General Terms and Conditions
§ 1 General
1. The following General Terms and Conditions (GTC) apply to all contracts with our customers. They only apply if the customer is an entrepreneur as defined in Section 14 BGB (German Civil Code), a legal entity organised under public law, or a special public fund. If individual agreements are made with the buyer in individual cases, these shall take precedence over these GTC.
2. Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer become only then and insofar part of the contract as we have agreed explicitly to their application. This requirement of consent shall apply in every eventuality, for example including if we agree without reservation to make a delivery in full knowledge of the buyer's GTC.
3. Unless otherwise agreed, the GTC in the version valid at the time of the buyer's order or at least in the version last communicated in text form shall also apply as a framework agreement for similar future contracts, without having to refer to them again in each individual case.
4. Unless statutory regulations are directly modified or expressly excluded with these GTC, the statutory provisions apply.
§ 2 Restrictions under foreign trade law – condition precedent
1. Any commencement of business negotiations with our customers requires that no foreign trade law restrictions be violated.
Foreign trade law restrictions apply in particular if the fulfilment of the delivery obligation is prohibited due to delivery bans in accordance with the provisions of national or European foreign trade law or if permits are required in accordance with national or European foreign trade and export control law for the fulfilment of the delivery obligations.
Should a delivery ban exist, we will not enter into any legally binding relationships and we will not deliver any technical or other documents, expertise or goods. The same applies to existing approval reservations as long as no approval has been granted.
2. Upon commencement of business negotiations, our customer is obligated to provide us with all information, including documents and records, which enable us to check the existence of delivery bans and to obtain any necessary approvals from the responsible authorities. The factual information provided by the customer must be complete and truthful.
3. In any case, the legally binding conclusion of a contract is subject to the condition precedent that the competent authorities issue the necessary permits for the sale, delivery, transfer and/or export of the services to be provided by us.
§ 3 Conclusion of the contract, offer documents, rights of third parties, sample items
1. Our offers are non-binding and without obligation.
2. If the customer's goods order qualifies as a contract offer, we may accept this within 2 weeks of receiving it.
3. Acceptance can be notified to the customer either in writing or in text form (e.g. through order confirmation) or through delivery of the goods.
4. We reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties with our prior written consent. Drawings and other documents belonging to offers must be returned on request and in any case if the order is not placed with us.
5. If we have delivered items according to drawings, models, samples or other documents provided by the customer, the customer shall guarantee that the property rights of third parties are not infringed. Should such property rights be infringed, the customer releases us from claims for damages by third parties.
6. Sample parts required for testing will be charged in addition to any costs incurred, in particular for moulds and tools. If we manufacture or procure moulds, tools and other equipment and systems for production, we will invoice the pro-rata costs for them as a production component. With regard to our construction work, the aforementioned items remain our property.
§ 4 Prices
1. Unless otherwise specifically agreed, our current prices in effect at the time the contract is signed shall apply, ex works, plus statutory VAT.
2. If the goods are sent to a different destination at the customer's request, the customer shall bear the transport costs “ex works” and the costs of any transport insurance requested by the customer. Any duties, fees, taxes and other government levies are payable by the customer.
3. Cash discounts require a separate agreement in writing or text form.
§ 5 Payment terms
1. The purchase price shall be due and payable within 14 days from the invoice and delivery or inspection of the goods. However, even in the context of an ongoing business relationship, we shall be entitled at any time to only make a delivery, in whole or in part, against prepayment. We will declare a corresponding reservation at the latest with our order confirmation.
2. Upon expiry of the aforementioned payment period, the customer shall be in default. The purchase price shall accrue interest at the currently applicable statutory default interest rate for the duration of the default. We reserve the right to claim further damages from default.
3. The customer is entitled to offset or retain payments only to the extent that its claim has become res judicata or is uncontested. In the event of defects in the delivery, the customer's counter-rights shall remain unaffected.
