1.
Scope of Application, Form
1.1
These General Terms and Conditions of Sale (hereinafter: GTCs) apply to all our contracts for the sale and/or delivery of construction cranes, their spare parts and accessories (hereinafter referred to as: goods) relating to contracts with our customers (hereinafter referred to as: buyers), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers Articles 433, 650 German Civil Code - BGB). The GTCs shall apply only if the buyer is an entrepreneur (Article 14 BGB), a legal entity under public law or a special fund under public law.
1.2
Unless otherwise agreed, the GTCs in the version valid at the time of the buyer's order or in any case in the version last communicated to them in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
1.3
Our GTCs apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent applies in any case, for ex-ample even if the buyer refers to their General Terms and Conditions (hereinafter re-ferred to as: GTCs) in the context of the order and we do not expressly object to this.
1.4
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order confirmation shall take precedence over these GTCs.
1.5
Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline, notification of defects, cancellation or reduction) must be made in text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaf-fected.
1.6
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTCs.
2.
Conclusion of Contract
2.1
Our offers are subject to change and non-binding. This shall also apply if we have provid-ed the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents - includ-ing in electronic form - to which we reserve ownership rights and copyrights.
2.2
The order of the goods by the buyer is considered a binding contractual offer. Unless oth-erwise stated in the order, we are entitled to accept this contractual offer within 3 weeks of its receipt by us.
2.3
Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
Delivery Time and Delay in Delivery
3.1
The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approx. 12 weeks from conclusion of the contract.
3.2
If we are unable to meet binding delivery deadlines for reasons for which we are not re-sponsible (non-availability of the service), we will inform the buyer of this immediately and at the same time inform them of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the buyer. Non-availability of the service is the case, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure or if we are not obliged to procure in individual cases.
3.3
Whether or not delivery has been delayed shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (deliv-ery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has suffered no damage at all or only significantly less damage than the above lump sum.
3.4
The rights of the buyer in accordance with No. 9 of these GTCs and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossi-bility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.
Delivery, Transfer of Risk, Acceptance, Default of Acceptance
4.1
Delivery is ex our warehouse, which is also the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the buyer, the goods will be dis-patched to another destination (sale to destination). Unless otherwise agreed, we are en-titled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
4.2
The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, carrier or other person or organisation designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equiva-lent to handover or acceptance.
4.3
If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a flat-rate compensation of EUR 100 per calendar day, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The buyer shall be entitled to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.
Prices and Terms of Payment
5.1
Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
5.2
In the case of sale by dispatch (No. 4.1), the buyer shall bear the transport costs ex ware-house and the costs of any transport insurance requested by the buyer. If we do not in-voice the transport costs actually incurred in the individual case, a flat-rate transport charge (excluding transport insurance) of EUR 500.00 shall be deemed to have been agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
5.3
The purchase price is due and payable within 14 days of invoicing and delivery or ac-ceptance of the goods. However, we are authorised at any time, even within the frame-work of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.
5.4
Upon expiry of the above payment deadline, the buyer shall be in default. During the pe-riod of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further claims for damages caused by delay. Our claim to commercial maturity interest (Article 353 German Commercial Code - HGB) against merchants remains unaffected.
5.5
The buyer shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed.
5.6
If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Article 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
Retention of Title
6.1
We reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (hereinafter: se-cured claims).
6.2
The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must inform us imme-diately in writing if an application is made to open insolvency proceedings or if third par-ties have access to the goods belonging to us (e.g. seizures).
6.3
In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the stat-utory provisions.
6.4
Until revoked in accordance with (c) below, the buyer is authorised to resell and/or pro-cess 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 full value of the products resulting from the pro-cessing, mixing or combining of our goods, whereby we shall be deemed to be the manu-facturer. 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 in-voice 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 subject to retention of title.
b)
The buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer specified in No. 6.2 of these GTCs shall also apply with regard to the assigned claims.
c)
The buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer fulfils their payment obligations to us, there is no deficiency in their ability to pay and we do not assert the retention of title by exercising a right in accordance with No. 6.3 of these GTCs. If this is the case, however, we can de-mand that the buyer informs us of the assigned claims and their debtors, provides all in-formation necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer's authorisation to resell and process the goods subject to retention of title.
d)
If the realisable value of the securities exceeds our claims by more than 10%, we shall re-lease securities of our choice at the buyer's request.
Buyer’s Claims for Defects Relevant to Used Goods
7.1
In the case of the sale of used goods, any liability for material defects and thus any war-ranty is excluded. This shall not apply in the event of gross negligence or wilful intent or gross negligence or injury to life, limb or health. No. 7.1 sentence 1 of these GTCs shall also not apply if we have fraudulently concealed a defect in the used goods or have assumed a guarantee for the quality of the used goods.
7.2
No. 7.1 of these GTCs shall also apply to claims of the buyer for damages or reimburse-ment of futile expenses due to defects in the used goods.
Buyer’s Claims for Defects Relevant to Used Goods and Buyer’s Inspection and Complaint Obligations
8.1
The statutory provisions shall apply to the rights of the buyer in the event of material de-fects and defects of title (including incorrect and short delivery as well as improper as-sembly or defective assembly instructions) of new goods, unless otherwise specified be-low. In all cases, the statutory provisions on the sale of consumer goods (Articles 474 ff. BGB) and the rights of the buyer from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
8.2
The basis of our liability for defects for new goods is above all the agreement reached on the quality and intended use of the new goods. All product descriptions which are the subject of the individual contract or which were made public by us (in particular in cata-logues or on our website) at the time the contract was concluded shall be deemed to be an agreement on the quality of the new goods.
