TERMS AND CONDITIONS

§1 Scope

  • 1. For all business transactions between us and the buyer, customer or orderer – hereinafter referred to as the orderer – these GTC apply exclusively in addition to the other contractual agreements. We do not recognize the general terms and conditions of the customer – even in the case of unconditional provision of services or acceptance of payment - unless we expressly agree to their validity in writing.

  • 2. The general terms and conditions of the customer also include quality assurance agreements, framework supply contracts, supply contracts, consignment storage contracts and non-disclosure agreements of the customer, in addition to his general terms and conditions of purchase, if and to the extent that the regulations therein have not been negotiated with us.

  • 3. These General Terms and Conditions only apply to business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code.

  • 4. These terms and conditions also apply to all future business relationships without renewed inclusion until we issue new terms and conditions.

  • 5. All agreements made between us and the customer within the framework of contract negotiations must be recorded in writing for reasons of proof and must be confirmed by both parties.

  • 6. Subsidiary agreements, subsequent changes to the contract and the assumption of a guarantee, in particular the assurance of properties, or the assumption of a procurement risk must be in writing if they were made by persons who are not authorized to represent.

  • 7. Our silence does not imply consent.

§2 Advice

  • 1. Our advice, as product and service-related advice, extends exclusively to the products delivered and services provided by us. It does not extend to non-contractual advice, i. e. such statements that are given without products being sold or services being provided by us.

  • 2. Our consulting services are based on empirical values. If our advice extends to circumstances over which we have no influence, our advice is non-binding. Failure to make statements does not constitute advice.

§3 Conclusion of contract

  • 1. Our offers are non-binding, they are considered an invitation to submit an offer.

  • 2. The first processing of an offer is usually free of charge. Further offers and design work are only free of charge insofar as the delivery contract becomes and remains valid.

  • 3. Descriptions and photographs of our goods and products in technical documents, catalogues, brochures, circulars, advertisements and price lists are non-binding unless their inclusion in the contract has been expressly agreed; they do not release the customer from his own inspections. Product and service descriptions on the Internet can of course only be of a general nature; if the customer wants to derive binding quality agreements from this or the suitability for use for the application he intends to use, he must refer to this in the order.

  • 4. In principle, the order placed by the customer represents the offer to conclude a contract.

  • 5. All information on the execution of the order must be given in the order. This applies to all deliveries, services, works and other services provided by us. This includes in particular, but not only, information on the item description, number of pieces, dimensions, material, material composition, pre-treatment, processing specifications, treatment instructions, storage, standards and all other technical parameters and physical characteristics. Missing, incorrect or incomplete information is not expressly agreed and does not establish any obligations on our part, neither in terms of performance and warranty claims nor in terms of claims for damages.

  • 6. If the order placed by the customer deviates from our offer, the customer must indicate the deviations separately.

  • 7. We are entitled to obtain further information that serves the proper execution of the order.

  • 8. Orders should be placed in writing; Orders transmitted verbally or by telephone are carried out at the risk of the customer.

  • 9. If the customer withdraws an order accepted by us, we are entitled, without prejudice to the possibility of claiming higher actual damage, to charge 10% of the delivery or service price for the costs incurred by processing the order and for the loss of profit. The customer retains the right to provide evidence of minor damage.

  • 10. We shall accept the order within 4 weeks unless a different acceptance period has been agreed.

  • 11. Our services result from the order confirmation.

  • 12. We reserve the right to carry out or have carried out processing of the delivery or service items at another company without additional costs for the customer.

§4 Retrievals

  • 1. In the case of delivery contracts on call, unless otherwise agreed, we must be informed of binding quantities by call at least 3 months before the delivery date. In individual cases it may be necessary to extend this period, e. g. due to material delivery times.

  • 2. Additional costs caused by the customer due to a late call or subsequent changes to the call in terms of time or quantity shall be borne by the customer; our calculation is decisive.

  • 3. Unless otherwise agreed, all call-off orders are to be accepted within one year of the order being placed without a request for acceptance being required. If this period has expired, we are entitled to invoice the goods and to send them at the expense and risk of the customer or to withdraw from the contract immediately.

