GENERAL TERMS AND CONDITIONS
1. General
1.1 Our terms of sale shall apply exclusively. We do not recognise any conflicting conditions or conditions of the customer which deviate from our terms of sale, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of sale.
1.2 All agreements made between us and the customer for the purpose of executing this contract must be recorded in writing.
2. Offers and conclusion of contract
2.1 Our offer is subject to change, unless otherwise stated in the order confirmation. We shall be bound by specially prepared offers for fourteen calendar days from the date of the offer.
2.2 If the order qualifies as an offer in accordance with § 145 BGB, we may accept it within fourteen calendar days by sending an order confirmation or delivering the ordered goods. After expiry of this period, the offer shall be deemed rejected. If we do not issue an order confirmation, our invoice shall be deemed confirmation.
2.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. Any disclosure to third parties requires our prior express written consent. Upon request, the documents shall be returned without retaining copies.
3. Prices
3.1 Unless otherwise stated in the order confirmation, our prices apply “ex works”.
3.2 The prices are quoted exclusive of statutory value added tax.
3.3 Unless otherwise agreed, packaging and dispatch shall be invoiced separately.
4. Delivery time
4.1 The commencement of the delivery period stated by us requires the clarification of all technical questions.
4.2 The agreement of delivery dates and periods must be made in writing.
4.3 If the customer is in default of acceptance or violates any other obligation to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which he defaults on acceptance.
5. Dispatch and passing of risk
5.1 The risk shall pass to the customer upon handover or if the customer is in default of acceptance.
5.2 Packaging shall be in accordance with customary commercial practice. It shall be invoiced separately at cost price and shall not be taken back. The customer is obliged to dispose of the packaging at his own expense.
6. Liability
6.1 We exclude our liability for slightly negligent breaches of duty, unless essential contractual obligations, damages arising from injury to life, limb or health or warranty or claims under the product liability law are affected. The same applies to breaches of duty by our legal representatives and vicarious agents.
6.2 If operating or maintenance instructions and mixing recommendations are not followed, changes are made to the products, parts replaced or consumables used, any warranty shall lapse if the customer does not refute a corresponding substantiated assertion that it was this circumstance that caused the defect.
7. Statute of limitations
7.1 Claims due to a defect in used goods shall become statute-barred one year after delivery of the goods.
7.2 Claims which are not based on a defect in the item shall be subject to a limitation period of one year.
7.3 Notwithstanding Clauses 1 and 2, the statutory periods shall apply if the liability is based on intent or an assumed guarantee.
8. Retention of title
8.1 We reserve the title to the object of sale until receipt of all payments under the delivery contract. In the event of breach of contract by the customer, in particular in the event of a default in payment, we shall be entitled to take back the object of sale. If we take back or seize the goods subject to reservation of title, this shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of such sale shall be set off against the customer’s liabilities, less reasonable selling costs.
8.2 The customer is obliged to immediately notify us in writing of attachments of the reserved goods and other interventions by third parties and to inform the pledgees of the retention of title. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the damage incurred by us.
9. Payment
9.1 Unless otherwise agreed, our invoices shall be due and payable net without deduction within 30 days of the invoice date.
9.2 We expressly reserve the right to reject cheques or bills of exchange. Acceptance shall always be made only on account of performance. Discount or bill charges shall be borne by the customer and are due immediately.
9.3 In the event of justified doubts about the creditworthiness of the customer, in particular if the customer does not honour a cheque or suspends payment, we shall be entitled to demand payment of the entire remaining debt, even if we have accepted cheques. In addition, we shall be entitled to demand advance payments or securities.
9.4 If the customer finally suspends his payments and/or insolvency proceedings are instituted against his assets or judicial or out-of-court composition proceedings are applied for, we shall also be entitled to withdraw from the part of the contract not yet fulfilled.