4. If it becomes apparent after conclusion of the contract (e.g. through the filing for insolvency proceedings) that our claim to the purchase price is endangered by the customer's inability to pay, we shall be entitled to refuse performance and—if necessary after setting a deadline—to withdraw from the contract (Section 321 BGB). For contracts relating to the manufacture of unwarranted goods (custom-made items), we may declare our withdrawal immediately; the legal provisions regarding the dispensability of setting a deadline remain unaffected.
§ 6 Delivery, transfer of risk, delay
1. Delivery shall be "ex works", where the place of performance for the delivery and any subsequent performance shall also be the place of performance. At the customer's request and expense, the goods will be shipped to another destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, the transport company, shipping method, and packaging).
2. The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest with their handover. However, for sales shipments, the risk of accidental loss and accidental deterioration of the goods and the risk of delay passes to the buyer once the goods are handed over to the forwarder, carrier or other person or organisation carrying out the shipping. If a customer is in default of acceptance, this shall be equivalent to delivery or acceptance.
3. If the customer is in default with acceptance, if it fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand reimbursement for any ensuing damage including additional expenditure (e.g. warehousing costs).
§ 7 Delivery time and release from obligation to perform (force majeure)
1. The delivery deadline will be agreed on a case-by-case basis or otherwise stipulated by us when we accept the order.
2. The statutory provisions shall apply as to the occurrence of default in delivery on our side. In any case, a reminder by the customer is required. If we are in default of delivery, the customer may demand a flat amount of damages for the same. The lump-sum compensation equals 0.5% of the net price (order value) for each completed calendar week of delay up to a maximum of 5% of the order value of the delayed goods. We reserve the right to provide evidence that the customer has not incurred any damage or considerably lower damage than the above lump sum.
3. If, through no fault of our own, we are temporarily prevented from delivering the object of purchase on the agreed date or within the agreed period, the agreed dates and deadlines shall change by the duration of the disruptions to performance affected by these circumstances.
4. In cases of force majeure, we are released from the obligation to provide the contractually owed services for the duration and to the extent of the existing effects.
A case of force majeure exists if an external event, brought about from the outside by elementary natural forces or by actions of third parties, which is unpredictable according to human understanding and experience, could not be prevented or made harmless by economically feasible means even by the utmost care that can reasonably be expected in such circumstances and that we also cannot accept due to its frequency. The contracting parties consider the following as cases of force majeure in particular: war, civil war, military mobilization, sabotage, acts of terrorism, uprisings, embargoes, sanctions, orders from state organs, plague, epidemics, natural disasters, extreme natural events, explosions, fires, boycotts, strikes and lockouts.
We must notify the customer immediately about the event. A period of 7 days is considered to be immediately.
If notification is not made immediately, the exemption will only take effect from the point in time at which the notification reaches the customer. The customer may suspend the fulfilment of its obligations, in the event that force majeure can actually be assumed, from the time of this notification.
The notification obligation shall not exist if it is obvious to the customer, due to the occurrence of the event, that contractual obligations cannot be fulfilled.
If the non-fulfilment of our performance obligation is based on the non-fulfilment by a third party, whom we use for the complete or partial fulfilment of the contract, we are only released from liability,
- a) if we are exempt according to the above provisions and
- b) if the third party itself would also be exempted in accordance with the aforementioned provisions, provided that the contractual provisions apply to it.
The exemption from the performance obligations applies for the time during which the impediment exists. We must notify the customer as soon as the obstacle no longer hampers the fulfilment of our contractual obligations.
We are obligated to take all reasonable measures to limit the effects of the event referred to in the performance of the contract.
If disruptions of this nature lead to a delay in delivery of more than four months, the parties may withdraw from the contract. Other rights of withdrawal remain unaffected.
In the event that the contract is terminated, the services received must be returned in accordance with the principles of unjust enrichment.
Claims for indemnity on the basis of delays or suspension in delivery are excluded, as far as legally permitted.
