Applicable in business transactions with entrepreneurs, legal entities under public law and special funds under public law.
Our Terms and Conditions of Purchase shall apply exclusively; we shall only recognize general terms and conditions of business of the Supplier that conflict with or deviate from our Terms and Conditions of Purchase to the extent that we have expressly agreed to them in writing. The acceptance of goods or services of the supplier (hereinafter: subject matter of the contract) or their payment does not imply consent to other terms and conditions.
- Conclusion of contract and contract amendments
2.1 Orders, contracts and delivery schedules as well as changes and amendments thereto must be made in writing.
2.2 Verbal agreements of any kind - including subsequent amendments and supplements to our Terms and Conditions of Purchase - must be confirmed by us in writing to be effective.
2.3 The written form is also fulfilled by remote data transmission or fax.
2.4 Cost estimates shall be binding and shall not be remunerated unless expressly agreed otherwise.
2.5 If the supplier does not accept the order within two weeks of receipt, we shall be entitled to cancel the order.
2.6 Delivery schedules within the framework of an order and call-off planning shall become binding if the Supplier does not object within two working days of receipt.
2.7 The Quality Assurance Guideline for Suppliers (QSL), as well as the delivery and packaging instructions of KTI Plersch Kältetechnik GmbH are part of the contract.
3.1 Deviations from our contracts and orders are only permitted with our prior written consent.
3.2 Agreed dates and deadlines are binding. The receipt of the goods by us shall be decisive for compliance with the delivery date or the delivery period. If delivery "free works" (DDU or DDP in accordance with Incoterms 2000) has not been agreed, the supplier shall make the goods available in good time, taking into account the time for loading and dispatch to be agreed with the forwarder.
3.3 If the Supplier has assumed responsibility for installation or assembly and unless otherwise agreed, the Supplier shall bear all necessary ancillary costs, such as travel expenses, provision of tools and allowances, subject to deviating provisions.
3.4 If agreed deadlines are not met, the statutory provisions shall apply. If the supplier foresees difficulties with regard to production, supply of input materials, compliance with the delivery date or similar circumstances which could prevent him from delivering on time or in the agreed quality, the supplier shall immediately notify our ordering department.
3.5 The unconditional acceptance of the delayed delivery or service shall not constitute a waiver of the claims for compensation to which we are entitled due to the delayed delivery or service; this shall apply until full payment of the remuneration owed by us for the delivery or service concerned.
3.6 Partial deliveries are generally not permitted unless we have expressly agreed to them or they are reasonable for us.
3.7 For quantities, weights and dimensions, the values determined by us during the incoming goods inspection shall be decisive, unless proven otherwise.
3.8 We shall have the right to use software that is part of the scope of delivery of the product, including its documentation, to the extent permitted by law (§§ 69a et seq. UrhG [German Copyright Act]).
3.9 We shall also have the right to use such software, including documentation, with the agreed performance features and to the extent required for contractual use of the product. We may also make a backup copy without express agreement.
- Force majeure
Force majeure, labor disputes, operational disruptions through no fault of our own, unrest, official measures and other unavoidable events shall release us from the obligation to take delivery on time for the duration of their occurrence. During such events and within two weeks after their end we shall be entitled - without prejudice to our other rights - to withdraw from the contract in whole or in part insofar as these events are not of insignificant duration and our requirements are considerably reduced due to the need to procure the goods elsewhere as a result.
- Shipping notice and invoice
The information in our purchase orders and delivery schedules shall apply. The invoice is to be sent in one copy to the address printed on the invoice, stating the invoice number and other allocation features; it may not be enclosed with the shipments.
- Pricing and transfer of risk
If no special agreement has been made, the prices shall be understood free works duty paid (DDP according to Incoterms 2000) including packaging. Value added tax is not included. The supplier shall bear the material risk until acceptance of the goods by us or our agent at the place to which the goods are to be delivered in accordance with the order.
- Terms of payment
Unless otherwise agreed, payment of the invoice shall be made either within 20 days with a discount of 3 % or within 30 days without discount from the due date of the payment claim and receipt of both the invoice and the goods or performance of the service. Payment shall be made subject to invoice verification.
- Claims for defects and recourse
8.1 Acceptance shall be subject to an inspection for freedom from defects, in particular also for correctness and completeness, insofar and as soon as this is feasible in the ordinary course of business. Defects shall be notified by us immediately upon discovery. In this respect, the supplier waives the objection of delayed notification of defects.
8.2 The statutory provisions on material defects and defects of title shall apply unless otherwise provided below.
8.3 As a matter of principle, we shall have the right to choose the type of subsequent performance. The supplier may refuse the type of subsequent performance chosen by us if it is only possible with disproportionate costs.
8.4 If the supplier does not begin to remedy the defect immediately after our request to do so, we shall be entitled in urgent cases, in particular to avert acute danger or avoid major damage, to remedy the defect ourselves or have it remedied by a third party at the supplier's expense.
8.5 In the event of defects of title, the supplier shall also indemnify us against any claims of third parties unless he is not responsible for the defect of title.
8.6 Claims for defects shall become statute-barred after 3 years - except in cases of fraudulent intent - unless the item has been used for a building in accordance with its customary use and has caused its defectiveness. The limitation period shall begin with the delivery of the subject matter of the contract (transfer of risk).
8.7 If the Supplier fulfills its obligation of subsequent performance by means of a replacement delivery, the limitation period shall recommence for the goods delivered as replacement after their delivery, unless the Supplier has expressly and appropriately reserved the right to make the replacement delivery only as a gesture of goodwill, to avoid disputes or in the interest of the continuation of the supply relationship.
