General Terms and Conditions of Delivery, Service and Payment
1. Scope of application
The following terms and conditions apply to all current and future offers made by us and contracts concluded. "We" shall be understood to mean Testo Industrial Services GmbH. The contractual conditions of the customer are not recognized.
2. Conclusion of contract
2.1 Our offers are subject to change. Customer orders shall only be binding on us if we confirm them or comply with them by providing the service or delivery; verbal subsidiary agreements shall only be binding if we confirm them in writing.
2.2 Our employees are not authorized to make verbal subsidiary agreements or to give verbal promises which go beyond the contents of the written contract or which amend these General Terms and Conditions to our disadvantage.
3.1 Our prices for services are net prices, the applicable value added tax is added. Maintenance and repair times as well as complex removal and installation work shall be charged separately on an hourly basis. If material and/or labor costs change between the conclusion of the contract and the performance of the service, we shall be entitled to adjust our prices accordingly.
3.2 The prices for deliveries are ex works Kirchzarten plus packaging and transport and plus the applicable value added tax.
4. Terms of payment
4.1 Our invoices for domestic services and deliveries are due for payment immediately and without any deductions.
4.2 If the invoices are not paid within 20 days (payment period), default shall occur.
4.3 If the payment deadline is exceeded, we shall charge interest at a rate of 8% above the prime rate, subject to the assertion of further damages.
4.4 The timeliness of payment shall be determined by the date of receipt of the amount by the payment office specified by us.
4.5 The submission of bills of exchange requires our consent. Expenses and costs shall be borne by the customer. The customer shall bear the risk for timely presentation and protest.
4.6 If our contractual claims are at risk due to the Purchaser's inability to pay, we shall be entitled to make the processing of all orders from the Purchaser dependent on advance payment or the provision of security and to withdraw from the contract after the unsuccessful expiry of a reasonable period. This shall not apply if the risk was already recognizable to us prior to the conclusion of the contract. In the event of default in payment, we shall furthermore be entitled to demand immediate payment of all claims arising from the business relationship.
4.7 The customer may only offset our claims against undisputed or legally established counterclaims. A right of retention of the purchaser from earlier or other transactions of the current business relationship is excluded. Excluded from this is the right of retention due to undisputed or legally established claims.
5. Delivery and performance time
5.1 Delivery and performance periods shall only be binding on us if they have been expressly agreed in writing.
5.2 Compliance with agreed delivery and performance deadlines shall be determined by the time at which the object of performance is dispatched for transport or notification is given that it is ready for dispatch.
5.3 If we are unable to meet the agreed delivery date due to impediments for which we are not responsible (operational disruptions, strike, lockout, energy supply difficulties, delays in the delivery of essential raw and starting materials, etc.), the agreed delivery periods shall be extended accordingly. We shall inform the Purchaser thereof without delay. In the aforementioned cases, the Purchaser shall not be entitled to withdraw from the contract.
5.4 If in such a case it cannot be foreseen that we will be able to perform the service within 2 months, both contracting parties shall be entitled to withdraw from the contract. The same shall apply if the reasons for the impediment still exist after the expiry of 2 months from the date of our notification. If the reasons for the impediment were already recognizable to us at the time of conclusion of the contract, we shall not be entitled to withdraw from the contract.
5.5 In the event of a delay in delivery, our liability shall be limited to 5% of the value of the goods in the case of simple negligence.
5.6 Partial deliveries are permissible insofar as this is reasonable for the customer.
6 Transfer of risk/acceptance
6.1 In the case of deliveries and services, the risk of accidental loss and accidental deterioration of the object of performance shall pass to the Purchaser as soon as the goods or the service are handed over for transport or upon acceptance of the work performance. This shall apply irrespective of whether the shipment is made from the place of performance and who bears the transport costs. If the Purchaser is in default of acceptance, the risk shall pass as soon as the Purchaser has been notified that the goods are ready for shipment/completion of the work or service.
6.2 If a formal acceptance is agreed upon, this shall take place within a period of 8 days. Each party may call in an expert at its own expense. Formal acceptance may also take place in the absence of one party if the date was agreed and the other party was invited with sufficient notice. In this case the result of the acceptance shall be communicated to the other party as soon as possible.