§5 Changes

  • 1. A separate contractual agreement is required for changes to the delivery or service item requested after the conclusion of the contract.

  • 2. In the event of missing or incorrect information, we reserve the right to appropriately change the delivery or service item. Disadvantages due to missing or incorrect information, in particular additional costs or damage, are borne by the customer.

  • 3. We reserve the right to make technical changes to the delivery or service item that do not jeopardize the contractual objective.

  • 4. Partial deliveries or services are permitted as long as this only impairs the use to an insignificant extent and does not jeopardize the purpose of the contract. They can be billed separately.

§6 Delivery time, delay in delivery

  • 1. Unless otherwise agreed, we deliver "ex works" according to the EXW clause of INCOTERMS 2010. The notification of readiness for dispatch or collection by us is decisive for compliance with the delivery date or the delivery period.

  • 2. If a delivery or service period has been agreed, this begins when our order confirmation is sent, but not before all details of the order have been completely clarified and all of the customer's obligations to cooperate have been properly fulfilled; the same applies to delivery or service dates.

  • 3. In the event of mutual changes to the subject matter of the order, delivery or service periods and delivery or service dates must be re-agreed. This also applies if the subject of the order was renegotiated after the conclusion of the contract without the subject of the order being changed.

  • 4. Delivery or service deadlines and delivery or service dates are subject to the defect-free and timely delivery as well as unforeseeable production disruptions.

  • 5. The delivery or service time is met if the delivery or service item has left our works or has been handed over to the commissioned transport company in our works or we have notified the completion for collection by the time it expires.

  • 6. We are entitled to provide the agreed delivery or service before the agreed time.

  • 7. If we can foresee that the goods cannot be delivered within the delivery period, we will inform the customer immediately and in writing, informing him of the reasons for this and, if possible, stating the expected delivery time. The customer is only entitled to withdraw from the contract if we are responsible for the non-compliance with the delivery date and he has unsuccessfully set us a reasonable grace period, unless the setting of a grace period is dispensable in accordance with the statutory provisions. §7 Default of Acceptance.

  • 8. If the customer does not accept the goods on the agreed delivery date or expiry of the agreed delivery period due to circumstances for which he is responsible, we can demand compensation for our additional expenses incurred as a result. In particular, we are entitled to charge the customer for storage costs amounting to 0.5%, but no more than a total of 5%, of the price of the delivery or service for each month started. The contracting parties are free to provide evidence of higher or lower storage costs.

  • 9. We are also authorized to determine a suitable storage location at the expense and risk of the customer and to insure the delivery or service items at his expense.

  • 10. If we are entitled to demand compensation instead of performance, we can demand 15% of our price as compensation, without prejudice to the possibility of claiming higher actual damage, unless the customer can prove that damage did not occur at all or was significant is lower than the flat rate.

§7 Force Majeure

  • 1. In cases of force majeure, our delivery and service deadlines are extended by the duration of the disruption that has occurred. This also includes circumstances for which we are not responsible, such as war, fire damage, riots, strikes, lockouts, traffic disruptions, orders from higher authorities, official import or export restrictions, business interruptions, or significant operational disruptions, such as material or energy shortages on our part subcontractors or upstream suppliers. This also applies if we were already in default when these circumstances occurred, unless we caused the default intentionally or through gross negligence.

    We will inform the customer immediately of the beginning and end of such hindrances. If delivery or service is delayed by more than six weeks, both the customer and we are entitled to withdraw from the contract within the scope of the service affected by the disruption. The contracting parties are not entitled to compensation payments in this respect.

§8 Terms of payment

  • 1. Unless otherwise agreed, all prices are net in euros "ex works" plus statutory VAT at the time of invoicing. Ancillary costs such as packaging, freight, shipping costs, customs, assembly, insurance and bank charges will be charged separately. We only insure the goods to be shipped upon request and at the expense of the customer.

  • 2. If, in the case of contracts with a term of more than 12 months or open-ended contracts, there is a significant change in wage, material or energy costs, each contractual partner is entitled to demand negotiations about an appropriate adjustment of the price, taking these factors into account.