8.8 If we incur costs as a result of the defective delivery of the subject matter of the contract, in particular transport, travel, labor, material costs or costs for an incoming goods inspection exceeding the usual scope, the supplier shall bear these costs.
- Product liability
9.1 In the event that claims are asserted against us on the basis of product liability, the supplier shall be obliged to indemnify us against such claims if and to the extent that the damage was caused by a defect in the subject matter of the contract delivered by the supplier. In cases of fault-based liability, however, this shall only apply if the supplier is at fault. If the cause of the damage lies within the supplier's area of responsibility, the supplier shall bear the burden of proof.
9.2 In the cases of Clause 9.1, the Supplier shall bear all costs and expenses, including the costs of any legal action.
9.3 Otherwise, the statutory provisions shall apply.
9.4 We shall inform the supplier of a recall action which is wholly or partly the result of a defect in the subject matter of the contract delivered by the supplier, give the supplier the opportunity to cooperate and exchange information with the supplier on efficient implementation, unless the information or participation of the supplier is not possible due to particular urgency. Insofar as a recall action is the result of a defect in the contractual object delivered by the supplier, the supplier shall bear the costs of the recall action.
- Execution of works
Persons who carry out work on the plant premises in fulfillment of the contract shall observe the provisions of the respective plant regulations. Liability for accidents that occur to these persons on the plant premises is excluded, unless they were caused by intentional or grossly negligent breach of duty by our legal representatives or vicarious agents.
Materials, parts, containers and special packaging provided by us shall remain our property. These may only be used as intended. The processing of materials and the assembly of parts shall be carried out for us. It is agreed that we are co-owners of the products manufactured using our materials and parts in the ratio of the value of the materials provided to the value of the total product, which shall be held in safe custody for us by the supplier.
- Documents and secrecy
12.1 All business or technical information made available by us (including features to be taken from any objects, documents or software handed over and other knowledge or experience) shall be kept secret from third parties as long as and to the extent that it is not demonstrably public knowledge and may only be made available in the Supplier's own business to such persons who must necessarily be involved in its use for the purpose of delivery to us and who are also obliged to maintain secrecy; it shall remain our exclusive property. Such information may not be reproduced or used commercially without our prior written consent - except for deliveries to us. Upon our request, all information originating from us (including, if applicable, copies or recordings made) and items provided on loan shall be returned to us immediately and in full or destroyed. We reserve all rights to such information (including copyrights and the right to apply for industrial property rights such as patents, utility models, semiconductor protection, etc.). Insofar as such information has been made available to us by third parties, this reservation of rights shall also apply in favor of such third parties.
12.2 Products manufactured according to documents designed by us, such as drawings, models and the like, or according to our confidential information or with our tools or reproduced tools may neither be used by the supplier himself nor offered or delivered to third parties. This shall also apply mutatis mutandis to our print orders.
- Export control and customs
The supplier is obligated to inform us in its business documents about any licensing requirements for (re-)exports of its goods in accordance with German, European, US export and customs regulations as well as the export and customs regulations of the country of origin of its goods. For this purpose, the Supplier shall provide the following information at least in its offers, order confirmations and invoices for the relevant goods items.
- the export list number according to Annex AL of the German Foreign Trade and Payments Regulation or comparable list items of relevant export lists,
- for US goods the ECCN (Export Control Classification Number) according to US Export Administration Regulations (EAR),
- the commercial origin of its goods and the components of its goods, including technology and software,
- Whether the goods were transported through the U.S., manufactured or stored in the U.S., or manufactured using U.S. technology,
- the statistical goods number (HS code) of its goods, and
- a contact person in his company for clarification of any queries from us.
Upon our request, the supplier shall be obliged to provide us with all other foreign trade data relating to its goods and their components in writing and to inform us in writing without delay (prior to delivery of corresponding goods affected by this) of all changes to the above data.
- Place of performance
The place of performance shall be the place to which the goods are to be delivered according to the order or at which the service is to be rendered. Unless otherwise agreed, Balzheim.
- General provisions
15.1 Should any provision of these Terms and Conditions and of the further agreements made be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall be obliged to replace the invalid provision by a provision which comes as close as possible to the invalid provision in terms of economic success.
15.2 The contractual relationships shall be governed exclusively by German law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
15.3 The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on these Terms and Conditions of Purchase shall be Ulm. We shall further be entitled to sue the Supplier at the court of its registered office or branch office or at the court of the place of performance, at our discretion.
Balzheim in January 2009
Registry court Ulm HRA 5278, registered office: Balzheim
M.Sc. (TUM) Caroline Walleter-Plersch
Tel.: +49 7347 9572 - 0
Fax +49 7347 22
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Terms of sale and delivery
for use opposite:
- a person who, at the time of conclusion of the contract, acts in the exercise of his commercial or independent professional activity (entrepreneur);
- legal entities under public law or a special fund under public law.
- All deliveries and services are based on these terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the Purchaser shall not become part of the contract even by acceptance of the order. In the absence of a special agreement, a contract shall be concluded with the written order confirmation of the Supplier.
- References or counter-confirmations by the purchaser with reference to his terms and conditions of purchase are hereby expressly rejected.
- The supplier reserves the property rights and copyrights to samples, cost estimates, drawings and similar. They may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential accessible to third parties only with the Purchaser's consent. The Supplier undertakes to make information and documents designated by the Purchaser as confidential available to third parties only with the Purchaser's consent.
