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ties which we will release at our choice upon request, if their value exceeds the claim by more
than 10 %. The foregoing also applies to payments made to settle specifically designated claims.
(2) The goods remain our property. Any processing or conversion is carried out for us as manu
facturer, however without any obligation on our part. With expiry of our (co-)property due to
joining with other products, it shall be agreed here, that the (co-)property of the Purchaser in the
compound item shall be transferred proportionately (invoice value) to us. The Purchaser will
store our (co-)property free of charge. Goods in which we are entitled to (co-)property shall be
referred to as reserved goods.
(3) As long as the Purchaser is not in delay, the Purchaser is entitled to process and sell the reserved
goods in the course of ordinary business. Pledges or transfer of ownership are not admissible. For
reasons of security, the Purchaser will transfer at present any claims (including all account
balances from current accounts) arising from a resale or any other cause (insurance, inadmissible
action) with regard to the reserved goods.
We irrevocably entitle the Purchaser to collect all claims transferred to us for our account in his
name.
This entitlement is revocable only if the Purchaser does not fulfil his payment obligations.
(4) In the event of access of third parties to the reserved goods, in particular in the case of levies of
execution, the Purchaser will make clear that the reserved goods are our property and inform us
without delay in order to enable us to claim our property rights. The Purchaser will be held liable
if the third party is not able to refund the incurred judicial and extrajudicial costs. .
(5) In case of actions of the Purchaser contrary to the contract – in particular delayed payment – we
are entitled to rescind the contract and reclaim the reserved goods. The Purchaser is obliged until
the reserved goods have been paid for in full to notify us at all times of the location of the
reserved goods.
8. Rights of the Purchaser in case of Defects
(1) The products are delivered free of design, manufacturing and material defects; the period for
asserting claims for defects is a year from transfer of risk. The shortening of the statutory period
of limitation according to clause 1 shall not apply to intent and gross negligence as well as inju
ry to life, limb or health, in the event of fraud or in the event of the assumption of a guarantee
by us. The statutory period of limitation applies in these cases.
(2) If our operating and maintenance instructions are not followed, modifications are carried out in
the products, parts are exchanged or consumables used that do not conform to the original
specifications, claims due to product defects shall not apply, unless the Purchaser refutes a
corresponding substantiated assertion that one of these circumstances first caused the defect.
The foregoing applies if defects are attributable to poor assembly, incorrect installation, poor
maintenance, incorrect or negligent handling or storage, repairs not properly carried out by us,
alterations without our written consent, excessive strain, unsuitable operating conditions and
resources as well as chemical, electro-chemical or electrical influences for which we are not re
sponsible as well as weather-induced or other natural causes. Finally, claims for defects are ruled
out in the case of insubstantial deviation from the agreed condition, in the event of minor
impairment of usability, or in the case of natural wear and tear.
(3) The claims by the Purchaser based on defects require that he has duly observed his obligations
to examine the goods and to give notice of defects in accordance with § 377 of the German
Commercial Code (HGB), otherwise complaints can be disregarded: The Purchaser is required to
immediately notify our Customer Service Department of defects, at the latest within a week after
receipt of the delivered goods. Defects which may not be discovered within this period even upon
careful examination shall be notified to us in writing immediately upon their discovery.
(4) If the Purchaser notifies us of a product defect, we shall be entitled, at our discretion, to demand
that:
a) the defective component or device be sent to us, freight prepaid, for repair and subsequent
return to the purchaser;
b) the Purchaser stores the defective part or device and our service technician is dispatched to
the Purchaser in order to carry out the repair.
If a notice of defects is justified, we shall bear the costs, including those of the most economic
means of shipment. Claims by the Purchaser due to expenses required for the purpose of supple
mentary performance, in particular transport, travel, labour and material costs are excluded,
shall not be borne by us to the extent that the expenses are increased due to the fact that the
purchased commodity has been taken to a place other than the location of the professional acti
vity or commercial branch establishment of the recipient after receipt, unless such move corre
sponds to the intended use of the object.
The Purchaser shall have the right to rescind the contract without prejudice to any claims for
damages or diminish compensation if the supplementary performance fails to take place within
a reasonable period. Our maximum liability for damages is based on Clause 10.
(5) Claims against us due to defects may only be asserted by the direct Purchaser and may not be
assigned.
(6) In the event of deficiency reports, payments by the Purchaser may only be withheld to an extent
which is in proportion to the defects in quality which have occurred. A payment may only be
withheld if the Purchaser asserts a deficiency report whose justification is not open to any reaso
nable doubt. If the deficiency report was made without good reason, we are entitled to request
a reimbursement from the Purchaser of the expenses incurred by us.
(7) In the case of parts used for production, reprocessing or reworking which the Purchaser sends to
us, the latter shall not be liable for their behaviour during processing; if the material becomes
defective in the process, we shall be reimbursed for the expenses which we have already incurred
for the processing. Unless the damage is attributable to an intentional or grossly negligent bre
ach of duty on our part, our agents or a breach of duty material to the purpose of the contact.
This limitation of liability shall not apply to personal injury.
