§ 1 Scope
(1) Our GTC apply to the provision of deliveries and services to merchants, legal entities under public law or special funds under public law.
(2) Our GTC shall apply exclusively; we shall not recognize any terms and conditions of the Customer that conflict with or deviate from our GTC unless we have expressly agreed to their validity. Our General Terms and Conditions shall also apply if we carry out the deliveries and services without reservation in the knowledge that the customer’s terms and conditions contradict or deviate from our own.
§ 2 Offer and Conclusion of Contract – Offer Documents – Prohibition of Assignment
(1) The order of the Customer shall constitute a binding offer. Offers or cost estimates previously submitted by us are subject to change.
(2) Verbal commitments by our representatives or other auxiliary persons require written confirmation by us.
(3) Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as ours (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service.
(4) Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as confidential. The client requires our express written consent before passing them on to third parties.
(6) Contractual claims are not transferable on the part of the customer without our written consent, unless the provision of § 354 a HGB applies.
§ 3 Prices
(1) The prices shall apply to the agreed scope of services and deliveries. Additional or special services will be charged separately. Prices are quoted in Euro ex works plus packaging, the statutory value-added tax, customs duty for export deliveries as well as fees and other public charges.
(2) Should the delivery or service be delayed by more than four months from the conclusion of the contract and should the costs for wages, material, packaging material, freight, taxes or duties have increased in the meantime, the agreed price may be adjusted in accordance with the influence of the aforementioned cost factors. If the price thus changes by more than 5% compared to the contractually agreed price, the customer shall have the right to withdraw from the contract insofar as we adhere to a price increase request despite notice of the customer’s intention to withdraw.
§ 4 Terms of payment
(1) Deliveries or services are payable with a 3% discount for advance payment or cash on delivery, with a 2% discount within 10 days of the invoice date and without deduction within 30 days of the invoice date. The granting of a discount is conditional upon the settlement of all invoices due earlier.
(2) The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us.
(3) A right of retention of the Customer shall be excluded unless the counterclaim of the Customer arises from the same contractual relationship and is undisputed or legally established.
(4) In the case of legally permissible or contractually agreed payments on account or installments, we may terminate the contractual relationship without notice for exceptional reasons if the Customer
a) is in default of payment of the progress payment or installment for two consecutive dates, or
(b) is in arrears in the payment of a discount or installment in an amount equal to the discount or installment for two due dates in a period extending over more than two dates.
(5) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Customer’s inability to pay (e.g. by an application for the institution of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 5 Performance and Time of Performance – Liability in the Event of Default – Negligence
(1) We shall be entitled to make partial deliveries if
– the partial delivery is usable for the Customer within the scope of the contractual intended purpose,
– the delivery of the remaining ordered goods is ensured and
– the Client does not incur any significant additional expenses or costs as a result (unless the Client agrees to bear these costs).
(2) In the case of call-off orders without agreements on duration, production sizes and acceptance dates, we may demand a binding determination thereof no later than three months after confirmation of the order. If the customer does not comply with this request within three weeks of receipt, we shall be entitled to set a two-week grace period and, after its expiry, to withdraw from the contract, reject the delivery and claim damages.
(3) If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers or from subcontractors, or do not receive them correctly or on time, despite proper cover, or if events of force majeure occur, we shall inform the Customer in good time. In this case, we shall be entitled to postpone the delivery or service by the duration of the impediment or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that we have complied with our aforementioned duty to inform and have not assumed the procurement risk or manufacturing risk. Force majeure shall be deemed to include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, e.g. due to fire, water and machine damage, and all other hindrances which, viewed objectively, have not been culpably caused by us.
(4) If a delivery or performance date or a delivery or performance period has been bindingly agreed or if, due to events pursuant to § 5 para. 3 the agreed delivery or performance date, or the agreed delivery or performance period is exceeded by more than four weeks, or if, in the case of a non-binding performance date, adherence to the contract is objectively unreasonable for the Customer, the Customer shall be entitled to withdraw from the contract on account of the part not yet performed. Further rights of the customer, in particular claims for damages, do not exist in this case.
(5) If we are in default, then our liability for compensation for the damage caused by the delay shall be limited to 5% of the contract price in the event of simple negligence. Further claims of the customer remain unaffected.
(6) Insofar as the item to be delivered is only determined by generic characteristics, we shall only be liable for compensation for damages if we cannot prove that we are not responsible for the subsequent performance, delay in delivery or the defectiveness of the item. The provisions of § 8 shall apply in addition.
§ 6 Performance, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be ex works, which is also the place of performance. At the request and expense of the customer, the goods shall be shipped to a place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon handover at the latest. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass already upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the Client is in default of acceptance.
