- All our deliveries and services (called deliveries in the following), also deliveries in the future, are executed exclusively pursuant to the provisions of these General Terms of Sale, Delivery and Assembly (in the following called: terms). Additional or deviating general terms and conditions of the orderer are only valid if we explicitly agreed upon them with the orderer. Such an agreement has to be put down in writing.
- Our terms are only valid for persons who – when concluding a legal transaction – are dealing with us in pursuance of their commercial or freelance vocation (contractor in terms of § 14 BGB).
II. Conclusion of the Contract, Condition of our Products
- Our offers are without engagement and without obligation. The contract is only concluded after receipt of our written acknowledgement of order. We are able to accept orders within four weeks.
- Our offer, our written acknowledgement of order as well as these terms are prevailing for the contents of the contract. Other agreements for the execution of the contract, especially additional changes, supplements or sub-agreements will only become contents of the contract, if we explicitly agreed on them with the orderer. Such agreements have to be put down in writing.
- As specified condition of our products only those qualities and features are considered, which are explicitly named as specified condition in our offer, our acknowledgement of order and a possible performance specification. Other or further qualities and features are only than considered as specified condition, if we explicitly agreed upon them with the orderer. Such agreements on condition have to be put down in writing.
- Declarations concerning condition and durability of our products are only than a quality and durability guarantee if we have named them explicitly as guarantee. The rights of the orderer in case of guarantee are resulting exclusively from the guarantee bond. The guarantee bond has to be put down in writing.
III. Obligation of the Orderer to Co-operate
- The contract partners agree upon the fact that the planning and conceptual construction of our products call for a close cooperation of both parties because in each case features of equipments of amusement rides of the orderer are different.
- Out of this reason the contract partners agree upon the fact that the customer takes part in
- finding all information about the new amusement ride equipment planned by the orderer, which we need to be able to plan our products, to finish corresponding drawings and to fulfil otherwise our services as agreed upon. Also the transmission of complete information about the planned equipment, including all technical data of components supplied by the orderer as well as handing over of a product specification belongs to it,
- the assembly of our products as far as necessary,
- technical trials and test runs, especially by providing sufficient staff as well as leaving mechanically ready equipments to us for a period of time given by us, so that we are able to carry out real load test.
- In addition the orderer has to fulfil the following services:
- Immediate review of our plannings and drawings, of the performance specification or other service descriptions, of our technical information etc. whether they are qualified for the planned equipment of the amusement ride of the orderer. We have to be informed immediately about detected discrepancies or faults.
- Creation of all prerequisites for assembly in the own company, so that we are able to implement the finished product without delay.
- Complete, immediate and sufficiently precise fault message.
- In case that information or documents of the customer prove false, incomplete or not clear, the orderer will immediately execute necessary corrections, completions or fault clearance after respective information by us.
- We are not bound to check whether data, information or other services made available by the orderer, are complete or correct, if there is no justified reason.
- The obligation of the orderer to co-operate and to provide material as decribed in paragraph 1 and 2 are essential contractual obligations. If they are not respected by the orderer, he has to bear the additional costs caused by it.
- Request for Modifications of the Orderer During Running Order
- In case that the orderer requests for modifications or amendments after having finished the planning of our product, we are ready to plan anew for reimbursement of expenses incurred. Specified delivery dates and assembly dates will be extended respectively. We will submit accordingly a recalculated offer to the orderer.
- The originally specified condition of our products remains the same as long as an agreement has been made about the request of the orderer for modification or amendment. Such an agreement, including new prices has to be put down in writing.
- Passing of Risk
If we agreed upon assembly of our product into the equipment of the amusement ride of the orderer the risk of accidental downfall or accidental damage is transferred to the orderer as soon as our product has been brought into the areal of the company of the orderer.
- Time of Delivery, Delivery Holdup, Right of Withdrawal
- To observe the specified time of delivery the termination of the assembly of our product in the equipment of the amusement ride of the orderer is decisive.
- The observation of the specified times of delivery calls for a due clarification of all technical questions as well as the due submission of all documents, of necessary approvals and releases to be delivered by the orderer, especially of drawings as well as the observation of the specified terms of payment and other liabilities of the orderer. If these requirements are not fulfilled in due time the periods of time are extended accordingly.This is not valid if we are responsible for the delay.
- Cases of force majeure (unexpected circumstances and events without our fault, which could not have been avoided with the accuracy of a straight salesman, e. g. industrial action, war, fire, transport obstructions, lack in raw material, official measures) interrupt our obligations for delivery for the period of time of their duration and the complexitiy of their effect. This is also valid if our delivery is already delayed.
- As far as we have concluded a congruent hedging transaction with our pre-supplier in due time, our times of delivery are subject to a duly and orderly self delivery.
