Terms & Conditions
I. General Terms
Our general terms are valid for all orders with companies or judicial persons of the public right. This also prevails for future deliveries and performances. Dissenting delivery conditions of the purchaser, even when there is reference to it in the order, need an extra written agreement from us.
If the purchaser disagrees with the validity of our general terms, he has to contradict. In this case we got the right to withdraw the treaty.
Our quotations are without obligation. The treaty concludes with quotation from the purchaser and out written acceptance of order. We reserve the right to make changes to the information provided in our information documents or in the quotation of the purchaser, as long as they are reasonable for the purchaser.
II. Prices and Payments
Our prices are, when not agreed other ways, in euro ex-factory plus each specific turnover tax, packing extra. Appropriate price changes due to modified salary-, material and sales costs for delivery which take place 3 months before or after the conclusion of contract remain reserved. If we are entitled to a claim for damages for non-performance we could request 15% of the orders value plus turnover tax cross-the-board. We can prove a higher damage and claim it.
The purchaser may proof that we had no damage or less than 15%. The purchaser can only offset with unchallenged and legally binding claims.
Partial deliveries can be charged proportionately. Our complete outstanding accounts are due immediately when the payment conditions – even within partial deliveries – weren’t followed or we get to know circumstances which are known to lower the credit rating of the purchaser. Unaffected by further legal rights we are allowed to execute remaining deliveries and /or services only with preliminary payment or security furnishment.
We are also able to, without withdrawing from the treaty, prohibit the resale and further processing, repeal the direct debit mandate following figure III.5 and demand the return of the product at the costs of the purchaser or setting us into its possession without the purchaser being entitled to a right of retention or similar. In addition to this we are entitled to use the returned product for settlement on our outstanding claims by private sale.
Our privacy obtains the provisions of the German data protection act (BDSG), especially the §§ 27 ff. BDSG for not-public positions, each in its valid version. In this context it is expressly pointed out that Herkules Liftwerk GmbH and, if applicable, affiliated collect, store, process and use data obtained in connection with the contractual relationship in compliance with the BDSG, insofar as this is necessary for the proper settlement of the contract or required due to legal guidelines. This also includes forwarding the data to third parties who were commissioned by Herkules Liftwerk GmbH with the provision of services in connection with the fulfilment of the contract. Of course all personal data will be treated confidential. The purchaser will as well comply with the data protection terms in reference to Herkules Liftwerk GmbH and its employees.
Of course all personal data will be treated confidential. §5 BDSG (data secrecy) is used.
The contracting parties furthermore obligate themselves to not give confidential data about the opposing company, which was only released in relation with the fulfilment of the contract, to third parties or make them public in another way.
IV. Reservation of proprietary rights/securities
Until the fulfilment of all outstanding debits our delivered products (reserved goods) remain our property. This is also valid for all balance claims which we can hold, of whatever legal reason, against the customer or when payments were made for special outstanding debits.
The purchaser is only allowed to sell the reserved goods in the ordinary course of business and, as long as he is not in default of us, yet with the limitation that the claims from the resale pass to us (extended reservation of proprietary rights). The resale equals the installation into property or into buildings with connected facilities or the use for the fulfilment of other works and works-supply contracts with the purchaser.
As long as the purchaser is entitled to claims against the insurer or other third parties as a result of demolition, reduction, loss or destruction of the reserved goods or other reasons, these claims with all ancillary rights are also assigned to us in advance.
If the reservation of proprietary rights is asserted by us, this shall inly be deemed to be a withdrawal from the contract if we expressly declare this in writing. The right of the purchaser to own the reserved good expires when he does not fulfil the commitments of this or another contract with us. In this case we are authorised to repossess the reserved goods without cancellation or additional respite.
V. Delivery Time
Time limits and appointments are unaccommodating unless time limits and appointments are explicit marked as binding. The delivery date is met if the concerned good left our factory or the readiness for shipment has been notified by the time it expires. The delivery date shall be extended appropriately with measures in the context of labour disputes as well as the appearance of unexpected obstacles outside our sphere of influence.
