1. General / Scope of application
These terms and conditions apply exclusively to business transactions with companies; for consumers, the statutory provisions of the law on sales apply.
The following terms and conditions apply exclusively to all our offers, sales and deliveries. By placing an order, the customer declares his full agreement with these terms and conditions. Deviating conditions are only valid if they are specially agreed and confirmed by us in writing. Modification of individual terms and conditions shall not affect the remaining terms and conditions. Counter-confirmations of the buyer with reference to the validity of his business or purchasing conditions are hereby contradicted. Rights and obligations from the purchase contract may not be transferred to others without our express consent. Unless otherwise agreed, these terms and conditions shall apply to all present and future business transactions, even if no special reference is made to them when placing an individual order within the framework of an existing business relationship.
These terms and conditions shall also become effective upon acceptance of our deliveries; they can be viewed in their current version at www.skadec.de and downloaded as a file.
2. Offer / Order / Order confirmation
Our offers are subject to change without notice, unless otherwise specified. Contracts shall only be deemed concluded with our order confirmation. A confirmation of receipt of the order of the buyer by the contractor does not constitute an order confirmation and therefore does not constitute a legal claim of the buyer.
Deviations which the buyer makes from our offer must be clearly marked in the order. Deviations from the order are also marked in our order confirmation. If necessary, a written agreement on deviations must be reached immediately. In the event of a dispute, our order confirmation is decisive.
3. Drawings and technical documents
Drawings, illustrations, dimensions, weights or other performance data are binding insofar as they are mentioned in the order confirmation or separately agreed. We reserve the right to make technical or technically induced changes insofar as these are necessary and reasonable for the customer.
Our products are not standard devices, but products which are individually designed and then manufactured after the order has been placed. Dimensions and weights may vary from those in the offer.
As far as we have to deliver exactly according to drawings, information or specifications of the customer, this is exclusively on the responsibility of the customer. In these cases, we are not obliged to check drawings, details or specifications for completeness and correctness.
The intellectual property or existing industrial property rights in calculations, cost estimates, drafts, drawings and other technical documents provided remain with us. These may not be disclosed to third parties or reproduced by the recipient without our prior consent. Contraventions obligate the recipient to pay damages. If an order is not placed, the drawings or documents sent with the offer must be returned by the recipient.
4. prices and payments
Our prices are ex warehouse (EXW Incoterms 2010) plus statutory value added tax and packaging. If we are commissioned with transport by the customer, postage, freight and other shipping expenses and transport insurance shall be borne by the customer. A separate invoice will be issued for any additionally commissioned installation, assembly and commissioning. At the request of the customer, delivery can also be made to the building site against payment of costs.
If, at the contractor’s request, the services are to be provided by the contractor later than agreed, can this only be done against reimbursement of the costs of any interim storage, whereby payments for the services must be made at the originally agreed times. Our invoices for deliveries / services are payable net without any deductions and free of charge within 10 days of the invoice date. If the target period of 10 days is exceeded, default occurs without prior reminder. Default interest at the statutory rate must be paid.
In the case of an order value of more than EUR 15,000, the price is due for payment within 3 days as follows: 1/3 of the price after confirmation of the order, 1/3 of the price immediately after notification of readiness for dispatch, but in any case before dispatch or collection, 1/3 of the price on delivery or acceptance, if assembly / commissioning has been agreed.
Payment by bill of exchange or cheque requires a special agreement. Bills of exchange and cheques shall only be accepted subject to their encashment and shall only be considered as cash payment from the time of encashment. Bill of exchange and discount charges shall be borne by the customer. The buyer is not entitled to offset, withhold or reduce payments due to any counterclaims.
5. Delivery and delay
Upon leaving the works or upon notification of readiness for dispatch, the risk shall pass to the buyer. In the absence of special instructions, the choice of the transport route and means of transport shall be made at our best discretion without any liability for the cheapest and fastest shipment. Shipment is always at the risk of the buyer. This also applies to carriage paid deliveries and in the case of retention of title. Unless otherwise agreed, packaging shall be at our discretion.
We reserve the right to agree the delivery time for each individual order. Delivery dates are only binding if they are expressly marked as binding in writing in the order confirmation. Delivery dates not marked as binding may be exceeded by up to three weeks. Partial deliveries and partial services may not be rejected by the customer.
We shall not be responsible for delays in delivery and performance due to higher forces, strike, lockout as well as official orders, even if they occur at our suppliers or their sub-suppliers or due to events which make delivery not only temporarily considerably more difficult or impossible for us. Such reasons entitle us to cancel the delivery obligations in whole or in part. We are not obliged, but entitled, to make a subsequent delivery of the failed quantity of goods. If the delivery time is extended for the above-mentioned reasons or if we are released from our obligation to perform, the customer cannot derive any claims for damages from this. We can only invoke the circumstances mentioned if we inform the customer immediately and provide him with evidence of the circumstances.
In the event of delay, the buyer is only entitled to terminate the contract if he has twice set us a reasonable grace period and this grace period has not been observed.
