General Terms and Conditions
I. Scope of application
1. the following terms and conditions of sale apply to all contracts concluded between the buyer and us for the delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the
conditions of the buyer which we do not expressly recognize are not binding for us, even if we do not expressly object to them. The following terms and conditions of sale shall apply
even if we execute the buyer's order without reservation in the knowledge of conflicting or deviating terms and conditions of the buyer.
2. all agreements made between the buyer and us for the execution of the purchase contracts are set out in writing in the contracts.
II Offer and conclusion of contract
1. we can accept an order of the buyer, which is to be qualified as an offer to conclude a purchase contract, within two weeks by sending an order confirmation or by sending the ordered products within the same period.
2. our offers are subject to change and non-binding, unless we have expressly designated them as binding.
3. we reserve our property rights, copyrights and other industrial property rights to all illustrations, calculations, drawings and their documentation. The buyer may only pass these on to third parties with our prior written consent, irrespective of whether we have marked them as confidential.
III Terms of payment
1. our prices are ex works without packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory value added tax. This will be shown separately in the invoice at the statutory rate on the day of invoicing.
2. a cash discount deduction is only permitted in the case of a special written agreement between us and the buyer. The purchase price is due for payment net (without deduction) immediately upon receipt of the invoice by the Buyer, unless the order confirmation specifies a different payment term. Payment shall only be deemed to have been made when we can dispose of the amount.
3. we are entitled to increase the contractually agreed prices if the agreed delivery period is more than four months. The prerequisite for a price increase is an increase in our cost price (such as material costs, wages, transportation costs, energy costs, currency fluctuations, import duties or taxes). The increase shall be made at our reasonable discretion, but may not exceed 3% for delivery periods of up to six months and 6% for longer delivery periods. We shall notify the customer of the change in writing or in text form no later than four weeks before it is scheduled to come into effect. If the price increase is more than 5%, the customer has the right to withdraw from the contract by written declaration within a period of three weeks from receipt of the notification of the price increase. Otherwise, the provisions of § 315 BGB remain unaffected.
4. if the buyer defaults on a payment, the statutory provisions shall apply.
5. we are entitled to provide outstanding deliveries or services only against advance payment (prepayment) or provision of security if, after conclusion of the contract, we become aware of circumstances which may significantly reduce the creditworthiness and credit standing of the buyer and which may jeopardize the buyer's outstanding payments from the outstanding contractual relationship.
6. the buyer is only entitled to set-off, even if notices of defects or counterclaims are asserted,
if the counterclaims have been legally established, recognized by us or are undisputed. The buyer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
IV. Delivery and performance time
1. delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery period stated by us shall not commence until all technical questions have been clarified. In this respect, too, the buyer must fulfill all obligations incumbent upon him properly and in good time.
2. if the underlying purchase contract is a fixed-date transaction within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB, we shall be liable in accordance with the statutory provisions. The same applies if the buyer is entitled to assert the discontinuation of his interest in the further fulfillment of the contract as a result of a delay in delivery for which we are responsible. However, our liability shall be limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional or grossly negligent breach of contract for which we are responsible, whereby fault on the part of our representatives or vicarious agents shall be attributed to us.
We shall also be liable to the buyer in the event of a delay in delivery in accordance with the statutory provisions if this is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a slightly negligent breach of contract, our liability shall be limited to the foreseeable, typically occurring damage. This shall not apply if we are compulsorily liable for injury to life, limb or health.
3. in the event that a delay in delivery for which we are responsible is due to a slightly negligent breach of an essential contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the buyer may regularly rely (cardinal obligation), we shall be liable in accordance with the statutory provisions with the proviso that in this case the liability for damages is limited to the foreseeable, typically occurring damage. In this respect, too, any fault on the part of our representatives or vicarious agents shall be attributed to us.
4. any further liability for a delay in delivery for which we are responsible is excluded. The further statutory claims and rights of the buyer to which he is entitled in addition to the claim for damages due to a delay in delivery for which we are responsible shall remain unaffected.
