GENERAL TERMS AND CONDITIONS
I. General, scope of application
(1) These General Terms and Conditions shall apply to all our business relations with our contractual partners. The general terms and conditions shall only apply if the contractual partner is an entrepreneur within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law.
(2) The General Terms and Conditions in their respective version shall also apply as a framework agreement for future contracts with the same contractual partner without us having to refer to them again in each individual case; we shall inform the contractual partners immediately of any changes to the General Terms and Conditions in this case.
(3) Our terms and conditions shall apply exclusively. Conflicting, deviating or supplementary general terms and conditions of the contractual partner shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, in particular even if we execute the contract without reservation in the knowledge of conflicting or deviating general terms and conditions of the contractual partner.
(4) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions.
II. Changes and additions
(1) Individual agreements made with the contractual partner in individual cases, including collateral agreements, supplements and amendments, shall take precedence over the General Terms and Conditions. A written contract or written confirmation shall be authoritative for the content of such agreements.
(2) We reserve the right to make technical changes to the products sold by us which increase or maintain their value and do not result in any restriction of function until delivery. Unless expressly agreed otherwise, we shall be entitled to determine technical performance characteristics or dimensions in delivery in compliance with customary tolerance values. The inclusion of customary tolerance values shall be deemed to be agreed.
(3) Legally relevant declarations and notifications to be made to us by the contractual partner after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(4) Our sales employees are not authorized to make verbal agreements that go beyond the content of the written contract.
III. Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the contractual partner with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties; this shall also apply to all information received since the commencement of the contractual negotiations with regard to our goods or other performance. The contractual partner must obtain our express written consent before disclosing them to third parties.
(3) The order placed by the contracting party shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept the offer of contract within 12 working days of its receipt by us.
(4) Acceptance may also be declared by delivery of the goods to the contractual partner.
(5) Information in the sense of para. 1 as well as in public statements by us, by the manufacturer and his assistants (§ 434 para. 1 p. 3 BGB) shall only become part of the performance description if express reference is made thereto in the contract.
IV. Prices and terms of payment
(1) Our prices are quoted in Euro ex works in accordance with Incoterms 2010 excluding packaging, transport, insurance and plus value added tax at the respective statutory rate.
(2) If the material, operating material, wage or salary costs on which our calculation is based change after conclusion of the contract, a corresponding price adjustment by mutual agreement shall remain possible.
(3) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply.
(4) The purchase price shall be due and payable in cash or by bank transfer within 10 days of invoicing and delivery or acceptance of the goods, in the case of orders for vacuum assembly systems within 10 days of invoicing and delivery or acceptance of the goods. Payments shall be deemed to have been made from the date on which the amount is freely available to us. Upon expiry of the aforementioned payment period, the contractual partner shall be in default. During the period of default, interest shall be charged on the purchase price at the respective default interest rate.
(5) Other forms of payment shall require special written agreement. Costs incurred by both parties shall be borne by the contractual partner.
(6) The deduction of a cash discount requires a special written agreement.
7) The contractual partner shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed.
V. Delivery period and delay in delivery
(1) Delivery periods shall commence on the date of our delivery commitment, but in no case before clarification of all commercial and technical details and approval of our execution documents by the contractual partner or before receipt of an agreed down payment.
(2) The delivery period shall be deemed to have been complied with if the transfer of risk has taken place by the time it expires in accordance with Section VII.
(3) Deliveries on call must be called at the latest two weeks before the desired date. However, our date confirmation shall be decisive. If the goods are not called off or scheduled, we shall be entitled, after setting a deadline to no avail, to schedule and deliver the goods ourselves at our reasonable discretion or to withdraw from the overdue part of the contract.
(4) The specification of performance deadlines shall be subject to the contractual cooperation of the contractual partner. Compliance with our obligation to perform shall be subject to the timely and proper fulfillment of the contractual partner's obligations. If the contractual partner is in default with the payment of an earlier performance, we shall be entitled to withhold our performance. The contractual partner cannot derive any rights from justified retention on our part.
(5) If we are unable to meet delivery deadlines for reasons for which we are not responsible, we shall inform the contractual partner of this without delay and communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver on time. This shall also apply if neither we nor our supplier are at fault for the non-availability.
(6) A reminder with a reasonable grace period set by the contractual partner is required for the occurrence of default.
VI. scope of services
(1) Our written order confirmation shall be decisive for the scope of our obligation to perform. We reserve the right to make changes in design, form and color based on improvements in technology or on requirements of the legislator, provided that the changes are insignificant or otherwise reasonable for the contractual partner.
(2) If partial performances are reasonable for the contractual partner and ultimately have no influence on the intended scope of performance and the intended performance period, they may be carried out and invoiced.
