I. Scope of application, deadlines
1. These general terms of business and delivery (AGB) exclusively apply to entrepreneurs, legal persons under public law and special funds under public law within the meaning of section 310 clause 1 of the civil code (BGB). References or acknowledgements on the part of the customer with reference to his delivery terms are hereby expressly rejected.
2. These AGB are deemed accepted by the customer no later than with the acceptance of the goods. The AGB also apply to all future deliveries and services to the customer, provided that this involves legal transactions of a related kind.
3. If deadlines are states as business days, then all weekdays except Saturdays, Sundays and public holidays are deemed working days.
II. Offers, conclusion of contract, scope of performance
1. Our offers are subject to change and non-binding. Orders are placed over the phone, by fax or by email. In the sphere of electronic legal transactions, orders are considered received only once we have accessed them.
2. A contract shall be concluded only once we confirm the order in writing. The same applies to individual call orders from ongoing framework agreements.
3. Our specifications regarding the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as the description of these specifications in catalogues, brochures, price lists, drawings and images are only approximations, so long as it has not been stipulated in the contract that exact details are required. They do not constitute guaranteed quality features. Variations that are usual in the trade and variations that constitute technical improvements are permissible as far as they do not impair usability for the contractually agreed purpose.
4. The customer guarantees that the rights to all data, drawings, sketches, or other documents submitted to us are held either by themselves or have been granted by the respective holder of the rights, within the material, temporal, and spacial scope necessary for initiating or performing a contract. We are not obliged to review the data or documents provided to us by the customer. Upon our first request, the customer shall indemnify us against any claims regarding a possible violation of any third party rights, including any necessary legal defence costs.
III. Prices, payment
1. The prices apply to the scope of supply and services mentioned in the order confirmations. Additional services are charged for separately. The prices are quoted in euros but not including statutory sales tax, and in the case of export deliveries, not including customs duty, fees and other public levies.
2. The due date of the purchase price is stated in the order confirmation. If the customer is in default, we are entitled to charge interest at the rate of 8 percentage points above the discount rate of the European Central Bank. We reserve the right to prove higher damages due to arrears and to enforce them.
3. We have the right to render outstanding deliveries or services only against payment in advance or collateral security if circumstances become known to us after the conclusion of the contract which
substantially reduce the customer’s creditworthiness and as a result of which the payment of our outstanding demands by the customer from the relevant contractual relationship is endangered.
IV. Delivery dates, force majeure
1. The delivery dates mentioned by us are non-binding, unless explicitly agreed otherwise with the customer in writing. A delivery date is considered to have been complied with if the deliver or service, prior to the agreed deliver date, has been handed over to the contracted forwarding agent or if we have indicated that we are ready for delivery in the event of an agreed on pick-up of the goods.
2. We are relieved from the obligation of delivery if and to the extent that the non-fulfilment of deliveries is due to the occurrence of circumstances of force majeure after the conclusion of the contract and if we cannot be held responsible. Circumstances which are considered force majeure include: war, strikes, riots, expropriations, substantial changes in law, storms, floods and other natural disasters as well as other circumstances beyond our control. If these events are of a temporary nature, they only cause the delivery obligation to be delayed for the duration of the obstruction plus a reasonable start-up period. We shall immediately notify the customer of the beginning, end and the nature of the disruption of performance.
V. Transfer of risks, (partial) delivery
1. In the case of ex works deliveries the risk passes to the forwarder, freight carrier or collector with the handover of the delivery item, and no later than when the item leaves our warehouse/plant.
2. In the case of deliveries free domicile we shall designate the forwarder at our equitable discretion.
3. We are entitled to make part deliveries, if the part delivery is usable by the customer within the scope of the contractually intended purpose, if the delivery of the remaining goods ordered is ensured and if the customer does not incur any significant additional expenditure or additional costs as a result, unless we agree to pay for the additional expenses or additional costs (which have to be proven).
4. The customer has to accept the delivery, even if it shows minor defects, notwithstanding his rights under section IX.
VI. In-stock disclaimer, delay
1. Compliance with the delivery term is subject to the correct and punctual delivery of the goods.
2. In the case of circumstances for which we are accountable and that prevent timely delivery, the customer shall specify an appropriate extension of at least three weeks.
3. If a change to the delivery item is agreed on later, an appropriate extension of the delivery term shall be granted.
VII. Set-off, right of retention
The offsetting with counterclaims of the customer or withholding payment due to such claims is admissible only insofar as the counterclaims are undisputed, ready for decision or have been legally upheld. The customer may exercise a right of retention only if his counterclaim is based on the same legal relationship.
VIII. Retention of title
1. We reserve title to the delivered goods (reserved goods) until all claims from the business relationship have been settled. This also applies if individual or all amounts were included in the current invoice and the balance has been struck and accepted.
2. In the event that the customer is in breach of the contract, in particular in case of late payment, we have the right to withdraw from the contract and to request the reserved goods to be returned, to label them for this purpose and to access the customer’s business premises.
3. The reserved goods may only be passed on in the ordinary course of business. Other acts of disposal, in particular liens or transfer by way of security, is not permitted.
