General Terms and Conditions

1.0 General

1.1 The standard terms and conditions of sale and delivery set forth herein (“STC”) shall apply exclusively for all our deliveries and services. They exclusively apply in relation to entrepreneurs, legal persons under public law and special funds under public law. Deviating, conflicting or supplementary standard terms and conditions of the purchaser do not form part of the contract, unless they are expressly accepted in writing.

1.2 Within the scope of continuing business relations, our STC shall apply to future deliveries and services, even if they are not expressly agreed upon in each individual case.

1.3 The term “claim for damages” used in the STC also includes claims for indemnification for useless expenditure.

2.0 Quotations

2.1 Our quotations are not binding and are to be understood merely as an invitation to place an order.

2.2 Unless expressly confirmed by us in writing as binding as an integral part of our offer, statements made in catalogues, brochures, flyers, advertisements, illustrations and price lists concerning dimensions, weights, services etc. are to be considered as only approximately definitive.

2.3 We reserve the right to make technical and constructive customary changes to the ordered goods which may deviate from the descriptions contained in offers or brochures as far as they neither unreasonably impair the purchaser nor affect the serviceability of the ordered goods.

2.4 Models, samples, drawings, plans, descriptions, quotations and other documents remain our property and are covered by our copyright. They may not be passed on or made available to third parties.

3.0 Conclusion of Contract

3.1 The purchaser shall be bound by his order for a period of 4 weeks from the date of dispatch of the order.

3.2 The contract shall come into effect only with the issuance of our written acknowledgement or the delivery of the goods and/or services, whichever is earlier.

3.3 Any ancillary agreements, as well as telephone or oral amendments and supplements regarding orders already confirmed, also require our written confirmation to become effective. Unless otherwise agreed, the products to be delivered are intended for domestic use only.

4.0 Prices

4.1 Orders for which no prices have been agreed will be charged at the list prices valid on the day of delivery.

4.2 Our prices for deliveries are ex works/warehouse. Packaging, transport costs and costs of any transport insurance requested by the purchaser, as well as assembly and operating materials, will be charged separately.

4.3 Value added tax valid on the due date will be invoiced separately.

5.0 Payment, Default in Payment, Prohibition of Set-off

5.1 Means of payment other than cash or bank transfers will only be accepted by prior agreement and even then only on account of performance.

5.2 Rebates or discounts can only be deducted if this has been agreed in writing. A discount deduction requires that all payments from the order are received by us within the discount period. In the absence of a special agreement, payment must be made within 10 days of the invoice date with a 2% discount or within 30 days net. Repairs are to be paid net within 14 days of the invoice date.

5.3 In the event of default in payment by the purchaser, we are entitled to claim default interest at a rate of 9 percentage points above the base interest rate according to § 247 BGB (German Civil Code) as well as the flat-rate damage fee according to
§ 288 BGB. Our claims for compensation for actually higher damages remain unaffected.

5.4 Set-off is only possible with counterclaims that have been legally established, are undisputed or have been recognised by us.

5.5 In the event of a payment delay by the purchaser of more than one month, as well as in the event of enforcement measures against the purchaser, we are entitled to carry out outstanding deliveries to the purchaser from other orders or from call-off orders only against advance payment.

5.6 The purchaser is only authorised to exercise a right of retention if his counterclaim is based on the same contractual relationship.

6.0 Delivery Dates, Delivery Periods, Delay in Delivery

6.1 Delivery periods begin with the dispatch of the order confirmation, but not before the purchaser has provided the documents, permits or releases to be obtained by him and not before any agreed down payment has been made.

6.2 Agreed delivery periods shall be extended appropriately in the event of industrial action, in particular strikes and lockouts, as well as the occurrence of force majeure or unforeseen obstacles beyond our control, if such obstacles can be proven to influence the completion or delivery of the delivery item. This also applies if these circumstances occur at sub-suppliers. If our operations are influenced by the aforementioned circumstances to such an extent that the execution of the order can no longer be reasonably expected of us, we are entitled to withdraw from the contract.