  • 3. We are entitled to change the agreed price appropriately if there are changes before or during the execution of the order because the customer requests changes or the information and documents provided by the customer were incorrect, provided these are not obvious errors that we could have clarified with the customer upon receipt.

  • 4. If a binding order quantity has not been agreed, we base our calculation on the non-binding order quantity (target quantity) expected by the customer for a certain period of time. If the customer purchases less than the target quantity, we are entitled to increase the unit price appropriately. If he buys more than the target quantity, we will reduce the unit price appropriately, provided the customer has announced the additional requirement at least 3 months before delivery.

  • 5. Unless otherwise agreed, invoices are due net within 14 days of the invoice date. They are to be paid without deductions. In the event of non-payment, the customer will be in arrears on the due date without any further reminder. Cash discounts and rebates are only granted after separate agreement.

  • 6. Partial payments and settlement by bills of exchange require a separate prior agreement. The purchaser bears discount charges and exchange costs. Invoice settlement by check or bill of exchange is only on account of performance and only counts as payment after an unconditional credit.

  • 7. If we have several outstanding claims against the customer and if the customer does not pay for a specific claim, we are entitled to determine which of the outstanding claims the payment was made for.

  • 8. In the event of late payment, deferral or partial payment, we are entitled to demand standard bank default interest, but at least 9 percentage points p.a. above the respective base interest rate of the ECB, and to withhold further services until all due invoices have been settled. We reserve the right to prove greater damage.

  • 9. By placing the order, the customer confirms his ability to pay or his creditworthiness. If reasonable doubts arise as to the solvency or creditworthiness of the customer, e. g. due to sluggish payment, default of payment or check protest, we are entitled to demand security deposits or cash payment against payment. If the customer does not comply with this request within a reasonable period of time set for him, we can withdraw from the part of the contract that has not yet been fulfilled or stop our deliveries until we have received the payments. The period is not necessary if the customer is clearly unable to provide security.

  • 10. The customer is only entitled to offset against our claims if his counterclaim is undisputed by us or has been legally established or is ready for a decision. This ban on offsetting does not apply to counterclaims from the same contractual relationship. The assignment of claims directed against us requires our consent.

  • 11. A right of retention on the part of the customer only exists if the counterclaim is based on the same contractual relationship and is undisputed or legally established or is ready for a decision or if we have materially violated our obligations from the same contractual relationship despite a written warning and have not offered adequate security.

  • 12. If one of our services is undisputedly defective, the customer is only entitled to withhold payment to the extent that the retained amount is in reasonable proportion to the defects and the probable costs of remedying the defect.

  • 13. The payment dates remain valid even if delays in delivery occur through no fault of our own.

  • 14. Insofar as value added tax is not included in our invoice, in particular because, based on the information provided by the customer, we assume an "intra-community delivery" within the meaning of Section 4 No. 1 b i. V. m. § 6 a UStG and we are subsequently charged with a VAT payment (§ 6 a IV UStG), the customer is obliged to pay the amount with which we are charged to us. This obligation exists regardless of whether we subsequently have to pay value added tax, import sales tax or comparable taxes domestically or abroad.

  • 15. We are entitled to request a reasonable advance payment upon conclusion of the contract. Interest will not be paid for this.

  • 16. Our claims for payment become statute-barred within 5 years unless longer periods are stipulated by law. The start of the limitation period is based on § 199 BGB.

§9 Place of performance, transfer of risk, packaging

  • 1. The place of fulfillment for the commissioned services and payments is our place of business.

  • 2. The customer is obliged to accept the goods as soon as we notify him that the services ordered have been completed. If the customer does not accept the service within two weeks of notification, acceptance is deemed to have taken place.

  • 3. The risk of destruction, loss or damage to the goods is transferred to the customer upon notification of the completion of the goods. If shipping has been agreed, the risk passes to the customer when the goods are sent to the commissioned transport company, such as the train, or when they are handed over to the forwarding agent or freight carrier.

  • 4. Unless otherwise agreed, we determine the type of dispatch and means of transport as well as the type and scope of packaging. Disposable packaging will be disposed of by the customer.

