General terms and conditions of delivery and payment
All deliveries and services - including the provision of software - are subject exclusively to the following terms and conditions of delivery and payment. Any deviating terms and conditions of purchase of the customer are hereby expressly rejected. We shall only be bound by them if we have accepted them in writing. By placing an order and accepting the goods delivered by us, the customer confirms his agreement with our terms and conditions.
Offer and delivery
All offers are subject to change. Orders shall not be deemed to have been accepted by us until they have been confirmed in writing or the delivery has been made. Details of delivery dates are non-binding and do not entitle the customer to claim damages in the event that they are exceeded. Compensation for consequential damages is excluded. All events of force majeure or other circumstances for which we are not responsible shall entitle us, at our discretion, to withdraw from the contract, to extend the delivery period by a corresponding period or to reduce delivery quantities. Claims for damages are excluded in any case. Cancellations of firmly placed orders can only be made with our consent. If the buyer does not accept firmly ordered goods, we are entitled to store the goods at his expense and risk; the purchase price then becomes due immediately. Additional agreements and must be confirmed by us in writing. We reserve the right to make changes in design and weight in the interests of technical progress. Obvious errors, printing, calculation, typing and calculation errors are not binding for us and give no right to performance or compensation.
Shipment shall be carriage forward from our warehouse. Any shipping instructions are usually complied with. The shipment is always at the risk of the buyer. The risk of accidental loss or accidental deterioration shall pass to the buyer as soon as the goods have left our warehouse. The risk shall also pass to the Buyer if the goods are ready for shipment but the shipment is delayed for reasons beyond our control. We are not obliged to insure the goods during transport.
Terms of assembly
The customer has to create all conditions on site in due time which are necessary for us to be able to perform our services without delays under reasonable working conditions. If the installation or commissioning of the plant is delayed because the customer does not fulfill his obligations or does not fulfill them in time, the costs incurred by us as a result shall be reimbursed. This includes in particular the waiting time of the assembly personnel or acceptance engineer plus travel costs and allowances. The systems delivered and/or assembled by us shall be accepted during trial commissioning. If the acceptance is not carried out, our services shall be deemed to have been duly rendered.
If we give advice or a recommendation or information before or after the conclusion of a contract, in connection with the execution of a repair/installation or for whatever reason, we shall only be liable if we have agreed a special fee for this in writing. In this case, we shall only be held responsible in the event of intent or gross negligence. The liability is limited to 25% of the agreed fee.
Prices are calculated according to the price list valid on the day of delivery. If the date of delivery of the confirmed goods is agreed to be more than four months after the receipt of the order confirmation by the Buyer, an increase in the prices of our suppliers at the time of delivery to us may be passed on to the Buyer by us in the same amount - without any further surcharge.
Terms of payment
Unless special terms of payment have been agreed in writing, invoiced amounts shall be paid within eight days of the invoice date less 2% discount or 30 days net. If payment is not made within thirty days of the invoice date, the Buyer shall be in default without the need for a reminder. Offsetting with any counterclaims as well as the assertion of rights of retention on the part of the purchaser is excluded. If the customer is in default of payment, we shall be entitled to charge interest on arrears at a rate of 5% above the respective discount rate of the Deutsche Bundesbank, subject to the assertion of further damage caused by default. In the event of default of payment by the Buyer, we shall be entitled to make further deliveries only against cash on delivery or to withhold the delivery. In the event of default on the part of the purchaser, the entire purchase price for all delivered goods shall become due immediately. If, after the conclusion of the contract, the creditworthiness of the buyer deteriorates or if the agreed terms of payment are not met, we shall be entitled to withdraw from the contract even if partial deliveries have already been made. Bills of exchange or checks will only be accepted by us on account of performance. Discount charges shall be borne by the purchaser.
