1.1 The following terms and conditions of business apply for all our orders and contracts concerning deliveries and services that a contractual partner is to provide to us or for us. They are the sole valid contract conditions and take precedence over other provisions in so far as we have not ourselves specified or confirmed such provisions in writing. The terms and conditions of business of the contractual partner have no validity.
1.2 For work on buildings (construction works in the sense of §1 VOB/A), the General Contractual Conditions for the Execution of Construction Works (Allgemeinen Vertragsbedingungen für die Ausführung von Bauleistungen = VOB/B DIN 1961) apply in so far as these terms and conditions of business do not specify some other provision.
1.3 Otherwise, the legal relationship between us and the contractual partner is subject to the law of the Federal Republic of Germany. The regulations contained in the UN Convention on Contracts for the International Sale of Goods of 11th. April 1980 do not apply unless they correspond to our terms and conditions
2. Order and conclusion of contract
2.1 Our orders or contracts will only be binding on us when we issue them in writing. This applies also to prior agreements made verbally or on the telephone. Supplementary agreements and changes also require the written form.
2.2 The contract is concluded if the contractual partner executes our order or issue of contract in accordance with the terms of the contract and without material deviations, or confirms acceptance in writing, within 14 days of the date of order. Otherwise, we have the right to cancel our order or issue of contract without the contractual partner being able to construe any claim whatsoever against us.
2.3 We reserve the right to correct any mistakes or errors in our orders or issues of contract even after conclusion of the contract. In so far as that may cause substantial changes in performance of the contract to the disadvantage of the contractual partner, that partner has the right to withdraw from the contract, but not if the mistake or error was self-evident for him.
3. Object of the contract
3.1 The content of the contract, in particular the object of the delivery or service obligation of the contractual partner, will be determined by our order or issue of contract. For shipping orders, only the contents of the particular individual order determine our obligation to acceptance.
3.2 Adherence to and compliance with our technical specifications and quality requirements are obligations of our partner. Assurances demanded of the contractual partner in our order or issue of contract are considered to have been accepted by him if he does not notify us in writing of his refusal to give them within 14 days.
3.3 If the contractual partner is to process material or parts that we have had supplied to him, he must, immediately after they have been delivered, inspect the delivery and, if any defects or deviations in quality or quantity are found, notify us of them without delay, and simultaneously notify the supplier on our behalf.
3.4 Material or parts that we have supplied remain our property. They may only be used for the intended purpose in the measure that the processing or assembly are carried out for us and that we thus acquire co-ownership of the products so produced in the ratio of the value of our contribution to the value of the complete product, which is to be kept safe for us by the contractual partner.
3.5 All property rights and rights to exploitation of copyright for technical documents such as drawings, samples, data carriers and other documentation remain ours; they may not be made available to third parties without our consent, and are to be returned to us without delay as soon as the contract has been fulfilled or prematurely terminated.
4.1 The agreed prices (contractual prices) are fixed prices and cover all the services of the contractual partner which are necessary for him to fulfil his delivery and service obligations in accordance with the contract.
4.2 Price increases during the period of validity of a contract are excluded no matter what the reason. Price reductions are to be applied in so far as the agreed contractual prices were dependent on certain raw-material prices and these have fallen before our order has been executed.
4.3 The contractual prices are, unless another agreement has been reached, always free to a particular place of performance specified by us; costs for shipping, delivery, transport insurance, and packing and its disposal are included in them and cannot be invoiced in addition. If the disposal of packaging material cannot be ensured by the contractual partner, we can dispose of it at his cost.
5. Invoicing and payment
5.1 The contractual partner's invoices are to be written and sent to us in duplicate on completion of his delivery or acceptance of his service. In content, they must correspond with our order and contain precise, verifiable data; value-added tax must be shown separately.
5.2 In so far as no other agreement has been reached, payment will be made within 60 days net; on payments made within 14 days, we have the right to deduct 3% discount, and on payments made within 30 days, 2% discount. We may make the payment either by a bank transfer or by sending a cheque at our choice; the risks of transmission of the payment sum are borne by the contractual partner. The time limits for payments and discounts are considered complied with if the bank transfer order or cheque were sent punctually.