4. If the reserved goods are disposed of, the customer assigns to us now the thereby incurred purchasing price or compensation for work in the amount of the invoice value of the delivered goods, regardless of whether the reserved goods are passed on without or following processing, alone or with third-party goods, to one or several buyers. If the customer on his part disposes of the reserved goods without receiving the full purchase price in advance or delivery versus payment, he must agree with his buyer a retention of title in accordance with these conditions. The customer hereby assigns to us his claims arising from such as resale as well as his rights from the agreed retention of title. At our request he is obligated to notify his buyers of this assignment and to provide us with the information and documents necessary to assert our rights against the buyers.
5. Accessory claims in connection with the reserved goods, in particular insurance claims, are similarly assigned. We accept the assignment.
6. The customer remains authorised to collect the assigned claims. The collection authorisation expires if the customer gets into arrears with payment or becomes insolvent.
7. If the realisable value of all collaterals held by us exceeds the claims by more than 20%, we shall release the excess securities at the request of the customer and at his discretion.
8. If third parties take hold of the reserved goods, in particular through seizure, the customer will immediately indicate that the goods are our property and inform us, to allow us to enforce our property rights. If the third party is unable to reimburse to us the judicial and extra-judicial costs of an action in accordance with section 771 ZPO, the customer is liable for the loss incurred by us.
IX. Warranty, notice of defect
1. The warranty period is limited to one year.
2. The buyer must point out in writing any obvious defects immediately, and no later than within 10 working days of receipt of the delivery. Non-obvious defects must also be pointed out in writing within 10 working days following the detection of the defect. To preserve the customer’s rights it is enough for the notice to be dispatched in time. If the notice of defect is not made in time, the goods are deemed approved despite the defect in question. For traders section 377 HGB also applies.
3. Expressly excluded from the reduction of the warranty period according to clause 1. and the disclaimer of warranty according to clause 2. are claims for damages from injury to life, limb based on a material defect as well as claims for damages based on a wilful or grossly negligent violation of duty and malicious concealing of a defect according to section 444 BGB by us or our vicarious agents. In the event of such claims statutory defect claims with a warranty period of two years apply. Any warranty commitments also remain unaffected by the warranty reduction.
4. If, in the event of defect, the law provides for a choice with regard to the supplementary performance between correcting the defect and a replacement delivery, we exercise this choice.
5. We assume no warranty for defects and damages due to unsuitable or inappropriate use of the goods or incorrect operation, in particular due to non-observance of instructions for use and installation instructions, non-observance of on-site and environmental conditions mentioned in the technical documentation, inappropriate maintenance, chemical, electrochemical or electrical influences, unless the customer proves that these circumstances are not the cause of the defect complained about. The customer is
obligated to examine our deliveries and services for his own application before using them.
6. Recourse claims of the customer against us shall exist only in so far as the customer and his buyer have not entered into any agreements that go beyond the legally required warranty.
X. Liability
1. Our liability for damage claims, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, contract violation, neglect of duties in contract negotiations and unauthorised action, as far as they are subject to fault, is limited as follows.
We are not liable in the following cases:
– simple negligence on the part of our organs, legal representatives, employees or other vicarious agents and
– gross negligence on the part of non-management employees or other vicarious agents,
in so far as this does not amount to an infringement of essential contractual obligations. Essential contractual obligations are those whose fulfilment facilitates the proper performance of the contract and on which the customer can regularly rely.
2. To the extent that we in accordance with clause 1. are liable for compensation, this liability is limited to damages which we, when the contract was concluded, foresaw as possible consequence of an infringement of contract or taking into consideration the circumstances known to or that we should have been able to recognise, should have known by applying due care and attention. Indirect damages and consequential damages that are due to defects of the delivered goods are only to be replaced to the extent that such damages given their proper use are typically to be expected.
3. In the event of simple negligence our obligation to pay compensation for material damage is limited to the amount of 5 million euros per claim, even in the case of an infringement of an essential contractual obligation.
4. The aforementioned liability exclusions and limitations apply to the same extent to the benefit of our organs, legal representatives, employees and other vicarious agents.
5. The aforementioned liability exclusions and limitations do not apply to our liability due to malicious conduct, guaranteed characteristics, injury to life, body and health or the product liability law.
XI. Place of jurisdiction, place of performance
1. The sole place of jurisdiction for all disputes directly or indirectly arising from this contract is the registered office of the company. The same applies if the customer has no general place of jurisdiction in Germany or his residence and/or habitual residence is not known at the time the complaint is filed. This does not affect our right to appeal to another court of jurisdiction.
2. The registered office of our company is the agreed place of performance.
XII. Applicable law
1. The conclusion and implementation of all contracts is governed by the law of the Federal Republic of Germany without giving effect to the UN Convention on Contracts for the International Sale of Goods (CISG).
2. If individual provisions of these terms of sale and delivery are invalid wholly or in part, this does not affect the efficacy of the remaining provisions or the remaining parts of such a provision. The parties shall replace the ineffective provision with a provision that comes closest in economic intent to the invalid provision and is valid.
XIII. Data storage
The customer will be informed that with regard to all data concerning him under the business relationship, including personal data within the meaning of the federal data protection act, are electronically stored by us and are only passed on to appointed service providers during performance of contract.