I. General terms and conditions
1.) Deliveries and services will be provided solely on the basis of the following general terms and conditions of sale agreed with our customer (referred to in the following as the "Purchaser"). Any conflicting terms and conditions on the part of the Purchaser, or terms and conditions that deviate from our standard terms and conditions of sale, will not be recognised by us unless we have agreed to the same in writing. Our general terms and conditions will apply even if we make a delivery to the Purchaser in knowledge of conflicting conditions on the part of the Purchaser, or conditions which deviate from our general terms and conditions without reservations.
2.) All agreements entered into between us and the Purchaser for the purpose of executing this contract will be laid down in writing in this contract.
3.) Our general terms and conditions of sale will only apply to entrepreneurs as defined in Section 310 paragraph 1 of the German Civil Code (BGB).
4.) Partial services are permitted provided they are reasonable to the Purchaser.
II. Quotation and quotation documents
1.) Where the order is classified as an offer in accordance with Section 145 of the German Civil Code (BGB), then we may accept this offer within a period of two weeks.
2.) We will retain the rights of ownership and copyright over plans, diagrams, drawings, calculations and other documents that we provide to the Purchaser as part of a quotation. The Purchaser will require our express authorisation in writing prior to passing these to a third party.
III. Prices and payment conditions
1.) Our prices are ex-works plus the respective statutory value added tax.
2.) Packaging, delivery costs and transportation costs will be charged separately, unless any other regulation has been expressly agreed upon in writing.
3.) The Purchaser will only be entitled to offset claims that are undisputed or have been legally established or acknowledged by us. Moreover, the Purchaser will only be entitled to exercise a right of retention where the counterclaim relates to the same contractual relationship.
4.) Unless otherwise stated in the order confirmation, the purchase price will be due for payment without deduction within 30 days from the date of invoicing. Statutory regulations will apply in relation to the consequences of default on payment.
5.) A prompt payment discount will only apply where this has been expressly agreed upon in writing.
6.) When a first order is placed, the delivery will be cash on delivery or with payment in advance unless otherwise agreed upon in writing. We hereby expressly reserve the right to make subsequent deliveries on a cash on delivery or payment in advance basis.
7.) If we grant the Purchaser special conditions which deviate from our respective applicable price list then these will only be effective if they have been confirmed in writing.
8.) The publication of new price lists will invalidate any previously stated prices.
IV. Delivery times
1.) The delivery time stated by us will commence upon clarification of all technical questions.
2.) Compliance with our delivery obligations requires the punctual and proper fulfilment of obligations on the part of the Purchaser. This relates in particular to the receipt of all documents, required authorisations and approvals, especially of plans, from the Purchaser and the latter’s compliance with the agreed payment terms and conditions. We reserve the right to refuse a contract on the basis of non-performance.
3.) Where failure to comply with delivery deadlines is due to force majeure, for example mobilisation, war, riots or similar events, e.g. strike or lock-out, then the delivery periods will be extended correspondingly.
4.) If the Purchaser defaults on acceptance or culpably contravenes other duties to cooperate, then we will be entitled to demand compensation for any damage incurred by us, including for any additional expenditure. We reserve the right to assert further claims and rights.
5.) We will be liable for delayed delivery in accordance with the statutory provisions where this delay is attributable to a wilful or grossly negligent breach of contract on our part. We will be responsible for any fault by our representatives or vicarious agents in the same way. Where the delay in delivery is attributable to a grossly negligent breach of contract on our part, our liability to pay compensation will be limited to the foreseeable, typically occurring damage.
6.) We will then also be liable pursuant to the statutory provisions where the delay in delivery attributable to us relates to a culpable infringement of a material contractual obligation. In such cases, our liability to pay compensation will however be limited to the foreseeable, typically occurring damage.
7.) In all other cases, our liability in the event of a delay in delivery that has not been caused deliberately by us will however be limited to a maximum of 0.5% of the net purchase price for each full week of the delay, up to a maximum of 5% of the net purchase price of the goods delivered late in total.
8.) If collection by the Purchaser, or delivery or shipment, is delayed by more than one month following notification of readiness for collection or shipment at the Purchaser’s request, then the latter may be charged storage fees amounting to 0.5% of the net purchase price for the items to be delivered per week of the delay up to a maximum of 5% of the net purchase price. The Purchaser reserves the right to prove that storage fees were not incurred by us or were significantly lower than the fixed rate charged.