Additional statutory rights of the parties, as well as our statutory rights in the case of exclusion of the obligation to perform (e.g. due to impossibility or impracticability of performance) are not affected by this clause.
§ 8 Reservation of title
1. We reserve title to all goods delivered by us until all, including all conditional and future claims, that we and our affiliated companies (Section 15 AktG [Stock Corporation Law]) have against the customer from the respective business relationships, have been met (Sections 362 et seq. BGB).
2. If the customer acts contrary to the contract, in particular in the event of a payment default, we may take back the purchased items. Any repossession of the purchased item constitutes our withdrawal from the contract. After having taken back the purchased item, we may dispose of it otherwise, and the income from the disposal will be set off against the customer's liabilities less an appropriate amount for the cost of disposal.
3. The customer shall notify us immediately of any seizure or any other impairment of our property rights by third parties and confirm the property rights in writing, both to the third party and to us. The customer shall be prohibited from pledging as collateral the goods delivered under retention of title or assigning them as security.
4. The customer shall treat the reserved goods with care. In particular, it is obligated to insure these items against fire, water damage and theft at its own cost for their original value. Claims against the insurance relating to cases of damage to or loss of the goods subject to the retention of title are hereby assigned to us to the extent of the value of the goods. In the event of damage, the customer shall inform the insurance company of the assignment of claims.
5. The customer is entitled to resell the purchased goods in the ordinary course of business; however, it hereby already assigns to us all claims to the amount of the invoice amount (including VAT) of our claim, that arise from reselling the goods to its customers or third parties, regardless of whether the goods have been resold after further processing or without processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected therefrom. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payment has been suspended. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
6. The processing or transformation of the purchased object shall always be carried out on our behalf. If the object of sale is processed with other objects that do not belong to us, we shall be co-owners of the new object at the ratio of the object of sale’s value at the time of processing (invoiced amount, including VAT) to the other processed objects. The same provisions that apply to the delivered goods under reservation shall also apply to the new object.
7. If the object of sale is inseparably mixed with other objects that do not belong to us, we shall be co-owners of the new object at the ratio of the object of sale’s value at the time of mixing (invoiced amount, including VAT) to the other mixed objects. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers proportionate co-ownership to us. The customer shall store the resulting sole or co-ownership on our behalf.
8. To secure its payables to us, the customer shall also assign to us its receivables from third parties that might arise when the purchased object is combined with a piece of real estate.
9. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.
§ 9 Warranty, liability
1. The rights of the customer in the event of material and legal defects (including incorrect and short deliveries as well as incorrect assembly or incorrect assembly instructions) are governed by the statutory regulations unless otherwise stipulated in the following. In all cases, the statutory special provisions shall remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse per Sections 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another company, e.g. by installation in another product.
2. The basis for any claim for defects shall be first and foremost the agreement regarding the condition/quality of the goods. All product descriptions and manufacturer information which are the subject matter of the individual contract or which were made public by us at the time of conclusion of the contract (in particular, in catalogues or on our website) shall be deemed to constitute an agreement on the condition and quality of the goods.
3. If specific agreements concerning the quality of the goods have not been made, the statutory provisions according to Section 434 para. 1 sentence 2 and 3 BGB shall be used to determine whether or not a defect has occurred. However, we assume no liability for public statements of the manufacturer or other third parties (e.g. advertising) that the customer has not pointed out to us as being decisive for its purchase.
4. As a matter of principle, we are not liable for defects of which the customer is aware when the contract is concluded or of which it is not aware due to gross negligence (Section 442 BGB). Furthermore, the customer’s claims for defects are subject to compliance with the customer’s statutory duty to inspect the goods and give notice of defects (Section 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an examination must always be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later point in time, this must be reported to us immediately in writing or text form. If the customer fails to carry out a proper inspection and/or report a defect, our liability for the unreported, untimely or improperly reported defect shall be excluded in accordance with the statutory provisions.
