Our General Terms and Conditions apply, unless expressly agreed otherwise, to all quotations, orders, contracts and services that we provide to the customer (buyer). They also apply to future business, even if they are not explicitly agreed again. Any other General Business Conditions proposed by the customer are not recognised, even if we do not expressly oppose them.
I. Service and Repair Conditions
1.1 Provided that the following conditions do not contain any provisions, part B of the Contracting Rules for Award of Public Works (VOB) will apply to work on buildings (construction work) and also in extracts part C (VOB/B or VOB/C) relating to DIN 18299, DIN 18382, DIN 18384, DIN 18385 and DIN 18386 as “General Technical Terms and Conditions for Construction Work (ATV)”.
1.2 Documents such as illustrations, drawings etc. included in the contractor’s offer should only be seen as approximate with regard to weights and dimensions, unless the dimension and weight accuracy has been expressly confirmed. The contractor reserves all rights of ownership and copyrights for these documents. They must not be made accessible to third parties without the contractor’s written consent nor must they be misused in any other way. If an order is not placed, any documentation created specifically for the customer in question is to be returned without delay and without being requested. In all other cases the documentation is to be returned immediately upon request.
2.1 The agreed delivery or completion date is only binding where adherence is not made impossible due to circumstances beyond the contractor’s control. Such circumstances are also modifications and lack of documents (building permit, etc.), which are necessary to perform the contract.
2.2 In the case of default (with regard to construction works), the customer shall only be entitled to benefits from paragraph 8 No. 3 VOB/B, if a calendar date was agreed in writing for the commencement and for the completion of performance and, after this date, the customer has set a reasonable grace period and declares that he will withdraw the order after the expiry of this period to no avail.
3 Costs for Unperformed Orders
Unless warranty work has to be carried out, troubleshooting time is working time and that is the reason why the customer will be charged for the expenses incurred, for which proof has to be furnished, if it is not possible to execute the order because:
3.1 the defect complained about could not be determined in accordance with the rules of technology;
3.2 the customer culpably failed the agreed date;
3.3 the order was withdrawn during the performance;
3.4 the receiving conditions are not properly met when using appropriate consumer electronics products.
4 Warranty and Liability
4.1 The warranty period for all work performed (repairs etc.) – with the exception of work on buildings – and for built-in material is six months. The provisions of VOB/B agreed upon as a whole will apply to work on buildings.
4.2 In case of a defect the customer has to grant the contractor a reasonble period of time for subsequent improvement. The customer is specifically responsible for ensuring that the object in question is placed at the contractor’s or his representative’s disposal for the purpose of examination and supplementary performance.
4.3 If the contractor is obliged to subsequent performance, he has the option to either eliminate the defect or produce new work.
4.4 If the subsequent fulfillment fails, the customer is entitled to reduce the remuneration or to withdraw from the contract. The withdrawal is excluded if the breach of duty of the contractor is irrelevant or if the subject of the contract is building work.
4.5 In the event of injury to life, limb or health based on a negligent breach of duty by the contractor or an intentional or negligent breach of duty by his legal representative or vicarious agent, the contractor is liable under the statutory provisions. The same applies to any other damages based on a grossly negligent breach of duty by the contractor or an intentional or grossly negligent breach of duty by his legal representative or vicarious agent. For damages based on a breach of essential duties due to slight negligence on the part of the contractor, his legal representatives or vicarious agents, the contractor’s liability is limited to contract-typical, foreseeable damage up to a maximum of twice the value of the contractual item. Claims for other damages due to breach of secondary obligations in the case of slight negligence are excluded. The contractor is not liable for any other damages caused by delay which are based on simple negligence; the customer’s statutory rights after a reasonable grace period remain unaffected. The preceding exclusions of liability and/or limitations shall not apply if the contractor has fraudulently concealed a defect or has assumed an independant guarantee for the quality of the item. The customer’s claim for reimbursement of futile expenditure – instead of compensation in lieu of performance – remains unaffected.
