
§ 1 - General
(1) These terms and conditions apply uniformly to all purchase and work contracts concluded between us and commercial or self-employed professional parties (entrepreneurs) and legal entities under public law or a special fund under public law, unless special provisions are made for the respective type of contract below. Buyers and purchasers shall be collectively referred to as the Client hereinafter.
(2) For all contracts, exclusively our terms and conditions in their respective current version shall apply. Any conflicting or deviating terms and conditions of the Client shall not be binding on us, even without objection, unless we have agreed to their validity in writing.
(3) Any deviating agreements made between us and the Client for the execution of the contract shall only be effective in writing.
(4) The invalidity of individual provisions of a contract or these terms and conditions shall not affect the validity of the remaining provisions of the contract and the terms and conditions.
§ 2 - Offer and Conclusion of Contract
(1) Our offers are subject to change and non-binding unless they are expressly designated as binding. Otherwise, they shall be considered a request for an offer. In such cases, the contract shall only come into effect upon our written confirmation.
(2) Information about deliveries and services described in catalogs, brochures, public statements, and the like shall only form part of the agreed quality if they are expressly reproduced in our offer or our order confirmation. Guarantees shall only be given if our offers or order confirmations expressly designate them as such and the obligations arising from the guarantee are specified in detail.
Obvious errors, typographical errors, calculation errors, writing errors, and costing errors in our offers and order confirmations shall not become binding contractual content. Instead, what is apparently intended shall take its place, which shall be determined at reasonable discretion in case of doubt.
(3) Orders and acceptances received by us shall only become effective upon our written confirmation. The content of the contract shall be determined exclusively by our written confirmation. Drawings, illustrations, dimensions, weights, or other performance data shall only be binding if this is expressly agreed in writing.
(4) We retain ownership rights and copyrights to patterns, cost estimates, sketches, drawings, and other information of a physical or non-physical nature. They may only be made accessible to third parties or used for other purposes with our consent.
(5) Our employees are not authorized to make verbal side agreements or verbal assurances that go beyond the content of the written contract. Only those properties shall be considered as warranted which are designated as such by us in a written contract.
§ 3 - Prices and Payment Terms
(1) Unless otherwise stated in the order confirmation, our prices according to the offer shall be considered net prices.
Additional deliveries and services shall be invoiced separately.
(2) We are entitled to change prices at our reasonable discretion if cost reductions or increases occur after the conclusion of the contract, particularly due to collective bargaining agreements or increases in material prices.
(3) Unless otherwise stated in the order confirmation, our invoices are due for payment upon receipt.
(4) If payment orders issued by the Client are not executed (by the bank), the Client suspends their payments, or we become aware of other circumstances that call their creditworthiness into question, we are entitled to demand advance payment or security for outstanding deliveries and services. Any granting of credit (payment deferral, acceptance of bills of exchange, etc.) shall lapse. All claims arising from the business relationship with the Client shall become due immediately. If payment by installments is agreed, the entire invoice amount shall become due at once if the Client falls into arrears with more than one installment.
(5) If we are entitled to partial deliveries and partial services, this also entails the right to make the corresponding portion of the performance due with partial invoices.
Otherwise, we are entitled to render installment invoices due. The installment invoices shall represent the portion of the performance rendered. If defects are identified in relation to these, the Client is entitled to withhold the simple amount of the cost of rectifying the defects from the invoice. To assert the right of retention, the Client must specifically designate the appearance of the defect and comprehensibly demonstrate the expected cost of rectifying the defect.
(6) If the prerequisites exist under which we can demand advance payment or security, we are not obliged to make further deliveries from ongoing contracts with the Client and are entitled to withdraw from the ongoing contracts without incurring any obligation to pay damages.
(7) The Client shall only be entitled to rights of set-off and retention if their counterclaims have been legally established or acknowledged by us in writing. The Client shall not have a right of retention due to disputed counterclaims arising from the same contractual relationship.
§ 4 - Delivery Terms
(1) The agreement of delivery dates or periods must be made in writing. Agreed delivery dates or periods shall only be binding if this is expressly stipulated.
(2) An agreed delivery time shall only begin to run if all technical issues have been clarified and the Client has fulfilled their obligations in a timely and proper manner.
(3) Delays in delivery and performance due to force majeure, operational disruptions, strikes, lockouts, official orders, etc. – even if they occur at our suppliers or their sub-suppliers – and other influences on delivery and installation for which we are not responsible, shall entitle us to postpone the delivery or performance by the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the unfulfilled portion if the reason for the delay in delivery and performance persists for two months and it is not foreseeable that it will cease within a further month. The Client cannot derive any claims for damages from the extension of the delivery time or our release from the delivery obligation.