This also is also valid when the circumstances occur to sub-contractors as well as during a delayed delivery. If we are in delay, the purchaser is entitled to declare his cancellation at the end of an appropriate additional despite or performance period of minimum 2 weeks. If the delivery date is not adhered by us, for other reasons as mentioned in Nr. IV, the purchaser can – if he credibly claims that he has suffered damage following the delay - claim a damage for delay for every full week of 0,5% up to a maximum of 5% of the order value. Exceeding claims for compensation are excluded in cases of delayed delivery, even with additional despite.
This does not apply to mandatory legal liability in cases of intent or gross negligence, whereby in the case of transactions belonging to the commercial business of the purchaser, the limitation of liability applies up to 5% of the order value, even cases of gross negligence.
VI. Delivery and passing of risk
The purchaser is obliged to immediately access goods notified as ready for delivery.
Otherwise we could store the goods at the expense and risks of the purchaser on our free discretion and charge them as delivered.
The risk passes to the purchaser by the handover of the good towards him or the haulier or freight carrier, at the latest with leaving the factory – even when shipped with our trucks. When delivered free construction site, the agreed price always applies to truck on drivable road at ground level. The unloading including the transport to the application or storing site is the responsibility of the purchaser. He has to bear the costs and risks of the unloading, stacking, storing and backhaul in case of default.
VII. Accountability for defects / warranty rights
For defects as well as for a guarantee of quality and durability (§ 443 BGB) we are liable as follows:
The period of warranty is 24 months, likewise in case of replacement deliveries/ compensations or amendment, unless otherwise agreed. The purchaser has to immediately rebuke the defects within 5 days since the handover to the purchaser. If there is a deficiency later on, which was not recognisable during the inspection, the reprimand has to be send within the same respite from detection of the defect. With proceedings about notice of defects we do not relinquish of the objection that the reprimand was not on time or not adequate.
If we warranted, we could repair or re-supply gratuitously on our choice. Replaced parts will become our property. It remains our decision to carry out a rework in our factory or at the user. If the rework or the replacement delivery fails, for whatever reason, the purchaser may, at his choice, demand a reduction of the compensation or cancellation of the contract subject to any claims for damages. The customer cannot demand compensation for futile expenses.
If a reprimand is asserted, payments of the customer may be withheld to an extent that is in reasonable proportion to the present defects at most 3 times any removal costs. The purchaser can only withhold payments if a notice of defect has been asserted, about whose justification there can be no doubt.
VIII. Claims for damages
All claims for damages, for whatever legal reason (claims arising from impossibility, delay, positive violation of contract, fault at contract negotiations, contract with protective effect in favour of third parties, unauthorized acts etc.), are excluded, as far as legally possible and no other regulation is included in the terms of delivery. In case of liability the following applies:
We are only liable for gross negligence or intention on our part or a legal representative, executive employees or vicarious agents, but only for gross negligence of the vicarious agent if this has violated cardinal obligations. In case of liability by reason of gross violation of contract our duty of replacement is restricted up to an amount of 50.000,00€, at most to the maximum sum that was, if applicable, determined through an expertise and covers the contractual or industry-typical damage. If we are liable for slight negligence the damage is restricted to the contract-typical, predictable damage.
The liability limitations do not apply to violation of life, body or health and in cases of forced legal liability (e.g. product liability).
IX. Place of fulfilment, jurisdiction
Place of fulfilment and exclusive place of jurisdiction for both contracting parties is Kassel. German law applies for the contractual relations under exclusion of the UN-Sales Law (CISG)
Changes and additions of this contract need to be made in writing. This also applies for changes of this written form clause. Verbal side agreements have not been made. If individual previsions of the contract are or will be invalid or contain a gap, the other previsions remain untouched from this. Both contracting parties obligate themselves to agree on a legal regulation, which comes closest to the economic intent of the invalid regulation or fills the gap, instead of the invalid regulation.