II Conclusion of contract, quality, order confirmation
- Our offers are subject to change. We shall only be bound by our offers if they are expressly designated as binding. Otherwise, they shall be deemed to be an invitation to submit offers. In such cases, our written confirmation of the order is required for the conclusion of a contract.
- We shall only assume guarantees of quality if these are expressly designated as such in an offer or in an order confirmation and the obligations arising from the guarantee are unambiguously assigned in detail from the offer or the order confirmation.
- Our written order confirmation shall be decisive for the scope of delivery.
- Verbal collateral agreements and assurances by our employees and representatives require our written confirmation to be legally effective.
III. price and payment
- In the absence of a special agreement, the prices shall apply ex works including loading in the works, but excluding packaging, unloading and, if applicable, assembly, which shall be carried out at the prices valid at the time of the work. Value added tax at the respective statutory rate shall be added to the prices.
- In the absence of a special agreement, payment shall be made without any deduction á account of the Supplier, namely: 1/3 down payment after receipt of the order confirmation, 1/3 as soon as the Purchaser has been notified that the main parts are ready for dispatch, the remaining amount within one month after transfer of risk.
- The Purchaser shall only be entitled to withhold payments or to set off payments against counterclaims to the extent that its counterclaims are undisputed or have been finally determined by a court of law.
- Costs of shipment of the goods shall be borne by the customer. These costs also include taxes, customs duties and the like caused by the shipment.
IV. Delivery time, delay in delivery
- The delivery time results from the agreements of the contracting parties. Compliance with the delivery time by the Supplier requires that all commercial and technical questions between the contracting parties have been clarified and that the Purchaser has fulfilled all obligations incumbent upon it, such as the provision of the necessary official certificates or approvals or the payment of a deposit. The delivery period shall only apply from this point in time. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the Supplier is responsible for the delay.
- Compliance with the delivery deadline is subject to correct and timely delivery to the supplier. The supplier shall inform the customer as soon as possible of any delays that become apparent.
- The delivery period shall be deemed to have been complied with if the delivery item has left the Supplier's works or notification of readiness for dispatch has been given by the time the delivery period expires. Insofar as acceptance is to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - alternatively the notification of readiness for acceptance.
- If shipment or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs incurred as a result of the delay shall be charged to the Purchaser, starting one month after notification of readiness for shipment or acceptance.
- If non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond the Supplier's control, the delivery time shall be extended accordingly. The Supplier shall notify the Purchaser of the beginning and end of such circumstances as soon as possible.
- The Purchaser may withdraw from the contract if the entire performance becomes finally impossible for the Supplier prior to the passing of risk. In addition, the Purchaser may withdraw from the contract if, in the case of an order, the performance of part of the delivery becomes impossible and the Purchaser has a justified interest in rejecting the partial delivery. If this is not the case, the Purchaser shall pay the contract price attributable to the partial delivery. The same shall apply in the event of the Supplier's inability to perform. Section VII. 2 shall apply in all other respects. If the impossibility or incapacity occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, the Purchaser shall remain obligated to counter-performance.
- If the Supplier is in default, the Purchaser may - provided that it can credibly demonstrate that it has suffered a loss as a result - claim compensation for each full week of the delay in the amount of a maximum of 0.5%, but in no case more than a total of 5% of the price of that part of the Supplies which could not be used for the intended purpose because of the delay. The Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified above shall be excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
V. Transfer of risk, acceptance
- The risk shall pass to the Purchaser when the delivery item has left the factory, even if partial deliveries are made or the Supplier has assumed other services, e.g. shipping costs or delivery and installation. If acceptance is required, this shall be decisive for the passing of risk. It must be carried out without delay on the acceptance date, alternatively after the Supplier's notification of readiness for acceptance. The Purchaser may not refuse acceptance in the event of an insignificant defect.
- If the dispatch, delivery, commencement, performance of installation or assembly is delayed for reasons for which the Purchaser is responsible or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.
- Partial deliveries are permissible insofar as they are reasonable for the customer.
VI. retention of title
- We reserve our title until settlement of all claims already arising from the business relationship or ancillary claims still standing in close connection with the delivered goods (interest on use, damages for delay, etc.). In the case of transactions against current account, the retention of title shall also serve as security for our balance claims. The treatment or processing, assembly or other utilization of goods subject to retention of title shall be deemed to have been carried out on our behalf. If the goods subject to retention of title are mixed, combined or blended with other items ("third-party goods"), the customer shall assign to us its ownership or co-ownership rights to the new item and shall hold it in safe custody for us free of charge with due commercial care. We accept the assignment.
- If the purchaser sells goods subject to retention of title alone or together with third-party goods, he hereby assigns to us the claims arising from the resale in the amount of the value of the goods subject to retention of title together with all ancillary rights. We accept the assignment. The value of the reserved goods shall be our invoice amount plus a security surcharge of ten percent. All claims of the purchaser arising from contracts in connection with the processing or installation of the reserved goods, as well as claims accruing to the purchaser through the connection of the reserved goods with the property of a third party, shall be assigned in the same manner. The advance assignment also extends to any balance claim.
- If the customer installs goods subject to retention of title as an essential component in his own property, he hereby assigns to us the claims arising from a sale of the property or of property rights in the amount of the value of the goods subject to retention of title (including 10%'s security surcharge) with all ancillary rights. The advance assignment shall also extend to any balance claim. We accept the assignment.