5.3 The time limits for payments and discounts start with receipt of the contractual partner's correct invoice, but not before receipt of his delivery or acceptance of his service. If our order is executed as several partial deliveries, then the time limits for payments and discounts for partial invoices sent to us only start with receipt of the last delivery and invoice. If we have the right to delay payment due to defects in the delivery or service, the time limits for discounts also run from the day on which the reason for delaying payment is eliminated.
5.4 We have the right to offset our own counterclaims, even if these are not yet due. From the point of view of justifying a discount, offsetting is the equivalent of making a payment.
5.5 A cession of claims of the contractual partner against us to a third party is only effective with our written approval.
6. Place of performance and acceptance
6.1 The contractual partner has to comply with his duty of performance and delivery obligation at a place specified by us; in so far as our order or issue of contract does not specify anywhere else, the place of performance is our works in Schopfheim. Agreed production samples or test certificates must be presented in Schopfheim in all cases.
6.2 The dispatch of goods to be supplied to the place of performance, transport to that place, and delivery, including proper unloading and the disposal of packaging material, are an obligation of the contractual partner; that also applies to proper loading if, in a special agreement, it is specified that we will collect the goods. In all cases, the risks of loss, degradation, or damage are only transferred to us with acceptance of the goods at the place of performance.
6.3 An easily-recognisable delivery note, which makes reference to our order and enables rapid verification, is to be attached to every delivery; we reserve the right to reject deliveries that do not have a delivery note attached. Partial deliveries and services partially performed must be marked as such and are only permissible with our approval.
6.4 Construction works and services require formal acceptance; a notice of completion or notice of taking into service (§13 No. 5 VOB/B) is not a substitute for formal acceptance. If the contractual partner carries out construction works or services for us, which we are required to provide at a construction site belonging to a third party, the contractual partner can only request acceptance by us when the unequivocal acceptance of the site owner has been obtained.
7. Delivery deadline, delay
7.1Particular delivery or performance deadlines (period for performance) and dates specified in our order are binding for the contractual partner. The periods for performance start from the date of the order. If periods or schedules are specified in weeks or months, then the latest completion date is the last working day of the relevant calendar week or month. When an agreed service or delivery is to be provided "on call", then the last working day of the week following our call is the binding latest completion date.
7.2 The period for performance is complied with when the delivery or completion of service at the place of performance and transfer to us take place before the end of the normal working period on the day of the latest completion date. We are not obliged to accept deliveries or services outside normal working hours; if we do so, the contractual partner has to bear any additional costs we incur. When collection by us has been agreed, we must be notified that the goods are ready for dispatch at least one day before the end of the period.
7.3 If the delivery period is not complied with, without the delay being the responsibility of the contractual partner, then we can extend a period measured in months by one additional month, otherwise by one additional week, and cancel the contract if completion does not take place within that period. That does not apply if the reasons for the delay are our responsibility.
7.4 If the contractual partner is late with delivery, we have the right, without prejudice to further legal claims, and without further evidence to a delay penalty of 1% of the value of the goods to be delivered or services per complete week late, but not more than 10%; the contractual partner is entitled to show that we have suffered less damage or none at all. We have the right to withdraw from the contract without setting a new completion date if, as a result of a delay due to the contractual partner, the delivery or service can no longer be used by us as originally intended.
7.5 In all cases, the contractual partner has the duty to notify us in writing without delay and state the reason for probable failure to comply with a completion date as soon as this is recognisable for him. If this notification is not made, by the completion date at the latest, then the failure to comply becomes the responsibility of the contractual partner. At the same time as the delay notification, the contractual partner should set a new, certain completion date. We are not obliged to agree to the new date, but if we do so, the new date becomes binding. Our further claims arising from the delay remain thereby unaffected.
8. Acceptance and complaint deadlines
8.1 The acceptance of deliveries by us takes place only at the contractual place of performance. This applies also when it has been agreed that we will collect the goods.