  • 5. If the shipment is made in returnable packaging, it must be returned carriage paid within 30 days of receipt of the delivery. The purchaser is responsible for loss of and damage to the returnable packaging. Loaned packaging may not be used for other purposes or to hold other items. They are only intended for the transport of the delivered goods. Labels must not be removed.

  • 6. If the goods are damaged or lost during transport, the customer must immediately take stock and inform us of this. Claims from any transport damage must be asserted immediately by the customer with the forwarding agent.

  • 7. Freight costs paid by us only count as outlay for the customer. If there is no delay in delivery for which we are responsible and we have therefore determined the more urgent shipping method ourselves, additional costs for urgent shipping methods requested by the customer, such as express rail or air freight, shall be borne by the customer, even if we have agreed in individual cases to bear the freight costs.

§10 Obligation to examine and give notice of defects

  • 1. It is the customer's responsibility to inspect the goods in accordance with § 377 HGB or comparable foreign national or international regulations immediately after delivery and to notify us of any defects and damage identified at a later date immediately after their discovery. Otherwise the goods are deemed to be free of defects. The regulation of § 377 HGB applies accordingly to services and work. Complaints must be made in writing. A complaint in text form, e. g. as an e-mail, is not sufficient.

  • 2. The use of defective deliveries or services is not permitted. If a defect could not be discovered upon receipt of the goods or provision of the service, any further use of the delivery or service item must be stopped immediately after it is discovered later.

  • 3. The customer shall provide us with the goods for which a complaint has been made immediately after the notification of defects and grant us the time required to examine the defect notified. In the event of unjustified complaints, we reserve the right to charge the customer for the inspection costs incurred.

  • 4. The notification of defects does not release the customer from meeting his payment obligations.

§11 Material Defects

  • 1. The quality of the delivery or service items is based exclusively on the agreed technical delivery specifications. If we have to deliver according to the customer's drawings, specifications, samples or other specifications, he assumes the risk of suitability for the intended purpose.

  • 2. Decisive for the contractual condition of the goods is the time of the transfer of risk according to § 10 of these General Terms and Conditions.

  • 3. If there was a material defect in our delivery or service items at the time of the transfer of risk, we are entitled to choose between remedying the defect or delivering a replacement within a reasonable period of time. If we do not do this or do not do so in accordance with the contract, the customer must set us a final deadline for supplementary performance in writing. After the unsuccessful expiry of this period, the customer is entitled to demand a reduction in price or to withdraw from the contract or to have the necessary repairs carried out by himself or by a third party at our expense.

  • 4. In the case of third-party products, even if they have been built into our products or otherwise used, we are entitled to initially limit our liability to the assignment of warranty claims that we are entitled to against the supplier of the third-party products, unless the satisfaction is based on the assigned right fails or the assigned claim cannot be enforced for other reasons. In this case, the customer is again entitled to the rights from the previous paragraph 2.

  • 5. Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the goods were subsequently taken to a location other than the customer's branch.

  • 6. The same warranty conditions apply to replacement services and improvements as for the originally delivered item.

  • 7. Claims by the customer due to material defects are excluded if the deviation from the quality only insignificantly affects the use or suitability for use or the value of the goods. This is the case, for example, in the case of a visually hardly recognizable deviating quality that does not impair the usability.

§12 defects of title

  • 1. Orders based on drawings, sketches or other information provided to us are carried out at the risk of the customer. If we intervene in third-party property rights as a result of the execution of such orders, the customer shall indemnify us against claims from these rights holders. The customer shall bear any further damage.

  • 2. Our liability for any violations of property rights in connection with the use of the delivery or service items or with the connection or use of the delivery or service items with other products is excluded.

  • 3. In the event of defects in title, we are entitled, at our discretion, to procure the necessary licenses for the violated property rights or to remedy the defects in the delivery item by providing a delivery or service item that has been modified to an extent that is reasonable for the customer.

  • 4. Our liability for the infringement of third-party property rights only extends to property rights that are registered and published in Germany.

§13 Liability

  • 1. We are only liable for the company's liabilities with the company's assets.

  • 2. In the case of simple negligence, we are only liable if an essential contractual obligation is violated. We are also liable for gross negligence in the event of a breach of non-essential contractual obligations.

