General terms and conditions of business
§ 1 Area of applicability
1. These terms and conditions of sale shall apply exclusively vis a vis entrepreneurs, as well as legal persons under public law or public law special funds in accordance with § 310 Paragraph 1 of the German Civil Code (BGB). Terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale will only be recognized by us if we expressly agree to their applicability in writing.
2. These terms and conditions of sale also apply to all future transactions with the customer, should these concern related legal transactions (as a precaution, the terms and conditions of sale should always be attached to the order confirmation).
§ 2 Offer and conclusion of the contract
Should an order be considered to be an offer in accordance with § 145 of the German Civil Code (BGB), we can accept this within two weeks.
§ 3 Documents handed over
We reserve ownership and copyright in relation to all documents which are handed over to the customer at the time of issuing the engagement, such as calculations, data sheets, specifications etc. These documents may not be made accessible to third parties unless we issue our express written agreement to the customer in this respect. Should we not accept the offer of the customer within the deadline stated in § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
1. Unless otherwise agreed in writing, our prices apply ex-works exclusive of packaging and are subject to value added tax to the respectively applicable amount. The costs of packaging will be charged for separately.
2. The payment of the purchase price must be made via the bank account stated overleaf. The deduction of discounts is only permitted in case of a separate written agreement.
3. Unless otherwise agreed, the purchase price must be paid within 10 days of delivery. Default interest will be charged to the sum of 8 % above the respective base rate of interest. The bringing of further damages claims due to default remains reserved.
4. Should no fixed price agreement have been concluded, we reserve the right to carry out reasonable price alterations due to changed wage, material and sales costs for deliveries which take place 3 months or more after the conclusion of the contract.
§ 5 Rights of retention
The customer is only entitled to exercise a right of retention if its counterclaim relates to the same contractual relationship.
§ 6 Delivery time
1. The commencement of the delivery time stated by us is subject to the timely and proper fulfillment of the obligations of the customer. The plea of non-fulfillment of the contract shall remain reserved.
2. Should the customer enter acceptance default or should it culpably breach other co-operation obligations, we are entitled to bring a claim for the reimbursement of losses incurred by us as a result, including any additional expenses. Further claims remain reserved. Should the requirements stated above be present, the risk of possible loss or deterioration of the object of purchase shall be transferred to the customer at the time it entered acceptance or debtor’s default.
§ 7 Transfer of risk in case of delivery
Should the goods be delivered to the customer following a request by it, the risk of possible loss or deterioration of the goods shall be transferred to the customer at the time of sending, at the latest at the time the goods leave our factory / warehouse. This applies regardless of whether the goods are sent from the place of performance and regardless of who is paying the shipping costs.
§ 8 Reservation of ownership
1. We reserve ownership in the delivered item until full payment of all claims under the delivery contract has taken place. This also applies to all future deliveries, even if we do not always make this clear in express terms. We are entitled to retake possession of the object of purchase if the customer behaves in a manner which is in breach of contract.
2. The customer shall be obliged to treat the object of purchase with care if ownership has not yet been transferred to it. In particular, the customer shall be obliged to sufficiently insure the object of purchase against theft, fire and water damage to the replacement value at its own expense (note: only applicable in case of the sale of high value goods). Should maintenance and inspection work need to be carried out, the customer must carry this out in a timely manner at its own expense. Should the ownership not yet have been transferred, the customer must immediately notify us in writing if the delivered object is subject to an attachment or other third party attacks. Should the third party not be in the position of being able to reimburse us the court and out of court costs in connection with a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO), the customer shall incur liability for the shortfall incurred by us.
3. The customer is permitted to sell on the goods which are subject to reservation of ownership in the course of ordinary business dealings. The customer is hereby now assigning to us the claims against the consumer from the resale of the goods subject to reservation of ownership to the sum of the agreed invoice value (including value added tax). This assignment applies regardless of whether the object of purchase has been sold on without processing or following processing. The customer remains authorized to collect the claim, also following the assignment. Our authorization to collect the claim ourselves shall remain unaffected thereby. However, we will not collect the claim, provided that the customer complies with its payment obligations in connection with the revenues which have been generated, has not entered payment default and, in particular, provided that no application has been filed for the opening of insolvency proceedings or provided that no suspension of payments has taken place. (Comment: this clause is omitted if no extended reservation of ownership is intended).