5. if non-compliance with the delivery period is due to
a. force majeure, e.g. mobilization, war, terror, acts of riot, epidemic, pandemic, natural disasters or similar events (e.g. strike, lockout),
b. Virus or other attacks by third parties on our IT system, insofar as this occurs despite compliance with the usual care for protective measures,
c. Obstacles due to national or international violations of foreign trade law or due to other circumstances for which we are not responsible, or
d. late or improper delivery by us, the delivery period shall be extended accordingly.
6. we are entitled to make partial deliveries and render partial services at any time, insofar as this is reasonable for the buyer.
7. if the buyer is in default of acceptance, we shall be entitled to demand compensation for the resulting damage and any additional expenses. The same shall apply if the Buyer culpably breaches its obligations to cooperate. Upon the occurrence of default of acceptance or debtor's delay, the risk of accidental
deterioration and accidental loss passes to the buyer.
V. Transfer of risk
1. loading and shipment shall take place uninsured at the risk of the buyer. We shall endeavor to take into account the wishes and interests of the Buyer with regard to the type and route of shipment; any additional costs incurred as a result - even if carriage paid delivery has been agreed - shall be borne by the Buyer.
2. we do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance, with the exception of pallets. The Buyer shall dispose of the packaging at his own expense.
3. if dispatch is delayed at the request or through the fault of the buyer, we shall store the goods at the expense and risk of the buyer. In this case, notification of readiness for shipment shall be deemed equivalent to shipment.
4. at the request and expense of the buyer, we shall insure the delivery by means of transportation insurance.
VI Liability for material defects
1. claims for defects of the buyer shall only exist if the buyer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
2. in the event of justified notices of defects, we shall be obliged to provide subsequent performance to the exclusion of the buyer's rights to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse subsequent performance on the basis of the statutory provisions. The Buyer shall grant us a reasonable period of time for subsequent performance. Subsequent performance may, at our discretion, take the form of rectification of the defect (repair) or delivery of new goods. In the event of rectification of the defect, we shall bear the necessary expenses insofar as these are not disproportionate. If the subsequent performance has failed, the buyer may, at his discretion, demand a reduction of the purchase price (reduction) or declare his withdrawal from the contract. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt, unless further attempts at rectification are appropriate and reasonable for the buyer due to the subject matter of the contract.
The buyer can only assert claims for damages under the following conditions due to the defect if the subsequent performance has failed. The right of the buyer to assert further claims for damages under the following conditions remains unaffected by this.
3. claims for material defects on the part of the buyer shall become statute-barred one year from the start of the statutory limitation period; the same shall apply to withdrawal and reduction. This period shall not apply if a longer period is prescribed by law, in the event of intent, fraudulent concealment of a defect or non-compliance with a guarantee of quality. This shall not affect our obligations under Section VI, Clause 4 and Section VI, Clause 5.
4. we shall be obliged to take back the new goods or to reduce the purchase price in accordance with the statutory provisions, even without the otherwise required setting of a deadline, if the buyer's customer, as the consumer of the new movable item sold (purchase of consumer goods), could demand the return of the goods or the reduction of the purchase price from the buyer due to the defect of these goods or if the buyer is entitled to such a resulting right of recourse. In addition, we are obliged to reimburse the buyer's expenses, in particular transport, travel, labor and material costs, which the buyer had to bear in relation to the end consumer in the context of subsequent performance due to a defect in the goods existing at the time of the transfer of risk from us to the buyer. The claim is excluded if the buyer has not properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB.
5. the obligation pursuant to Section VI Clause 4 shall be excluded if the defect is due to advertising statements or other contractual agreements which do not originate from us, or if the Buyer has given a special guarantee to the end consumer. The obligation is also excluded if the buyer himself was not obliged to fulfill the claims for material defects against the end consumer on the basis of the statutory regulations or if he did not raise this complaint against a claim made against him. This shall also apply if the buyer has assumed liability for material defects vis-à-vis the end consumer which exceeds the statutory liability or the liability agreed with us in individual cases.