6.3 If we are in default, the purchaser may – provided he can credibly demonstrate that he has suffered damage as a result – claim compensation in the amount of 0.5% for each full week of delay, but in total no more than 5% of the net purchase price for that part of the deliveries which could not be used for its intended purpose due to the delay.

6.4 Both claims for damages by the purchaser due to delay in delivery and claims for damages instead of performance exceeding the limits specified in Section 6.3 are excluded in all cases of delayed delivery, even after the expiry of any delivery period set for us. This does not apply in cases of intent, gross negligence or due to injury to life, body or health where liability is mandatory. The purchaser may only withdraw from the contract within the scope of statutory provisions insofar as we are responsible for the delay in delivery. A change in the burden of proof to the disadvantage of the purchaser is not associated with the above regulations.

6.5 The purchaser is obliged, at our request, to declare within a reasonable period whether he is withdrawing from the contract due to the delay in delivery or insists on delivery.

7.0 Shipping, Transfer of Risk and Default of Acceptance

7.1 The choice of shipping route, shipping method and carrier is left to us, unless express agreements have been made in this regard. We do not guarantee the cheapest freighting.

7.2 The risk passes to the purchaser upon handover of the delivery items to the freight forwarder or other person designated to carry out the shipment, even if we have undertaken the subsequent assembly at the purchaser’s site. If shipping is delayed due to circumstances for which the purchaser is responsible, the risk passes to the purchaser from the day of notification of readiness for shipment.

7.3 The purchaser must compensate for all costs and damages resulting from a default of acceptance. Subject to higher damages, we are at least entitled to charge a fee of 0.5% for each month started, but in total no more than 5% of the net value of the stored goods. The purchaser reserves the right to prove lower damages.
In the event of default of acceptance as well as in other cases where we are prompted to take the delivery into storage due to the purchaser’s conduct, our respective claim in this regard is due within 14 days after the occurrence of the default.

8.0 Warranty and Limitation Period

8.1 We guarantee freedom from defects in design and material corresponding to the respective state of the art, as well as manufacturing in accordance with the harmonised technical standards applicable in the Federal Republic of Germany (DIN EN ISO 12100:2011-03, EN 1012-1:2011, EN 60204-1:2006, DIN EN 61000-6-3:2011-09, DIN EN 61000-6-1:2007, IEC 60034-30) and in accordance with the standards established by the European Community (CE) (EC Machinery Directive 2006/42/EC, Low Voltage Directive 2014/35/EU, EMC Directive 2014/30/EU, EU Ecodesign Directive for Compressors 2009/125/EC, EC Pressure Equipment Directive 2014/68/EU Category II Module A1).
We assume no guarantee for compliance with country-specific foreign standards (including those of other EU states), unless this has been expressly agreed in writing in individual cases.

8.2 Claims for supplementary performance expire in 12 months from the statutory commencement of the limitation period; the same applies to reduction and withdrawal. This period does not apply insofar as the law prescribes longer periods according to §§ 438 para. 1 no. 1 lit. a (real rights), no. 2 BGB (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) BGB, in cases of intent, gross negligence, fraudulent concealment of the defect or non-compliance with a quality guarantee. The statutory regulations on suspension of expiry, suspension and restart of the periods remain unaffected.

9.0 Notification of Defects

9.1 The purchaser must inspect the goods delivered by us immediately upon receipt and report any obvious defects to us within 10 days. Non-obvious defects must be reported immediately after discovery. If the timely written notification of defects is omitted, the goods are deemed to have been approved. The purchaser bears the burden of proof for all claim requirements, in particular the defect itself, the time the defect was established and the timeliness of the notification of defects.

