General Terms and Conditions of Business
Art. 1 General, Scope of Applicability
1.1 The present general terms and conditions of business (hereinafter referred to as „terms and conditions“) are valid for all business relations with our customers (hereinafter referred to as „buyer“). The terms and conditions are only valid, if the buyer is a business owner (article 14 Civil Code), a juridical entity under public law or a special property subject to public law.
1.2 The terms and conditions are valid in particular for contracts regarding the sales and/or the delivery of movable objects (hereinafter referred to as „goods“), without consideration for whether we produce the goods ourselves or make purchases from suppliers (articles 433, 651 Civil Code). The terms and conditions apply in their respective version as a framework agreement also for future contracts regarding the sales and/or the delivery of movable objects with the same buyer without having to point to them again in every particular case; we will immediately inform the buyer about changes of our terms and conditions.
1.3 Our terms and conditions are valid exclusively. Deviating, contradictory or complementary general terms and conditions of business of the buyer become only and insofar a contract component, when we have agreed to their validity expressly in writing. This requirement of consent applies in any case, for example even if we deliver being aware of the general terms and conditions of the buyer.
1.4 Individual agreements made with the buyer in particular cases have priority over these terms and conditions in any case (including ancillary agreements, additions and amendments). A written contract respectively our confirmation in writing or text form is authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications, which have to be made to us by the buyer after conclusion of the contract (e.g. deadlines, notices of defects, declaration of rescission or reduction), require the written or text form for their validity.
1.6 References to the applicability of statutory provisions have only clarifying meaning. Hence, even without such clarification the statutory provisions shall apply, as far as they are not directly changed or expressly excluded in these terms and conditions.
Art. 2 Conclusion of Contract
2.1 Our offers are subject to change and non-binding. This also applies, if we have left catalogues, technical documentation (e.g. drawings, calculations and references to DIN standards) as well as other product descriptions or documents - also in electronic form – to the buyer to which we reserve ownership and copyright.
2.2 The order of the goods by the buyer is a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within three weeks of its receipt with us.
2.3 The acceptance can either be declared in writing or in text form (e.g. by order confirmation) or by delivering the goods to the buyer.
Art. 3 Delivery Time and Delay in Delivery
3.1 As far as binding delivery dates are not expressly agreed upon, indicated delivery times are non-binding. The delivery time begins with the receipt of the order confirmation by the customer.
3.2 In case we cannot keep binding delivery times for reasons we cannot be held responsible for (unavailability of goods), we will immediately inform the buyer and at the same time communicate the estimated new delivery time. If the goods are still not available within the new delivery time, we shall be entitled to withdraw fully or partially from the contract; we will immediately refund any payment already made by the buyer. In this sense, especially the late delivery by our own supplier is valid as a case of unavailability of goods, when we have effected a congruent hedging transaction, neither we nor our supplier were at fault or we are not obliged in particular cases to the procurement.
3.3 The rights of the buyer in accordance with article 9 of these terms and conditions and our legal rights, particularly at an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance) remain unaffected.
Art. 4 Delivery, Passing of Risk, Acceptance, Default of Acceptance
4.1 The delivery is carried out ex warehouse, where also the place of performance is. At the request and expense of the buyer, the goods will be sent to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are authorized to dispose over the way of dispatch (particularly forwarding companies, shipping route and packaging).
4.2 The risk of accidental perishing and deterioration of the goods passes to the buyer with the delivery at the latest. But in case of contracts, which provide for delivery by carrier, the risk of accidental perishing and deterioration of the goods as well as the risk of delay passes already with the delivery of the goods to the forwarding agent, the carrier or any other person or institution commissioned to handle the shipment. As far as acceptance is agreed, it is decisive for the passing of risk. In addition the legal provisions of the work contract law shall apply for an agreed acceptance accordingly. If the buyer is in default of acceptance, this will be considered as delivery or acceptance.
4.3 In case the buyer comes in default of acceptance, fails to cooperate or our delivery is delayed due to other reasons attributable to the buyer; we are entitled to claim compensation for resulting damage including additional expenditures (e.g. inventory costs). For this purpose, we will charge a lump-sum compensation in the amount of 100,00 Euro per calendar day, starting with the delivery time or - due to lack of a delivery time - with the notification of readiness for dispatch of the goods.