- The customer shall be entitled to resell, use or install the goods subject to retention of title only in the ordinary course of business and only subject to the proviso that the claims within the meaning of the above clauses are actually transferred to us. The customer shall not be entitled to dispose of the goods subject to retention of title in any other way, in particular by pledging them or assigning them as security.
- We revocably authorize the purchaser to collect the claims assigned in accordance with the above clauses. We shall not make use of the right to collect as long as the customer meets his payment obligations, also towards third parties. At our request, the customer shall name the debtor of the assigned claim and provide comprehensive information - whereby it is not sufficient to allow us to inspect books and business papers - and notify the debtor of the assignment. We shall also be entitled to notify the debtor of the assignment ourselves. In the event of cessation of payments, application for or initiation of insolvency proceedings or in the event of the implementation of out-of-court settlement proceedings with the creditors concerning the settlement of debts, the rights of the customer to resell, use or install the reserved goods and the authorization to collect the assigned claims shall expire.
- The Purchaser shall inform us without undue delay, handing over the documents necessary for an objection, of any compulsory enforcement measures by third parties in respect of the reserved goods or the (pre-)assigned claims.
- In the event of default in payment by the customer, we shall be entitled to take back the goods subject to retention of title after a single reminder and the customer shall be obliged to surrender them. The customer grants us the right to enter his premises, to mark or to take away the delivered goods. The costs for taking back the goods shall be borne by the customer.
- If the realizable value of the securities granted exceeds the claims to be secured by more than ten percent, we shall be obliged to retransfer or release them at the request of the customer.
VII Claims for defects
The Supplier warrants against defects in quality and title of the delivery to the exclusion of any further claims - subject to Section VIII - as follows:
- All parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of defects at the Supplier's discretion free of charge. The Supplier shall be notified immediately in writing of the discovery of such defects. Replaced parts shall become the property of the Supplier.
- The Purchaser shall, after consultation with the Supplier, grant the Supplier the necessary time and opportunity to carry out all repairs and replacement deliveries which the Supplier deems necessary; otherwise the Supplier shall be released from liability for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the Supplier must be notified immediately, shall the Purchaser be entitled to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Supplier.
- The Supplier undertakes to remedy defects contrary to the contract which impair the usability of the scope of delivery, provided that the defect is due to a defect in design, material or workmanship. This obligation shall only apply to such defects which occur during the warranty period from the time of transfer of risk of the scope of delivery and which were not known to the Purchaser at the time of conclusion of the contract. Defects of which the Purchaser could not have been unaware shall also be deemed to be known.
- Defects must be notified in writing within 48 (forty-eight) hours, at the latest, however, within 8 (eight) days from the discovery or from the recognizability of the defect, with mandatory indication of the project and order number and, if applicable, the serial number of the goods as well as the type of defect.
- Delivery of spare parts within the warranty period shall be made on identical terms as the original delivery of the order scope.
- The labor costs for the warranty replacement shall be borne by the customer. The defective part must be returned with a fully completed incident report within 60 days of discovery or from the time the defect becomes apparent. The transport costs for the return delivery shall be borne by the customer.
- The returned part will be checked with regard to the warranty claim. If this is negative, the repair/replacement costs as well as the transport costs will be charged. The omission or delay of the notification, the lack of indication of the project and order number and, if applicable, the serial number of the goods as well as the missing return delivery within the 2-month period from discovery or from recognizability of the defect, are not excusable and lead to the forfeiture of the right to warranty.
- Commercial agents are not authorized to accept notices of defects or to make binding promises in connection with defects.
- Further claims for damages (loss of production, consequential damages, loss of profit, etc.) are excluded.
- If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages - rescind the contract or reduce the remuneration. Within the scope of the statutory provisions, the Purchaser shall also have the right to rescind the contract if the Supplier - taking into account the statutory exceptions - allows a reasonable period of time set for it for subsequent improvement or replacement delivery due to a material defect to expire fruitlessly. If the defect is only insignificant, the Purchaser shall only be entitled to a reduction of the purchase price.
- No warranty shall be assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundation soil, chemical, electrochemical or electrical influences - unless the Supplier is responsible for them.
- If the Purchaser or a third party carries out improper repairs, the Supplier shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of the supplier.
- Notification of defects by the purchaser must be made in writing without delay. In the event of notices of defects, payments of the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if a notice of defect is asserted about whose justification there can be no doubt. The Purchaser shall have no right of retention if its claims based on Defects are time-barred. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement from the Purchaser for the expenses incurred by it.
- If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, generally procure for the Purchaser the right to continue using the delivery item or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to rescind the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against any undisputed or legally established claims of the holders of the industrial property rights concerned. Notification of defects by the Purchaser must be made in writing without delay. In the case of notices of defects, payments by the Purchaser may be withheld to an extent which is in reasonable proportion to the material defects which have occurred. The Purchaser may withhold payments only if a notice of defect is asserted about which there can be no doubt as to its justification. The Purchaser shall have no right of retention if its claims based on Defects are time-barred. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by it from the Purchaser.
- Subject to Section VIII. 2, the obligations of the Supplier set forth in Section VII. 7 shall be conclusive in the event of infringement of protection or copyright. They shall only exist if
- the Purchaser notifies the Supplier without delay of any asserted infringements of industrial property rights or copyrights,
- the Purchaser supports the Supplier to a reasonable extent in defending the asserted claims or enables the Supplier to carry out the modification measures in accordance with Section VII. 7,
- the supplier reserves the right to take all defensive measures, including out-of-court settlements,
- the defect of title is not based on an instruction of the Purchaser and
- the infringement of rights has not been caused by the fact that the Purchaser has modified the delivery item without authorization or has used it in a manner not in accordance with the contract.
