Terms and Conditions
General terms and conditions
1. Scope of application
1.1 Our GTC shall apply exclusively. We do not recognize any terms and conditions of the customer that conflict with or deviate from our GTC unless we have expressly agreed to their validity in writing. Our GTC shall also apply if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from our GTC. 1.2 All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract. 1.3 Our GTC shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Offer, offer documents, reservation of right to change and self-delivery
2.1 If the order qualifies as an offer pursuant to § 145 BGB, we may accept it within 2 weeks. If the order is not to be qualified as an offer pursuant to § 145 BGB, our offer shall be subject to change unless otherwise stated in the order confirmation. In the absence of any agreement to the contrary, a contract shall be concluded upon our written order confirmation. The content of the contract shall be governed by this order confirmation, if applicable in conjunction with the product description to be agreed with us. 2.2 As a matter of principle, only the manufacturer’s specific product description on which the contract is based shall be deemed to be agreed as the quality of the subject matter of the contract. Public statements, promotions or advertising by the manufacturer or third parties shall not constitute a contractual statement of quality. 2.3 We reserve the property rights and copyrights to samples, illustrations, drawings, calculations, cost estimates and other documents – also in electronic form. The customer must obtain our express written consent before passing them on to third parties. Samples and documents provided shall be returned immediately upon our request. 2.4 We reserve the right to technical deviations as well as deviations in shape, color and/or weight within the scope of what is reasonable. 2.5 The conclusion of the contract shall be subject to correct and timely delivery by our suppliers.
3. Prices and Terms of payments
3.1 Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging, freight, postage and value assurance. These items shall be invoiced separately. 3.2 Statutory value added tax is not included in our prices. It shall be shown separately in the invoice at the statutory rate on the date of invoicing. 3.3 Unless otherwise stated in the order confirmation, the respective invoice amount shall be due for payment immediately without deduction upon receipt of the invoice. In the case of orders with a value of more than € 5,000.00, the customer shall pay one third of the price after receipt of the order confirmation, one third after notification of readiness for dispatch and one third 30 days after invoicing. In the case of customers with whom we do not have a long-standing business relationship, delivery shall – in the absence of any agreement to the contrary – only be made against advance payment or cash on delivery. 3.4 We accept checks and bills of exchange only as performance on account of performance. Bills of exchange must be discountable. Discount and collection charges shall be borne by the customer and shall be due for payment immediately and without deduction upon invoicing. 3.5 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. 3.6 Unless otherwise agreed in writing, we shall invoice the time spent by our employees on the basis of our hourly rates valid at the time of performance. Our time expenditure shall include, in particular, working and waiting times, travel/route times as well as preparation and follow-up times. Our respective valid price lists are displayed in our business premises. Upon written request, we shall make the price lists available to the customer. 3.7 Our normal working hours are from Monday to Friday from 7:00 to 17:00. For working hours on these days exceeding 8.00 hours or between 17.00 and 22.00 hours we charge a surcharge of 25%. For working hours between 10.00 p.m. and 7.00 a.m. of the following day, we shall charge a night surcharge of 50%, unless the surcharges are based on Section 3.8. 3.8 For working hours on Saturdays we charge a surcharge in the amount of 50% and for working hours on Sundays and public holidays in the amount of 100%. 3.9 In particular, the following cost items shall be invoiced separately in addition: – Spare parts – operating materials – Other materials – Necessary auxiliary materials – Disposal of old parts, waste, and operating materials etc. – Safety instructions at the site of the compressed air systems – Services of experts 3.10 If the service requires an overnight stay of our employees, we will charge our respective flat rate (price list) for the overnight stay. We reserve the right to charge the actual costs incurred instead of the flat rate.