4.4 The proof of a higher damage and our statutory rights (particularly compensation of additional expenditures, appropriate compensation and notice of termination) shall remain unaffected; however, the lump-sum is to be credited to further monetary claims. The proof is granted to the buyer, that not the slightest damage or only considerably lower damage than the above lump-sum has resulted for us.
Art. 5 Prices and Terms of Payment
5.1 Our prices current at the time of the conclusion of contract are valid ex stock, plus legal value added tax.
5.2 If changes occur in essential cost components between conclusion of contract and delivery date, the parties shall commit to open negotiations with the aim to set reasonable new prices.
5.3 For sales which provide delivery by carrier (article 4 paragraph 1), the buyer pays the freight charges ex stock and, if requested by the buyer, the transport insurance. As far as we do not charge the actual transport costs occurred in the individual case, a lump-sum transport cost (excluding transport insurance) subject to the order amount, which is to be paid separately, applies as agreed on. Any customs, fees, taxes and other public charges are to the buyer’s account. Transport packaging and all other packaging in accordance with the Packing Ordinance, is non-returnable and becomes the property of the buyer; except for pallets.
5.4 Please note we only accept payment in advance.
5.5 The buyer has only in so far the right of lien and set-off as this claim can be ascertained as legally valid or undisputed. In case of defects of the delivery, the buyer’s counter-rights remain unaffected, particularly in accordance with article 7 paragraph 6 sentence 2 of these terms and conditions.
5.6 If there are indications after conclusion of the contract, that our claim to the purchase price is at risk as a result of lack of performance of the buyer (e.g. by application for opening of insolvency proceedings), we shall be entitled to deny delivery and - if necessary after setting a deadline – cancel the contract according to the statutory provisions (article 321 Civil Code). In case of contracts for the manufacture of specific items (custom-made products), we may withdraw from the contract immediately; the statutory regulations concerning the dispensability of the setting of a deadline shall remain unaffected.
Art. 6 Warranty Claims of the Buyer
6.1 The statutory regulations shall apply for the rights in case of defects of quality and title of the goods (including incorrect and short delivery as well as improper installation, insufficient assembly, instruction and operating manuals), unless otherwise determined below.
6.2 The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. Agreements as to the condition of the goods include any product descriptions so designated (including those of the manufacturer), which have been provided to the buyer prior to placing an order or incorporated in the contract in the same way as these terms and conditions.
6.3 In the absence of any agreed specification of the goods, the existence of defects there-in shall be determined based on statutory regulations (article 434 paragraph 1 sentence 2 and 3 Civil Code). We shall not be held liable, however, for any public statements by the manufacturer or other third parties (e.g. advertising messages).
6.4 The warranty claims of the buyer require that he has complied with his statutory obligations for inspection and reporting of complaints (articles 377, 381 Commercial Code). Any defect discovered during examination or later shall be notified to us in writing without delay. The notification is considered immediately, if sent within 5 days in case of obvious defects, in case of hidden defects within 5 days after discovery of the defect, whereby the timely dispatch of the report is sufficient. Irrespective of this obligation for inspection and reporting of complaints, the buyer has to report obvious defects (including incorrect and short delivery) within two weeks upon delivery in writing, whereby the timely dispatch of the report is sufficient. If the buyer fails to carry out the proper in-spection and/or report of defects, our liability shall be excluded for defects not notified.
6.5 If the delivered goods are defective, we may initially choose whether we shall provide subsequent performance either by elimination of the defect (repair) or by delivery of faultless goods (replacement delivery). Our right to refuse subsequent performance under the statutory regulations remains unaffected.
6.6 We have the right to predicate the subsequent performance due on whether the buyer pays for the purchase price due. The buyer, however, is entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.
6.7 The buyer is obliged to grant us the necessary time and opportunity to meet subsequent performance owed, especially to hand over the goods concerned for inspection purposes. In the case of a replacement delivery, the buyer has to return the defective goods to us according to the statutory regulations.
6.8 If indeed a defect exists, the expenses necessary in connection with examination and subsequent performance, in particular regarding transport, travel, labour and materials, shall be to our account. If, however, the buyer’s complaint turns out to be unjustified, we may claim compensation from the buyer for any expenses resulting there from.