- The Seller's liability shall be governed exclusively by the agreements made in the above clauses. All rights not expressly granted therein, e.g. to delivery of a defect-free item, rescission of the contract or reduction as well as to compensation for damages of any kind, including such damages that have not occurred to the delivery item itself, and irrespective of the legal grounds, are excluded.
- Claims for damages by the purchaser due to a material defect are generally excluded. This shall not apply in the event of fraudulent concealment of the defect, failure to comply with a quality guarantee, injury to life, limb or health and in the event of intentional or grossly negligent breach of duty by the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provision. Further or other claims of the Purchaser based on a Defect than those provided for in Clauses VII. and VIII. of these Conditions are excluded.
- Unless otherwise provided for in these provisions, any other claims for damages of the Purchaser, irrespective of their legal basis, in particular for breach of duties arising from the contractual obligation and from tort, shall be excluded. This shall not apply insofar as liability is assumed as follows:
- according to the product liability law
- With intent
- in the event of negligence on the part of owners, legal representatives or executives,
- in the event of fraudulent intent,
- in the event of non-compliance with an assumed guarantee,
- due to culpable injury to life, body or health, or
- due to the culpable violation of essential contractual obligations
- However, the claim for damages for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
- Claims of the Purchaser shall become statute-barred after 12 months. §§ Sections 438 para. 1 no. 2, 479, 634 a) para. 1 no. 2BGB shall remain unaffected. Insofar as the Supplier is liable in accordance with the provisions of Section VIII of these Terms and Conditions, the statutory limitation period shall apply.
X. Software usage
- Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
- The Purchaser may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG).
- The Purchaser undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without the Supplier's prior express consent. All other rights to the software and the documentation, including copies, shall remain with the Supplier or the software supplier. The granting of sublicenses is not permitted.
XI. Applicable law, place of jurisdiction, place of performance, written form and partial invalidity
- Place of performance for payment and for delivery is 88481 Balzheim
- All legal relations between the Supplier and the Purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of jurisdiction shall be the court having jurisdiction for the Supplier's registered office in Ulm. However, the Supplier shall be entitled to bring an action at the Purchaser's principal place of business.
- Subsidiary agreements, reservations, amendments and supplements require our written confirmation to be valid.
- If any provision in these Terms and Conditions of Sale and Delivery or any provision in the context of other agreements with reference to the supply contract is or becomes invalid, the validity of all other provisions or agreements shall not be affected thereby.
Balzheim in July 2019
Registry court Ulm HRA 5278, registered office: Balzheim
M.Sc. (TUM) Caroline Walleter-Plersch
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Please here click to download our sales conditions
General rental conditions
for use in business transactions between entrepreneurs
1.1 These General Terms and Conditions of Lease (GTC) shall apply to all business relations with our lessees. They shall also apply to all future deliveries, services or offers to the lessee, even if they are not separately agreed again.
1.2 The terms and conditions of business of the Lessee or third parties shall not apply, even if we do not separately object to their application in individual cases. Even if we refer to a letter containing or referring to the terms and conditions of the Lessee or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
1.3 Individual agreements made with the Lessee in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these AMB. A written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4 Official or other permits shall be obtained by the Lessee at its own expense. If we assist the Lessee in this, the Lessee shall also bear the costs in this respect.
1.5 Legally relevant declarations and notifications to be made to us by the Lessee after conclusion of the contract (e.g. setting of deadlines, notifications of defects) must be made in writing.
1.6 The statutory provisions shall apply unless they are directly amended or expressly excluded in these AMB. The German Construction Contract Procedures (VOB) shall not apply.
- Conclusion of contract
2.1 Our offers are binding unless they are expressly marked as non-binding. Documents belonging to the offer such as illustrations, drawings, data sheets are only approximately accurate in terms of dimensions and weight, unless the accuracy is expressly confirmed in writing in individual cases. The same applies to information contained in a brochure, catalog or our website. Unless otherwise stated in our offer, the offer is valid for 30 days from the date of the offer.
2.2 The order of the rental object by the Lessee shall be deemed as acceptance of our offer, unless otherwise stated in the order.
2.3 The renter is entitled to cancel the rental agreement up to one week before the agreed delivery. If the Lessee makes use of this right, he shall pay a cancellation fee of 30% of the rental fee to us. The assessment fee is the rent for the entire agreed rental period plus any transport and packaging costs already incurred. After this time, even in the event of cancellation, the entire agreed rental fee plus any costs already incurred for outward/return transport must be paid by the renter.
2.4 We may demand reasonable remuneration for the preparation of a cost estimate if the contract is not concluded in this respect.
- Scope of services
3.1 Information on performance and possible use as well as suitability for certain purposes (e.g. utility values, temperatures, intended use, load capacity, tolerances, capacities, volume or similar) as well as representations of the same (e.g. drawings and illustrations) are always made without warranty and are not warranted characteristics, unless the usability for the purpose expressly and in writing contractually provided for requires exact conformity.
3.2 We do not provide any consulting services in the form of plant planning. Unless expressly agreed, the commissioning or connection of the rental item is not owed. The customer is advised that the commissioning or connection of the rental item should only be carried out by competent persons, e.g. a refrigeration specialist company or refrigeration specialist personnel at the tenant's premises.
3.3 In the event of a failure of the rental item for which the Lessee is not responsible, we shall remedy the situation within a reasonable period of time by repairing or replacing the rental item.