4. Delivery Time
4.1 The start of the delivery period stated by us shall be subject to clarification of all technical questions. Due to the agreed reservation of self-supply pursuant to Section 2.5, compliance with the delivery period shall be subject to correct and timely self-supply. We shall inform the customer immediately of any delays in self-delivery. 4.2 Compliance with our delivery obligation shall further be subject to the timely and proper fulfillment of the customer’s obligations. We reserve the right to plead non-performance of the contract. Insofar as acceptance is not required, it shall be necessary but also sufficient for compliance with the delivery period that the subject matter of the contract has left our works or that we have notified the customer that the goods are ready for dispatch. In the event of an acceptance requirement, the date of acceptance, or alternatively the notification of readiness for acceptance, shall be decisive for compliance with the delivery period, unless there is a case of justified refusal of acceptance. 4.3 If we are prevented from timely delivery due to riot, strike, lockout, operational disruptions, fire, natural disasters, transport obstructions, changes in legal provisions, official measures or regulations or the occurrence of other unforeseen events beyond our control, the stated delivery time shall be extended accordingly. 4.4 In the case of divisible deliveries, we shall be entitled to make partial deliveries insofar as they are reasonable for the customer. 4.5 If the customer is in default of acceptance or culpably violates other duties to cooperate, he shall bear the costs incurred by the delay, in particular the costs for the storage of the subject matter of the contract. If the subject matter of the contract is stored on our premises, we may charge the customer 0.5% of the order value for each month or part thereof, but not more than 10% of the order value. The customer shall be at liberty to prove lower storage costs on our part. We reserve the right to assert further claims or rights. 4.6 If the conditions of para. 5 are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay. 4.7 If, in the case of an order, the execution of part of the delivery becomes impossible, we may withdraw from the contract if we have a justified interest in refusing a partial delivery. If there is no justified interest, the customer shall pay the price attributable to the partial delivery. The same shall apply in the event of the customer’s inability to perform. 4.8 We shall be liable in accordance with the statutory provisions if the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist. 4.9 Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. 4.10 We shall also be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage. 4.11 Furthermore, in the event of a delay in delivery, we shall be liable for each commenced month of delay within the framework of a lump-sum compensation for delay in the amount of 0.5 % of the order value, but not more than 10 % of the order value. We shall be at liberty to prove to the customer that the damage caused by the delay is lower. 4.12 Further legal claims and rights of the customer shall remain reserved. 4.13 In the event of an unjustified refusal of acceptance/acceptance by the customer, we shall be entitled to withdraw from the contract or to claim damages for non-performance after expiry of a reasonable period set for the customer for acceptance or acceptance – without prejudice to the right to performance. In this case, we may in any case claim liquidated damages in the amount of 25% of the net order value in the case of non-accepted standard goods and in the amount of 100% in the case of otherwise unusable custom-made goods, even without proof of the actual damage incurred. The customer is at liberty to prove a lower actual damage on our part. We reserve the right to assert a higher actual damage.
5.1 Unless otherwise stated in the order confirmation, assembly costs are not included in the price; these shall be invoiced separately. 5.2 Assembly and installation of systems and components shall be carried out in consultation with the customer. If the customer requests an assembly/installation plan, the time and effort required for its preparation shall be invoiced separately. 5.3 Additional services resulting from structural deviations shall be invoiced separately. 5.4 The Customer shall ensure that the assembly can be carried out without interruption or hindrance. The assembly site must be in a condition ready for assembly, in particular cleared, cleaned and dry. We shall not be liable for any damage caused by moisture at the assembly site. The object of purchase shall be handed over in a clean condition. The final cleaning is the responsibility of the customer. 5.5 If internal safety regulations, company agreements or other regulations (e.g. environmental regulations, power plant regulations, water protection regulations, noise protection regulations, explosion protection regulations, etc.) are to be observed by the customer with regard to the object of purchase, the customer must inform us of these in writing before placing the order. If internal safety regulations, company agreements or other regulations lead to additional expenditure, this shall be invoiced separately. 5.6 If, in the course of assembly, changes are necessary with regard to the object of purchase because the customer has not notified us in writing of regulations within the meaning of Section 5.5 before placing the order or for other reasons for which we are not responsible, any additional costs incurred as a result shall be borne by the customer. With regard to the delivery time, Clause 4.3 shall apply accordingly in such cases (reasonable extension).
6.Obligations of the customer
6.1 The customer shall support us in the performance of our services at its own expense and, in particular, shall perform any necessary acts of cooperation. 6.2 The customer shall create the conditions necessary for the provision of our services at its own expense. In particular, the customer shall – to the extent necessary – provide the following in good time – Create or maintain the on-site prerequisites (electrical work, electrical connections, switches, fuses, electrical compressor-specific circuits, supply and disposal connections (air, water, suction, etc.), connecting lines, foundations, masonry and painting work), – Provide required equipment (hoists, ladders, scaffolding, etc.). – Provide openings for the movement of larger assembly parts to the service location, and – To make and keep the service location freely accessible. 6.3 The customer shall – as far as necessary -, – To store machine parts, materials, tools, etc., provide us with suitable premises close to the service location, which must in particular be dry and lockable; – For the stay of our employees, to provide a suitable room with washing facilities and first aid equipment, which must be close to the service location, and which must in particular be lockable and heatable. 6.4 The customer shall ensure the room temperature of min. +5°C and max. +40°C prescribed in the VDMA 4363 guideline “Ventilation of the operating rooms of air- and water-cooled compressors”. 6.5 The customer shall ensure that our employees can start the services immediately and perform them without delay or interruption. 6.6 Should it not be possible to start the services immediately after delivery of parts – for whatever reason – the customer shall protect them from harmful environmental influences and damage of any kind. 6.7 If the customer wishes remote diagnosis via modem, he shall set up and maintain a functioning modem facility (telephone socket near the compressor station with his own telephone number, exchange line and IDN adapter). 6.8 The customer shall provide us with the assistance necessary for the performance of our services. In particular, the customer shall provide us with auxiliary personnel, if necessary, at short notice and free of charge, insofar as this is necessary. The assistants provided by the customer shall follow the professional instructions of our employees. 6.9 If and to the extent that we provide the customer with auxiliary resources within the scope of our services, the customer shall return these to our registered office at its own expense and risk if we do not arrange the return transport ourselves at the customer’s expense. 6.10 The customer shall not be entitled to have the services performed by a specific employee. If an employee is replaced at the customer’s request, the customer shall bear the costs incurred thereby.
