AGBGeneral Terms and Conditions of Delivery and Order
§ 1 General – Scope
The following terms and conditions apply exclusively to the business relationship with our customers, including information and advice. If they are included in the business with the customer, they shall also apply to all further business relations between the customer and us, unless otherwise agreed in writing. Terms and conditions of the customer shall only apply if and to the extent that we expressly accept them in writing. In particular, our silence with respect to such deviating terms and conditions shall not be deemed to constitute acceptance or consent, even in future contracts. Our terms and conditions shall apply in place of any terms and conditions of purchase of the customer even if, according to the latter, the acceptance of the order is intended as unconditional acceptance of the terms and conditions of purchase. By accepting our order confirmation or our delivery, the customer expressly acknowledges that it waives its legal objection derived from the terms and conditions of purchase.
§ 2 Information, advice, properties of the goods
- Information and advice regarding our products are provided solely on the basis of our previous experience. The values given here are to be regarded as non-binding average values. All information about our products, in particular the illustrations, drawings, dimensional and performance data and other technical data contained in our offers and printed matter are to be regarded as approximate average values.
- A reference to standards, similar technical regulations as well as technical specifications, descriptions and illustrations of the delivery item in offers and brochures and our advertising shall only constitute a statement of the properties of our goods if we have expressly declared the quality to be a property of the goods; otherwise, these are non-binding general descriptions of performance.
- Certain properties of our goods shall only be deemed warranted by us if we have expressly confirmed this in writing. We shall only be deemed to have given a guarantee if we have designated a property as guaranteed in writing.
§ 3 Sample specimens; models
The properties of manufactured sample specimens or models shall only become part of the contract if this has been expressly agreed in writing. The customer is not entitled to use or pass on sample copies and models.
§ 4 Conclusion of contract, scope of delivery, acceptance
- Unless otherwise indicated, our offers are subject to change and non-binding. They are calls for orders. We shall only be bound by an order or a contract shall only be concluded – also in current business transactions – if it has been confirmed by us in writing or if we start executing the order. Our order confirmation or a delivery call-off recognized by us shall be authoritative for the content of the delivery contract. In case of immediate delivery, our confirmation can also be replaced by our invoice.
- All agreements, collateral agreements, assurances and amendments to the contract must be in writing. This also applies to the waiver of the written form agreement itself.
- The assumption of a procurement risk does not lie solely in the obligation to deliver an item determined only by its type.
- In the case of call orders or customer-related acceptance delays, we are entitled to procure the material for the entire order and to manufacture the entire order quantity immediately. Accordingly, any change requests made by the customer cannot be taken into account after the order has been placed, unless this has been expressly agreed.
- In the event of a full or partial cancellation of quantities already stated in delivery call-offs and/or orders, the customer undertakes to accept the ordered product and the necessary input material for a period of four weeks from the full or partial cancellation with regard to parts manufactured by us (obligation to accept manufactured parts 4 weeks). With regard to purchased parts, this purchase obligation shall apply for twelve weeks (purchase obligation purchased parts 12 weeks).
- The customer must inform us in writing in good time before conclusion of the contract of any special requirements for our goods.
- If our offer or our order confirmation is based on technical information provided by the purchaser (illustrations, drawings and dimensional data), our offer shall only be binding if the order can be executed in accordance with the purchaser’s technical specifications. If it turns out after conclusion of the contract that the order cannot be executed in accordance with the customer’s technical specifications, we shall be entitled to withdraw from the contract if and to the extent that the customer is not prepared to accept the technical substitute solution proposed by us and to bear any additional costs actually incurred. If our offer or our order confirmation is based on logistical information provided by the customer, sentences 1 and 2 shall apply accordingly.
- We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that have been designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
- We are entitled to make excess or short deliveries of the quantity of pieces or weight of up to 5% compared to the order volume.
- If the acceptance of the goods or the shipment is delayed for a reason for which the customer is responsible, we shall be entitled to demand immediate payment of the purchase price or to withdraw from the contract or to refuse performance and to demand damages in lieu of full performance, at our discretion, after setting and expiration of a 14-day grace period. The deadline must be set in writing. We do not need to refer to the rights arising from this clause again herein. In the event of a claim for damages, the compensation to be paid shall amount to at least 20% of the net delivery price. Both parties reserve the right to prove a different amount of damage or that no damage was incurred.
§ 5 Delivery, delivery time, delay in delivery
- Binding delivery dates and deadlines must be expressly agreed in writing. In the case of non-binding or approximate (circa, about, etc.) delivery dates and deadlines, we shall make every effort to comply with them.