(4) If those obliged to perform under our orders fall into default, they shall be obliged to pay a contractual penalty. For each day of the default, an amount of 0.2% of the net order value shall be due, up to a maximum of 5% of the net order value. The contractual penalty shall be offset against any delay damages. We reserve the right to claim damages. We can assert the reservation of the contractual penalty until the final payment on the final invoice for the deliveries and services. A deduction of the contractual penalty upon final payment shall be deemed such a declaration.
(5) We are entitled at any time to make partial deliveries and partial services as well as to deliver deviating from the ordered quantity and/or quality to the extent customary in the trade. If the agreed performance requires further specification, it shall be made at our reasonable discretion.
(6) For call-off orders, we are entitled to demand fulfillment after the expiry of the agreed or a reasonable period or, after a reminder and setting a 14-day grace period, to refuse delivery and claim damages for non-performance.
§ 5 - Place of Performance and Transfer of Risk
(1) The place of performance for our obligations is our registered office. Shipping costs, including taxes and duties, shall be borne by the Purchaser.
(2) The risk shall pass to the Client as soon as the loading of the delivery by our employees or third parties commences at our premises, regardless of who executes the shipment. The loading itself is already part of the Client's obligations.
(3) If the Client is in default of acceptance, the risk of accidental loss or accidental deterioration shall pass to them. If the shipment is delayed at their request, the risk shall pass to them upon notification of readiness for shipment.
(4) If our scope of delivery and services also includes a control system and associated software, the control system shall pass into the ownership of the Client upon installation together with the other plant components. We retain all rights to the software, in particular the copyright usage and exploitation rights, unless expressly stipulated otherwise in these terms and conditions or the written contract with the Client. The Client shall only receive the limited right to use the software in accordance with the contract.
(5) If the client does not collect the goods to be received from him or if the delivery is delayed for reasons attributable to him, he shall bear the storage costs. In the case of external storage, the costs are determined based on the external costs plus a surcharge of 5%. In the case of storage by us, we determine the share of storage costs at our reasonable discretion. In case of doubt, it is reasonable for us to be reimbursed for the costs that would arise if the storage were carried out by third parties.
§ 6 - Retention of Title
(1) We reserve the right of ownership of the goods and products (collateral) delivered by us until all existing and future claims from the business relationship with the client (including all balance claims from current account) have been fully satisfied. In the event of the client's contractual default, especially in case of payment arrears, we are entitled to reclaim the collateral. Our repossession or seizure does not constitute withdrawal from the contract.
(2) If our collateral is processed with other items and thereby our ownership expires, it is hereby agreed that the (co-)ownership of the client in the new item passes to us in proportion to the invoice value of the collateral to the current value of the processed items. The same applies to the newly created item as for the goods delivered subject to retention of title.
(3) The client is obligated to handle our collateral with care. In particular, he is obliged to adequately insure it at his own expense against fire, water, and theft damage and to carry out necessary maintenance and inspection work at his own expense.
(4) The client is not entitled to transfer or pledge the collateral to a third party for security. In the event of third-party access to the collateral, especially seizure, the client shall indicate our ownership and notify us immediately. The client is liable for the judicial and extrajudicial costs incurred by us in enforcing our ownership rights, to the extent that the third party is unable to reimburse them.
(5) The client is entitled to process and sell the collateral in the ordinary course of business. The client hereby assigns to us in full any claims arising from the further processing, sale, or any other legal basis (insurance, tort) relating to the collateral, to secure our interests. The client remains authorized to collect the claims in his own name and on our behalf until revoked. Our right to collect the claims ourselves remains unaffected. However, we undertake not to collect the claims as long as the client meets his payment obligations, is not in arrears with payments, and no application for the opening of insolvency proceedings has been filed or payment has been suspended. In the event of such occurrence, we are entitled to revoke the collection authorization; the client is obliged to inform us of the assigned claims and the debtors, to provide all necessary information and documents for collection, and to notify the debtor of the assignment.
(6) We undertake to release the securities to which we are entitled at the request of the client to the extent that the realizable value of the securities exceeds our claims by more than 20%. The selection of the securities to be released is at our discretion.
§ 7 - Warranty
(1) For merchants, the obligation to inspect and give notice of defects according to § 377 of the German Commercial Code (HGB) applies. Otherwise, the client is obliged to report obvious defects in writing within 2 weeks after delivery or performance, specifying the defect precisely. This period is a limitation period.
(2) If a defect for which we are responsible exists, we are initially entitled, at our discretion, to remedy the defect or make a replacement delivery. The client bears the costs incurred if the item is transported to a location other than the place of performance.
(3) If the client rectifies defects himself without granting us the opportunity for subsequent performance or replacement delivery, his rights regarding the defect cease to apply with respect to that defect.