6. our liability is limited to intent and gross negligence. This shall not apply to liability in accordance with the provisions of the Product Liability Act or to damage caused by culpable breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the buyer may regularly rely (cardinal obligation), or to life, limb or health, for which we shall be liable without limitation in accordance with the statutory provisions. However, in the event of a slightly negligent breach of a cardinal obligation, liability shall be limited to typical and foreseeable damage. To the extent that we have given a quality and/or durability guarantee in respect of the goods or parts thereof, we shall be liable within the scope of this guarantee. For damages which are based on the absence of the guaranteed quality or durability,
However, we shall only be liable for damage that is based on the absence of the guaranteed quality or durability but does not occur directly on the goods if the risk of such damage is clearly covered by the guarantee of quality and durability.
7. any further liability is excluded regardless of the legal nature of the asserted claim; this also applies in particular to tortious claims or claims for reimbursement of futile expenses instead of performance; our liability pursuant to Section IV No. 2 to Section IV No. 5 of this contract remains unaffected by this. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
8. claims for damages of the buyer due to a defect shall become statute-barred one year after delivery of the goods. This shall not apply in the event of injury to life, limb or health caused by us, our legal representatives or our vicarious agents, or if we or our legal representatives have acted with intent or gross negligence, or if our ordinary vicarious agents have acted with intent.
VII Retention of title
1. the delivered goods (reserved goods) shall remain our property until all claims, including all current account balance claims, to which we are entitled against the buyer now or in the future, have been settled. In the event of breach of contract by the Buyer, e.g. default of payment, we shall have the right to take back the reserved goods after setting a reasonable period of grace. If we take back the reserved goods, this shall constitute a withdrawal from the contract. If we seize the reserved goods, this shall constitute a withdrawal from the contract. We are entitled to utilize the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realization, the proceeds of realization shall be set off against the amounts owed to us by the Buyer.
2. the buyer must treat the reserved goods with care and insure them adequately at his own expense against fire, water damage and theft at replacement value. Any maintenance and inspection work that becomes necessary must be carried out by the buyer in good time at his own expense.
3. the buyer is entitled to sell and/or use the reserved goods in the ordinary course of business as long as he is not in default of payment. Pledges or transfers by way of security are not permitted. The purchaser hereby assigns to us in full by way of security any claims arising from the resale or any other legal grounds (insurance, tort) in respect of the reserved goods (including all current account balance claims); we hereby accept the assignment. We revocably authorize the buyer to collect the claims assigned to us for his account in his own name. The direct debit authorization can be revoked at any time if the buyer does not properly meet his payment obligations. The buyer is also not authorized to assign this claim for the purpose of debt collection by way of factoring, unless the obligation of the factor is simultaneously established to effect the consideration in the amount of the claims directly to us as long as we still have claims against the buyer. If the goods subject to retention of title are processed together with other items without an individual price being agreed for the goods subject to retention of title, the buyer shall assign to us that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by us. We accept this assignment.
4. any processing or transformation of the reserved goods by the buyer shall in any case be carried out on our behalf. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing.
The same shall apply to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the buyer's item is to be regarded as the main item as a result of the mixing, the buyer and we agree that the buyer shall transfer co-ownership of this item to us on a pro rata basis; we hereby accept the transfer. Our sole or co-ownership of an item created in this way shall be kept safe for us by the Buyer.
5. in the event of access by third parties to the reserved goods, in particular seizures, the buyer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these.
6. we are obliged to release the securities to which we are entitled at the buyer's request to the extent that the realizable amount of our security exceeds the claim to be secured by more than 20%.
by more than 20%, whereby the choice of the security to be released shall be incumbent upon us.
VIII. Confidentiality
The Buyer is obliged to treat as confidential all business secrets within the meaning of the Business Secrets Act of which it becomes aware as a result of the business relationship, to protect them against unauthorized access, not to disclose them to third parties and not to use them for non-contractual purposes. This confidentiality obligation shall continue to apply even after the termination of the business relationship. In the event of a breach of the duty of confidentiality, we shall be entitled to demand compensation from the Buyer for any damage incurred by us as a result.
IX. Place of performance, place of jurisdiction, applicable law
1. the place of performance and jurisdiction for deliveries and payments as well as all disputes arising between us and the buyer from the purchase contracts concluded between us and the buyer shall be our registered office. However, we are also entitled to sue the buyer at his place of residence and/or business.
2. the relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods and the international conflict of laws is excluded