Retention of Title
The delivered goods shall remain our property until full payment of all present and future claims arising from the business relationship with the customer, irrespective of the legal grounds. The assertion of our rights of retention of title is not to be regarded as a withdrawal from the contract. Rather, in addition to the claim for surrender of our property, we shall retain our rights under the purchase contract, in particular for compensation for damage and lost profit. If the goods delivered under retention of title or the items manufactured therefrom are resold, processed or installed by the Buyer, all rights accruing to the Buyer therefrom shall pass to us. Claims from a resale are already now assigned to us. The buyer shall be entitled to collect the claims arising from the resale until revoked. At our request, the Buyer shall be obliged to disclose the assignments to his contractual partners and to provide us with the information and documents required to assert our rights against the Buyer's contractual partners. Pledging or transfer by way of security of the goods delivered under retention of title in favor of third parties is excluded without our consent. If goods owned by us are pledged or if there is any other intervention by third parties that endangers our rights or our ability to dispose of the goods, the Buyer shall inform us thereof. We undertake, at the request of the purchaser, to release securities of our choice which exceed our claims by more than 20%. If the buyer defaults on payment or suspends payments or does not honor a check or bill of exchange, we shall be entitled to take direct possession of the goods delivered under retention of title at any time. All costs incurred shall be borne by the Buyer.
Warranty, Liability, Statute of Limitations
The buyer is obliged to inspect the goods immediately after receipt and to notify the carrier of any defects on the delivery bill. For the recognition of defects recognizable during such an inspection, it is a prerequisite that the goods have not yet been installed or put into use. In the case of hidden defects, the following warranty periods shall apply: 12 months from the date of delivery. Notification of defects must be made to us in writing within seven days at the latest. If the defective item deteriorates due to a delayed notice of defect, we shall be released from any warranty liability. The same shall apply if the purchaser or third parties carry out modifications, repairs or maintenance work without our prior written consent. Complaints can only be made if the goods have been installed and used in accordance with our installation and operating instructions. No warranty is given for damage caused by the following reasons:
Defective assembly, natural wear and tear, unsuitable operating materials, replacement materials, inadequate construction work, incorrect planning, chemical, electronic or electrical influences, insofar as they are not attributable to a fault on our part. Regulators and controllers must not be exposed to heat radiation, gases or other chemical influences or vibrations. A further prerequisite for a warranty is the integrity of seals and serial numbers.
Defective parts will be repaired or replaced by us. We shall not bear the costs associated with the installation and/or removal of the defective parts or the freight costs incurred by shipping the defective and repaired or replaced parts. All other claims for defects, including claims for the performance of repairs and assembly or for other reasons, shall become statute-barred at the latest within 3 months after delivery or after completion of our services.
We shall repair defects that are not due to material or manufacturing defects. Instead, we may compensate for the reduced value. For consequential damages due to defective delivery or service (assembly/repair, etc.) for which the customer is not responsible under these conditions, we shall be liable on the basis of the statutory provisions, but only up to 25% of the amount charged for the defective item or defective service.
The defective equipment or accessory parts shall be kept available for our inspection in the condition in which they are at the time of discovery of the defect. Any breach of this obligation shall exclude any liability on our part. The above provisions shall also apply in the case of goods other than those stipulated in the contract or in the case of the absence of properties warranted in writing.
We shall also not be obliged to check whether equipment which we do not supply but which is installed in or attached to our delivery or which otherwise has a relationship to our delivery or service is suitable for the intended purpose.
Our liability shall be governed exclusively by these Terms and Conditions. All claims not expressly granted herein - including claims for damages - of whatever kind and on whatever legal grounds shall be excluded. § 276 BGB remains unaffected. All claims against us shall become statute-barred after one year at the latest, unless shorter limitation periods are agreed by these terms and conditions. Claims of any kind whatsoever can no longer be asserted against us if the claim has not been asserted by legal action within one month after we have refused to acknowledge the claim.
The customer shall receive a non-transferable right of use to software of any kind and the associated documentation in return for payment. Aquacontrol shall remain the owner of the copyright as well as all other industrial property rights. The right to make copies is given only for the purpose of data backup. Passing on to third parties requires our consent. In the event of a breach of these conditions, the customer shall pay a contractual penalty amounting to 10 times the order value. This contractual penalty shall not be offset against any claim for damages. The software and the associated documentation must be returned immediately upon request. We provide warranty for our software as follows. The software is properly duplicated and executable on the hardware profiles specified in the documentation. The warranty shall be fulfilled by replacement delivery. If this finally fails after several attempts in spite of an appropriate deadline, the customer shall be entitled to rescission or reduction of the purchase price. In all other respects no guarantee is taken over on the faultlessness of the software and data structure, unless something else was agreed upon in writing.
Place of jurisdiction
The place of performance is Wuppertal, the place of jurisdiction is either Wuppertal or the customer's place of business, at our discretion. German law shall apply. The invalidity of one or more conditions does not affect the validity of the remaining agreements.