(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.
8. Retention of title
(1) The Contractor shall retain title in the goods delivered by him until receipt of all payments from the business relationship with the Customer. In the case of behavior contrary to the contract by the Customer, in particular with payment default despite a deadline, the Contractor is entitled to take back the goods subject to retention of title. The seizure of the goods by the Contractor shall always constitute a withdrawal from the contract. The Contractor is entitled to dispose of those goods after taking them back, the proceeds have to be applied towards the Customer’s accounts payable – after deduction of reasonable processing costs. The Customer is obliged to return the goods subject to retention of title.
(2) The customer is obliged to treat the goods subject to retention of title with care; it is especially obligated to insure them at his own expense against fire, water and theft at replacement value.
In case of third parties seizures or other interventions, the customer must notify the Contractor in writing immediately. If the third party is not able, to reimburse the Contractor for the judicial and extrajudicial costs of action under § 771 ZPO (German Civil Procedure Act), the Customer will be liable for the loss incurred by the Contractor.
(3) The Customer is entitled to sell the goods subject to retention of title in the ordinary course of business; it already now assigns to the Contractor all claims in the amount of the final invoice (incl. sales tax) that accrue to it against its customers or third parties, regardless of whether the goods subject to retention of title have been resold without or after processing. The Customer remains entitled to collect these receivables even after assignment. The competence of the Contractor to collect the claims itself remains unaffected. The Contractor undertakes not to collect the claims as long as the customer fulfills its payment obligations from the proceeds, does not fall into arrears and in particular no application to open insolvency proceedings has been made. If this is the case, the Contractor may demand that the Customer discloses the assigned claims and their debtors, makes available all information required for collection, hand sover the relevant documents and informs the debtor (third party) of the assignment.
If the goods subject to retention of title are resold together with other objects, without having a separate price agreement, the Customer assigns to the Contractor with priority over the other claims that part of the total price claim which is corresponding to the price of the goods subject to retention of title invoiced by Contractor.
(4) The processing of the goods subject to retention of title by the Customer is always done for the Contractor. If the goods are processed with other items not belonging to the Contractor, the Contractor shall acquire joint ownership of the new item in proportion of the value of the goods to the other processed items at the time of processing. For the item created by processing the same conditions as for the goods delivered under retention of title apply.
If the goods subject to retention of title are inseparably mixed with other objects not belonging to the Contractor, the Contractor acquires joint ownership of the new item in proportion of the value of the goods to the other mixed items at the time of mixing. If the mixing is such that the good of the Customer is regarded as the main thing, it is agreed that the Customer transfers proportional joint ownership to the Contractor. The Customer shall keep the sole or co-ownership for the Contractor.
(5) The recovery provisions of the insolvency law remain unaffected.
The Customer also assigns those claims – to secure the claims against it – to the Contractor that arise through the connection of the goods with real estate or a ship against a third party. The Contractor agrees to release the securities he is entitled to at the demand of the Customer insofar as the value of the collateral exceeds the secured claims by more than 20%; the choice of securities to be released is with the Contractor.
9. Warranty / Liability / Damages
(1) In case of defects of the deliveries shall:
The warranty rights (warranty claims) of the commercial Customer require that it immediately investigates the goods upon receipt or at the time of acceptance of the deliveries and in case of any visible defects complains immediately after the examination or in case of hidden defects immediately after their discovery to the Contractor, specifically stating the defect in writing (§ 377 HGB – German Commercial Code). This also applies to work and service contracts.
Warranty claims do not exist if only insignificant deviations from the nature of the agreed delivery or if there is only an insignificant impairment of usability. For performance measurements, the DIN 8976 is the basis. Performance measurements will only be recognized by the Contractor, if the performance tests will be attended by a representative appointed specifically for this purpose, whereupon the Contractor reserves the right to examine the system and related processes.
All parts or services which have a defect within the defect limitation period are to be repaired, replaced or provided again without charge by the Contractor at its option, provided that the cause was already present at the time of transfer of risk.
(2) The guarantee does not extend to the quality and suitability of the provided goods and materials and to the performance of the staff of the Customer or a contracted third party. Furthermore, the warranty does not cover defects which are due to the intervention of the Customer or by third parties. The Contractor shall only be responsible for defective work provided by the staff of the Customer if it can be attributed to an erroneous statement by it or grossly negligent breach of its duty of supervision.
(3) There is no warranty for damages, which are caused by the following:
Unsuitable or improper use, faulty installation or commissioning by the Customer or third parties, natural degenaration, incorrect or negligent treatment, unsuitable equipment, replacement materials, defective construction work, unsuitable ground, chemical, electronic, electrical or environmental influences, unless the damage is attributable to the fault of the Contractor.
The warranty and liability of the Contractor is canceled in case of improper alterations or repair works as well as in case of a violation of seals by the Customer or third parties.
(4) If the Customer unduly complains about the existence of a defect not attributable to the Contractor, the Contractor is entitled to charge the Customer the incurred reasonable expenses for the repair or finding.
Claims by the Customer regarding expenses necessary for the purpose of supplementary performance, in particular transport, labor and material costs are excluded, if the expenses are increased by subsequent shipment of the goods delivered to a location other than the original delivery location. The Contractor is entitled to debit the amount of such additional costs to the Customer.
