§ 7 Defects liability/Claims for Damages
- Upon detection of a fault covered by defects liability, this shall be reported to us immediately. The customer is duty bound to inspect the delivered goods immediately. Obvious faults detected in the process and complaints due to incorrect and incomplete delivery shall be reported to us in writing immediately, that is within ten days of delivery. If this is not the case, the delivery object is considered as accepted, except in the case of malice by us or our legal representatives and vicarious agents. In the case of hidden faults, the three-day period applies as of when the customer detects the fault. § 377 of the German Commercial Code (HGB) applies.
- We provide defects liability on possible faults - except in the case of used products for which we do not assume any defects liability - contained in our products at the time of transfer of risk for a period of 12 months, and 12 months for spare parts, in the form of supplementary performance. We shall determine the type of subsequent delivery, gratuitous removal of the fault reported to us in a timely fashion by the customer, or fault-free replacement delivery. Warranty spare parts delivery is always on DAP (delivered at place) basis - the byuer is responsible to pay import duty/taxes/customs costs. We reserve the right to refuse supplementary performance if this involves unreasonable costs for us. Instead of supplementary performance, a price reduction shall then be demanded. Our customer has the right to reduce the agreed remuneration if reworking or replacement delivery with regard to a fault for which we are responsible finally fails after an appropriate period of grace for reworking or replacement delivery has expired, and a further reworking attempt is not acceptable to the customer or we have allowed a reasonable period of grace to expire for reasons within our control. Defects liability claims do not apply:
a) in the case of insignificant faults that do not reduce the value or the object‘s suitability for purpose as detailed in the contract; in the case of delivered parts displaying early signs of wear due to their material characteristics or type of use - in particular, delivered parts listed in the product description as wear-and-tear parts; small quantity deviations are also considered to be insignificant.
b) in the case of faults that can be traced back to incorrect assembly, commissioning or repair by a third party.
c) in the case of faults that can be traced back to unsuitable or improper use; in particular, non-adherence to servicing instruction, incorrect use, natural wear and tear, inappropriate resources/spare parts, etc.
- Unless a provision to the contrary is stated hereinafter, all further claims from our customer are excluded; in particular, for injury to persons, damage to goods that are not contractual products, for lost profit, consequential costs, etc. This disclaimer particularly applies to all types of damage claims, provided that they are not based on intent or gross negligence on our, our legal representatives‘, or vicarious agents‘ part. We are always liable for culpable breach of contractual obligations (cardinal duties). If we covered the typical contractual risk by way of liability insurance, our liability and that of our legal representatives or vicarious agents is limited to the scope of the liability insurance, insofar as the customer is an entrepreneur and is acting in its commercial or self-employed professional capacity upon contract conclusion. If the insurer is not liable to pay, we shall make our own payments to the extent of the insurance policy. The aforementioned liability restrictions do not apply to damage that endangers life, body or health; or is related to negligent breach of duty on our part or our legal representatives and vicarious agents. The disclaimer also does not apply if loss of life or damage to privately used objects is covered in the provisions of the Product Liability Act dated 15 December 1989 and the respective relevant version includes obligatory liability.
§ 8 Payment
- Provided that no agreements to the contrary are made, customer service invoices shall be paid immediately; other invoices shall be paid in full within two weeks of the invoice date.
- Even if customer provisions provide for the contrary, we reserve the right to consider payments as credit against old debts that may exist. If we already incurred interest and costs, we are justified in initially crediting the payments against the costs, then against the interest and finally against the main debt.
- Payment is only considered to have been made when we have unrestricted access to the amount. In the case of a check, payment is only considered to have been made when the check has been cashed unconditionally.
- We charge default interest at 8 percentage points above the base interest rate (§ 247 German Civil Code BGB). Default interest may be charged at a higher rate if we can prove that a greater debt has arisen.
- Our customer may only offset our debt with an undisputed, legally binding counterclaim. If the customer is an entrepreneur as described by § 14 of the BGB, the customer‘s right of retention due to alledged defects liability claims is excluded. Otherwise, the customer may only assert the right of retention up to the amount of an appropriate proportion of the purchase price debt.