- Delivery periods shall commence upon receipt of our order confirmation by the customer, or upon acceptance of the delivery call-off, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been met; the same shall apply to delivery dates. If the customer has requested changes after placing the order, a new delivery period shall begin with our confirmation of the change.
- Deliveries before the expiry of the delivery period are permissible. The day of delivery shall be the day of notification of readiness for dispatch, otherwise the day of dispatch of the goods. We are entitled to make partial deliveries. In the absence of any other written agreement, the interest in our performance shall only lapse if we fail to deliver essential parts or deliver them with delay.
- If we are in default of delivery, the customer must first set us a reasonable grace period for performance. If this period expires fruitlessly, the customer may assert the rights regulated therein under the respective conditions of §§ 280, 281, 284, 286, 323 BGB. Claims for damages due to breach of duty – for whatever reason – shall only exist in accordance with the provisions of § 11. If we have not performed the service on a date specified in the contract or within a period specified in the contract, the customer may only withdraw from the contract if he has tied his interest in performance to the timeliness of the service in the contract and if we delay delivery of essential partial quantities.
- We shall not be in default as long as the customer is in default with the fulfillment of obligations towards us, including those from other contracts.
§ 6 Reservation of self-delivery; force majeure and other hindrances
- If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers, or do not receive them correctly or on time, or if events of force majeure occur, we shall inform our customer in writing in good time. In this case, we shall be entitled to postpone delivery for the duration of the impediment or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that we have complied with our aforementioned duty to inform and have not assumed the procurement risk. Force majeure shall be deemed to include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, e.g. due to fire, water and machine damage and all other hindrances which, viewed objectively, were not culpably caused by us.
- If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events according to paragraph 1, the customer shall be entitled to withdraw from the contract due to the part not yet fulfilled after the fruitless expiry of a reasonable grace period.
§ 7 Shipment and transfer of risk
- (Unless otherwise agreed in writing, we shall ship the goods uninsured at the customer’s risk. We reserve the right to choose the transport route and the means of transport. If the customer so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer. This requires a separate written order by the customer.
- The risk of accidental loss or accidental deterioration shall pass to the customer when the goods to be delivered are handed over to the customer, the forwarding agent, the carrier or the undertakings otherwise designated to carry out the shipment, but no later than when the goods leave our works, the warehouse or the branch office.
- If the shipment is delayed due to the fact that we exercise our right of retention as a result of full or partial default in payment by the customer or due to any other reason for which the customer is responsible, the risk shall pass to the customer no later than the date of notification of readiness for shipment.
§ 8 Notice of defects / warranty / breach of duty
- Recognizable defects shall be reported by the customer without undue delay, however, no later than 12 days after performance of the service – also with respect to a part of the service usable by the customer -, hidden defects shall be reported without undue delay, however, no later than within the period specified in para. 6 mentioned warranty period, in writing. Defects that are visible upon delivery must also be reported to the transport company and the recording of the defects must be arranged by the latter. Notices of defects must contain a detailed description of the defect. Failure to give notice of defects in due time shall exclude any warranty claim of the customer. Insofar as defects in quantity and weight were already recognizable upon delivery according to the aforementioned inspection obligations, the customer must complain about these defects to the carrier upon receipt of the goods and have the complaint certified. Failure to give notice of defects in due time shall exclude any warranty claim of the customer.
- Other breaches of duty are to be warned in writing by the customer without delay, setting an appropriate remedy period, before the assertion of further rights.
- If there is a defect, it shall be remedied at our discretion – with the exception of the case of delivery recourse pursuant to §§ 3, 4 and 5 of the German Civil Code (BGB). § 478, 479 BGB – by free rectification or replacement delivery, whereby we are generally entitled to two attempts at subsequent performance. We shall remedy defects for which the customer is responsible and unjustified complaints on behalf of and at the expense of the customer.
- In the case of notices of defects, payments by the customer may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred. If the notification of defects is unjustified, we shall be entitled to demand compensation from the customer for the expenses incurred by us as a result.
- Insofar as the breach of duty does not exceptionally relate to a work performance on our part, rescission shall be excluded insofar as our breach of duty is insignificant. With the exception of liability for defects, withdrawal is also excluded if we are not responsible for the breach of duty.
- For demonstrable material, manufacturing or construction defects, we shall provide a warranty – unless expressly agreed otherwise or in the case of § 478 BGB (German Civil Code) (right of recourse) – for a period of one year, calculated from the date of the statutory commencement of the limitation period.