5. If the delivered items are defective, we may choose to provide supplementary performance by repairing the defect (remedy) or by delivering an item free from defects (replacement). Our statutory right to refuse supplementary performance remains unaffected.
6. We are entitled to make the remedy conditional on the payment of the purchase price by the customer. However, the buyer is entitled to retain a reasonable portion of the purchase price relative to the defective part of the delivery.
7. The customer shall allow us the necessary time and opportunity for due remedial performance and shall in particular hand over the goods concerned for inspection. In the case of a replacement delivery, the customer shall return the defective products as required by law. The supplementary performance does not include the removal of the defective item or the re-installation if we were not originally under obligation to install.
8. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, as well as any removal and installations costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the customer for the costs arising from the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not apparent to the customer.
9. In urgent cases, if, for example, the safety of operations is at stake, or to avoid disproportionate damage, the customer has the right to remedy the defect repair itself and to demand compensation for the objectively required expenses. We must be informed of such independently performed activities as soon as possible, if possible, prior to them being carried out. The buyer's right to rectify defects shall not exist if we would be entitled to refuse the relevant remedial performance in accordance with the statutory regulations.
10. The customer may withdraw from the contract or reduce the purchase price if the remedy fails or if a reasonable deadline for the remedy set by the customer expires unsuccessfully or is not required according to the statutory provisions. There shall, however, be no right to withdraw if the defect is negligible.
11. Any claims from the buyer for damages or reimbursement of expenses incurred shall only be asserted in accordance with the following provision "Other liability" and are otherwise excluded.
§ 10 Other liability
1. Unless set out otherwise in these GTC and in the following provisions, we shall be liable in accordance with the statutory provisions for a breach of contractual and non-contractual duties.
2. We will be liable for damages—irrespective of their legal grounds—in cases of intent or gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. exercising care as in our own affairs, insignificant breach of duty), only
a) for damage resulting from injury to life, limb or health
b) for damages resulting from the breach of an essential contractual duty (obligation the fulfilment of which makes possible the proper execution of the contract and in which the contracting party regularly and rightly puts its trust); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability resulting from the preceding paragraph also apply to third parties as well as to 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 a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the customer under the Product Liability Act (Produkthaftungsgesetz).
4. In case of any breach of duty other than relating to defects, the customer shall only be entitled to withdraw from or terminate the contract if we are responsible for said breach. The customer has no right of discretionary termination of the contract (in particular under Section 650, 648 BGB). In all other respects, the statutory requirements and legal consequences shall apply.
§ 11 Statute of Limitations
1. Deviating from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period commences upon acceptance.
2. However, if the goods are items that were utilised for a building according to their usual type of usage and that have caused the defect of the building (building material), the period of limitation is 5 years from delivery according to statutory regulation (Section 438 para. 1 no. 2 BGB). Other special statutory regulations on the statute of limitations remain unaffected (in particular Section 438 para. 1 no. 1, para. 3, Sections 444, 445b BGB).
3. The above limitation periods of purchasing law also apply for contractual and non-contractual claims of the buyer for damages that are based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the buyer in the event of wilful intent and gross negligence and in the case of damage resulting from injury to life, limb or health as well as under the Product Liability Act (Produkthaftungsgesetz) shall only expire according to the statutory limitation periods.
§ 12 Applicable law and place of jurisdiction
1. The laws of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the customer to the exclusion of uniform international law, in particular, the UN Sales Convention.
2. If the customer is a merchant as defined under the German Commercial Code (HGB), a legal entity under public law, or a special public fund, the exclusive jurisdiction for any disputes arising directly or indirectly under the contractual relationship shall be our headquarters in Einhausen.
The same applies if the customer is an entrepreneur, as defined in Section 14 BGB. However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the customer's general place of jurisdiction. Statutory provisions that have precedence, in particular regarding exclusive responsibilities, remain unaffected.