6.9 In urgent cases, e.g. in case of danger to operating safety or to avert disproportional excessive damage, the buyer has the right to remedy the defect himself and demand reimbursement by us of the objectively necessary expenses incurred. We have to be informed about these activities as soon as possible, if possible prior to the repair. The right of self remedy shall not apply, if we would be entitled to refuse a corresponding subsequent performance according to the statutory regulations.
6.10 The buyer can withdraw from the contract or reduce the purchase price, if the subsequent performance has failed or a reasonable deadline, which has to be set by the buyer, for subsequent performance has expired unsuccessfully or it is dispensable according to the statutory regulations. However, this right of withdrawal does not exist with an insignificant defect.
6.11 Claims of the buyer for damages or reimbursement of futile expenses shall only exist according to article 9 and are incidentally excluded.
Art. 7 Return and Exchange
7.1 Returns are accepted by us only, if the postage is paid; in case of justified notices of defects, shipping costs incurred will be reimbursed to the customer according to article 7 of our terms and conditions.
7.2 A delivery note in duplicate and a copy of our invoice has to be enclosed to each return. For items to be marked by quantity, part description as well as part number, the reason for return has to be specified, for claims the type of defect has to be indicated.
7.3 Unjustified returns or returns without the information listed in no. 8.2 will be sent back by us at the expense of the sender. The same applies to returns for the purpose of repair if there is no defect.
7.4 If goods are returned to us for exchange without existing warranty claim, we will decide on their acceptance at our sole discretion. If we take back the goods, we will charge a reversal fee of 25% of our net sales price, at least 30.00 Euro per return.
Art. 8 Supplier’s Recourse
8.1 The buyer is obliged to inform us immediately when a defect becomes known in the supplier’s recourse (article 478 paragraph 6 Civil Code, Article 377 Commercial Code).
8.2 Before we accept or fulfill any claim for defects asserted by the buyer (including reimbursement of expenses according to articles 478 paragraph 3, 439 paragraph 2 Civil Code), the buyer will inform us and, giving a brief description of the facts of the case, will request a written statement.
8.3 The buyer shall not be entitled to any compensation for damages from a supplier’s recourse against us, if warranty rights due to a defect are asserted against him (article 478 paragraph 4 page 2 Civil Code).
Art. 9 Other Liabilities
9.1 Unless otherwise stated in these terms and conditions including the following provisions, we shall be liable for breach of contractual and non-contractual obligations according to the relevant statutory regulations.
9.2 We are liable for compensation – irrespective of legal basis – in the case of intent or gross negligence. In case of minor negligence, we are only liable
a) for damages arising from the injury of life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (an ob-ligation whose fulfillment is essential to the due and proper implementation of the agreement and on whose fulfillment the contractual partner ordinarily trusts and may rely); in this case, our liability is however limited to the reimbursement of the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from paragraph 10.2 will not apply if we have fraudulently concealed a defect or have assumed a guarantee for the condition of the goods. The same applies to the customer’s claims according to the Product Liability Act.
9.4 The buyer may only withdraw from the contract or cancel the contract due to a breach of duty, which is not attributable to a defect, if we are responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.
Art. 10 Statute of Limitations
10.1 Notwithstanding article 438 paragraph 1 no. 3 Civil Code the general limitation period for claims resulting from material defects and defects of title is one year from delivery. As far as acceptance is agreed, the limitation period begins upon acceptance.
10.2 The preceding limitation period of the sales law also applies to contractual and non-contractual claims for damages of the buyer, based on a defect of the goods, unless the application of the regular statutory limitation period (articles 195, 199 Civil Code) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively for claims for damages of the buyer in accordance with article 9.
Art. 11 Choice of Law and Jurisdiction
11.1 These terms and conditions and all legal relationships between us and the buyer are subject to the law of the Federal Republic of Germany excluding international uniform law, particularly United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.2 If the buyer is a merchant within the meaning of the German Commercial Code, a juridical entity under public law or a special property subject to public law, the exclusive – even international - jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in 73230 Kirchheim. Nevertheless, we are also entitled to take legal action at the place of general jurisdiction.