3.4 We shall be entitled to replace the rental object with another rental object of equal value during the term of the rental agreement.
- Duties of the tenant
4.1 The Lessee shall notify us in writing of the binding delivery address and the installation site immediately after conclusion of the contract. The Lessee shall also inform us of any special features at the place of installation which could prevent smooth delivery, installation and commissioning (if agreed). Additional costs incurred due to incorrect or incomplete information shall be borne by the lessee.
4.2 The Lessee is responsible for careful and professional operation, care and winter protection of the rental object. The Lessee shall observe and comply with the operating instructions when using and commissioning the rental object. The lessee must ensure that the rental object is frost-proof. This also applies to the return transport of the rental object.
4.3 The Lessee shall maintain the rental object during the rental period. The lessee is also obliged to notify us of any defects or malfunctions of the rental object without delay, at the latest on the following working day. In addition, the lessee must check the rental object daily to see whether any malfunction or inspection messages are shown on the display. If this is the case, the lessee must also inform us immediately, at the latest on the following working day, stating the text that lights up in the display. The lessee is not permitted to process the fault message himself. All maintenance and repair measures must be coordinated with us. Unless otherwise stipulated in these AMB, the lessee is not permitted to carry out maintenance or repairs to the rental object himself or to have them carried out by third-party companies. The same applies to modifications and reprogramming of the rental object.
4.4 The inspections of the rental object to be carried out at specified intervals shall be carried out solely by us or by companies commissioned by us. The time and duration of the inspection intervals shall be communicated to the Lessee or shall result from the documents accompanying the leased property, which the Lessee shall read carefully. If an inspection becomes due when a certain number of operating hours has been reached, the Lessee must inform us of this at least two weeks before the inspection date so that the work can be carried out by us in good time. We will take into account the operational needs of the lessee during an inspection to be carried out. Any temporary inability to use the rental object due to the inspection shall be accepted by the lessee.
4.5 The Lessee shall obtain all permits/authorizations from authorities or third parties that may be required for the installation and operation of the rental object at its own expense and in its own name.
4.6 The transfer of the rental object to a place other than the originally contractually agreed place requires our consent. Should no place be contractually agreed, the rental object may not be taken to another country without our consent.
4.7 The Lessee alone shall be responsible for compliance with all statutory regulations and standards that the operation of the leased property entails, including any required leakage check in accordance with the applicable regulations. The Lessee is responsible for ensuring that, in particular when operating the electrical system of the leased property, only personnel with the necessary knowledge to avoid electrical hazards and injuries are employed and that all relevant regulations, including applicable DIN regulations, are observed. The Lessee shall be responsible for carrying out, at its own expense, the professional electrotechnical inspection of portable electrical equipment (rental item) at intervals of 6 months, if the rental period exceeds this period. The Lessee shall also be solely responsible for ensuring that the rental item is suitable and approved for use for certain purposes intended by the Lessee and complies with corresponding requirements, e.g. in the food sector.
4.8 We shall clean the used equipment and - if necessary - the new equipment before shipment. Any contamination that occurs afterwards, whether due to shipping or for any other reason, must be removed by the lessee himself. Used equipment may have been used for a variety of purposes. It is therefore incumbent on the lessee to take suitable technical measures to ensure that its own systems are not contaminated by the connection of the used equipment.
4.9 The Lessee shall take appropriate measures to protect the rental object from damage, vandalism and theft. In the event of loss of or damage to the rental object, the Lessee shall notify us immediately and, if necessary, assist us in filing a criminal complaint. In the event of seizure or other impairment of the leased property by third parties, the lessee shall immediately inform the third party that the leased property is not the property of the lessee and notify us thereof. In this case, the lessee must also inform us of the exact location of the rental object.
4.10. The Lessee shall take care of the drainage of the condensate.
5.1 The Lessee is not entitled to sublet or otherwise transfer use to third parties without our written consent.
5.2 In the event of subletting, the Lessee hereby assigns to us by way of security all claims to rent relating to the leased property. We accept the assignment.
- Duty to examine and to give notice of defects
6.1 The rental object shall be inspected carefully immediately after delivery to the Lessee or to the third party designated by him. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, the leased property shall be deemed to have been approved by the lessee if we do not receive a written notice of defect within three working days after delivery. With regard to other defects, the rental object shall be deemed to have been approved by the Lessee if the notice of defect is not received by us within three working days of the time at which the defect became apparent; however, if the defect was already apparent to the Lessee at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect.
6.2 At our request, a rental object which is the subject of a complaint shall be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the costs of the most favorable shipping route; this shall not apply insofar as the costs increase because the rental object is located at a place other than the place of intended use.
- Beginning and end of the rental period
7.1 The rental period shall begin at the latest when the rental object is handed over to the Lessee. The handover to the Lessee is equivalent to a handover to the Lessee's legal representative, vicarious agents or the transport persons commissioned by the Lessee or by us.
7.2 Unless otherwise agreed, the minimum rental period is two months and the notice period is two weeks. The minimum rental period shall always be automatically extended by one month unless the rental agreement is terminated at least two weeks before the expiry of the rental period. The termination must be made in writing.
7.3 The calculation of the rent shall be made in principle until the complete return of the rental object and shall not end with the termination of use or deregistration. Early return of the rental object does not release the Lessee from the obligation to pay the rent until the end of the agreed rental period or the minimum rental period.
7.4 Both parties shall have the right to terminate the rental agreement without notice for good cause. In particular, we are entitled to terminate the rental agreement without notice and to collect the rental object without delay if the tenant is insolvent or has filed for insolvency.