- In those cases named under item VI. 3 and 4 we are entitled to withdraw from the contract. We are bound to inform the orderer immediately about non-availability of the delivery and to reimburse possible return services immediately.
- In case that we are responsible for the delay in delivery we are liable for it exclusively according to the statutory provisions subject to the limitation of liability of the following item X.
VII. Prices and Payments
- Prices for our poducts are to be understood net ex factory exclusive of VAT, shipment, packing, freight, postage and transport insurance, unless we explicitly agreed upon something else with the orderer. Price agreements have to be put down in writing. One-way packing will be invoiced at cost price.
- We reserve the right to change our prices correspondingly, if our production and delivery prices are increasing after conclusion of the contract out of reasons for which we are not responsible (e. g. increase in wages, increase in material prices, increase of taxes etc.) and if we inform the orderer about the increase in prices in time before delivery. This is also valid if the orderer wishes an alteration of delivery date and if this alteration causes additional costs for us.
- As far as we have taken over the assembly of our products, this has to be paid on a time and material basis according to our standard hourly rates. Moreover the orderer bears also all necessary additional costs as travel expenses, costs for the transportation of the tools, unless we explicitly agreed on something else with the orderer.
- Our invoices are due to payment 20 days after invoice date without any reduction. Payment is effected if we can finally dispose of the amount.
- If payment of our receivables seems to be endangered by lack of productivity of the orderer, we have the right, to fix a due date for the payment of all not yet due receivables of the whole business connection with the orderer as far as we have fulfilled our deliveries. This is also valid if we have already accepted bills of exchange or cheques. Endangerment exists if a bank inquiry or an inquiry of a credit agency proves that the orderer is not creditworthy. The same is valid if the orderer is in delay with the payment of at least two invoices. In this case we are also entitled to set the orderer a suitable time limit during which he has - at his own option – concurrently to pay as return service for the provision of the still outstanding services or to provide security. After unsuccessful expiration of this time limit we have the right to withdraw from the contract. In case of bankruptcy or if the liabilities of the orderer are exeeding the assets, setting an additional respite is superfluous.
- In case of delay in payment of the orderer we are entitled to demand for legal interests for delay amounting to 8 percent more than the basic interest rate.
- The orderer can only set off with receivables which are undisputed or of legal force. This is also valid for the assertion of rights of retention.
As far as we have agreed to take over assembly, the following terms are valid, unless we explicitly agreed on something else with the orderer. Such agreements have to be put down in writing.
- The orderer takes over and makes available in due time and at his own expense
- commodities and materials, like racks, lifting bars and other devices, combustibles and lubricants necessary for assembly,
- energy and water at the place of use including connections, heating and lighting,
- sufficient large, suitable, dry and lockable rooms at the place of assembly for the storage of machine parts, equipments, materials and tools etc. Moreover the orderer has to take all those measures on installation site for the protection of our property and our assembly staff which he would take to protect his own property,
- protective clothing and protection devices, which are necessary based on the special circumstances of the installation site.
- Before the beginning of assembly all provisions of material and objects have to be available on the installation site for starting work and all preparatory works have to be terminated so that assembly can be started according to the agreement and without interruption. Delivery ways and the installation site have to be smooth and clear.
- If assembly is delayed by reasons for which we are not responsible, the orderer has to bear on a reasonable scale the costs for the waiting time and additionally necessary travels of us or of our assembly staff.
- The assembly of a product is terminated, if the product is ready for operation subject to the work which has still to be executed by the orderer (adaptation or linking with the factory, input of data etc). Assembly includes neither commissioning nor test run unless it has been explicitly specified. Such agreements have to be put down in writing. Otherwise we only execute commissioning or test run on the basis of a separate order. Expenses will be invoiced according to our general hourly rates.
- If a test run is explicitly agreed upon for special products, it starts with the assembly of our product. There must be no letter of intent of the orderer. If the start or continuation of the test run is delayed out of reasons, for which we are not responsible, the orderer has to bear on a reasonable scale the costs for waiting time and additionally necessary travels of us or of our assembly staff. The test run is successful if the product runs basically without faults during the period of time agreed upon. If the period of time for the test run has not been specified explicitly, the test run will be executed for at least three working days.
- The orderer or his customer has to certify us immediately and weekly the duration of the working time of the assembly staff. Moreover the orderer has to confirm also the delivery of products and in case of assembly also to confirm the termination of assembly, in case of test run, he has to confirm successful execution of test run. The confirmation as per sentence 2 has to be put down in writing. It has no suspensiveness for the due date of our payments and the beginning of the limitation of the claims of the orderer in case of faults.