- The above limitation period shall also apply to competing claims in tort and to any claims for consequential harm caused by a defect.
- Further claims of the customer due to or in connection with defects or consequential harm caused by a defect, irrespective of the reason, shall only exist in accordance with the provisions of § 11, insofar as claims for damages from a warranty of quality or guarantee are concerned, which is intended to protect the customer against the risk of possible consequential harm caused by a defect. Even in this case, however, we shall only be liable for the typical and foreseeable damage.
- Our warranty and the liability resulting therefrom shall be excluded insofar as defects and related damage are not demonstrably due to defective material, defective design or defective workmanship or defective assembly instructions. In particular, the warranty and liability are excluded for the consequences of incorrect use (especially in the case of assembly in accordance with the state of the art or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable operating materials as well as the consequences of physical, chemical or electrolytic influences that do not correspond to the intended average standard influences. Claims for defects shall not exist in the case of only insignificant deviations from the agreed or customary quality or usability.
Claims for defects also do not exist in the case of non-reproducible software errors.
Our liability according to para. 11 remains unaffected.
- Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the delivery item was subsequently brought to a location other than the place of delivery or the customer’s branch office. This does not apply in cases of delivery recourse according to §§ 478, 479 BGB. Any claims under a right of recourse the customer may have against us in the event of resale of the goods shall only exist to the extent that the customer has not entered into any agreement with its customer exceeding the statutory claims for defects.
- The acknowledgement of material defects must always be made in writing.
§ 9 Prices, Terms of Payment, Defence of Uncertainty
- All prices are quoted in Euro excluding packaging, freight and any surcharges for small quantities ex works or ex warehouse, plus value added tax to be borne by the customer at the statutory rate.
- Services which are not part of the agreed scope of delivery shall, in the absence of any agreement to the contrary, be performed on the basis of our currently valid general price lists.
- We are entitled to unilaterally increase the remuneration appropriately (§ 315 BGB) in the event of an increase in material procurement costs, wage and ancillary wage costs as well as energy costs and costs due to environmental requirements if there are more than six months between conclusion of the contract and delivery.
- Our invoices are payable without deduction 30 days after the invoice date regardless of the receipt of the goods. However, we are also entitled to demand payment step by step against delivery of goods. If a discount has been agreed, it shall be calculated on the basis of the net amount and shall only be permissible if all other liabilities from the customer’s business relationship with us that are more than 30 days old have been fulfilled. Payment by bill of exchange excludes discount deduction.
- The customer shall be in default of payment within 35 days after delivery even without a reminder.
- Upon the occurrence of default, interest on arrears shall be charged at a rate of 8% above the respective base interest rate. The date of payment shall be the date on which the money is received by us or credited to our account. We reserve the right to assert claims for damages in excess thereof. Otherwise, default in the fulfillment of a claim shall result in the immediate maturity of all further claims on our part arising from the business relationship and the termination of all deferment agreements.
- If payment terms are not met or circumstances become known or recognizable which, according to our due commercial discretion, give rise to justified doubts as to the creditworthiness of the customer, including facts which already existed at the time of conclusion of the contract but of which we were not aware or should not have been aware, we shall be entitled, without prejudice to further statutory rights in such cases, to stop further work on current orders or deliveries and to demand advance payments or the provision of appropriate securities for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable grace period for the provision of such securities – without prejudice to further statutory rights. The customer is obliged to compensate us for all damages resulting from the non-execution of the contract.
- If payments are deferred and made later than agreed, interest at a rate of 8% above the base interest rate applicable at the time of the conclusion of the deferral agreement shall be owed for the deferral period without any notice of default being required.
- The customer shall only have a right of retention or right of set-off with regard to counterclaims that are not disputed or have been finally determined by a court of law, unless the counterclaim is based on a breach of material contractual obligations on our part. A right of retention can only be exercised by the customer if his counterclaim is based on the same contractual relationship.
- We accept offered bills of exchange only exceptionally by virtue of express agreement and only on account of performance. We charge discount charges from the due date of the invoice to the expiration date of the bill of exchange as well as bill charges. Interest and costs for discounting or collection of bills of exchange shall be borne by the customer. In the case of bills of exchange and checks, the date of their redemption shall be deemed the payment date. In the event of a rejection of bill discounting by our principal bank or if there are reasonable doubts that bill discounting will take place during the term of the bill, we shall be entitled to demand immediate cash payment upon return of the bill.