6. Assembly / Commissioning
If we are also to carry out assembly, this must be agreed in writing (order/ order confirmation). Unless otherwise agreed, the following usually applies to assembly:
The execution of the assembly presupposes that the client has given his approval for the assembly, whereby at this point in time all the prerequisites necessary for the assembly (permits, prerequisites on site, coordination of technical details, services to be provided by the client at the assembly site, etc.) must be available.
A period of at least four weeks must be observed between the assembly release and the beginning of the assembly. Changes in the period between the approval of the assembly and the start of assembly shall lead to an extension of the deadline.
At the agreed time of the start of assembly, the customer has either made the agreed down payment or sent the agreed guarantee.
The successful completion of the installation within the agreed period is determined either by acceptance, but at the latest when the delivered and installed plant or plant component is put into operation.
The deadline for the completion of the installation is considered to be met if the delivered and installed plant or plant components can be commissioned or used within the deadline. The later execution of work of a minor nature is irrelevant.
If agreed with the customer, we will put the delivered and/or assembled plant or plant components into operation, whereby all prerequisites on site and all necessary services to be provided by the customer must be available.
The warranty begins with the completion of the assembly and handover. If commissioning is additionally desired and agreed, the limitation period of 1 year for the assembly and/or commissioning services shall commence from this point in time.
The buyer is obliged to point out existing dangers concerning the assembly (e.g. fire danger in rooms or of used building materials) and to take the necessary danger protection measures for the assembly (provision of fire guards, fire extinguishing material etc.). This applies in particular to cutting, welding and soldering work that regularly occurs during installation. The costs for these measures and any delays caused by them shall be borne by the customer.
We are obliged to notify the customer immediately in writing of any special circumstances that prevent us from performing our services properly.
7. Retention of title
Ownership of the goods delivered by us shall not pass to the customer until he has paid all his liabilities arising from the existing business relationship. Repayment on acceptance of bills of exchange and cheques is only made when they are honored. Payment by cheque with the simultaneous establishment of a financing relationship by bill of exchange shall not be deemed to be repayment of the claim.
The buyer is entitled to sell the goods subject to retention of title in the course of ordinary business operations. In this case, the customer hereby assigns to us all claims with all ancillary rights which accrue to him from the resale against customers or third parties. We undertake not to collect the claims as long as the buyer duly meets his payment obligations. In case of default of payment, we are entitled to demand the disclosure of the assigned claims and their debtors. The customer must provide us with all information necessary for collection and hand over the relevant documents. In this case we are obliged to inform the debtor of the assignment.
In the event of a breach of important contractual obligations, in particular in the event of default in payment, the contractor is entitled to take back the goods subject to retention of title. The taking back as well as the seizure of the goods subject to retention of title by us shall only constitute a rescission if we expressly declare this in writing. If the goods subject to retention of title are taken back without a declaration of rescission, the ordering party already now allows us to enter his business premises during normal business hours and to take possession of the goods subject to retention of title again. In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing by sending us a record of the seizure and an affidavit of the identity of the seized object.
If the delivered goods or parts thereof are built into another object, the reservation of title does not expire; rather, co-ownership according to the value of the new object is deemed to be agreed. If the newly created item is resold, the customer shall assign to us by way of security all claims from the resale, including all ancillary rights against the third-party debtor, up to the value of the services, with the authority to collect the claim on a pro rata basis. We accept this assignment. Insofar as the customer collects the assigned claim himself, this is only done in trust. The proceeds collected on our behalf are to be transferred to us immediately. In the event that the second buyer does not pay immediately in cash, the buyer must reserve the extended ownership for us.
If the delivered goods or parts thereof are installed as an essential component in a property of a third party, the orderer hereby assigns to us his claims against the third party or the party concerned for remuneration in the amount of the invoice or invoice value of the transaction between the contractor and the orderer. This assignment includes all ancillary rights including the granting of a security mortgage to the buyer. We hereby declare the acceptance of this assignment.
Insofar as the goods subject to retention of title have become an essential part of the property of the final purchaser, we are entitled, in the event of non-compliance with the agreed payment deadlines, to dismantle the goods subject to retention of title which are to be removed without any substantial impairment of the building structure. The customer hereby undertakes to permit the dismantling and to transfer back to us the ownership of the dismantled goods subject to retention of title. If our rights are impaired, the buyer is obliged to compensate us for damages. The dismantling and all other costs shall be borne by us.
Until the fulfilment of all claims, including all balance claims from current account, which we are currently entitled to or will be entitled to in the future against the customer for any legal reason, we shall be granted securities to be agreed upon, which we shall release on request and at our discretion, provided their value exceeds the claims by more than 10% on a sustained basis.
If, in connection with the payment of the purchase price by the buyer, a liability by bill of exchange is established on our part, the reservation of title and the claim from services on which it is based shall not expire until the bill of exchange has been honoured by the buyer as drawee.
8. Return of goods
As we do not deliver standard products, but all products are manufactured especially for the customer, a cancellation or even a withdrawal of the products is not possible.
