However, if the delivery item is a building or an object, which was used for a building in accordance with its usual manner of application and which caused the building’s defects, the period of limitation shall be 5 years as stipulated by clause 10.1. The special statutory provisions for material claims for restitution of property by third parties, fraudulent intent and claims of recourse against the vendors at the time of the final delivery to the consumer shall remain unaffected.
10.3 The above periods of limitation shall also apply to contractual and non-contractual claims for damages made by the client based on a defect in the delivery item, unless application of the normal statutory limitation period (§§ 195, 199 of the BGB) would, in the individual case, lead to a shorter period of limitation. The periods of limitation under the product liability law shall remain unaffected. The statutory limitation periods shall exclusively apply to the claims for damages of the client.
11 Place of performance/place of jurisdiction/choice of law
11.1 Unless otherwise agreed, our headquarters in Dresden shall be the place of performance.
11.2 Dresden shall be the place of jurisdiction for all disputes arising as a result of contractual relations between us and the client. We shall also be entitled to take the client to court at the client’s general place of jurisdiction.
11.3 The German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply to these general business terms and the business relation between us and the client. This shall also apply if the client is not domiciled in the Federal Republic of Germany.
12 Partial invalidity
If a provision in these general business terms or a provision from other agreements between us and the client is or becomes invalid, this shall not affect the effectiveness of all other provisions.
As of 06/2013