(1) All deliveries, services and offers of the Contractor are subject to these General Terms and Conditions. These are part of all contracts concluded by the Contractor with its business partners (hereinafter referred to as « Customer ») on the goods or services offered by it. They also apply to all future deliveries, services or offers to the Customer, even if they are not agreed upon separately again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Contractor does not separately contradict their application in individual cases. Even if the Contractor receives a letter containing the terms and conditions of the Customer or a third party or refers to such, it shall not constitute an agreement with those terms. The General Terms and Conditions of the Contractor shall also apply, when the Contractor has knowledge of deviating or conflicting Terms and Conditions of the Customer and nevertheless proceeds with the sale or delivery to the Customer without reservation.
(3) All agreements made between the Contractor and the Customer regarding the execution have to be laid down in writing in this contract. Changes, amendments or extensions to the scope of this contract must be in writing.
(4) Deliveries or supplies under these General Terms and Conditions are sales of automatic doors, services are especially project management, planning, installation, assembly services, maintenance, repairs, modifications, revisions, inspections and the creation of software or consulting services.
2. Offers, Conclusion of contract, Documents
(1) First offers are submitted usually free of charge. Further offers and design work will only be carried out free of charge if the contract legally becomes and stays effective. All offers by the Contractor are non-binding, unless they are explicitly marked as binding or contain a specific acceptance period.
(2) Contracts with the Contractor will only be binding, when the Contractor either approved received orders in writing or delivered the ordered goods respectively provided the ordered services. This applies to applications of the Customer, which are directed to additions, changes or extensions to the scope of contracts accordingly. Orders may be accepted by the Contractor within fourteen days after receipt.
(3) The legal relationship between Contractor and Customer is solely governed by the written purchase agreement, including these General Terms and Conditions. This contract contains all agreements between the parties regarding the subject-matters of the contract. Verbal commitments of the Contractor prior to the conclusion of this contract are not legally binding and oral agreements of the Parties are replaced by the written contract, unless it is specified explicitly in the particular case that they shall remain in force. With the exception of managing directors and proxy holders other employees of the Contractor are not entitled to close deviating verbal agreements. The written form is respected by telecommunicative transmission, in particular by fax or e-mail, provided that the copy of the signed statement will be forwarded.
(4) Information by the Contractor to the subject matter of the delivery or service (eg weight, dimensions, utility values, load, tolerances and technical data) as well as representations of the same (eg drawings and illustrations) are only approximate, unless the usability for the contractually agreed purpose requires exact conformity. They are no guaranteed characteristics of state but descriptions or identifications of the delivery or service. Customary deviations and deviations stipulated due to legal requirements or technical improvements, design changes and the replacement of components with equivalent parts are permitted provided they do not impair the usability for the contractually intended purpose. The indication of measured values (for example, performance, power requirements, ranges, accuracies etc.) do not include effects of possible interferences or other disturbances from the environment, and are only binding if they are expressly part of the contract.
(5) The Contractor reserves property rights, copyrights and other rights regarding all mentioned documents, cost estimates and drawings, diagrams, calculations, brochures, catalogs, models, tools and other documents and utilities. Without written authorization the documents mentioned above may not be used in any way to contract unrelated purposes, in particular not be disclosed to third parties. On request, the documents are to be returned to the Contractor immediately and any copies made have to be destroyed, if they are no longer needed for the proper course of business or if negotiations do not lead to the conclusion of a contract.
(6) An estimate for goods and services will be provided on the Customer’s request by the Contractor. Cost estimates are not binding. If within a reasonable time an order for delivery is not obtained, an optionally investigated object need not be returned to its original state when it is not technically or economically feasible.
3. Prices and Payment
(1) Stated prices are for the performance and scope of supply listed in the order confirmations. Additional or special services are charged separately. The prices are in EURO ex works plus packaging and other ancillary costs, VAT in the current rate, for export deliveries customs and fees and other public charges.
(2) As far as agreed prices are based on list prices of the Contractor and the delivery of goods / services will take place more than four months after contract conclusion then the list prices of the Contractor at the date of delivery / service are applicable (less an agreed percentage or fixed discount). The pricing for services is based on the time and effort, unless it is agreed to provide services at flat rates or by measurement. The valid charging rates of the Contractor plus any accrued incidental costs will be effective.