- Transfer of use and return of the leased property
8.1 The rental price does not include the transport of the rental object. Unless otherwise agreed, the Lessee shall collect the rental object from a place designated by us after notification of its provision and shall also return it to a place designated by us. If the Lessee wishes us to transport and/or collect the rental object to a place designated by him, delivery and, if applicable, return delivery shall be charged separately by us. The lessee shall bear the risk of transport.
8.2 The transfer of use and handover of the rental object shall take place at the time when the Lessee, his legal representatives, vicarious agents or the transport persons commissioned by him or us have obtained possession of the rental object. The return of the rental object shall only take place at the time when possession has been handed over to us at a place specified by us. The handover to a transport person is not sufficient for this purpose.
8.3 The Lessee shall be responsible for the storage of necessary packaging material such as transport boxes and ordered but not required additional material until the return delivery and shall keep this in safe custody. The lessee shall also provide suitable equipment for unloading and loading, such as a suitable forklift truck or crane, as well as personnel who can operate this equipment, unless the lessee has explicitly ordered this from us together with the transport.
8.4 In the event of termination of a rental relationship, the Lessee shall be obliged to notify us of the date for the return transport organized by him/herself together with the notice of termination, but no later than two weeks before the return delivery. We will then notify the lessee of the binding address for the return delivery.
8.5 If return transport by us has been agreed, a collection date must be agreed with us together with the notice of termination, but in any case no later than two weeks before the end of the rental period. The rental object must be kept ready in an easily accessible place and in a transportable condition. This means that the rented item is provided by the renter ready for loading and only needs to be loaded, if necessary packed as for delivery/collection. If the Lessee cannot ensure this, he shall bear the costs of the futile journey and for the duration of the prevention of collection the agreed rent as well as the costs of a new journey. The assertion of further damages remains unaffected by this.
9.1 Unless otherwise stated, all prices are in EURO and are exclusive of VAT. The prices apply to the scope of services and deliveries listed in the offer or in the order confirmation. Additional or special services such as transport, loading and unloading, assembly, commissioning and dismantling, taxes, duties, insurance and operating costs shall be charged separately. The prices apply to the scope of delivery and services agreed upon or confirmed by us. Additional work and special services will be charged separately according to the rates applicable at our company, including travel and accommodation costs incurred. If the contractually agreed scope of use of the rental object is exceeded, the lessee must inform us immediately. In this case, we reserve the right to demand from the lessee the rent that would have been owed for the actual scope of use.
9.2 Not included in the rental price are the general operating costs including refrigerant, electricity, heating oil and gas for heating equipment, as well as the technician deployment for the change and renewal of the operating equipment.
- Terms of payment and default
10.1 Insofar as no other payment term results from the offer, the order confirmation or the invoice, the rent (without deduction) shall be due for payment immediately upon receipt of the invoice by the Lessee. A cash discount deduction is only permissible if expressly agreed. Should a cash discount deduction have been agreed in individual cases, such a cash discount deduction shall nevertheless not be permitted if the Lessee is in default of payment of another invoice.
10.2 We are entitled to invoice at the beginning of a rental period or the contractually agreed billing cycle. However, billing shall take place at least once per quarter. A final invoice shall be issued at the end. We are also entitled to demand the entire rental price or parts thereof as advance payment. Should we make use of this right, delivery will only be made after receipt of the money.
10.3 We shall be entitled at any time to demand a security in money (deposit) in the amount of the replacement value of the rental object for the duration of the rental period. The tenant has the right to provide this rental security also by bank guarantee.
10.4 In case of payments without indication of the invoice number and without payment advice, the oldest invoice shall be settled first.
10.5 If the Lessee is in arrears with the payment of an invoice amount, we shall be entitled to terminate the contract without notice and to collect the rental object from the Lessee at the latter's expense. The Lessee shall ensure unhindered access to and removal of the rental object.
10.6 If the Lessee defaults on its payment obligation, interest shall be charged on the rent during the default at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
10.7 The Lessee shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the rental object, the Lessee's counter rights shall remain unaffected.
10.8 We shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the Lessee and as a result of which payment of our outstanding claims by the Lessee under the respective contractual relationship is jeopardized.
10.9 We do not provide any construction services within the meaning of § 48 (1) EStG or § 13b (2) UStG. The invoice amount shall therefore be paid to us in full without deduction.
- Limitation and reduction
11.1 Claims of the Tenant for reimbursement of expenses or for permission to remove a facility shall become time-barred 6 months after the termination of the tenancy.
11.2 Other claims of the Lessee shall become statute-barred one year after surrender of the rental object if the defect was already present; otherwise one year after the defect arose. These restrictions shall not apply to claims for damages of the Lessee arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by us, our legal representatives or our vicarious agents and also not insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the rental object and for claims of the Lessee under the Product Liability Act.
11.3 In the event of a defect, the Lessee shall not be entitled to reduce the rent. An exception applies to undisputed or legally established defects. The right of the Tenant to reclaim overpaid rent on the basis of a legally binding decision shall remain unaffected.
12.1 The liability of the Lessor for damages, regardless of the legal grounds, is limited in accordance with this Article 12.
12.2 Our liability regardless of fault due to defects of the rental object that were present at the time of conclusion of the rental agreement is excluded. § Section 536 a para. 1 BGB shall not apply in this respect.