9. Right of recourse of the entrepreneur
If the Purchaser sells the newly manufactured goods within the framework of his commercial
business on to a consumer and has had to take back the goods due to them being defective or
has reduced the purchase price for the consumer, we do not require the setting of a deadline in
order for the claims for defects of the Purchaser to be asserted. In this case the Purchaser shall
have the right to request to be reimbursed for expenses which he had to bear in his relationship
with the consumer, provided the defect asserted by the consumer already existed at the time of
transfer of risk to the Purchaser. Within the scope of such right to recourse of the entrepreneur,
the Purchaser shall not have a claim to compensation except as provided by the provisions in
paragraph 10.
10. Liability
(1) Claims for damages and reimbursement of expenses by the Purchaser, on whatever legal
grounds, in particular due to breach of duties arising from the contractual obligation and from
tortuous conduct, are excluded.
(2) The foregoing shall not apply in the case of mandatory liability, e.g. for quality features under
warranty, according to the Product Liability Act, in cases of wilful intent, gross negligence, due
to injury to life, the body or even impairment of health, due to the breach of essential contractu
al duties. Nevertheless, the claim for compensation for the breach of essential contractual duties
is limited to the foreseeable damages specific for the contractual scope; claims for foregone
profit, costs saved, compensation claims of third parties and for other indirect and consequential
damage shall not be admitted. The foregoing shall not, in turn, apply if a quality feature
guaranteed by us has been used to hedge the Purchaser against such damage and / or if intent
or gross negligence apply or if liability exists due to injury to life, limb or health. The above
provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
(3) To the extent our liability is excluded or limited, this shall also apply to our employees, legal
representatives and agents.
11. Design Modifications
We reserve the right to make design modifications at any time; however, we are not required to
also carry out such modifications in products already delivered.
12. Copyright
(1) The documents and plans which we passed on to the Purchaser as well as design services which
we rendered and design and manufacture proposals may only be used by the Purchaser for the
intended purpose and may be made available to neither to third parties nor for publication
purposes without our consent. Unless otherwise agreed, we are required to perform the delivery
only in the country of the place of delivery free of industrial property and copyright of third
parties, hereinafter referred to as industrial property rights.
(2) If a third party raises legitimate claims against the Purchaser due to the breach of industrial
property rights as a result of deliveries used in accordance with the contract and provided by us,
we shall be liable vis-à-vis the Purchaser within the 12 month period as defined in paragraph 8
as follows:
We shall, at our option and cost, either secure a right of use of the deliveries concerned, or
modify them so as to ensure that they shall not infringe upon such property rights or exchange
such deliveries. If this would be unreasonable to demand from us, the Purchaser may cancel the
contract or reduce the remuneration pursuant to the statutory provisions. Our obligation to pay
damages shall be determined by paragraph 10.
The above obligations apply to us only if the Purchaser notifies us immediately in writing of the
claims asserted by third parties, does not admit the infringement and leaves in our hands any
defence of the claims and settlement negotiations. If the Purchaser stops using the deliveries in
order to reduce the damage or for other good reason, he shall be obliged to point out to the third
party that no acknowledgement of the alleged infringement may be inferred from the fact that
the use has been discontinued. Claims by the Purchaser are excluded insofar as he himself is
responsible for the infringement of the industrial property right. Similarly, claims by the Purchaser
are excluded if the infringement of the industrial property right is caused by the Purchaser’s
special requirements or is caused by a use which we could not foresee or because the delivery is
changed by the Purchaser or is used together with products that we did not deliver.
In all other respects, the provisions set forth in paragraph 10 shall apply to claims by the
Purchaser in the event of infringements to industrial property rights.
13. Non-Disclosure
(1) Our technical documentation, plans, service and operating manuals as well as all the information
on the function and installation of the goods received by us during the contractual negotiations
are subject to non-disclosure. The Purchaser undertakes to prevent unauthorised persons from
accessing the applicable information.
(2) Unless otherwise explicitly agreed in writing, the information to which we were privy in the
context of orders shall not be construed as confidential.
14. Final provisions
(1) A transfer of the contractual rights and obligations to third parties by the Purchaser is only
admissible with our written approval.
(2) Place of performance for payments is Porta/Westfalica, for all other obligations the supplier’s
plant.
(3) The place of jurisdiction for all disputes arising from the contractual relationship including legal
proceedings relating to cheques, bills of exchange and deeds is the venue which is competent for
our head office. However, we are also entitled to sue the Purchaser at his general place of
jurisdiction.
(4) Legal relations existing in connection with this contract shall be governed by German substantive
law, to the exclusion of the United Nations Convention on Contracts for the International Sale of
Goods.
Wir liefern unter Geltung unserer „Allgemeinen Lieferungs- und Zahlungbedingungen“.
(Siehe auch unter
oder auch auf Anforderung.)
We deliver in accordance with our ’General Conditions of Delivery and Payment‘.
(Please visit also
or also request a copy from us.)
Nous effectuons nos livraisons en tenant compte de « nos conditions générales de vente et
de paiement ». (Voir aussi sur le site
ou aussi sur demande.)