(3) Unless otherwise agreed, the payment without any deduction free paying office of the Contractor has to be effected within 30 days for a delivery of up to € 5,000.00. With a delivery of more than € 5,000.00 a deposit of 1/3 is due upon receipt of the order confirmation, another 1/3 upon notification of readiness for dispatch of the main parts to the Customer and the remaining balance of 1/3 is payable net within 30 days from date of invoice. With respect to the date of payment the receipt by the Contractor is decisive.
(4) If the Custumer wholly or partly is in default, the Contractor is entitled to charge with the 2nd reminder an administrational fee of € 40.00 per reminder. Furthermore the Contractor is authorized from the date of default to interest at the rate of 9 percentage points annually above the current base rate of the European Central Bank. Further claims remain reserved to the Contractor.
(5) Payments by the Customer to the Contractor’s staff have no debt-discharging effect to the Contractor. Exceptional cases require a special written agreement. Bills of exchange/drafts will be accepted by Contractor – if at all – only after prior written agreement and only under reserve of its discountability and on account of performance. All discount charges and other incidental costs are to be charged to the Customer and are to be paid to the Contractor immediately. A credit of drafts and check amounts only takes place when its equivalent value is unconditionally available to the Contractor.
(6) The Contractor shall be entitled to effect any outstanding deliveries or services only against advance payment or security if circumstances become known to him after conclusion of the contract, which are suitable to reduce the creditworthiness of the Customer considerably and by which the payment of outstanding receivables from the relevant contractual relationship (including other individual orders, to which the same framework agreement applies) is in decline, particularly but not exclusively in suspension of payments, in indebtedness or in filing for bancruptcy proceedings or if the Customer is in default with multiple payment obligations. The withholding of payments is not permitted.
4. Assignment / Retention / Offset
( 1 ) The Customer is not entitled to transfer claims against the Contractor to third parties, with the exception of monetary claims, without the written consent by the Contractor.
( 2 ) The Customer can effecuate offsetting rights only with counterclaims in favour of which legal judgment has been passed, which are undisputed or are recognized by the Contractor. The Customer is only entitled to exercise a right of retention or a right to refuse performance if the same conditions are met with counterclaims or in the case of defects of the goods delivered those defects are stated, recognized by the contractor or made at least credible by the Customer (eg through written confirmation of an independent, competent person ) and its counterclaim also bases on the same contractual relationship. The Contractor is entitled to offset and retention rights to the statutory extent .
5. Delivery time / Deadlines / Appointed times
(1) Delivery deadlines of the Contractor are not binding, unless they have been explicitly confirmed by the contractor as binding. Unless otherwise agreed, the delivery period begins with the dispatch of the order confirmation but not prior to the presentation of documents, permits, approvals, clarifications to be provided by Customer, timely fulfillment of its duty to cooperate and receipt of an agreed deposit.
(2) The delivery deadline is met when until their expiry the delivery item has left the factory of the Contractor or has been executed or the readiness for shipment has been communicated to the Customer. The deadline is also considered respected if minor rework is still required as long as the operational readiness is not affected.
(3) The delivery period is extended by the duration of an obstruction plus a reasonable start-up time in the case of force majeure or other circumstances the Contractor is not accountable for or which are unforeseeable, such as labor disputes, natural disasters, commodity procurement difficulties, difficulties in obtaining necessary regulatory approvals , official measures, untimely delivery by subcontractors. This also applies to deliveries whose circumference is higher than initially assumed. These circumstances are also not attributable to the Contractor, if they occur during an already existing delay. If the impediment lasts longer than 6 months, the Contractor and the Customer are entitled to withdraw from the contract after a further reasonable extension. In this case, the Contractor may demand from Customer reimbursement of incurred expenses for the establishment of the work. Claims for damages are excluded in this case. The Contractor has the right for an appropriate extension of the delivery period, if it executes modifications, additions or expansions to the scope at the Customer’s request.
If delivery is delayed by circumstances, particularly by delayed provision that the contractor is not responsible for (creditor delay), so the Customer has to bear the additional costs. If in case of default a reasonable time limit is set by Customer and the Contractor does not adhere to this term, the Customer is entitled to withdraw from the contract; in this case claims for damages for non-performance can only be made by the Customer, if the delay is based on intent or gross negligence or a negligent substantial breach of a duty of the Contractor. These limitations of liability do not apply if a commercial firm deal has been agreed; the same shall apply if the customer can assert that his interest in fulfilling the contract has been dropped due to the Contractor’s self-inflicted delay. In these cases, the liability is limited insofar as the Contractor can not be accused of malice to the typical and unforeseen damage.