If the client makes changes to the delivery item himself or uses consumables that do not meet the specification, it is presumed that any corresponding defect is attributable to the modification of the system or the use of non-specified consumables. The client is not precluded from rebutting this presumption. If there are grounds to suspect that changes have been made or non-specified consumables have been used, the client is obliged to provide information. If he does not provide the information within a reasonable period, the presumption of system modification and the use of non-specified consumables is rebuttably presumed.
If the above presumption is disputed by us, the client's rights regarding defects are excluded in this respect.
(4) If subsequent performance or replacement delivery fails after a reasonable period, the client may, at his discretion, demand a reduction in price or rescission of the contract. In the case of contracts for work and services, the client is excluded from demanding rescission of the contract if the defect only slightly reduces the value or fitness for use of the item. If the contract concerns a construction service, rescission of the contract cannot be demanded.
(5) Further claims of the client - regardless of the legal basis - are excluded. We are not liable for damages that have not occurred to the delivered item, in particular not for lost profit or other financial losses of the client.
If we are the supplier, we are not liable for installation and removal costs.
(6) The above limitation of liability does not apply if the damage is due to the absence of a guaranteed property. It also does not apply if the cause of the damage is gross negligence or intent.
(7) If our service does not fall under §§ 438 para. 1 No. 2, 634a para. 1 No. 2 of the German Civil Code (BGB), the warranty rights expire one year after the transfer of risk.
If the VOB/B (German Construction Contract Procedures) is included in the contractual relationship with our client, the provisions therein regarding warranty rights take precedence, also with regard to their limitation.
§ 8 - Liability
(1) Our liability for our own breaches of duty and those of our vicarious agents and assistants is limited to intent and gross negligence. This limitation does not apply to liability for injury to life, body, or health.
(2) Our liability for damages due to the breach of essential contractual obligations is limited to the typical, foreseeable damage. The maximum limit is the net order value. The limitation does not apply if there is an exceptional case within the meaning of § 8 (1).
(3) The above limitations of liability also apply in the event of any claims for damages by the client against our employees and agents.
§ 9 - Conditions for Assembly and Repair
(1) If we carry out assembly or repair work, the following conditions also apply.
(2) The commencement of work by us presupposes that the client has fully and properly performed all preliminary work incumbent upon him.
(3) In the case of repairs, replaced parts become our property. There is no credit for the residual value of these parts. We are free to use them.
(4) Unless otherwise agreed, billing is based on hours and material costs. The daily rates valid for service provision for working, travel, and waiting times, as well as incidental costs for allowances, accommodation, and travel expenses, will be charged.
(5) If the work relates to the client's hardware and/or software, the client must back up all data that may be affected by our work before the work begins. If sufficient backup is not provided, the client cannot hold us responsible for any data loss.
(6) The client is obligated to accept the contractual assembly or repair work. Minor defects do not prevent the obligation of acceptance.
Acceptance is deemed to have occurred,
- if the client uses the assembly or repair item without complaining of any visible defects within 6 working days
- if the client does not refuse acceptance within 12 working days after the request for acceptance, specifying the reason, which must include at least one significant defect described in a comprehensible manner.
A final payment without reservation of defects is equivalent to the explicit acceptance by the client.
(7) The client must report obvious defects in the assembly or repair work within an exclusion period of 2 weeks. Non-obvious defects must be reported by the client within 2 weeks of discovery.
(8) The client's defect claims are initially limited to subsequent performance or replacement delivery at our discretion. As long as we provide subsequent performance, the client has no right to withdraw from the contract for assembly or repair work or to demand a reduction, unless the subsequent performance has ultimately failed.
§ 10 - Contract Disruptions
(1) If the client ceases payments, applies for the opening of insolvency proceedings over his assets, or if other circumstances become known that indicate a significant deterioration in his financial situation, we have the right to withdraw from purchase contracts and to terminate contracts for work and services. In this case, we are entitled to remuneration for the services rendered up to that point, including third-party deliveries already obtained or ordered by us for the fulfillment of the contract, as well as compensation for lost profit.
(2) If the client withdraws or terminates a contract for work and services without being entitled to do so, we can claim damages for non-fulfillment or a lump-sum compensation of 25% of the gross order value. The client is entitled to prove that no damage or a lower amount of damage or compensation claim has been incurred. The assertion of higher damages or a higher compensation claim remains reserved.
§ 11 - Jurisdiction, Place of Performance, Applicable Law
(1) If the client is a merchant, a legal entity under public law, or a special fund under public law, Greifswald is the exclusive place of jurisdiction for all disputes arising from the contractual relationship. We reserve the right to sue the client at his general place of jurisdiction.
(2) Unless otherwise stated in the order confirmation, the place of performance is Greifswald.
(3) These terms and conditions and our entire legal relationship with the client are governed by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.