4. The processing or remodeling of the object of purchase by the customer always takes place in our name and on our behalf. In such a case, the right of first refusal of the customer in relation to the object of purchase will continue in relation to the remodeled item. Should the object of purchase be processed with other items which do not belong to us, we will acquire co-ownership of the new object to the relationship of the objective value of our object of purchase to the other processed items at the time of processing. The same shall apply in case of mixing. Should the mixing take place in such a way that the item of the customer is considered to be the principal object, it is hereby deemed agreed that the customer will assign us pro-rata co-ownership and will retain the sole or co-ownership acquired as a result for us. In order to secure our claims against the customer, the customer is hereby also now assigning to us such claims which it acquires from third parties by means of connection of the goods which are subject to reservation of ownership with land; we hereby accept the said assignment.
5. We are obliged to release the claims to which we are entitled following a request by the customer, should their value exceed the claims to be secured by more than 20%.
§ 9 Warranty and defect claims, and recall / supplier recourse
1. Warranty rights of the customer are subject to the customer having properly complied with its inspection and complaint obligations in accordance with § 377 of the German Commercial Code (HGB).
2. Defect claims shall be time barred 1 week following receipt of the goods delivered by us to our customer. The statutory limitation period shall apply to damages claims in case of intent and gross negligence, as well as in cases of injury to life, body and health which are due to an intentional or negligent breach of obligation by the user. (Note: in case of the sale of used items, the warranty period can be fully excluded with the exception of the damages claims stated in sentence 2).
Should the law prescribe longer periods in a mandatory manner in accordance with § 439 Paragraph 1 Number 2 of the German Civil Code (BGB) – buildings and items for buildings, § 445 b BGB – recourse claim and § 634a paragraph 1 BGB – construction defects, such longer periods shall be applicable. Our agreement must be obtained prior to any return of the goods.
3. Should the delivered goods demonstrate a defect despite all the care which has been applied which was already present at the time of transfer of risk, we will either provide improvement or a replacement item according to our choice, subject to the defect complaint having been filed on time. We must always be provided with the opportunity to provide supplementary performance within a reasonable period of time. Recourse claims shall remain unaffected by the provision above without restriction.
4. Should the supplementary performance fail, the customer can rescind the contract or reduce the remuneration, regardless of any damages claims.
5. Defect claims shall not exist in cases of minor defects from the agreed quality, in case of minor impairments of usability, in case of natural wear and tear, such as damage which takes place after the time of transfer of risk due to incorrect or negligent treatment, excessive demands being placed on the object of purchase, unsuitable operating equipment, defective construction work, unsuitable construction land or due to special external influences not required under the contract. Should improper repair work or alterations be carried out by the customer or third parties, no defect claims shall be accrued for such repair work or alterations and the resulting consequences.
6. Claims of the customer in connections with the expenses necessary for supplementary performance, in particular transportation, road, work and material costs shall be excluded, should the expenses increase due to the goods delivered by us having been subsequently moved to a location other than the place of business of the customer, unless the removal of the goods is necessary in order for these to be used in accordance with the contract.
7. The customer shall only be entitled to recourse claims against us if the customer has not concluded any agreements with its consumer which go beyond the mandatory legal defect claims. Paragraph 6 shall also apply accordingly in relation to the scope of the recourse claim of the customer against the delivering party.
§ 10 Other
1. This contract and all of the legal relationships between the parties shall be subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention governing the International Sale of Goods (CISG).
2. The place of performance and exclusive place of jurisdiction for all disputes under this contract shall be our place of business, unless otherwise stated in the order confirmation (note: the use of this clause is not permitted if at least one of the parties is a company which has not been entered in the commercial register).
3. All agreements which have been concluded between the parties in order to perform this contract are set out in writing therein.