(4) If the Contractor is in default, the Customer may – if it can demonstrate that damage has occurred to him – ask for a maximum compensation for each full week of delay of 0.5%, in total a maximum of 5%, of the price of the portion of the good/service, which could not be put into operation due to the delay, unless the Contractor has caused the delay intentionally or through gross negligence.
(5) If the shipment is delayed at the request of the Customer, he will be charged for costs incurred for storage one month after notification of readiness for shipment, in the case of storage at the plant of the Contractor 0.5% of the invoice / month. The enforcement and the prove of additional or lower storage costs is reserved.
6. Receipt / Acceptance
(1) When due the Customer has to immediately accept the delivery / performance of the Contractor upon its request. This acceptance obligation is a main duty for the Customer. The Customer may not refuse acceptance of deliveries due to minor defects.
If the Customer’s acceptance of delivery is delayed, the Contractor is entitled after a reasonable period to refuse to fulfill the contract and to claim damages for non-performance. The Contractor shall be entitled to either the actual damage or – without proof of damage – to calculate an amount of 1.5%, but a maximum of 10%, of the agreed price per full week of delay.
(2) Acceptance only occurs if agreed in writing or provided by law. If acceptance is provided, the Contractor must notify the Customer in writing about its readiness for acceptance. Acceptance must then be carried out within a period of 14 days. It may not be refused due to defects which do not or only insignificantly impair the functionality of the delivered goods. If the acceptance, for reasons for which the Contractor is not responsible, is not carried out within a period of 14 days from notification of readiness, the acceptance is effective with the expiration of the deadline.
The acceptance of delivery shall also be effective when the Customer has taken the delivery item into operation.
If an acceptance inspection of the delivery item is provided , it shall be made in the production facilities of the Contractor , unless otherwise regulated in the contractual relationship. The acceptance is made if the Customer does not raise legitimate and essential objections until the closure of the inspection.
Should the customer waive its right for an agreed acceptance or he is despite timely notification not present during the acceptance for reasons for which he is responsible , the inspection by the Contractor is regarded as acceptance.
The cost of acceptance is borne by the Customer.
7. Transfer of risk and acceptance
(1) transfer of risk in respect of deliveries
In principle, unless otherwise agreed in writing, « ex works » applies (INCOTERMS 2010), even if partial deliveries are made or if the Contractor accepts other services, for example, the take-over of shipping costs or transport, assembly and installation. The Contractor is entitled to make partial deliveries if this does not preclude a recognizable legitimate interest of the Customer.
At the express request of the Customer, the Contractor will insure the shipment against theft, breakage, transport, fire and water damage and other insurable risks at the expense of the Customer.
If the Contractor keeps objects in custody for the Customer, the custody is carried out at the Customer’s own cost and risk. Unless otherwise agreed, the customer is obliged to pay the Contractor for such storage the ordinary fee of a commercial warehouse keeper.
If acceptance is agreed upon, so this does not apply as the date of transfer of risk, unless the contract is a contract for work and services.
(2) transfer of risk in respect of supplies and deliveries on site.
The risk of damage or loss of the delivery item as well as the deterioration of the work is transferred to the Customer at the date of receipt in its own operations; if a trial run has been agreed, after a fault-free trial run.
Customer-supplied goods and materials will be taken into Contractor’s custody in accordance with the agreements reached so far. The risk of accidental loss and accidental deterioration of these objects and materials remains with the Customer. For damages, which are caused by the Contractor, it is referred to the chapter warranty.
If the Customer does not accept the offer of a trial run or the takeover in its own company, so after expiration of 14 days the risk for the period of delay is transferred to the Customer.
If due to circumstances for which the Contractor is not responsible the start of work is delayed by more than 14 days, the risk for the already provided service is transferred to the Customer for the duration of the delay, the interruption or discontinuance.
(3) transfer of risk in respect of supplies at the factory.
If the delivery provision is performed by the Contractor or his assistants, the Customer has to sent the delivery item to the Contractor in time and at his own cost and risk.
In case the objects of the Customer have been received by the Contractor, those will be returned to the Customer at its own cost and risk after completion of the delivery.
(4) If the delivery is delayed due to a reason attributable to the Customer or if the dispatch is done at the customer’s request at a later than the agreed completion date, then the risk is transferred to the customer on the day of notification of readiness for dispatch. The same applies to delays or disabilities in the event of force majeure or other circumstances which are not in the responsibility of the Contractor or which are unforeseeable.
If instead of sending collection has been agreed upon, the items must be collected within 14 days after notification of the Customer by it. If not, they are sent back to the Customer at its own expense and risk without notice.