5 Extended Lien of the Contractor on Movable Objects
5.1 Due to the claim resulting from the order, the contractor has the right of distraint to the customer’s object that came into his possession as a result of the order. The lien may also be asserted for claims resulting from work, spare parts deliveries or other services provided at an earlier date, as far as they relate to the object in question. For other claims from the business relationship, the lien shall only apply to the extent they are undisputed or legally binding. If the item is not collected within four weeks after the request for collection, the contractor may charge reasonable storage fees upon expiry of this period. If collection has not been made by three months after the instruction to collect, the contractor is no longer bound to keep the item and he is not liable for slightly negligent damage or loss. A warning of intended sale must be sent to the customer one month before expiry of this period. To cover his claims, the contractor is entitled to sell the item at market value after expiry of this period. The customer shall be reimbursed for any surplus proceeds.
Reservation of proprietary rights
As far as the spare parts or the like installed in the course of repairs do not become essential components, the contractor reserves the proprietary rights on these parts until all the contractor’s claims from this contract have been settled.
If the customer is in arrears with payment or fails to fulfil his obligations under the reservation of ownership, so that the contractor has declared his withdrawal from the contract, the contractor can demand surrender of the object for the purpose of removing the installed parts. All costs for reclaiming and dismantling shall be borne by the customer.
If the repair is carried out on the customer’s premises, the customer shall give the contractor the opportunity to remove the parts in question. Work and travel costs are to be borne by the customer. If the customer does not provide the opportunity to remove the parts, then point 6 paragraph 2 clauses 1 and 2 shall apply accordingly.
II. Conditions of Sale
1 Reservation of Proprietary Rights
The objects and facilities sold shall remain the property of the seller until all claims arising from this contract against the customer have been fulfilled. The reservation of proprietary rights shall also apply to all future claims against the customer which result from repairs, spare parts deliveries or other services provided by the seller in connection with the contractual item. The latter does not apply if the repair work is unreasonably delayed by the contractor or has failed. Until settlement of these claims the items may not be resold, leased, lent or given away and not be repaired by third parties. Likewise, pledge and transfer by way of security are prohibited.
If the customer is a trader (reseller), he is allowed to resell in the ordinary course of business with the prerequisite that the claims resulting from the resale against his purchasers or third parties, including all subsidiary rights and amounting to the invoice values of the seller, have already now been ceded to the seller.
During the duration of the reservation of proprietary rights the customer is authorised to possess and use the contractual item as long as he honours his obligations arising from the reservation of proprietary rights and is not in default of payment. If the customer is in arrears with payment or fails to fulfil his obligations under the reservation of ownership, so that the seller has declared his withdrawal from the contract, the seller can reclaim the object of sale from the buyer and, after giving a warning with reasonable time limit, the seller can offer the item for sale on the free market for the best possible price. All costs for the return and the sale of the item will be borne by the customer. In the event of seizure by third parties, especially if the purchased item is pledged or a workshop exercises a contractor’s lien, the customer must immediately notify the seller in writing and must inform the third party of the reservation of proprietary rights of the seller without delay. The customer bears all costs incurred in releasing the seizure and replacing the contractual item, as far as they can not be collected from third parties. The customer is obliged to keep the object of purchase in good condition for the duration of the reservation of proprietary rights and to ensure that all scheduled maintenance work and required repair work are done by the seller without delay. The seller agrees to release the rightful securities, insofar as their value exceeds the secured claims, if these are not yet settled, by more than 10%.
2 Acceptance and Default of Acceptance
Should the customer fail to accept the contractual item within the time limit, the seller shall be entitled to set a reasonable grace period, to dispose of the item otherwise after expiry of that period and to supply a replacement item to the customer within a reasonably extended period. This will not affect the seller’s right to withdraw from the contract after a grace period or to claim compensation. In the context of a claim for damages, the seller can demand 20% of the agreed price without VAT as compensation without proof of claim, unless it can be proven that no or a much smaller damage has occurred. The assertion of a higher actual damage is reserved. The customer is obliged to accept partial deliveries (advance deliveries), as far as this is reasonable.
3 Warranty and Liability
3.1 Warranty claims for all new objects sold shall become statute-barred two years, for used objects one year after delivery of the object. Obvious defects must be notified to the seller within two weeks after delivery related to the issue of notification, the seller is otherwise exempt from liability.