  • 3. Liability in the aforementioned cases is limited to the foreseeable damage that is typical for the contract. In the case of guaranteed properties, our liability is limited to the scope and amount of our company liability insurance. The amount of cover for the insured events recorded in the insurance contract is EUR 5 million.

  • 4. Claims for damages due to intentional breach of contractual obligations by us, claims for personal injury and claims from the Product Liability Act are subject to the statutory provisions.

  • 5. We are liable for claims in tort according to the contractual liability; Limiting liability agreements from the contract also apply to the customer.

  • 6. Liability for damages going beyond the above provisions is excluded.

  • 7. Recourse claims of the customer against us only exist insofar as he has not made any agreement with his customer that goes beyond the statutory claims for defects and damages.

  • 8. Liability on our part is excluded insofar as the customer has effectively limited liability towards his customer.

  • 9. Insofar as liability is excluded or limited by us, this also applies to the personal liability of our employees, workers, employees, representatives, vicarious agents and vicarious agents.

  • 10. Insofar as liability is excluded or limited according to the above, the customer is obliged to indemnify us from third-party claims.

  • 11. Otherwise, the statutory provisions apply.

  • 12. The customer is obliged to notify us immediately in writing of any claims asserted by third parties and to reserve the right to take all defensive measures and negotiate settlements.

§14 Statute of limitations

  • 1. The limitation period for claims and rights due to defects in our products, services and work and the resulting damage is 1 year. The start of the limitation period is based on the statutory provisions. The above shortening of the limitation period does not apply if the law prescribes longer periods in the cases of §§ 438 Paragraph 1 No. 2, 479 and 634 a Paragraph 1 No. 2 BGB.

  • 2. The statute of limitations according to item 1, sentence 1 above also does not apply in the case of intent, if we have fraudulently concealed the defect or have assumed a quality guarantee, in the case of claims for damages due to personal injury or violation of a person’s freedom, in the case of claims under the Product Liability Act and in the event of gross negligence breach of duty.

  • 3. Subsequent performance measures neither suspend the limitation period applicable to the original provision of services, nor do they allow the limitation period to begin again.

§15 Acquisition of ownership

  • 1. We reserve ownership of all contractual items until all claims to which we are entitled from the business relationship with the customer have been settled in full. We reserve all property rights and copyrights to the illustrations, drawings, calculations and other (technical) documents provided.

  • 2. If our property is processed, combined or mixed with third-party property, we acquire ownership of the new item in accordance with § 947 BGB.

  • 3. If the processing, connection or mixing takes place in such a way that the third-party service is to be regarded as the main item, we acquire ownership in the ratio of the value of our service to the third-party service at the time of processing, connection or mixing.

  • 4. If we acquire ownership of an item through our performance, we reserve ownership of this item until all existing claims from the business relationship with the customer have been settled.

  • 5. The customer is obliged to keep the goods subject to retention of title safe and, if necessary, to carry out maintenance and repair work in good time at his own expense. The customer must insure the reserved goods at his own expense against loss and damage. Security claims arising in the event of damage are to be assigned to us.

  • 6. The customer is entitled to resell the item that we (co-)own in the ordinary course of business, as long as he meets his obligations from the business relationship with us. In this case, the claim arising from the sale is deemed assigned to us in the ratio in which the value of the service provided by us, which is secured by the retention of title, is in relation to the total value of the goods sold. The customer remains entitled to collect this claim even after the assignment. Our authority to collect this claim ourselves remains unaffected.

  • 7. The customer's right to dispose of the goods subject to our retention of title and to collect the claims assigned to us expires as soon as he no longer meets his payment obligations and/or an application for the opening of insolvency proceedings is filed. In the aforementioned cases, as well as in the event of other behavior by the customer that is in breach of contract, we are entitled to take back the goods delivered under retention of title without a reminder.

  • 8. The customer informs us immediately if there is a risk to our reserved property, especially in the event of insolvency, inability to pay and enforcement measures. At our request, the customer must provide all necessary information about the inventory of the goods that we (co-)own and about the claims assigned to us and inform his customers of the assignment. The customer supports us in all measures that are necessary to protect our (joint) property and bears the resulting costs.