9.) The Purchaser reserves the right to assert further claims and rights.
V. Transfer of risk
1.) Unless otherwise agreed in the order confirmation, delivery will be ex-works. At the request and cost of the Purchaser, the goods will be shipped to another destination (contract of sale involving the carriage of goods). Unless otherwise agreed, we will be entitled to determine the shipping type (in particular the transportation company, shipping method and packaging) to be used.
2.) The risk of the accidental loss and the accidental deterioration of the goods will pass to the Purchaser upon handover at the latest. In the event of a contract of sale involving the carriage of goods, the risk of the accidental loss and accidental deterioration, and the risk of delay, will pass to the Purchaser as soon as we have handed the goods over to the carrier, forwarding agent or other person or body responsible for the shipping of the goods.
3.) If the Purchaser so desires, we will insure the purchased item(s) against any other transport risks during transportation at the Purchaser’s expense.
4.) If the Purchaser is in default of acceptance, the risk of accidental loss and accidental deterioration of the purchased item(s) will pass to the Purchaser.
VI. Goods free of defects are not to be returned
Goods free of defects that have been delivered in accordance with the order may not be returned. Returns sent by customers will therefore not be accepted or returned without our prior written consent. Where such consent is granted in exceptional cases, the Purchaser will pay us a handling charge of € 20.00 plus statutory VAT at a minimum. The handling charge requested may be higher for larger returns – depending on the amount of work involved.
VII. Reservation of Title
1.) We will retain ownership of the purchased item(s) until all payments due under the business relationship with the Purchaser have been received in full. Where there is a current account reservation between us and the Purchaser, we will retain ownership of the purchased item(s) until all payments under the existing current account relationship (business relationship) with the Purchaser have been received in full. The reservation will relate to the acknowledged outstanding balance.
2.) In the event of conduct on the part of the Purchaser that is deemed contrary to the contract, particularly in the case of default of payment, we will be entitled to take back the purchased item(s). Our retrieval of the purchased item(s) will be deemed withdrawal from the contract. After taking back the purchased item(s), we will be entitled to make use of it/them. Any revenue obtained from the use of the goods will be offset against the Purchaser's outstanding liabilities - with the deduction of appropriate utilisation costs.
3.) The Purchaser shall handle the purchased item(s) with care. In particular, the Purchaser shall insure it/them adequately at its/their replacement value against damage from fire, water and theft, at its own expense.
4.) The Purchaser shall inform us immediately in writing in the event of seizures or other intervention by a third party, so that we can file a legal action under Section 771 of the German Code of Civil Procedure (ZPO). Where the third party is unable to reimburse the court and other legal costs of an action of this nature, the Purchaser will be liable for the loss incurred by us.
5.) The Purchaser will be entitled to sell on the purchased item(s) during the ordinary course of business. The Purchaser hereby transfers to us all receivables up to the value of the final invoice value of our claim (including VAT) owing to it from its purchaser or third party as a result of the resale, regardless of whether or not the purchased item(s) has/have been resold without or following processing. Where there is a revolving account relationship between us and the Purchaser, the receivable transferred to us by the Purchaser in advance will also relate to the acknowledged account balance and, in the event of the purchaser’s insolvency, will relate to resultant "causal" account balance. The Purchaser will be authorised to recover the outstanding receivables from its own purchaser or the third party even after the claims are transferred. Our entitlement to recover the outstanding receivables ourselves remains unaffected by this. We undertake however not to recover the receivables, provided the Purchaser fulfils its payment obligations from the revenue received, does not default on payment and, in particular, does not apply to initiate composition or insolvency proceedings or cease making payments. In the latter scenario however, we may demand that the Purchaser notifies us about the transferred receivables and their debtors, makes every effort to collect the outstanding balance, provides us with the relevant documentation, and notifies the debtors (third parties) about the transfer.
6.) The subsequent processing or modification of the purchased item(s) by the Purchaser will always be carried out on our behalf. If the purchased item(s) are subsequently processed with other objects not belonging to us, then we will acquire co-ownership of the new product at a ratio of the value of the purchased item(s) (final invoice value, including VAT) to the other items processed at the same time. Furthermore, the same will apply to the object produced by further processing as applies to the purchased item(s) supplied with reservation.