8.3
If the quality of the new goods has not been agreed, the statutory provisions shall be used to assess whether or not a defect exists (Article 434 para. 1 sentences 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
8.4
The buyer's claims for defects relating to new goods presuppose that they have fulfilled their statutory duties of inspection and notification of defects (Articles 377, 381 HGB). If a defect is discovered during delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 7 working days of delivery and defects not recognisable during the inspec-tion within the same period of discovery. If the buyer fails to properly inspect the goods and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.
8.5
If the new goods delivered are defective, we may initially choose whether to provide sub-sequent fulfilment by remedying the defect (subsequent improvement) or by delivering a new item free of defects (replacement delivery). Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected.
8.6
We are entitled to make the subsequent fulfilment owed dependent on the buyer paying the purchase price due for the new goods. However, the buyer is entitled to retain a rea-sonable part of the purchase price in proportion to the defect.
8.7
The buyer must give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the new goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective new item to us in accordance with the statutory provisions. The subsequent fulfilment includes neither the removal of the defective new item nor the reinstallation if we were not originally obliged to install it.
8.8
The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs) shall be borne by us if the new goods are actually defective. Otherwise, we may demand compensation from the buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs) if the buyer knew or could have recognised that there was in fact no defect.
8.9
In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the buyer shall have the right to remedy the defect in the new goods himself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
8.10
Claims of the buyer for damages or reimbursement of futile expenses shall only exist in accordance with No. 9 of these GTCs, even in the case of defects in new goods, and are otherwise excluded.
Other Liability
9.1
We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of wilful intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in ac-cordance with statutory provisions (e.g. for care in our own affairs), for
a) for damages resulting from injury to life, limb or health,
b) for damages arising from the not insignificant breach of a material contractual obli-gation (obligation whose fulfilment is essential for the proper execution of the con-tract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
9.2
Auf Schadensersatz haften wir - gleich aus welchem Rechtsgrund - im Rahmen der Verschuldenshaftung bei Vorsatz und grober Fahrlässigkeit. Bei einfacher Fahrlässigkeit haften wir vorbehaltlich eines milderen Haftungsmaßstabs nach gesetzlichen Vorschriften (z. B. für Sorgfalt in eigenen Angelegenheiten) nur
für Schäden aus der Verletzung des Lebens, des Körpers oder der Gesundheit,
für Schäden aus der nicht unerheblichen Verletzung einer wesentlichen Vertragspflicht (Verpflichtung, deren Erfüllung die ordnungsgemäße Durchführung des Vertrags überhaupt erst ermöglicht und auf deren Einhaltung der Vertragspartner regelmäßig vertraut und vertrauen darf); in diesem Fall ist unsere Haftung jedoch auf den Ersatz des vorhersehbaren, typischerweise eintretenden Schadens begrenzt.
9.3
The limitations of liability resulting from No. 9.2 of these GTCs shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the buyer under the German Product Liability Act.
9.4
The buyer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the buyer (in particular according to Articles 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
Statute of Limitations
10.1
Notwithstanding Article 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title of new goods is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
10.2
However, if the new goods are a building or a new item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory regulation (Article 438 para. 1 No. 2 BGB). Other special statutory provisions on the statute of limita-tions (in particular Article 438 para. 1 No. 1, para. 3, Articles 444, 445b BGB) also remain unaffected.
10.3
The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the new goods, unless the application of the regular statutory limitation period (Articles 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the buyer in accordance with No. 9.2 sentence 1 and sentence 2 lit. a) and in accordance with the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
Software Use
11.1
If we deliver software with the goods, the buyer is granted a non-exclusive right to use this software to the contractually agreed extent. Use of the software outside the goods intended for this purpose and/or beyond the contractually agreed scope is prohibited. No. 11.1 sentence 1 and sentence 2 of these GTCs shall apply accordingly to any (software) documentation provided by us to the buyer with the software.
11.2
All rights to the software supplied by us with the goods shall remain with us or with our software supplier. The granting of sub-licences is not permitted. No. 11.2 sentence 1 and sentence 2 of these GTCs shall apply accordingly to any (software) documentation provid-ed by us to the buyer with the software.
Hire Purchase
12.1
If the buyer or customer rents goods with the entitlement or obligation to purchase the rented item at the end of the rental period, taking into account the rental interest paid by them, they must compensate us for any damage caused to us by the destruction, loss or damage of the rented item, even if we are not at fault. We hereby assign to the buyer any claims for damages against third parties arising from the destruction, loss or damage of the rented item. In the event of destruction, loss or damage to the hire item amounting to at least 50% of its current value, the buyer is entitled to terminate the hire-purchase agreement without notice.
12.2
We shall hand over the rented item to the buyer free of material defects and defects of title. On the other hand, the buyer must keep the rental object in a proper and functional condition during the rental period. The maintenance and repair costs incurred as a result must be borne by the customer.
12.3
In all other respects, all provisions of these GTCs shall apply accordingly to a hire-purchase agreement. This applies in particular to the provisions of these GTCs relating to our liability for material defects and other liability.
Choice of Law, Place of Jurisdiction and Severability Clause
13.1
These GTCs and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
13.2
If the buyer 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 - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 73037 Göppingen. The same applies if the buyer is an entrepreneur within the meaning of Article 14 BGB.
In all cases, however, we shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these GTCs or an overriding individual agreement or at the buyer's general place of jurisdiction.
Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.
13.3
Should any provision of these GTCs be or become invalid, this shall not affect the legal validity of the remaining provisions. In the event of an invalid provision of these GTCs, the parties are obliged to negotiate a valid and reasonable replacement provision that comes as close as possible to the economic purpose pursued by the invalid provision; the same applies in the event of a loophole.