VII. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Unless otherwise stated in the order confirmation, delivery is agreed ex works in accordance with Incoterms 2010, which is also the place of performance.
(2) At the request and expense of the contractual partner, the goods shall be shipped to the place of destination. Unless otherwise agreed, we shall be free to choose the means of transport and the transport route, without being responsible for choosing the fastest or most cost-effective mode of shipment. The goods are delivered unpacked. Any packaging that may be necessary in the case of transport by rail or forwarding agent will be invoiced. We are not obliged to take out insurance. If the contracting party wishes to take out insurance, we shall insure the delivery at its expense against the risks specified by it in writing, provided that it notifies us of its wish to take out insurance in good time.
(3) Goods notified as ready for dispatch shall be accepted without delay. Delivered goods shall be accepted by the contracting party, even if they have insignificant defects, without prejudice to the rights under Section X.
(4) The risk of accidental deterioration and accidental loss of the goods shall pass to the contractual partner at the latest when the goods are made available (ex-works in accordance with Incoterms 2010). If the goods are shipped at the request of the contractual partner, the risk of accidental deterioration and accidental loss of the goods as well as the risk of delay shall pass to the contractual partner upon delivery of the goods to the carrier, forwarder or other person or institution designated to carry out the shipment. This shall also apply if we should exceptionally assume the costs of the shipment.
(5) Handver or acceptance shall be deemed equivalent if the contractual partner is in default of acceptance.
(6) If the contractual partner is in default of acceptance, fails to cooperate or delays performance for other reasons for which the contractual partner is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses. For this purpose, we shall charge, without prejudice to further claims, a lump-sum cost of 0.5% of the invoice amount per month, but not more than a total of 5% of the invoice amount, beginning with the delivery deadline or, in the absence of a delivery deadline, with the notification of readiness for shipment, irrespective of whether we store the goods with us or with a third party. The proof of a higher damage and our legal claims shall remain unaffected; the lump sum shall be set off against further claims. The contracting party shall be entitled to prove that no damage or substantially less damage than the aforementioned lump sum has been incurred. After the fruitless expiry of a reasonable period of time, we shall be entitled to dispose of the goods otherwise and to supply the contractual partner within a reasonably extended period of time.
(7) If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the contractual partner's lack of ability to pay, we shall be entitled to refuse performance until the contractual partner has effected payment or provided security for it. If payment or provision of security is not made within 12 working days after a request to that effect, we shall be entitled to withdraw from the contract and may demand reimbursement of expenses in the amount of 5% of the order volume. This shall not preclude the assertion of higher damages. The contractual partner shall be entitled to prove that no expenses or damages were incurred at all or that they were significantly lower than the lump sum. In the case of contracts for the production of unjustifiable items (custom-made products), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
VIII. Raw materials and production
Unless expressly agreed otherwise, the DIN standards with the average tolerances shall apply or, if these are not available, the standard commercial quality. For production, the normal conditions according to DIN apply.
IX. Risk of use and technical specifications of the customerellers
(1) We shall not be liable if the contractual partner provides incomplete or incorrect information, in particular regarding colors, materials, tolerances, surface designs, anchoring reasons, loads, dimensions, required load-bearing capacities, installation areas, traffic routes, etc.. Insofar as the manufacture and/or delivery of contractual items are based on information or technical specifications provided by the customer, we shall not be obliged to check these. We shall be entitled to base the manufacture and delivery of the contractual products on technical data, product descriptions and product features. Such use shall not constitute a breach of duty on our part.
(2) Any use of the products supplied by us shall be exclusively within the scope and limits of our technical operating instructions and the intended use defined therein. Any use for other purposes, in particular for purposes which the contractual partner undertakes beyond the intended use defined in the operating instructions, shall be exclusively at the risk of the contractual partner.
1) A special intended use for the subject matter of the contract shall only be deemed agreed if an express written agreement is made between us and the Purchaser in this respect.
(2) If no such agreement has been made, we warrant that the subject matter of the contract is suitable for the usual use and has a quality which is usual for items of the same kind and which the purchaser can expect according to the nature of the item.
(3) Properties shall only be warranted by us in the event of a written assurance. A mere reference to technical standards merely contains the more detailed performance and goods description and does not constitute an agreement on the suitability of the goods which goes beyond the usual use of the subject matter of the contract.
(4) The purchaser is obliged to inspect goods purchased from us for defects immediately after delivery and to notify us of any recognizable defects within a period of 5 working days after receipt. In the event of failure to comply with the deadline, the purchaser shall forfeit any subsequent performance or warranty claims against us. For hidden defects, the statutory regulation of § 377 HGB (German Commercial Code) shall apply with the proviso that recognized defects must be reported immediately, at the latest, however, within 5 working days.