(3) If the Customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation of 0.25% of the invoice amount of the delivery items to be stored per expired week, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. The proof of higher damages and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
(4) We shall insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer’s expense.
§ 7 Liability for defects – limitation period
(1) The Customer shall observe the obligations of § 377 HGB. Defects that are visible upon delivery must also be reported to the transport company and the recording of the defects must be arranged by the latter. Notices of defects must contain a description of the defect to the best of our ability. Failure to give notice of defects in due time shall exclude any claim of the Customer.
(2) Upon commencement of processing, treatment, combination or mixing with other items, the delivered goods shall be deemed approved by the Customer in accordance with the contract. The same shall apply in the event of onward shipment from the original destination. Our liability for breaches of duty due to material defects is excluded insofar as defects and related damage are not demonstrably due to defective material, defective design or defective workmanship or defective assembly instructions. In particular, the warranty and liability are excluded for the consequences of incorrect use (in particular assembly not in accordance with the state of the art or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable operating materials as well as the consequences of physical, chemical or electrical influences that do not correspond to the intended, average standard influences.
(3) Claims of the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that the expenses increase because the goods delivered by us have subsequently been taken to a place other than the Customer’s branch office, unless the transfer is in accordance with their intended use.
(4) Any rights of recourse of the Customer in the event of resale of the goods shall exist against us only to the extent that the Customer has not entered into any agreements with its customer exceeding the statutory claims for defects.
(5) The limitation period for claims for defects is 12 months. This shall not apply to construction contracts, to items that have been used for a building in accordance with their customary use and have caused its defectiveness, to claims for injury to life, limb and health and to at least grossly negligent breaches of duty by us or one of our legal representatives or vicarious agents. Also unaffected are special statutory provisions for claims in rem for surrender by third parties ( § 438 I No. 1 BGB), in the event of fraudulent intent on the part of the seller (§ 438 III BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB). The limitation period for claims for defects shall commence for the delivery part with the transfer of risk, for the installation service with the acceptance which has taken place or is deemed to have taken place.
§ 8 Liability for damages
(1) We shall be liable without limitation for damages arising from contractual breaches of duty and from tort
a) in case of intent,
b) in case of culpable injury to life, body or health,
c) in the case of defects which we have fraudulently concealed or the absence of which we have guaranteed,
d) in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.
(2) In the event of culpable breach of material contractual obligations, we shall also be liable, but in the event of simple negligence limited to the damage which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due diligence and which is typically to be expected when using the delivery item as intended.
Material contractual obligations are obligations which protect the legal positions of the Customer which are material to the contract and which the contract is intended to grant to the Customer in accordance with its content and purpose, and obligations the fulfillment of which makes the proper performance of the contract possible in the first place and on the observance of which the Customer has regularly relied and may rely.
(3) We shall also be liable for damages caused by gross negligence. However, if other than essential contractual obligations have been breached and legal interests other than life, limb or health are affected, our liability in the event of gross negligence shall also be limited to the damage which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due care and attention and which is typically to be expected in the event of the intended use of the delivery item.
(4) Further claims are excluded.
(5) A reversal of the burden of proof is not associated with the above provision of paragraphs 1 to 3.
(6) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
§ 9 Retention of title
(1) Until full payment of all our present and future claims arising from the contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us. This also applies to impairments of any other kind. Irrespective of this, the customer must already inform the third parties in advance of the existing rights to the goods. The costs of an intervention by us shall be borne by the customer insofar as the third party is not in a position to reimburse them.
(3) The Customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The Customer hereby assigns the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. a) to us as security. We accept the assignment. The provisions set forth in para. 2 shall also apply with regard to the assigned claims.
c) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the customer.
§ 10 Property rights
(1) If we have to deliver according to samples, drawings and models of the Customer, the Customer shall assume liability for the fact that we do not infringe any third-party property rights in the process. If a third party prohibits us from manufacturing and delivering items produced according to drawings, models or samples of the customer by invoking an industrial property right to which it is entitled, we shall be entitled – without being obliged to examine the legal relationship and to the exclusion of all claims for damages by the customer – to discontinue the manufacture and delivery and to demand reimbursement of the costs incurred.
(2) The customer shall compensate us for all direct and indirect damages that may arise from the infringement of any property rights and from the assertion of any property rights by third parties.
With regard to any legal costs, the customer shall pay a reasonable advance upon request and generally indemnify us against such costs.
§ 11 Choice of Law – Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The exclusive place of jurisdiction shall be the court responsible for our place of business.