3.2 If the delivery item is defective, the purchaser has the following rights:
3.2.1 The seller is obligated to render subsequent performance and has the option to either eliminate the defect or deliver a defect-free item.
3.2.2 If the attempt to rectify the defect fails, the purchaser shall be entitled to withdraw from the contract or reduce the purchase price. Withdrawal shall be precluded in the event of a negligible infringement of the seller’s obligation.
3.2.3 The object of sale is not considered defective: In case of errors that are caused by damage, incorrect connection or improper use by the customer, and damages caused by force majeure such as lightning, and failures due to overstraining of mechanical or electro-mechanical parts by improper use or contamination or unusual, mechanical, chemical or atmospheric influences. In the field of consumer electronics a deficiency does not exist if the reception quality is affected by unfavourable reception conditions or poor antennas or external influences, by damages that are caused by unsuitable or defective batteries inserted by the customer.
4 Liability for Damages
4.1 In the event of injury to life, limb or health based on a negligent breach of duty by the seller or an intentional or negligent breach of duty by his legal representatives or vicarious agents, the seller is liable under the statutory provisions.
4.2 For other damages the following provisions shall apply:
4.2.1 For damages based on a grossly negligent breach of duty by the seller or an intentional or grossly negligent breach of duty by his legal representatives or vicarious agents, the seller is liable under the statutory provisions.
4.2.2 For damages based on a breach of essential duties due to slight negligence on the part of the seller, his legal representatives or vicarious agents, the seller’s liability is limited to the contract-typical, foreseeable damage up to a maximum of twice the value of the contractual item.
4.2.3 Claims for other damages due to breach of secondary or insignificant obligations in case of slight negligence are excluded.
4.2.4 Claims for damages from delay which are based on simple negligence are excluded; the legal rights of the purchaser after a reasonable grace period remain unaffected.
4.3 The liability exclusions or limitations may not apply if the seller has fraudulently concealed a defect or has given a quality guarantee for the item.
4.4 The purchaser’s claim for reimbursement of futile expenditure – instead of compensation in lieu of performance – remains unaffected.
In case of cancellation contractor and customer are required to return the benefits received from each other. Reimbursement shall be made for permission to use the contractual object with allowance for the decrease in value occurred in the meantime.
III. Common Provisions for Services, Repairs and Sales
1 Prices and Terms of Payment
1.1 The end prices are ex place of business of the contractor or seller including VAT.
1.2 All invoices are payable immediately upon receipt of invoice in one lump sum. Partial payments on sales are only possible if they were previously agreed in writing.
1.3 Repair invoices are to be paid in cash. Bills of exchange and cheques are only accepted by special agreement and only on a cash basis.
1.4 For services that are not included in the contract or deviate from the specifications, a supplementary offer may be requested by the customer or submitted by the contractor. If such supplementary offer is not made, these services are calculated according to measurement and time. Regarding notification and evidence of time work, § 15 No. 5 VOB/B shall apply to building work.
1.5 For jobs whose execution lasts over one month, payments on account amounting to 90% of the value of the work done are to be provided depending on the progress of the work. These payments on account are to be requested by the contractor and be paid within 10 days after date of invoice by the customer.
The legal venue for all current and future claims resulting from the business relationship with merchants including claims from bills of exchange and cheques is exclusively the place of business of the contractor/seller. Pursuant to the provisions in points I, 1.1 and 1.2 of these General Terms and Conditions, § 13 VOB/B will exclusively apply to the execution of construction work regarding warranty and liability.
§ 13 No. 4 VOB/B has the following contents:
1. If there is no limitation period specified in the contract, the term of guarantee is two years for buildings and wood disease and one year for work on a plot and for the parts affected by fire in combustion plants.
2. For mechanical and electro-technical/electronic systems or components thereof, where maintenance affects the safety and operability, the limitation period for warranty claims is one year by way of derogation from paragraph 1, if the customer has decided not to transfer the maintenance works to the contractor for the duration of the limitation period.
3. The period begins with the decrease of the total power; only for self-contained parts of the performance it begins with the partial decrease (§ 12 No. 2).
Status as of February 2008