(5) The Buyer shall not be entitled to process goods in respect of which defects have been notified without our consent. In the event of further processing, all claims arising because of or on the basis of the notified defects or as a result of the further processing shall be excluded in this case.
(6) In any case of a proper notice of defects or any other breach of duty for which we are responsible, we shall be entitled and obliged to remedy the notified defect or any breach of duty that has occurred by subsequent performance. The customer shall only be entitled to demand a reduction in price or to withdraw from the contract or to claim damages in lieu of performance if two attempts to remedy the defect have failed despite the granting of a reasonable grace period.
(7) The warranty for devices, which are sold by the Uplifter GmbH & Co.KG, is, if not agreed otherwise, 12 months from the transfer of risk. For building materials - if installed - the warranty period is 5 years, if the building materials are used, a warranty period of one year. For all other used items the warranty is excluded. In cases in which we are liable without limitation in accordance with Section XI, the statutory warranty obligations shall apply in deviation from X (7).
(8) Wearing parts and operating materials, e.g. ropes, rubber chains, suction discs, batteries, tires, liquids, are excluded, as far as wear and tear and no defect exists.
(9) No warranty shall be assumed for damage caused by the following reasons: unsuitable or improper use, faulty assembly or commissioning by the Customer or third parties, faulty or negligent handling of the delivery item, in particular with regard to the present operating instructions, as well as excessive stress and the use of unsuitable operating materials, lifting gear and replacement materials.
XI. Limitation of liability
(1) We shall be liable without limitation for damage to life, limb and health caused by a negligent or intentional breach of duty by our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act, and for all damage caused by intentional or grossly negligent breaches of contract and fraudulent intent by our legal representatives or our vicarious agents.
(2) Insofar as we have given a quality and/or durability guarantee with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage based on the absence of the guaranteed quality or durability, but which does not occur directly to the goods, if the risk of such damage is obviously covered by the quality and durability guarantee.
(3) We shall also be liable for damages caused by simple negligence, insofar as such negligence relates to the breach of such contractual obligations, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, we shall only be liable to the extent that the damage is typically associated with the contract and is foreseeable. Otherwise, we shall not be liable for simple negligent breaches of ancillary obligations that are not essential to the contract. The limitations of liability contained in sentences 1 - 3 shall also apply insofar as liability for legal representatives, executive employees and other vicarious agents is concerned.
(4) Any further liability shall be excluded irrespective of the legal nature of the asserted claim. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
XII. General limitation
Claims that are subject to the regular three-year statute of limitations shall become time-barred two years after they arise. Claims under warranty, fraudulent intent, tort or under product liability law shall remain unaffected. Section X. Paragraphs 7 to 10 shall apply accordingly.
XIII. Retention of title
(1) Until full payment of all current and future claims arising from the purchase contract and the ongoing business relationship, we retain title to the goods sold. This shall also apply if claims are included in a current invoice and the balance has been struck and acknowledged. The contractual partner is obliged to treat the delivered goods with care and to insure them against the usual risks (fire, water, storm, theft).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The contractual partner shall notify us immediately in writing if and to the extent that third parties seize the goods belonging to us. The contractual partner shall be liable, in addition to the third party, for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure). Conclusions of financing contracts (such as leasing) which include the transfer of our reserved rights shall require our prior written consent, unless the contract obliges the financing institution to pay the purchase price share due to us directly to us. The contractual partner shall always be obliged to provide us with comprehensive information on the goods subject to retention of title upon request.
(3) The contractual partner shall be entitled to sell or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition: a) The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. 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. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. b) The contracting party hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the contractual partner mentioned in paragraph 2 shall also apply with regard to the assigned claims. c) The contractual partner shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the contractual partner meets its payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in its ability to pay. If this is the case, however, we may demand that the contractual partner 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. d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the contractual partner.
(4) In the event that the contractual partner acts in breach of contract, in particular in the event of default in payment, we shall be entitled to immediately withdraw from the contract and to take back the goods. For the purpose of taking back the goods, the contractual partner hereby irrevocably permits us to enter its business and storage premises without hindrance and to take the goods with us.
XIV. Choice of law and place of jurisdiction
(1) These Terms and Conditions and the entire legal relationship with the contractual partner shall be governed exclusively by the laws of the Federal Republic of Germany, including the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Guteneck. However, we shall also be entitled to bring an action at the general place of jurisdiction of the contractual partner.
(3) Should individual provisions be invalid or should the terms and conditions contain loopholes, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the valid provision shall be deemed to have been agreed which corresponds to the sense and purpose of the invalid provision. In the event of gaps, the provision that corresponds to what would have been reasonably agreed according to the meaning and purpose of the Terms and Conditions shall be deemed to have been agreed if the parties had considered the matter from the outset.
Stand: September 2022