8.2 The contractual partner has to transfer the contractual object of delivery to our ownership free of the rights of third parties and of his own reservations.
8.3 If we have complaints about deviations of the delivery from our order or defects, the time limit for us to issue such complaints is 10 working days. If our complaint is made in writing, it will comply with the deadline if it is sent within the time limit.
8.4 For obvious deviations or defects, the time limit for complaints expires the day after we have accepted the delivery. If the delivery is made to a construction site, we have first just to check for deviations in type and quantity, for transport damage or damage to packing and to complain about these problems. If the goods are intended for further processing, installation or similar, and defects will only become evident thereby or after taking into service, and in the case of hidden material defects, the complaint period starts only when the defect is discovered.
8.5 We are not obliged to carry out investigations to determine what is impairing the substance or function of goods supplied, nor to take samples. In the same way, we are not obliged to carry out repeat testing in so far as the contractual partner has to carry out quality and production controls and to present test certificates detailing the results.
9.1 The contractual partner warrants that the object of his delivery or service is manufactured from flawless material, corresponds to our order and the relevant, available technical data and quality guidelines, generally complies with the recognised state of the art, has the agreed properties, and is entirely suitable for the intended purpose.
9.2 If the delivery or service does not comply with these requirements, then our warranty claims will be determined by the subsequent conditions, for construction works and services, to VOB/B, and generally according to the statutory regulations.
9.3 In the event of defects in construction works or delivered goods, which the contractual partner is to produce for us as a non-fungible (provision of works and material), we can, at our choice, demand remedy or replacement, which the contractual partner shall carry out in each case at the place of performance and at his cost. If the remedy or replacement has not been carried out within a new deadline set by us, or if it was not carried out successfully, we can, at our choice, withdraw from the contract, reduce the contractual price, or demand damages for non-fulfilment; in particularly urgent cases, we have these rights without setting a new deadline.
9.4 For defects in other deliveries, we can, at our choice, demand remedy or replacement, or withdraw from the contract or reduce the contractual price even without setting a new deadline, or, if the defects relate to a guaranteed property, demand damages.
9.5 In urgent cases, we also have the right, at the expense of the contractual partner, to correct the defects ourselves, to have them corrected by a third party, or in some other way to obtain replacement. In particular, a case can be considered urgent if a demanded remedy or replacement has not been made within one week, or if the defect in the object of delivery or service would lead to further damage, such as a loss of production or warranty claims of a third party against us.
9.6 For any remedy, replacement delivery or repurchase, the contractual partner has to compensate us for all incurred costs, including the costs of inspection, and removal and re-installation by us or a third party, and, in so far as further materials are required for replacements, their costs.
9.7 The warranty period for construction works is 5 years; that applies also to other deliveries and services of the contractual partner that are intended for a particular construction project and designated as such in a way that it is recognisable for him (in particular by giving the construction project as the delivery address in our order). Otherwise, our warranty claims do not expire until at least 12 months after acceptance of the delivery or service. If our order is executed as several partial deliveries, then the expiry deadline for the warranty for the entire delivery does not start until the last partial delivery has been accepted.
10. Further liabilities of the contractual partner
10.1 The contractual partner accepts unlimited liability for all damages suffered by us or third parties as a result of a defect for which he is responsible in one of his deliveries or services, or as a result of negligent conduct by him or one of his assistants.
10.2 The contractual partner indemnifies us fully against claims for damages by third parties. This also applies to claims resulting from the infringement of commercial intellectual property rights, copyrights, and other rights of third parties by his deliveries or services and their use by us.
10.3 In so far as we are liable under product liability regulations for damage in connection with delivered goods or services which we have processed or used or sold on, the contractual partner is liable, in proportion, to us alone, unless he can show that the damage was not caused by a fault in his delivery or service.
11. Court of jurisdiction
11.1 For all disputes arising from the contractual relationship or about its existence, legal action is to be taken at the court responsible for Schopfheim, the location of our works.
11.2 We also have the right to pursue a complaint at another place or at the seat of the contractual partner.