§ 10 Retention of title
- We reserve title to all equipment and goods delivered by us (hereinafter collectively referred to as “Reserved Goods”) until all our claims arising from the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, have been settled. This shall also apply to a balance in our favor if individual or all claims are included by us in a current account and the balance is drawn.
- The customer shall insure the reserved goods sufficiently, in particular against fire and theft. Claims against the insurance company arising from a case of damage affecting the reserved goods are hereby assigned to us in the amount of the value of the reserved goods.
- The customer is entitled to resell the delivered goods in the ordinary course of business. He is not permitted to make other dispositions, in particular pledges or the granting of ownership by way of security. If the goods subject to retention of title are not paid for immediately by the third party purchaser in the event of resale, the customer shall be obliged to resell them only subject to retention of title. The right to resell the goods subject to retention of title shall lapse without further ado if the customer suspends payment or defaults on payment to us.
- The customer hereby assigns to us all claims, including securities and ancillary rights, accruing to him from or in connection with the resale of goods subject to retention of title against the end customer or against third parties. He may not enter into any agreement with his customers that excludes or impairs our rights in any way or nullifies the advance assignment of the claim. In the event of the sale of goods subject to retention of title with other items, the claim against the third party purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer, unless the amounts attributable to the individual goods can be determined from the invoice.
- The customer shall remain entitled to collect the claim assigned to us with regard to the sold goods subject to retention of title until our revocation, which is admissible at any time. At our request, he shall be obliged to provide us with the information and documents required to collect assigned claims and, if we do not do so ourselves, to inform his customers immediately of the assignment to us.
- If the customer includes claims from the resale of goods subject to retention of title in a current account relationship existing with his customers, he shall already now assign to us a recognized closing balance resulting in his favor in the amount corresponding to the total amount of the claim from the resale of our goods subject to retention of title included in the current account relationship.
- If the customer has already assigned claims from the resale of the goods delivered or to be delivered by us to third parties, in particular on the basis of real or unreal factoring, or has entered into other agreements on the basis of which our current or future security rights may be impaired in accordance with Clause 10, the customer shall notify us thereof without undue delay. In the event of non-genuine factoring, we shall be entitled to withdraw from the contract and demand the return of goods already delivered; the same shall apply in the event of genuine factoring if the customer cannot freely dispose of the purchase price of the claim under the contract with the factor.
- In the event of conduct in breach of contract, in particular in the event of default in payment, we shall be entitled – without having to withdraw from the contract beforehand – to take back all goods subject to retention of title; in this case, the customer shall be obliged to surrender the goods without further ado, unless he is guilty of only a minor breach of duty. We may enter the customer’s business premises at any time during normal business hours in order to ascertain the stock of the goods delivered by us. Taking back the reserved goods shall only constitute withdrawal from the contract if we expressly declare this in writing or if mandatory statutory provisions provide for this. The customer must inform us immediately in writing of any access by third parties to goods subject to retention of title or claims assigned to us.
- If the value of the securities to which we are entitled in accordance with the above provisions exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the customer’s request.
§ 11 Exclusion and limitation of liability
- We shall be liable for our own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents as well as for the breach of essential contractual obligations and in the event of justifiable impossibility and substantial breach of duty. The same shall apply if, in the event of a breach of other obligations within the meaning of section 241 para. 2 BGB the customer can no longer be expected to accept our performance. Furthermore, we shall also be liable in the event of injury to life, limb and health by legal representatives or vicarious agents. The same shall apply insofar as we have assumed a guarantee for the quality of our goods or the existence of a performance outcome or a procurement risk, and in the case of liability under the Product Liability Act.
- In all other cases, we shall not be liable for all claims for damages or reimbursement of expenses against us arising from the present contractual relationship due to culpable breach of duty, irrespective of the legal grounds, in the event of slight negligence.
- In the case of the above liability according to § 11.2 and liability without fault, in particular in the case of initial impossibility and defects of title, we shall only be liable for the typical and foreseeable damage.
- We shall only be liable from the assumption of a procurement risk if we have expressly assumed the procurement risk by virtue of a written agreement.
- Liability for indirect and consequential damages is excluded unless we have breached a material contractual obligation or we, our executives or vicarious agents are accused of intentional or grossly negligent breach of duty.
- Any further liability is excluded.
- The exclusions or limitations of liability pursuant to the above §§ 11.2. until 11.6. shall apply to the same extent in favor of our executive and non-executive employees and other vicarious agents as well as our subcontractors.
- Claims by the customer for damages arising from this contractual relationship may only be asserted within a preclusion period of one year from the statutory commencement of the limitation period.
- A reversal of the burden of proof is not associated with the above provisions.