7.) If the purchased item(s) is/are inseparably combined with other objects not belonging to us, then we will acquire co-ownership of the new product at a ratio of the value of the purchased item(s) (final invoice value, including VAT) to the other items combined at the same time. Where the items are combined in such a way that the Purchaser’s item is regarded as the main item, it is hereby agreed that the Purchaser will transfer the pro rata joint ownership to us. The Purchaser will safeguard the sole or joint ownership arising in this way on our behalf.
8.) The Purchaser will also transfer the outstanding receivables to us by way of security for our outstanding claims against it arising from the combination of the purchased item(s) with property belonging to a third party.
9.) We undertake to release collateral owed to us at the request of the Purchaser when the realisable value of our collateral exceeds the outstanding balance to be secured by more than 10%. The choice of the collateral to be released will be at our discretion.
VIII. Liability for Defects
1.) If the purchase for both parties constitutes a commercial transaction as defined by Sections 343 and 344 of the German Commercial Code (HGB), the Purchaser's rights to claim for defects will require the Purchaser to have fulfilled its duty to inspect and duty to report a defect immediately upon receipt of the goods pursuant to Section 377 of the German Commercial Code (HGB).
2.) In the event of a fault or defect in the purchased item(s), the Purchaser will be entitled to choose supplementary performance in the form of rectification of the defect or delivery of a new defect-free product. In the event of supplementary performance, we shall bear the costs of all expenditure incurred for this purpose, and in particular transportation, shipping and handling charges, labour costs and material costs, providing these are not increased by shipping the purchased item(s) to a location other than the original place of fulfilment.
3.) If the supplementary performance fails then the Purchaser will be entitled, at its own discretion, to demand withdrawal from the contract or a reduction.
4.) We will be liable in accordance with the statutory provisions, in the event of the Purchaser claiming compensation for damages on the grounds of wilful acts or gross negligence, including wilful acts or gross negligence by our representatives or vicarious agents. Providing we are not accused of any deliberate infringement of the contract, our liability for compensation will be limited to the typically foreseeable damage.
5.) We will be liable in accordance with the statutory provisions, where we culpably breach a material contractual obligation. In such a scenario, however, our liability for compensation will also be limited to the typically foreseeable damage. Material contractual obligations are obligations where proper fulfilment of the contract is only generally possible where these are met and obligations that the Purchaser regularly relies upon fulfilment of and is entitled to rely on the same.
6.) Our liability for culpable injury to life, limb or health remains unaffected. The same applies to our mandatory liability under the Product Liability Act.
7.) Unless otherwise stipulated in the foregoing, liability is hereby excluded.
8.) The limitation period for statutory defect claims is one year from delivery of the purchased item(s). This will not affect the limitation period in the event of delivery recourse pursuant to Sections 478 and 479 of the German Civil Code (BGB). This period is five years from delivery of the defective goods.
9.) Otherwise, our warranty conditions applicable at the time of concluding the contract and the statutory provisions will apply.
IX. Joint and Several Liability
1.) Any liability beyond that provided for in VII. is hereby excluded, regardless of the legal nature of the claim asserted. This will apply in particular to claims for compensation arising from fault when concluding the contract, owing to other infringements of duty or owing to claims pursuant to Section 823 of the German Civil Code (BGB).
2.) Limitation pursuant to VIII. 1. will also apply where the Purchaser demands the reimbursement of unnecessary expenses instead of compensation in lieu of performance.
3.) Where our liability for damages is excluded or limited, this will also apply in respect of the personal liability of our employees, workers, staff, representatives and vicarious agents.
X. Place of Jurisdiction and Place of Fulfilment
1.) If the Purchaser is a registered trader, our registered office will be the place of jurisdiction. We will also be entitled to bring an action against the Purchaser before the courts in the latter’s place of residence however.
2.) The law of the Federal Republic of Germany will apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
3.) Unless otherwise stipulated in the order confirmation, our registered office will be the place of fulfilment.
XI. Severability Clause
If one or more of the foregoing provisions is or becomes fully or partially invalid, impracticable or unenforceable, this will not affect the remaining provisions. The parties shall agree upon a provision, in place of the invalid, impracticable or unenforceable one, which most closely reflects the parties’ intention in accordance with the meaning and purpose of the original invalid, impracticable and unenforceable provision. The same will apply to any omissions in this contract and where the invalidity was due to a measurement of performance or time. The legally permissible measurement will then apply.