9.5 If the customer is in default of payment, we shall be entitled to demand default interest in accordance with the statutory provisions. If we are able to prove a higher damage caused by default, we shall be entitled to assert this.
9.6 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
10. Data processing
We are entitled to store or process all data about the customer received in connection with the business relationship in the sense of data protection.
11. Severability clause
Should a provision in these terms and conditions be or become invalid, this shall not affect the validity of any other condition or agreement between the customer and us.
SPECIAL PROVISIONS VIS-À-VIS COMPANIES
In relation to companies, the following provisions shall apply in addition:
1. Warranty
1.1 Defects in the delivered item, including the manuals and other documents, shall be remedied by the supplier within the legally prescribed period of two years from the date of delivery following notification by the user. This shall be done at the purchaser’s option either by means of repair or replacement free of charge. In the event of a replacement delivery, the purchaser is obliged to return the defective item.
1.2 If the defect cannot be remedied within a reasonable period of time or if the replacement delivery can be regarded as having failed for other reasons, the purchaser may, at his discretion, demand a reduction in payment (reduction) or withdraw from the contract. The rectification of defects shall only be deemed to have failed if the supplier has been given sufficient opportunity to rectify the defect or to deliver a replacement without the desired success having been achieved, if the rectification of defects or replacement delivery is impossible, if it is refused or unreasonably delayed by the supplier, if there are reasonable doubts as to the prospects of success or if unreasonableness exists for other reasons.
2. Duty to examine and give notice of defects
In the case of mutual commercial transactions, the purchaser’s warranty rights presuppose that he has duly complied with his inspection and complaint obligations owed in accordance with §§ 377, 378 HGB (German Commercial Code). The complaint must be made in writing.
3. Liability
The liability for unforeseeable damages is excluded, unless an intentional breach of duty, damages from injury to life, body or health or guarantees are affected or claims under the Product Liability Act are affected.
4. Retention of title
In addition to the provisions of “General Provisions” point 8 the following shall be applied:
4.1 We reserve the title to the delivered goods until all claims against the customer to which we are entitled for any legal reason have been satisfied.
4.2 Contrary to “General Provisions” point 8, the taking back of the object of sale shall not be deemed a withdrawal from the contract in the case of merchants, unless we have expressly declared this in writing. We shall be entitled, irrespective of our claim to performance, to demand the return of the item after the expiry of a period set for the customer to fulfil an obligation if the customer does not fulfil his obligation towards us or does not fulfil it punctually and/or influences the items delivered under retention of title in an inadmissible manner. If the customer has fulfilled the contract, we shall surrender the goods.
4.3 If the delivery was made for a business operated by the customer, the items may be resold in the ordinary course of business. In this case, however, the customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. In the event of resale of the goods on credit, the customer shall retain title to the goods vis-à-vis his customer.
The customer hereby assigns to us the rights and claims arising from this retention of title vis-à-vis his customer.
4.4 Any treatment or processing of the goods subject to retention of title shall be carried out by the customer for us free of charge. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to us, we shall be entitled to the resulting co-ownership share of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed goods at the time of processing, combination, mixing or blending. If the customer acquires sole ownership of a new item, it shall be deemed agreed that the customer shall assign to us pro rata co-ownership in accordance with the aforementioned calculation and shall keep the item in safe custody for us free of charge.
If the reserved goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the advance assignment agreed in 4.3 shall only apply to the amount of the factor value of the reserved goods resold together with the other goods.
4.5 If reserved goods are installed as an essential component in the customer’s property, the customer hereby assigns to us all claims arising from the sale of the property or property rights including all ancillary rights.
4.6 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.
5. Transfer of risk
5.1 Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
5.2 The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left our works for the purpose of dispatch. If dispatch is delayed or not carried out at the request of the customer, the risk shall pass to the customer upon notification that the goods are ready for dispatch.
5.3 At the customer’s request, deliveries shall be insured in his name and for his account.
6. Applicable law, place of jurisdiction, place of performance