General Terms and Conditions
§1 Validity of the conditions
The contractor’s deliveries, services and offers are made exclusively on the basis of these terms and conditions. Counter-confirmations by the customer with reference to his terms and conditions of business or purchase are hereby rejected.
§2 Offers and conclusion of contract
1. offers contained in brochures, advertisements etc. are subject to change and non-binding – also with regard to prices. The Contractor shall be bound by specially prepared offers for 90 calendar days from the date of the offer.
2. collateral agreements, amendments, supplements and/or other deviations from these Terms and Conditions shall only be valid if the Contractor has declared its consent in this respect. Such agreements must be made in writing.
3. information in offers and/or order confirmations of the Contractor which are based on an obvious error, namely a typing or calculation error, shall not be binding on the Contractor. Rather, the obviously intended explanation applies.
4. the Contractor’s offer documents, drawings, descriptions, samples and cost estimates may not be passed on, published, reproduced or otherwise made accessible to third parties without the Contractor’s consent.
1. in the absence of a special agreement, the prices shall apply ex works including loading at the factory, but excluding packaging and unloading. Value added tax at the applicable statutory rate is added to the prices.
2. the customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established.
§4 Delivery times
1. delivery deadlines are subject to correct and timely delivery to us, unless a binding delivery deadline has been agreed in writing.
2. the delivery time is determined by the agreements of the contracting parties. The supplier’s compliance with these terms and conditions requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or permits or the payment of a deposit. If this is not the case, the delivery time shall be extended accordingly. This does not apply if the supplier is responsible for the delay.
3. compliance with the delivery period is subject to correct and timely delivery to us. The supplier shall inform the customer as soon as possible of any impending delays.
4. the delivery deadline shall be deemed to have been met if the delivery item has left the supplier’s works by the time it expires or readiness for dispatch has been notified. If acceptance is to take place, the acceptance date shall be decisive – except in the case of justified refusal of acceptance – or alternatively the notification of readiness for acceptance.
5. if dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or acceptance.
6. if non-compliance with the delivery time is due to force majeure, labor disputes or other results beyond the supplier’s control, the delivery time shall be extended accordingly. The Supplier shall notify the Purchaser of the beginning and end of such circumstances as soon as possible.
7. the customer may withdraw from the contract without setting a deadline if the entire performance becomes finally impossible for the supplier before the transfer of risk. Der Besteller kann darüber hinaus vom Vertrag zurücktreten, wenn bei einer Bestellung die Ausführung eines Teils der Lieferung unmöglich wird und er ein berechtigtes Interesse an der Ablehnung der Teillieferung hat. Ist dies nicht der Fall, so hat der Besteller den auf die Teilfertigung entfallenden Vertragspreis zu zahlen. Dasselbe gilt bei Unvermögen des Lieferers. Tritt die Unmöglichkeit oder das Unvermögen während des Annahmeverzugs ein oder ist der Besteller für diese Umstände allein oder weit überwiegend verantwortlich, bleibt er zur Gegenleistung verpflichtet.
8. if the supplier is in default and the customer suffers damage as a result, he shall be entitled to demand lump-sum compensation for the delay. This shall amount to 0.5% for each full week of delay, but not more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
§5 Shipping and transfer of risk
1. the risk shall pass to the Customer as soon as the consignment has been handed over to the person carrying out the transportation or has left the Contractor’s works for the purpose of dispatch. If dispatch is delayed or not carried out at the instigation of the Customer, the risk shall pass to the Customer upon notification of readiness for dispatch.
2. at the request of the customer, deliveries will be insured in his name and for his account.
§6 Claims for defects
1. if the service provided by the entrepreneur or the delivery item is defective, the entrepreneur may, at his discretion, deliver a replacement or remedy the defect. Multiple rectifications – usually two – are permitted within a reasonable period of time.
2. the right of the customer to assert claims arising from defects shall in all cases become statute-barred 12 months after the transfer of risk, unless a longer period is prescribed by law. If the customer is an entrepreneur within the meaning of § 14 BGB, clauses 3 and 4 shall apply in addition.
3. obvious defects in work performances can no longer be claimed after acceptance. Otherwise, in order to preserve the Purchaser’s claims for defects, the Contractor must be notified of such defects in writing without delay, but at the latest within two weeks of delivery. The defective items must be kept ready for inspection by the Contractor in the condition in which they were at the time the defect was discovered.
4. insignificant, reasonable deviations in the dimensions and designs – in particular in the case of repeat orders – shall not entitle to complaints unless absolute compliance has been expressly agreed. Technical improvements and necessary technical modifications shall also be deemed to be in accordance with the contract, insofar as they do not constitute a deterioration in usability.
5. if the Contractor’s operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used which do not comply with the original specifications, any warranty shall lapse if the Customer does not refute a correspondingly substantiated claim that one of these circumstances caused the defect.
6 Liability for normal wear and tear is excluded.
7. if the subsequent performance fails within a reasonable period of time, the customer may, at his discretion, demand a reduction in the price or rescission of the contract.