- If the customer‘s financial circumstances significantly worsen after contract conclusion or this only becomes known to us after contract conclusion, and these circumstances could affect contractual fulfillment, we reserve the right not to render further services until a return service is effected or a security is lodged. This also applies if the customer does not meet its contractual obligations in a timely manner or terminates its payments.
§ 9 Reservation of Title
Until all debts, including open accounts, are met to which we have a claim or shall have a future claim against
our customer based on all types of legal bases, the following securities are guaranteed to us, released on
our request and at our choosing, insofar as their value consistently exceeds the debts by more than 20%.
- We reserve the right to retain ownership of the delivery objects until payment has been made in full. If the customer breaches the contract, in particular if payment default arises, we reserve the right to issue a dunning letter and ultimately seize the objects; the customer shall suffer the objects to be seized.
- If the customer is an entrepreneur as described by § 14 of the German Civil Code (BGB), the following also applies:
a) Our customer has the right to resell the delivery objects in the normal course of business dealings; at this point, however, our customer shall assign all debts to us up to the sum of the purchase price agreed between us and the customer (including VAT) arising from the resale, irrespective of whether the delivery objects are sold before or after they have been processed. The customer is authorized to collect the debt after assignment. Our entitlement to collect the debts ourselves remains un touched; however, we are duty bound not to collect the debts as long as the customer is its meeting payment obligations as agreed and is not defaulting on payment. If this is the case, we have the right to demand that the customer reports the assigned debts and the debtor, provides all necessary information for seizure, provides all relevant documents, and informs third parties of the assignment.
b) Processing or reshaping of goods by the customer is always performed on our behalf. If delivery objects are processed with other objects not part of the delivery, we shall acquire co-ownership in the new thing in the ratio of the delivery objects‘ value to the other processed objects‘ value at the time of processing.
c) If delivery objects are mixed with other objects not belonging to us so that they cannot be separated, we shall acquire co-ownership of the new thing in the ratio of the delivery objects‘ value to the other non-separable objects‘ value. The customer shall store on our behalf the co-owned things.
d) The customer may neither pledge nor transfer delivery goods as a security. In the case of seizure, confiscation or other writs by third parties, the customer shall inform us immediately and provide us with all information and documents necessary to maintain our rights. Bailiffs and third parties shall be made aware of our ownership.
- If third parties attempt to seize the delivery objects, the customer shall indicate our ownership, inform us immediately, and send us a copy of the seizure report, if necessary. The customer shall assume costs and damages.
§ 10 Claims for Damages
If our customer fails to meet the contract or if the customer withdraws from a concluded contract for an unjustified reason, we shall be able to demand 35% of the agreed contractual price, notwithstanding possible higher actual damage, for processing the contract and profit lost. If the delivery object has been delivered, this amount shall increase to cover shipping costs and costs of possible reconditioning. The customer has the right to provide evidence of smaller damage.
§ 11 After Sales Service
- We provide repairs and servicing through our after sales service charged according to the valid price table. Repairs are carried out by us in such a way that the object is returned to an operational state. Faulty parts are replaced if this is required for the correct function of the object. We provide defects liability on repaired and replaced parts according to the aforementioned § 7 under the condition that the defects liability deviates from this provision and only applies for a period of 12 months from the completion of work.
- After sales technicians may not make defects liability assurances and other declarations for which the seller is responsible.
- The regulations described in § 7 of these Terms and Conditions apply in the case of damage and faults arising during repair or servicing.
§ 12 Closing Provisions/Place of Jurisdiction
- If parts of this contract or these Terms and Conditions should be invalid, the validity of the remaining parts of the contract and Terms and Conditions remains untouched.
- Only German law applies to legal relationships with our customers under exclusion of the Uniform Law on the International Sale of Goods, even if the purchaser is based abroad.
- The place of jurisdiction for all legal disputes arising from this contract shall be Stuttgart if the customer is a commercial businessperson, a legal entity of public law/ a special fund under public law. We may also take legal action at the customer‘s place of jurisdiction.