  • 9. Due to all claims arising from the contract, we have a right of lien on the customer's items that have come into our possession on the basis of the contract. The right of lien can also be asserted for claims from previous deliveries or services insofar as these are related to the delivery or service item. The right of lien applies to other claims arising from the business relationship, insofar as this is undisputed or has been legally established. §§ 1204 ff. BGB and § 50 paragraph 1 of the Insolvency Code apply accordingly.

  • 10. If the realizable value of the securities exceeds our claims by more than 15%, we will release securities of our own choice at the request of the customer.

§16 means of production

  • 1. Design and calculation documents, as well as manufacturing instructions and any type of documentation remain our property and are exempt from an obligation to surrender.

  • 2. If the customer suspends or terminates the cooperation during the production time of the means of production, all production costs incurred up to that point shall be borne by him, unless we are responsible for the termination.

§17 Termination, Order Cancellation

  • 1. Unless otherwise agreed, we are entitled to terminate open-ended contracts by giving 6 months' notice. This does not affect the right to terminate for good cause in accordance with Section 314 of the German Civil Code or the rights of withdrawal and termination provided for in these General Terms and Conditions.

  • 2. We generally do not accept an order cancellation by the customer. If we agree to it in exceptional cases, we are entitled, at our discretion, to demand compensation for damages instead of performance or reimbursement of futile expenses.

§18 RoHS and Electrical Law

  • 1. Directive 2002/95/EG (RoHS) and the Electrical and Electronic Equipment Act contain a ban on the use of certain environmentally hazardous substances, such as lead, which may no longer be used in certain electrical and electronic devices.

  • 2. Before placing an order, the customer must therefore check whether the workpieces in question fall within the scope of the ElektroG (Electrical and Electronic Equipment Act) after further processing and inform us whether this is the case. If we do not receive any notification, we assume that the workpieces will not be built into or connected to products that can be assigned to the product catalog of Section 2 (1) of the ElektroG.

  • 3. In the event of a violation of the ElektroG, our liability towards the customer is excluded insofar as this violation is based on a breach of the customer's obligation to notify. If claims are raised against us by third parties due to this violation, the customer must indemnify us from these claims.

§19 Confidentiality

  • 1. The customer undertakes to treat confidentially all aspects of the business relationship that are worthy of protection. In particular, he will treat all non-obvious commercial and technical details that he becomes aware of through the business relationship as business secrets. Information or aspects of the business relationship that were already publicly known at the time of disclosure, as well as such information or aspects of the business relationship that the contractual partner can be proven to have known to the contractual partner prior to disclosure by us, are not covered by the confidentiality obligation. The customer ensures that his employees are also committed to secrecy.

  • 2. Duplication of the documents provided to the customer is only permitted within the framework of operational requirements and copyright regulations.

  • 3. All documents may not be made accessible to third parties in whole or in part or used outside of the purpose for which they were made available to the customer without our written consent.

  • 4. Even partial disclosure of the business relationship with us to third parties may only take place with our prior written consent; the customer should also oblige the third party to secrecy within the framework of a similar agreement.

  • 5. The customer may only advertise the business relationship with us after our prior written consent.

  • 6. The customer is obligated to secrecy even after the end of the business relationship.

§20 Place of Jurisdiction, Applicable Law

  • 1. The place of jurisdiction is our place of business or the place of jurisdiction of the customer, at our choice.

  • 2. The law of the Federal Republic of Germany is exclusively applicable to the business relationship with the customer. The applicability of the CISG - "UN Sales Convention" is excluded.

  • 3. Should individual parts of these General Terms and Conditions be ineffective, this shall not affect the effectiveness of the remaining provisions. The contractual partners shall endeavor to replace the ineffective clause with another clause that comes as close as possible to the economic purpose and legal meaning of the original wording and is in accordance with the relevant statutory provisions.

  • 4. We collect and process data in accordance with the EU General Data Protection Regulation and the Federal Data Protection Act.

§ 21 Contact details

ABSAUGWERK GmbH
Eichlesstraße 16
D-89129 Langenau
Germany

Phone: +49 731 141 108-0
Email: info@absaugwerk.de
www.ABSAUGWERK.de

Status: January 2021