10.0 Warranty Rights

10.1 The purchaser may not refuse to accept deliveries due to insignificant defects.

10.2 In the event of defects, we are entitled and obliged, at our option, to remedy the defect or to deliver a defect-free item within a reasonable period (rectification). We may refuse rectification as long as the purchaser has not fulfilled his payment obligations to us to an extent that corresponds to the defect-free part of the service.

10.3 If rectification is impossible, if attempts at rectification have failed for the second time, or if the rectification or replacement delivery is not carried out or is carried out only with culpable delay, the purchaser may, at his choice, demand a reduction in price or withdraw from the contract. In the case of only insignificant defects, withdrawal from the contract is excluded.

10.4 Recourse claims of the purchaser against us according to § 478 BGB exist only insofar as the purchaser has not made any agreements with his customer exceeding the statutory claims for defects.

10.5 If we provide services in the search for or rectification of defects without being obliged to do so, we may demand remuneration according to the currently valid price list. This applies in particular if a reported defect cannot be proven or cannot be attributed to us, unless the purchaser proves that he did not recognise that no defect existed and is not at fault for this.

10.6 Claims by the purchaser for expenses required for the purpose of supplementary performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the delivery item has subsequently been moved to a location other than the purchaser’s branch, unless the move corresponds to its intended use.

11.0 Liability

11.1 Unless otherwise regulated in these STC, claims for damages by the purchaser, regardless of the legal grounds, in particular due to breach of duties arising from the contractual relationship and from tort, are excluded.

11.2 Exclusions and limitations of liability do not apply
a) in cases of intent and gross negligence;
b) if and insofar as we have assumed a guarantee;
c) in the event of a breach of an essential duty, without which the achievement of the purpose of the contract would be endangered and on the fulfilment of which the purchaser may therefore regularly rely (so-called cardinal duty); in this respect, we are only liable for compensation for typical and foreseeable damage.

11.3 Liability for damages resulting from injury to life, body or health as well as under the Product Liability Act and from manufacturer’s recourse (§ 478 BGB) remains unaffected by the above regulations.

11.4 No liability shall apply to us for damages resulting from the following reasons: unsuitable or improper use, faulty assembly by the purchaser or third parties, natural wear and tear, faulty or negligent treatment, unsuitable operating materials, defective construction work, chemical, electrochemical or electrical influences, improper changes or repair work carried out by the purchaser or third parties without our prior approval.

11.5 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.

12.0 Retention of Title

12.1 The delivered goods remain our property until full payment of all claims arising from the business relationship between us and the purchaser. The inclusion of individual claims in a current account as well as the balancing and its recognition do not affect the retention of title.

12.2 The purchaser is entitled to resell the reserved goods in the normal course of business; however, pledging or transfer by way of security is not permitted. In the event of a pledge or transfer by way of security of the expectant right, the purchaser must point out our ownership to the security holder and inform us immediately of the pledge or transfer by way of security. The purchaser is obliged to secure our rights when reselling the reserved goods on credit, in particular to pass on the retention of title.

12.3 The purchaser hereby assigns to us his claims from the resale of the reserved goods in the amount of the purchase price agreed with us; we accept this assignment. If a transfer of claims is not possible according to the agreements made during the resale, the purchaser is only entitled to resell the reserved goods with our express and written consent. This also applies if the claim from the resale is to be included in a current account. Regardless of whether the resale in this case takes place unlawfully or with our consent, the purchaser hereby assigns to us his claim to a credit balance in the amount of the invoice value.

12.4 Notwithstanding the assignment and our right of collection, the purchaser is entitled to collection as long as he fulfils his obligations towards us and does not fall into financial collapse. In the event of a significant deterioration in the purchaser’s financial situation – in particular with an application for the opening of insolvency proceedings – the right of collection expires. At our request, the purchaser must provide us with the information required for collection and notify the debtor of the assignment. At our request, the purchaser must hand over a signed notice of assignment to us at any time, i.e. even if he himself is entitled to collection.