- Rights and Liabilities of the Orderer in Case of Faults
- The orderer has to check immediately whether our products are faultless or not. Visible faults have to be indicated immediately by the orderer, but at the latest within 8 working days. The period for investigation and for claims begins in case of delivery without assembly with delivery, in case of deliveries with assembly after termination of assembly or as far as a test run has explicitly be agreed upon after termination of the test run. Latent defects have to be indicated by the orderer immediately after discovery. If the orderer fails to investigate the products and equipments immediately and if he fails to give due notice of defects, the orderer cannot invoke the defect.
- In case of justified and due notice of defects the orderer will be completely entitled to all claims acc. to the legal regulations, unless they have been explicitly modified by the following provisions:
- If the deviation of the product from the condition agreed upon is only negligible, the orderer is only entitled to an adequate reduction. If no condition has been specified, the same is valid in case of an only negligible deviation from the condition, which is usual for things of similar type and which the orderer can anticipate from such a product.
- In case of not negligible deviations in terms of paragraph a) the claims of the orderer are limited first of all to the right to refulfilment. We are entitled to decide between amendment or subsequent delivery. If refulfilment doesn’t succeed, if we refuse it, if it is not started within an adequate period of time or if it is not reasonable for the orderer, the orderer is entitled to his other legal rights in case of defects. Refulfilment has failed if the second attempt is not successful and if nothing else is resulting especially from the type of the subject or the defect or other circumstances.
- Additional costs for refulfilment, caused by the fact that the amusement ride is at another place than on site of the orderer in Germany, have to be payed by the orderer. If desired the orderer has to send the letter of intent stating that he will take over the costs prior to the execution of refulfilment. If the amusement ride is abroad, we are allowed to demand for an adequate payment in advance for incurring additional costs.
- Claims of the orderer for compensation of damages or settlement of useless expenses are excluded. This is not valid if the defect
- is based on intended or grossly negligent behaviour of us, our legal representatives or vicarious agents or if it has been maliciously concealed or
- is included in a quality guarantee or durability guarantee taken over by us, which entitles the orderer for such claims in case of guarantee as shown in the guarantee bond.
- If we are liable for compensation of damages as per item 2 d), the regulations about a limitation of liability as per item X. are valid accordingly.
- If only some of several sold articles are faulty, the possible legal right to withdraw from the contract is only limited to these articles. This is also valid if the products have been sold as belonging together, unless faulty parts cannot be separated from the other parts without damaging them or if it would be unacceptable for the orderer. The reasons for unacceptablility have to be demonstrated by the orderer. The a. m. regulations are also valid in relation to separate, faulty, single parts of a product, as far as the product incidentally remains usable – even if by buying goods in replacement.
- Limitation of Liability, Exclusion of Withdrawal
- We are absolutely liable for every case according to the law for product liability.
- In case of violation of essential contractual obligations (so-called cardinal obligations) we are basically liable without limitation for damages caused with intention or gross negligence, in case of simple negligence the liability is limited to the replacement of the predictable damage, typical for the contract. Neither the loss of profit nor consequential losses of the orderer are belonging to predictable damages typical for the contract. Our liability is limited to the benefits of our employers’ liability insurance and product liability insurance, i. e. to EURO 500.000 for every event of damage at property and EURO 1.000.000 for every event of damage at life, body and health. As far as our insurance is free of benefit (e. g. because of retention, serial damage, annual accumulation control or exclusion of risk) we compensate damages.
- In all other cases contractual and noncontractual claims for damages no matter for what legal reasons are excluded as far as there is no intented or grossly negligent breach of duty by us, our legal representatives or vicarious agents. Our liability in case of gross negligence is limited to the predictable damage, typical for contract. Neither the loss of profit nor consequential losses of the orderer are belonging to predictable damages typical for the contract. Our liability is limited to the benefits of our employers’ liability insurance and product liability insurance, i. e. to EURO 500.000 for every event of damage at property and EURO 1.000.000 for every event of damage at life, body and health. As far as our insurance is free of benefit (e. g. because of retention, serial damage, annual accumulation control or exclusion of risk) we compensate damages.
- As far as our liability is excluded or limited as described in the paragraphs above, this is also valid for the liability of our vicarious agents and assistants.
- The orderer has no right to withdraw from the contract because of a breach of duty for which we are not responsible and which does not refer to a defect of goods.
- As far a we have assigned special rights to the orderer in case of the existence of a defect within the scope of a quality or durability guarantee, such rights remain unaffected from the above limitations of liability.
- Periods of Limitation
- Claims of the orderer because products and equipments are defective are subject to a period of limitation of one year. The period of limitation begins with delivery of our products to the orderer, this is also valid, if it was agreed on a test run. Different from sentence 1 claims of the orderer because of a defect, consisting in a right in rem of a third person, on the basis of which delivery of products can be required or in another right, which can be recorded in the land register are subject to a period of limitation of three years.
- Other claims of the orderer because of a breach of duty are also subject to a period of limitation of one year.