§ 12 Place of performance; place of jurisdiction; applicable law
- The place of performance for all contractual obligations is the registered office of our company. The exclusive place of jurisdiction for all disputes shall be – to the extent permitted by law – the court having jurisdiction over the registered office of our company. However, we are also entitled to take action against the customer at his general place of jurisdiction.
- All legal relations between the customer and us shall be governed exclusively by the laws of the Federal Republic of Germany, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 13 Industrial property rights and copyrights; defects of title
- Unless otherwise agreed, we are obligated to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only within the Federal Republic of Germany. If a third party asserts justified claims against the customer due to the infringement of property rights by deliveries provided by us and used in accordance with the contract, we shall be liable to the customer as follows:
- We shall, at our option and at our expense, either obtain a right of use for the Supplies concerned, modify them so that the IPR is not infringed, or replace them. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights of withdrawal or reduction. The customer cannot demand compensation for futile expenses.
- Our obligation to pay damages shall be governed by § 11.
- The aforementioned obligations on our part shall only exist insofar as the customer has immediately notified us in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for us. If the customer discontinues the use of the delivery for reasons of mitigation of damages or other reasons, he shall be obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
- Claims of the customer are excluded insofar as the customer is responsible for the infringement of property rights.
- Claims of the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by us or by the fact that the delivery is modified by the customer or used together with products not supplied by us.
- In the event of other defects of title, the provisions of § 8 shall apply accordingly.
- Further claims or claims other than those regulated here and in § 8 by the Customer against the Customer and its vicarious agents due to a defect of title are excluded.
§ 14 Access to e-mails; obligations in electronic commerce
- We are only obliged to retrieve incoming e-mails once every working day. E-mails received by us between 09:00 – 17:00 shall be deemed to have been received at 17:00, unless proof of earlier receipt is provided. Emails received by us outside of these hours will be deemed to have been received on the next business day at 17:00, unless evidence of earlier receipt is provided. The obligations of § 312e I Ziff. 1 -3 BGB are waived.
§ 15 Secrecy
- (All business or technical information of whatever kind made available by us, including features to be taken from any objects and documents handed over, and any other knowledge or experience shall be kept secret from third parties and may only be made available in the customer’s own business to those persons who must necessarily be involved in its use for the purpose of delivery to the customer and who are also obliged to maintain secrecy; they shall remain our property exclusively. Such information may not be reproduced or used commercially without our prior written consent.
- No confidentiality obligation applies to such information that can be proven to be
– were already openly knowledgeable at the time of their transmission,
– have become openly known after their transmission, without this being the responsibility of the customer,
– have been made available to the customer by a third party after their transmission in a legally permissible manner and without restriction with regard to confidentiality or use.
The obligation to maintain secrecy ends two years after the end of the contractual relationship between us and the customer. At our request, all information originating from us (including any copies or records made, if applicable) and items provided on loan shall be returned to us immediately and in full or destroyed. The destruction must be confirmed to us in writing. We reserve all rights to such information (including copyrights and the right to use industrial property rights, such as patents, utility models, trademark protection, etc.). Insofar as these have been made accessible to us by third parties, this reservation of rights shall also apply in favor of these third parties. Drawings, models, templates, samples and similar objects may not be handed over or otherwise made accessible to unauthorized third parties. The reproduction of such items is only permitted within the scope of operational requirements and copyright regulations. The contracting parties may only advertise their business relationship with prior written consent.
§ Section 16 Opening of insolvency or composition proceedings; suspension of payments
- An application for the opening of insolvency or composition proceedings by the customer or the customer’s suspension of payments not based on justified rights of retention or other rights shall entitle us to withdraw from the contract at any time or to make the delivery of the object of sale dependent on the prior fulfillment of the payment obligation. If the delivery of the purchased item has already taken place, the purchase price shall become due immediately in the aforementioned cases. We are also entitled to reclaim the object of sale in the aforementioned cases and to retain it until the purchase price has been paid in full.
- The regulations acc. § 15.1. shall also apply if we have accepted checks or bills of exchange on account of payment and the drawee or drawer files an application for the opening of insolvency or composition proceedings or suspends his payments.
§ 17 Severability clause
In the event that individual provisions of the contract are invalid, the remaining provisions shall remain in full force and effect. Invalid provisions shall be replaced without further ado by provisions that come as close as possible to those that are legally permissible.
In accordance with the provisions of the Federal Data Protection Act, we would like to point out that our accounting is managed by a computer system and in this context we also store the data received as a result of the business relationship with the customer.