6.3 If no formal acceptance is requested, the performance shall be deemed to have been accepted at the latest upon expiry of eight calendar days after receipt of a written notification of completion of the work. The same shall apply if the Customer has used our performance for more than six working days.
7. Retention of title
7.1 The goods sold shall remain our property until full payment of our claims arising from the business relationship with the customer.
7.2 The retention of title shall also extend to the products resulting from the processing, mixing or combination of our goods with other items. We shall thereby acquire a co-ownership share in the ratio of the value of the goods subject to retention of title (invoice value) to the value of the other items. If one of the items is to be regarded as the main item, the customer shall transfer co-ownership to us in the ratio of the value of the reserved goods (invoice value) to the value of the other combined items. The customer shall keep the new item in safe custody for us free of charge with regard to the co-ownership share. If the reserved goods are resold as part of the new goods, the advance assignment agreed in Clause 7.3 shall only apply to the amount of the invoice value of the reserved goods.
7.3 The Purchaser shall be entitled to sell the Retained Goods in the ordinary course of business as long as he is not in default of payment. Pledges or transfers of ownership by way of security are not permitted. The Purchaser hereby assigns to us by way of security any claims arising from the resale or any other legal grounds (insurance, tort). The customer is authorized to collect the assigned claims in his own name for our account until revoked. Upon request, the Customer shall disclose the assignment and provide us with the information required for the collection of the claims.
7.4 The customer shall notify us immediately by registered letter of any seizure by third parties of the reserved property and the claims assigned in accordance with Clause 7.3.
7.5 Insofar as the realizable value of the securities to which we are entitled in accordance with the above provisions exceeds our claims by more than 10%, we shall be obliged to release securities of our choice in respect of the excess value.
8. Claims for defects
8.1 If the goods delivered by us or services rendered by us under a contract for work and services prove to be defective, the Purchaser's claims for defects shall be governed by the statutory provisions, subject to the proviso that the Purchaser may initially only demand subsequent performance. We shall, at our discretion, either replace the goods/services complained of or carry out subsequent improvement work.
8.2 If the supplementary performance fails, the customer may reduce the remuneration or withdraw from the contract in the case of defects that are not merely insignificant without setting a deadline in advance.
8.3 The warranty period for defects in the goods delivered by us or services rendered under a contract for work and services shall be 12 months from the transfer of risk.
8.4 The warranty for defects of used goods is excluded unless otherwise agreed individually. Excluded from this are cases in which we have assumed a guarantee or have fraudulently concealed a defect.
8.5 If the purchaser himself has carried out interventions, modifications or repair work on the equipment, he shall be obliged to prove that the defect is not due to this.
8.6 No warranty shall be assumed for services rendered under a service contract.
8.7 Claims for damages shall remain unaffected in accordance with Section 9.
9.1 We shall be liable for damages caused by culpable breach of material contractual obligations in accordance with the statutory provisions. In the event of slight negligence, we shall only be liable for the typically occurring, foreseeable damage and, to the extent permitted by law, only up to the amount of the respective contract value of the service causing the damage, but not exceeding EUR 500,000 (five hundred thousand euros) or, if the value of the service causing the damage is higher, up to the amount of the price of the service causing the damage.
9.2 In all other cases, we shall be liable if damage has been caused intentionally or by gross negligence by one of our legal representatives or vicarious agents.
9.3 In the event of the assumption of a guarantee as well as for damages resulting from injury to life, body or health, we shall be liable in accordance with the statutory provisions.
9.4 Liability in accordance with the Product Liability Act shall remain unaffected.
9.5 Otherwise, claims for damages arising from breaches of duty shall be excluded.
10. Final Provisions
10.1 Other amendments or additions to a contract require the consent of both parties and must be in writing. The principle of written form may also only be deviated from in writing.
10.2 Both contracting parties agree that all rights and obligations of the contracting parties in connection with this agreement shall be governed by German law. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
10.3 To the extent permitted by law, the sole place of jurisdiction for all legal disputes shall be Freiburg im Breisgau or, at our option, the general place of jurisdiction of the Purchaser.
10.4 Should individual conditions or parts of the contract be invalid, the remaining conditions and parts of the contract shall remain in force. The invalid provision shall be replaced by a provision which comes closest to the invalid provision in terms of its economic content, unless dispositive statutory law applies. The same shall apply in the event of a loophole.
Testo Industrial Services GmbH