- Deviant from item XI. 1 and 2 the statutory limitation is valid for the following claims of the orderer:
- in case of damage because of violation of life, body, health or an essential contractual obligation
- in case of other damages, which have been caused by an intented or grossly negligent breach of duty by us, our statutory agent or vicarious agent,
- in case of a defect of a building or such a thing, which has been – according to its general use - used for a building and which has caused its defectiveness,
- in case of malicious concealment of a defect.
- Item XI. 3 applies accordingly for the rights of the orderer to withdraw from the contract because of a breach of duty for which we are responsible and which does not refer to a defect.
- Claims of the orderer on the basis of a quality or durability guarantee are subject to a period of limitation of one year; the beginning of limitation is conform to the legal position.
- Our claims against the orderer are subject to limitation according to the legal regulations.
XII. Retention of title
- Our products are our sole property until the settlement of all receivables from the orderer (including all current account receivables), to which we are entitled for all legal reasons today or in future.
- Processing or transforming of our products by the orderer is always done for us. If our product is processed with another product which does not belong to us, if it is transformed, inseparately compounded or combined, we acquire property of the new product in a ratio of the value of our product to the value of the other processed product at the time of processing, transforming, compound or combination. If the other product is the main product, we agree already now on the fact that the orderer will transfer proportionate property to us. We accept proportionate assignment. The orderer stores our property free of charge. For the product to be processed the same applies as for our products delivered with reservation.
- The orderer is entitled to process and to sell our products as well as his amusement ride equipments with our products in orderly business as far as he is not in delay with his obligations to pay to us. Pledging or transfer by way of security are not allowed. Assignment of accounts receivable from the further sale of our products as well as of amusement ride equipments of the orderer with our products (including all current account receivables), of insurance claims as well as of claims against third parties because of damage, destruction, theft or loss of the goods is already done now by the orderer. We accept this assignment. If we are only entitled to a common ownership of products delivered by us or of the amusement ride equipment, this assignment is limited to a part of receivables, which is in accordance with the part of our common ownership (on the basis of the amount of the invoice). In case of selling-on the products and the amusement ride equipments the orderer has to reserve the title towards the buyer until complete payment of the purchase price. The orderer is not entitled to sell to third parties if the charge of the purchase price resulting from selling-on is subject to an assignment prohibition.
- We entitle the orderer revocably, to collect receivables, assigned to us on his own invoice and name. This authorization for collecting charges can be cancelled if the orderer does not fulfil his obligations to pay or if our receivables are endangered by lack of productivity of the orderer. The orderer has to inform us about the debtors of receivables on request. If the orderer assigns his receivables from selling-on within the scope of real factoring, he has to indicate this. He already now assigns to us the accounts receivable for the assignment to the factor amounting to the receivables to be secured.
- In case of access of third parties to products and equipments subject to our retention of title the orderer will point out our ownership and will inform us immediately. Our costs for intervention bears the orderer, to whom we assign our claim for reimbursement of costs against third parties versus payment of intervention charges.
- The orderer is entitled to demand for release of receivables if the value of our securities is at least 10 % higher than the value of our receivables to be secured. Releasable receivables are selected by us.
XIII. Industrial Trade Mark Rights and Copyright
- We reserve the unlimited proprietary rights and copyrights as well as all industrial trade mark rights for illustrations, drawings and other documents as well as software programmes and documentations made available to the orderer. It is not allowed to make them available to third parties without our explicit agreement. Such an agreement has to be put down in writing.
- Software programmes and documentations belonging to them which have been made available by us are only for the use of the orderer within the scope of a simple not transferable licence, namely exclusively for products delivered by us. Copies are only allowed – without taking over of charges and liabilities by us – for archive use, as replacement or for trouble shooting. If originals bear a mark showing copyright protection, this has also to be fixed on the copies by the orderer.
XIV. Applicable Law, Place of Fulfilment, Court of Jurisdiction
- The contract is exclusively subject to German Law excluding the agreement of the United Nations about contracts for international purchase of goods (CISG).
- Place of fulfilment for all our deliveries and services is the place of the orderer in Germany. This also applies if we deliver to another delivery address. This applies also especially for deliveries abroad. Deviating agreements have to be put down in writing. Place of payment of the orderer is our company site in Bremen.
- Exclusive mutual court of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is Bremen, if the orderer is salesman. However we are also entitled to take the orderer to court at his place of general jurisdiction.
- Also in case of cross-border deliveries the exclusive court of jurisdiction for all disputes resulting from the contractual relationship is Bremen, Federal Republic of Germany (Article 17 of the European Agreement about the legal competency and execution of legal decisions in civil and trade affairs of 27.09.1968 (EuGVÜ) or Article 23 of the EU-Regulation 44/2001 of 22. December 2000). We reserve the right to appeal to every other court, which is competent based on EuGVÜ of 27.09.1968 or the EU-Regulation 44/2001.