9. Defect rights / Liability
Decisive for the contractual condition of the services is the time of delivery of the products or acceptance in the case of assembly or commissioning, which is also commissioned. Notices of defects, in particular due to the external condition and completeness of the goods, can only be taken into account if they come to our attention immediately after detection, but at the latest within two weeks after receipt of the goods at the place of receipt by written notification or, in the case of commissioned assembly, are documented in a written acceptance protocol upon acceptance or commissioning. Defects which cannot be discovered within this period even in the case of immediate inspection must be notified immediately after discovery. The customer must complain about transport damage to the carrier immediately after receipt of the delivery and have it certified on the consignment note, at the same time registering claims for damages.
In all cases of delivery of a product, claims for defects on the part of the buyer shall become statute-barred 12 months after the date of delivery. These claims are only available to the buyer and are not transferable.
The statutory period of limitation shall apply to claims for damages in cases of intent and gross negligence as well as in cases of injury to life, body and health which are based on an intentional or negligent breach of duty by the user.
There shall be no inhibition through rectification of defects and replacement delivery. In the event that assembly or commissioning has been agreed, acceptance shall be carried out at our request as soon as assembly has been carried out or the plant has been installed ready for operation. The buyer must comply with this request without delay, otherwise the commissioning shall be deemed accepted and carried out.
Our warranty obligation is subject to the condition that, in the event that third-party companies are used, our deliveries/services are installed by a recognised specialist company – taking into account the relevant standards and recognised rules of technology – and used in a faultless manner and in strict compliance with our specifications/instructions (such as operating instructions, technical documentation etc.). The warranty obligation expires if the defect that has occurred is causally connected with the improper modification, processing or other treatment. Liability for damage as a result of wear and tear due to use, for natural wear and tear of parts subject to wear and tear, in the event of excessive strain, inadequate maintenance, forcible damage, failure to observe our product documentation, incorrect use or incorrect operation, due to unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrotechnical or electrical influences, is excluded.
Furthermore, our warranty obligation requires that the customer specifies in writing any defect that may have arisen in a sufficiently concrete manner and sets us a reasonable period of time to remedy the defect or to deliver a replacement. We must be given the opportunity within a reasonable period of time to inspect the notified defect ourselves or through a representative. We have the right to choose between repair or replacement, provided we are legally obliged to do so. If there are urgent cases of danger to operational safety, of which we must be informed immediately, the customer must immediately agree with us on the necessary measures and coordinate them.
If we are in default with the elimination of a reported defect, the customer has the right to eliminate the defect himself at cost or have it eliminated by a third party, whereby the necessary costs are to be reimbursed by us.
The warranty assumed by us extends to those parts that have demonstrably become defective as a result of defects that existed at the time of the transfer of risk and is limited to rectification of defects, replacement delivery including assumption of the necessary transport costs to the original place of delivery, but excluding operating materials such as oil and refrigerants. We are entitled to demand the return of the defective parts.
The buyer must give us the necessary time and opportunity to carry out repairs, allow us the necessary access and also provide auxiliary staff at our request.
The buyer is free to claim reduction or withdrawal if the rectification/replacement is impossible or requires a disproportionately high effort, or if the defect is not remedied after two attempts at rectification or after two replacements and after the expiry of the reasonable grace period set by the buyer.
A deviating regulation in accordance with § 440 S.2 BGB (German Civil Code) may arise in particular in cases of complex, sophisticated technical installations, which we may invoke in such cases.
Any liability for damage not occurring to the delivery item itself is – as far as legally permissible – excluded. This also applies to consequential damage of any kind, provided that the contractor has not acted with intent or gross negligence, or the warranted characteristics are intended to prevent the risk of consequential damage caused by a defect. This exclusion of liability does not apply in cases where the contractor is liable under the Product Liability Act.
Claims by the contractor for expenses necessary for the purpose of subsequent performance or reversal after withdrawal from the contract, in particular travel, transport, labour and material costs, are excluded if the expenses increase because the subject of the contract was installed at a location that is difficult to access.
The responsibility for perfect water quality is incumbent on the ordering party or the end customer (operator) of the system in which the object of delivery is integrated or integrated with it. The orderer shall observe the requirements for boiler water and feed water which are laid down in the VDI guidelines 2035 or the recommendations of the VdTÜV in the latest version. In all other respects, our working or operating data sheets shall be authoritative.
Our liability for material defects does not include damage caused by air pollution, heavy dust, aggressive vapours, oxygen corrosion – in particular when using non-diffusion-tight plastic pipes – by installation in unsuitable rooms or by continued use of the delivered goods despite the occurrence of a defect
10. Place of jurisdiction, applicable law and partial invalidity
Öhringen is agreed as the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between our company and the customer. This shall also apply if the customer does not have a general place of jurisdiction in Germany.
The law of the Federal Republic of Germany shall apply. The application of the United Nations Convention of 11.04.1980 on Contracts for the International Sale of Goods is excluded.
Should one of the above provisions or agreements be or become invalid, this shall not affect the validity of the remaining provisions or agreements. Rather, the statutory provisions shall initially apply until the Contractor and the Purchaser agree on a legally permissible provision. This also applies to
In the event of a regulatory gap.
Status: July 2018
PDF Skadec AGB (Greman Version)