12.3 We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligations to deliver/provide and - if owed - install the rental item in good time, to ensure that it is free from defects of title and material defects that impair its functionality or usability more than insignificantly, as well as duties of protection or care that are intended to enable the Lessee to use the delivery item in accordance with the contract or to protect the life and limb of the Lessee's personnel or to protect the Lessee's property from significant damage.
12.4 Insofar as we are liable for damages on the merits in accordance with Section 12.3, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage that are the result of defects in the rented item are also only eligible for compensation insofar as such damage is typically to be expected when the rented item is used for its intended purpose.
12.5 The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
12.6 Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
12.7 The restrictions of this Clause 12 (exclusion of liability) shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the rental object and for claims of the Lessee under the Product Liability Act. The limitations of this Clause 12 (exclusion of liability) shall also not apply to our liability for intentional or grossly negligent breaches of duty and for damages arising from injury to life, limb or health; this shall also apply to breaches of duty by our legal representatives or vicarious agents.
- Liability of the tenant
13.1 The Lessee shall bear the duty of care for the rented items exclusively rented by him. The Lessee shall be liable for all damages incurred by us or third parties from the culpable use of the rental object in breach of the contract, in particular as a result of non-compliance with its obligations stipulated in the contract or these AMB.
13.2 The Lessee shall also be liable in particular for damage caused to us / the owner of the leased property due to neglected or insufficient care or the delayed or omitted reporting of due inspections or omitted notification of defects, the faulty commissioning or improper operation of the leased property or other culpable breach of duty. The Lessee shall also be responsible for any damage to the leased property caused by employees, subtenants, visitors, suppliers or workmen of the Lessee, insofar as these persons have been in the vicinity of the leased property at the instigation or in the interest of the Lessee. In the event of damage to rented property, the burden of proof that the damage was not caused by the tenant's employees, subtenants, visitors, suppliers or craftsmen shall lie with the tenant.
13.3 Any further legal or individual contractual claims against the Lessee shall remain in force in any case.
- Property rights
14.1 The rented item shall under no circumstances become the property of the renter or a third party. The right of ownership shall also extend to the products resulting from the processing, mixing or combination of our rented items at their full value. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods.
- Assembly and commissioning
15.1. In the case of rental agreements with assembly and/or commissioning of the rental object, the Lessee shall assume at its own expense and provide in good time - all earthwork, construction, bricklaying, caulking and other ancillary work outside the industry, including the skilled and unskilled workers, building materials and tools required for this purpose, - a level, permanently fixed installation/storage area for the plant, - the static check of the transport route as well as installation site, - a suitable forklift or crane for loading or unloading, - the requisites and materials required for assembly and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants, - power and water at the point of use, including connections, heating and lighting, - sound and vibration damping measures, - water-side piping, including all fittings and equipment required for this purpose, - the necessary equipment and materials for the installation. power supply up to the main switch, incl. insertion, setting down and supports (mounted strain-relieved), - required signal and bus services, incl. insertion, setting down and supports (mounted strain-relieved), - cleaning, flushing, filling and venting of the water systems prior to refrigeration commissioning, - insulation of the cold and, if applicable, hot system parts, unless otherwise specified. Provision and supply of operating resources such as water, antifreeze and electricity during installation and commissioning, - Hydraulic balancing of the water system and other adjustment work, - Additional commissioning and instructions for which we are not responsible, - Protective clothing and protective devices required due to special circumstances at the installation site.
15.2 Prior to commencement of the installation work, Lessee shall provide, without being requested to do so, the necessary information on the location of concealed power, gas, water lines or similar installations, the required structural data as well as information on special features that could prevent smooth installation, assembly and commissioning.
15.3 Access roads and the installation or assembly site must be freely accessible, leveled, cleared and passable by trucks.
15.4 If the installation, assembly or commissioning is delayed due to circumstances for which we are not responsible, the Lessee shall bear the costs for waiting time and any additional travel required by us to a reasonable extent.
15.5 The Lessee shall certify the hours worked to our employees and other persons commissioned by us on a daily basis. If he does not comply with this obligation or does not comply with it in time, our records shall be used as a basis for the settlement of accounts.
15.6 If assembly and commissioning is owed under the contract, the equipment installed by us shall be adjusted after assembly and the Lessee's operating personnel shall be familiarized with its proper operation. We shall coordinate the dates required for the adjustment with the Lessee. After completion of the adjustment and familiarization, the lessee shall confirm in writing the proper completion of the work owed; any complaints and subsequent special requests shall be recorded in a protocol to be signed by both parties.
15.7 For assembly, commissioning and service, our General Terms and Conditions of Service shall also apply in addition.
16.1 The Lessee is obliged to insure the rental object against theft, fire and water damage as well as property damage at least at the replacement value of the rental object and to provide us with evidence of this insurance upon request. In addition, the Lessee shall ensure that the rental object is adequately secured against theft on its premises or at the other place of use.
16.2 The rights of the Lessee against the insurer arising from the insurance contract relating to the leased property are hereby assigned to us in advance by the Lessee in each case. We accept the assignment already now.
- Applicable law / place of jurisdiction
17.1 The relations between us and the Lessee shall be governed exclusively by the laws of the Federal Republic of Germany.
17.2 The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. However, we shall be entitled to bring an action at the general place of jurisdiction of the Lessee. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
- Final provision (severability clause)Should an individual clause of the above AMB be invalid, the remainder of the concluded contract shall remain valid. The invalid clause shall be replaced by the corresponding statutory provision.
Balzheim in July 2022
Registry court Ulm HRA 5278, registered office: Balzheim
M.Sc. (TUM) Caroline Walleter-Plersch