8. the above provisions of this paragraph shall not apply to the sale of already used items. In the case of consumers, a period of one year shall apply for the assertion of claims for defects. Used items are delivered to entrepreneurs to the exclusion of any claims for defects.
9. if the contractor is available to provide the customer with information regarding the use of his product over and above his statutory obligations, he shall only be liable in accordance with § 7 if a special fee has been agreed for this.
§ 7 Limitation of liability
Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tort, which are not simultaneously based on the breach of a main contractual obligation by the contractor, are excluded both against the contractor and against his vicarious agents, unless the damage was caused intentionally or through gross negligence. This does not apply to claims for damages arising from the lack of the contractually stipulated suitability, which are intended to protect the customer against the risk of consequential damages. Claims for damages under the law on liability for defective products (PrdHG) remain unaffected, as does liability for damage to life, limb or health.
§ 8 Retention of title
1. until all claims to which the Contractor is entitled against the Customer on any legal grounds have been satisfied, the Contractor shall retain title to the delivered items (reserved items).
2. the Customer is obliged to notify the Contractor immediately in writing of any seizure of the items subject to retention of title and to inform the pledgees of the retention of title. The customer is not entitled to sell, give away, pledge or assign as security the items delivered to him subject to retention of title – except in the cases of the following clause.
3. if the delivery is made for a business operation maintained by the customer, the items may be resold in the ordinary course of business. In this case, the purchaser’s claims against the customer arising from the sale shall already now be assigned to the entrepreneur for his part. The Customer hereby assigns to the Contractor the rights and claims arising from this retention of title vis-à-vis his customer.
4. any treatment or processing of the reserved goods by the customer shall be carried out by the customer for the entrepreneur free of charge. In the event of processing, combining, mixing or blending of the reserved goods with other goods not belonging to the Contractor, the Contractor shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the Purchaser acquires sole ownership of a new item, the contracting parties agree that the Purchaser shall grant the Supplier co-ownership of the new item in the ratio of the factor value of the processed or combined, mixed or blended reserved items and shall store them for the Supplier free of charge. If the reserved goods are resold together with other goods, regardless of whether without or after processing, combining, mixing or blending, the advance assignment agreed in clause 3 above shall only apply in the amount of the factor value of the reserved goods that have been resold together with the other goods.
5. if items subject to retention of title are installed by the customer or on his behalf as essential components in the property of a third party, the customer hereby assigns to the contractor any claims for remuneration arising against the third party or the party concerned, together with all ancillary rights, including the granting of a security mortgage.
6. if items subject to retention of title are installed as essential components in the customer’s property, the customer hereby assigns to the contractor the claims arising from the sale of the property or of property rights, together with all ancillary rights.
7. if the value of the securities existing for the entrepreneur in accordance with the above provisions exceeds the value of the entrepreneur’s claim – not only temporarily – by a total of more than 20%, the entrepreneur shall be obliged to release securities of his choice accordingly at the request of the customer.
8. Bei vertragswidrigem Verhalten des Bestellers, insbesondere bei Zahlungsverzug, ist der Verkäufer zur Rücknahme der gelieferten Gegenstände nach Mahnung und Rücktrittserklärung berechtigt und der Besteller zur Herausgabe verpflichtet. Hat derBesteller den Vertrag erfüllt, so hat der Unternehmer die Gegenstände zurückzugeben.
§ 9 Payment
1. unless otherwise agreed, the Contractor’s invoices are payable without deduction after invoicing.
2 The Contractor expressly reserves the right to refuse checks or bills of exchange. Acceptance is always only on account of performance; discount and bill charges shall be borne by the customer and are due immediately.
3. if the Contractor becomes aware of circumstances that call into question the creditworthiness of the Customer, in particular if the Customer does not cash a check or suspends payments, the Contractor is entitled to declare the entire remaining debt due, even if it has accepted checks. In this case, the Contractor is also entitled to demand advance payments or the provision of security.
4. if the customer finally ceases payments and/or insolvency proceedings are applied for against his assets, the contractor shall also be entitled to withdraw from the part of the contract not yet fulfilled.
5. the Contractor is entitled to offset payments against the Customer’s older debts first, despite any provisions of the Customer to the contrary. The Contractor shall inform the Customer of this type of offsetting. If costs and interest have already been incurred, the Contractor shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal.
6. if the customer is in default of payment, the entrepreneur is entitled to charge the respective statutory default interest. The Contractor reserves the right to assert claims for further damages caused by default. In the above-mentioned cases, the customer shall be at liberty to prove that the damage is lower, which shall then be decisive.
7. offsetting by the customer is excluded unless the counterclaims are legally established or undisputed by the contractor.
§ 10 Applicable law, jurisdiction, partial invalidity
1. the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods, shall apply to these Terms and Conditions and to the entire legal relationship between the Contractor and the Customer.
2. if the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the company’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between the Contractor and the Customer.