(5) Claims of the Customer for defects expire 12 months from delivery, completion of the service or acceptance. However, if statutory limitations for warranty claims are by law determined for more than 24 months, they shall apply, for example, for goods that are commonly used for construction works and whose nature has caused defects (§ 438 para. 1 no. 2 b BGB), for the recourse claim of the Customer (§ 479 para. 1 BGB) and for buildings and defects (§ § 634a, 438 para. 1 no. 2 BGB) as well as in the case of intentional or grossly negligent defect causation and fraudulent concealment of a defect. These limitation periods also fall for consequential damages under § 437 no. 3 or § 634 Nr. 4 BGB (damages for defects). In case of a supplementary performance the limitation period is suspended until this performance and does not re-start to run.
Before the Customer can make further claims or rights (withdrawal, reduction, compensation, reimbursement of expenses) it first has to give the opportunity for supplementary performance within a reasonable period of time to the Contractor provided that there was no differing guarantee. Only in urgent cases of operational safety and to prevent excessive damage, the Customer has to right to eliminate the defect itself or through third parties and to demand for reimbursement of necessary costs, provided the Contractor has been informed immediately. If subsequent performance fails despite at least twice attempts, becomes impossible, is denied by the Contractor or is unreasonable for the Contractor, the Customer can withdraw from the contract or reduce the remuneration (decrease). The assertion of further claims and rights against the Contractor or its agents due to a defect is excluded.
For defects of title the following additional regulations apply:
(6) Unless otherwise agreed, the Contractor is only obliged to provide the delivery in the country of the place of delivery free of third party rights.
(7) In the case of an infringement of a third party intellectual property right caused by Contractor it may, at its option, either obtain and grant at its own cost a sufficient usage right for the agreed or expected use or modify the delivered goods so that the property right is not infringed or replace the delivery object, insofar as the agreed or expected use of the delivered item is not impaired for the Consumer. If this is not possible or reasonable for the Contractor, the Customer is entitled to legal claims and rights. The fulfillment of this obligation by the Contractor assumes that the Customer immediately informs the Contractor about claims of property rights charged against him by third parties, and acts in the treatment of these claims and the pursuit of his rights in agreement with the Contractor; if one of these conditions is not met, the Contractor is released from its obligation.
The Contractor is not liable for the infringement of third party rights for a delivery item, which is made according to drawings, developments and other information from the customer. In this case the Customer has to indemnify the Contractor from third-party claims. If the Customer changes the delivery item, the installation of additional equipment or the connection of the delivery item with other equipment or devices and infringes thereby property rights of third parties liability of the contractor is excluded.
(8) Used items are delivered by Contractor under exclusion of any warranty.
(9) The assertion of loss caused by defect due to defects of services owed to the Customer is excluded, unless the Contractor has caused the defects intentionally, by gross negligence or negligent breach of a considerable duty. The assertion of consequential damages, especially lost profits, due to such defects is excluded if the contractor has caused the defect only by slight negligence or without fault. This is particularly true if the contractor can not perform subsequent performance for reasons he is not responsible for. This limitation also applies to compensation claims of the Customer because of defects.
Claims for compensation of damage and expenses (hereinafter « damages ») by the Customer are excluded for whatever legal reasons, especially due to the breach of duties from the obligation and from unlawful acts.
(10) The above limitations will not apply to claims under §§ 1 and 4 Product Liability Act, in cases of intent or gross negligence, for injury to life, body or health, the assumption of a guarantee for a specific quality (quality guarantee) or negligent material breach of the obligations of the Contractor. The liability of the Contractor for negligence is limited to the typical, foreseeable damage if there is a loss of life, a damage for body or health or a guarantee for the existence of a quality or it is otherwise agreed.
A change in the legal burden of proof is not connected with the above provision.
(11) Where the liability of the Contractor is excluded or limited, this also applies to the personal liability of its officers, employees, workers, representatives and agents.
(12) The limitation of claims between Contractor and Customer is governed by the aforementioned conditions, unless claims for tort liability of producers (§§ 823 ff BGB) and the Product Liability Act are affected.
(13) The Consumer must ensure by appropriate and reasonable security measures, especially by monitoring, that any damage caused through the delivery of the Contractor is kept as low as possible.
10. Confidentiality / Privacy
(1) Both parties have to keep all documents and information they get at and in fulfillment of a contract, confidential as long as they are not in the public domain. These obligations remain effective even after termination of a contract and are to be imposed on third parties in the case of approved disclosure of documents and information to them.
(2) The Customer takes note that the Contractor stores data from the contractual relationship in accordance with § 28 Federal Data Protection Act for the purpose of data processing and reserves the right to forward the data that are necessary for the completion of the contract to third parties (for example insurances).
11. Jurisdiction / Applicable Law
(1) For all disputes arising from the contractual relationship, the action must be brought before the court, which is responsible for the central office or the executive branch of the Contractor. The Contractor is also entitled to sue at the headquarters of the Customer.
(2) The legal relationships between the Contractor and the Customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) does not apply.
12. Partial Invalidity / Gaps
The invalidity of any particular provision of a contract or of deliveries and services , which include these General Terms and Conditions, shall not affect the validity of the remaining provisions of the contract. If the contract or these General Terms and Conditions contain gaps, the parties agree to those legally valid provisions, that the parties would have agreed to according to the commercial aims of the contract and the purpose of these General Terms and Conditions, if they had known about the omission .