7. Transfer of risk and packaging
7.1 Unless otherwise stated in the order confirmation, delivery is agreed “ex works”. Insofar as an acceptance has to take place, this shall be decisive for the transfer of risk. Acceptance by the customer shall take place immediately on the acceptance date or upon our notification of readiness for acceptance. The customer may not refuse acceptance in the event of an immaterial defect. The risk shall pass to the customer upon our notification of readiness for dispatch or acceptance if dispatch or acceptance is delayed or does not take place due to circumstances for which we are not responsible. 7.2 If delivery “free domicile” has been agreed with the customer, we shall only bear the transport costs. The risk of accidental loss and accidental deterioration of the purchased goods in transit shall be borne by the customer. 7.3 Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back, with the exception of Euro pallets and Euro grid boxes and other pool-capable reusable packaging. The Customer shall be obliged to arrange for disposal of the packaging at its own expense. 7.4 If the customer gives the order for this, we shall take out transport insurance at the customer’s expense.
8. Liability for defects
8.1 Liability for defects is excluded for used goods. 8.2 Claims for defects on the part of the customer shall be subject to the condition that the customer has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to Section 377 of the German Commercial Code (HGB). 8.3 Insofar as the purchased item is defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the case of removal of the defect or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance. 8.4 If the supplementary performance fails, the customer shall be entitled, at its option, to demand rescission or reduction. 8.5 We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage. 8.6 We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, too, however, the liability for damages shall be limited to the foreseeable, typically occurring damage. 8.7 Insofar as the customer is entitled to claim compensation for damage instead of performance, our liability shall also be limited to compensation for the foreseeable, typically occurring damage within the scope of para. 4. 8.8 Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act. 8.9 Unless otherwise stipulated above, liability shall be excluded. 8.10 With the exception of the cases regulated in §§ 438 Para. 1 No. 2, 634a Para. 2 No. 2 BGB (German Civil Code), the limitation period for claims for defects shall be 12 months, calculated from the transfer of risk. 8.11 The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB shall remain unaffected; it shall be five years, calculated from the delivery of the defective item.
9. Total Liability
9.1 Any further liability for damages than provided for in No. 7 shall be excluded – irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB. 9.2 The limitation according to para. 1 shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages. 9.3 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents. 9.4 We shall not be liable for the infringement of third-party industrial property rights for a delivery item which has been manufactured according to drawings, developments or other information provided by the customer. In this case, the customer shall indemnify us against claims of third parties.
10. Retention of title
10.1 We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the purchased item. In this case, the customer shall be obliged to surrender the purchased item. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to dispose of it; the proceeds of such disposal shall be set off against the customer’s liabilities – less reasonable costs of disposal. 10.2 The customer shall be obliged to treat the object of sale with care; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense. 10.3 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us. 10.4 The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. 10.5 The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title. 10.6 If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us. 10.7 The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property. 10.8 We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent on us.
11. Property rights, copyrights and confidentiality
11.1 Rights to patents, utility models and designs, trademarks, equipment and other industrial property rights as well as copyrights for the subject matter of the contract and services shall all remain with the respective holders of the rights. This shall also apply in particular to name and trademark rights, to product designations and to software. 11.2 The contracting parties mutually undertake to treat as business secrets all commercial and technical information which is not in the public domain and which becomes known to them through the business relationship. 11.3 Insofar as samples, illustrations, drawings, tools, molds, devices, models, templates, software and similar items are delivered, used or made available by or for us, the ownership of these items shall remain with us. If corresponding items are produced for us, these items shall become our property as soon as they are produced. The customer is not entitled to make these items available to unauthorized third parties or to make them accessible in any other way. The customer shall only be permitted to reproduce corresponding items within the scope of operational requirements and the provisions of patent law, copyright law, trademark law and competition law. 11.4 The customer shall oblige its contractual partners accordingly. 11.5 The customer shall only be permitted to make advertising references to the business relationship existing with us if we have consented to this in writing.
12. Collision with third party rights
Should a claim be made against the customer by a third party on the basis of services rendered by us due to direct infringement of industrial property rights and copyrights, we shall indemnify the customer internally against any claims for damages recognized or settled against him as well as against court costs and lawyers’ fees, a) if the customer immediately notifies us of the claim and has not previously taken any measures (issuing statements, entering into negotiations, engaging a lawyer, etc.), unless it is a matter of emergency measures that must be taken before we can be notified, b) if the customer appoints a lawyer to be named by us to represent him at our expense and only gives him instructions to which we have given our prior written consent, and if c) the customer keeps us informed about the matter without being asked, immediately and continuously and provides us with all information and documents
13. Written form, place of jurisdiction and place of performance
13.1 Amendments and supplements to this Agreement must be made in writing to be effective. This shall also apply to the written form requirement itself. 13.2 If the customer is a merchant, our place of business shall be the place of jurisdiction. However, we shall also be entitled to sue the customer at the court having jurisdiction over his place of business. 13.3 The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply. 13.4 Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.