I. General, scope of application
- All our business relations with our customers (hereinafter referred to as "Buyer"), in particular sales, services, work deliveries and work performances, shall be governed exclusively by our terms and conditions set forth below.
- The Buyer's terms and conditions of purchase shall only be binding on us if we expressly accept them in writing; this requirement shall apply in any case, even if we perform the service for the Buyer without reservation in full knowledge of the Buyer's terms and conditions.
- Agreements, ancillary agreements, assurances and other commitments that deviate in individual cases shall take precedence over these terms and conditions. A written contract or our written confirmation shall be authoritative for the content of such agreements.
- Deviating agreements, collateral agreements, assurances and other agreements made by our employees who are not authorised to represent us shall only be effective if they are confirmed by us in writing.
II. Conclusion of contract
- Our offers are subject to change without notice and are non-binding. This shall also apply if documents such as catalogues, technical documentation, calculations, illustrations, drawings, dimensional and weight specifications, etc. have been provided to the buyer, to which we reserve ownership rights and copyrights.
- The order of goods by the buyer shall be deemed to be a binding offer of contract. We are entitled to accept this offer of contract within a period of 2 weeks, beginning with the receipt of the order unless
- Acceptance shall be made in writing in the form of an order confirmation. If there is a discrepancy between the order and the order confirmation, the latter shall constitute a new offer.
III. Prices, terms of payment
- List prices and prices in offers are subject to change; our prices on the day of delivery of the goods shall apply, whereby these shall be determined at our reasonable discretion and shall be limited to the prices prevailing on the market.
- Prices are exclusive of packaging plus the applicable statutory value added tax.
- Our invoices are payable in full within 30 days of receipt of the invoice, unless otherwise agreed. The granting of a discount is subject to the condition that all other due invoices have been settled. If payment is made in the form of partial payment, the entitlement to a cash discount shall only apply to the final payment; if payment is made by means of a bill of exchange, a cash discount shall be inadmissible.
- 30 days after receipt of the invoice, the buyer is in default, unless an earlier date of default has been agreed. During the period of default, interest shall be charged on the price owed at the statutory default interest rate applicable at the time. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected. We reserve the right to assert further damage caused by default.
- If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer'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 reasonable deadline - to withdraw from the contract; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Buyer shall be obliged to surrender the goods after rescission; in the event of insolvency in accordance with the provisions of the InsO. The same shall apply in the event of a breach of duty by the Buyer, in particular in the event of default in payment.
- The buyer is entitled to rights of set-off or retention only insofar as his claims are undisputed or have been legally established. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected.
IV. Retention of title
- The goods sold shall remain our property until all our outstanding claims arising from the business relationship have been satisfied. If the realizable value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we shall release a corresponding part of the security interests at the request of the Buyer; we shall be entitled to choose between different security interests when releasing them.
- Resellers shall be permitted to sell our reserved goods in the ordinary course of business in their own name, subject to the condition that the reseller receives payment from its customer or makes the reservation that title shall not pass to the customer until the latter has fulfilled its payment obligation. The purchaser hereby assigns to us the claims arising from the resale, and we accept the assignment.
- If the reserved goods delivered by us are processed or combined with goods owned by third parties, we shall be entitled to ownership of the new item in the fraction corresponding to the invoice value of our goods in relation to the value of the new item at the time of processing or combination. To this extent, the new item shall be deemed to be goods subject to retention of title. The regulation on the assignment of claims according to No. 2 shall also apply to this item. However, the assignment shall only apply up to the amount of our invoice value for the processed, combined or mixed reserved goods. The purchaser shall retain title vis-à-vis the customer until the latter has paid the purchase price in full. The buyer shall only be entitled to collect the assigned claim as long as he duly fulfills his payment obligations towards us.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claim. The Buyer shall notify us in writing without delay if and to the extent that third parties seize the goods belonging to us.
V. Delivery period, transfer of risk
- The delivery period shall be agreed individually or stated by us upon acceptance of the order. In the event of a delay in delivery, the Buyer shall grant us a reasonable period of grace.
- If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer without delay and at the same time notify him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time or to deliver correctly, if we have concluded a congruent hedging transaction, if neither we nor our supplier are at fault or if we are not obliged to procure in the individual case.
- The rights of the buyer according to the further regulations, in particular in accordance with number VII, remain unaffected.
- Delivery shall be ex warehouse, which is also the place of performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance).
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale to destination, however, this risk of accidental loss and accidental deterioration of the goods shall pass as soon as the goods are handed over to the forwarding agent, carrier or other person or institution designated to carry out the shipment. We shall not be liable for damage during shipment. The handing over is equal if the buyer is in default of acceptance.
- Unless otherwise expressly agreed, the goods shall be shipped by us uninsured.
- The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
1.1 Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect (Section 434, 1st sentences 2 and 3 of the German Civil Code (BGB)). However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not referred to us as being decisive for his purchase.
- The advice for our goods is based on many years of experience and intensive research work. Due to the different requirements and individual conditions of use of our goods, this advice is specific to the information provided by the buyer. It does not release the buyer from his own obligation to test our goods for their suitability for his own purposes.
- The buyer's claims for defects presuppose that he has fulfilled his legal obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing within 2 weeks, whereby timely dispatch of the notification shall suffice to meet the deadline.
3.1 In the case of goods intended for installation or other further processing, an inspection shall in any case be carried out immediately prior to the installation or processing.
- Irrespective of the obligation to inspect the goods and give notice of defects pursuant to Section 3, the Buyer shall notify us in writing of any obvious defects (including incorrect and short deliveries) within 2 weeks of receipt of the delivery, whereby timely dispatch of the notification shall suffice to comply with the time limit.
- If the Buyer fails to duly inspect the goods and/or to give notice of defects, our liability for the defect not notified or not notified in due time or not notified in due form shall be excluded in accordance with the statutory provisions.
- If the delivered item is defective, the Seller may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
- The Buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obligated to install it.
- We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
- Excluded from the warranty are natural wear and tear, damage resulting from improper or negligent handling, excessive stress, unsuitable operating materials and non-compliance with operating instructions. The same applies to damage caused by modifications or repair work carried out by the buyer or by third parties not engaged by us.
- The Seller shall have the right to choose whether to reimburse the costs incurred by the Buyer for installation and removal within the scope of the obligation under Section 439 (3) sentence 1 of the German Civil Code (BGB) or to carry out the installation and removal at its own expense. For this purpose, the buyer shall inform the seller of the necessity of installation and removal.
- Claims of the buyer for damages exist only in accordance with section VII and are otherwise excluded.
VII General Liability
- We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence.
- In the case of simple negligence we shall only be liable for
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the violation of an essential contractual obligation, in which case our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
- The limitations of liability resulting from No. 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the Buyer under the ProdHG.
VIII. Place of Jurisdiction, Choice of Law
- Place of jurisdiction is the registered office of the company. We may, at our option, also sue the Buyer at the court having jurisdiction over the Buyer's registered office.
- These General Terms and Conditions of Sale and Delivery and the underlying contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.