12.5 Any processing and transformation of the reserved goods is carried out by the purchaser for us without any obligations arising for us. In the event of processing, combining, mixing or blending of the reserved goods with other goods not belonging to us, we are entitled to the resulting co-ownership share in the new item in the ratio of the invoice value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending.
If the purchaser acquires sole ownership of the new item, the contracting parties hereby agree that the purchaser grants us co-ownership of this item in the ratio of the invoice value of the processed or combined, mixed or blended reserved goods to the value of the new item; gratuitous storage of this new item for us by the purchaser is hereby agreed.
If the reserved goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the advance assignment agreed above applies only in the amount of the invoice value of the reserved goods that are resold together with the other goods.
12.6 The purchaser is obliged to insure goods delivered under retention of title against fire and water damage until full ownership is acquired and to prove upon request that this has been done.

12.7 We are obliged to release securities if and insofar as the sum of the securities granted by the purchaser exceeds the total claim from the business relationship by 10% and the purchaser requests it.

13.0 Reservation of Performance

13.1 Contractual performance is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions.
13.2 The purchaser is obliged to provide all information and documents required for export, transfer or import.

14.0 Impossibility, Contractual Adjustment

14.1 Insofar as delivery is impossible, the purchaser is entitled to claim damages, unless we are not responsible for the impossibility. However, the purchaser’s claim for damages is limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation does not apply in cases of intent, gross negligence or due to injury to life, body or health where liability is mandatory; a change in the burden of proof to the disadvantage of the purchaser is not associated herewith. The purchaser’s right to withdraw from the contract remains unaffected.

15.0 Assembly

15.1 The purchaser must undertake and provide in good time at his own expense all earthwork, concrete, construction, electrical, scaffolding, plastering, painting and other ancillary work outside our industry, including the building materials required for this.

15.2 The purchaser must take the necessary measures to protect our property and our assembly personnel on the construction site.

15.3 Before the start of the assembly work, the purchaser must provide the necessary information about the location of concealed power, gas and water lines or similar installations.

15.4 If the setup, assembly or commissioning is delayed due to circumstances for which we are not responsible, the purchaser must bear all costs for the waiting time and further necessary travel of the installers or assembly personnel.

15.5 We are only liable for the proper handling and setup or assembly of the delivery items; we are not liable for the work of the installers or our assembly personnel and other vicarious agents, insofar as this work is not directly related to the delivery and assembly and was initiated by the purchaser.

15.6 The purchaser shall remunerate us for the costs agreed upon when the order was placed for working time, travel costs, travel expenses as well as surcharges for overtime, night, Sunday and public holiday work. The purchaser must confirm to us weekly the duration of the working time of the assembly personnel as well as the completion of the setup, assembly or commissioning immediately.

15.7 Furthermore, we refer to our special assembly conditions.

16.0 Repairs

16.1 For carriage-paid deliveries, we undertake repair work on devices and parts delivered by us. As a rule, we deliver overhauled exchange devices instead of the repair devices delivered to us. The delivery of exchange devices takes place at short notice depending on availability. The repair costs for the repair device delivered to us or a given exchange price will be charged, primarily for larger items. The item to be repaired passes into our ownership immediately after dispatch of a corresponding exchange device. The transfer of ownership for the exchange device only takes place after full payment of the relevant repair invoice. If a special agreement is reached before delivery of a repair device and at the latest when a repair order is placed, the owner of a repair device can get his device back against payment of the individual repair costs. In this case, the repair duration may be several weeks. A loan device is only provided upon request and against payment of a loan fee including inspection costs. Freight costs and transport risk are generally borne by the purchaser.

17.0 Place of Jurisdiction and Choice of Law

17.1 If the purchaser is a merchant, a legal person under public law or a special fund under public law, Essen shall be the sole place of jurisdiction for all disputes arising from or in connection with the contractual relationship. However, we are entitled to sue at the purchaser’s place of business.

17.2 The contract, including its interpretation, is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).