§ 1 Scope, Form
(1) Our following General Terms and Conditions (GTC) apply to all our business relationships with our customers (buyers).
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods, regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the buyer’s order, or at least in the last text form communicated to him, also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the buyer will only become part of the contract if we have expressly agreed to their validity. This requirement of consent applies in any case, for example even if we perform the delivery to him unconditionally in knowledge of the buyer’s GTC.
(4) Individual agreements made with the buyer in individual cases (including collateral agreements, supplements, and amendments), particularly specific assurances of properties or recommendations for use of our goods as well as information about repair duration and deadlines, require our express written confirmation to be legally effective. An order is generally only considered accepted when it has been confirmed in writing by our company.
(5) Legally relevant declarations and notifications of the buyer in relation to the contract (e.g., setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Statutory form requirements and further evidence, especially in case of doubts about the legitimacy of the declaring party, remain unaffected.
(6) The statutory provisions apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of Contract
(1) Our offers are non-binding and without obligation. This also applies if we have provided the buyer with catalogs, technical documentation (e.g., drawings, plans, calculations), other descriptions, or documents – including in electronic form – to which we reserve ownership and copyright rights; they must not be reproduced or made accessible to third parties without our express written consent.
(2) The buyer’s order of the goods is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two (2) weeks after its receipt. Orders are generally binding.
(3) The acceptance can be declared either in writing (e.g., by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery and/or unloading times stated by us are always non-binding unless otherwise agreed in writing. The start of the delivery period presupposes the receipt of all documents to be supplied by the buyer, such as necessary approvals, releases, clarification, and approval of the plans, other obligations as well as the agreement in all technical questions, the clarification of which the parties reserved upon conclusion of the contract. If these prerequisites are not met in time, the delivery time will be extended accordingly.
(2) If we cannot meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we will inform the buyer immediately and inform him of the expected new delivery period. If the performance is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part. A case of non-availability of performance in this sense is especially the untimely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in delay of delivery, the buyer can demand lump-sum compensation for his delay damage. The damage lump sum is 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the buyer has suffered no damage or only significantly less damage than the above lump sum.
(4) The buyer’s rights under § 8 of these GTC and our statutory rights, particularly in case of exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is ex warehouse, where the place of performance for the delivery and any supplementary performance is also located. At the buyer’s request and expense, the goods will be shipped to another destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, transport company, shipping route, packaging) ourselves. Transport insurance is only concluded at the buyer’s express request. The costs arising from this are borne solely by the buyer.
(2) The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the latest upon handover. In the case of shipment purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the delay risk passes already upon delivery of the goods to the carrier, the freight forwarder or the person or institution otherwise designated to carry out the shipment. If an acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the work contract law apply accordingly for an agreed acceptance. The handover or acceptance is equivalent if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to perform a cooperation act, or delays our delivery for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g., storage costs). For this, we charge a lump-sum compensation of 0.5% of the net price (delivery value) per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification of readiness for dispatch of the goods. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is to be offset against further monetary claims. The buyer is allowed to prove that we have suffered no damage or only significantly less damage than the above lump sum.
§ 5 Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract apply, ex warehouse, plus statutory VAT. These prices do not include installation, commissioning, and assembly costs (see special assembly conditions) as well as packaging, freight, postage, and insurance costs. They are calculated based on the wages, material, and other costs valid on the day of our offer submission. If additional or increased charges – particularly customs duties, levies, currency adjustments – arise due to changed legal standards between contract conclusion and delivery, we are entitled to increase the agreed purchase price accordingly.
(2) In the case of shipping the goods to the buyer (according to § 4 Para. 1 of these GTC), the buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes, and other public charges are borne by the buyer.
(3) The purchase price is due and payable within 14 days from the date of invoice and delivery, unless otherwise agreed in writing. Deviating conditions (advance, installment payment, letter of credit, etc.) are reserved for us in individual cases. For foreign deliveries, we can demand the opening of an irrevocable and confirmed letter of credit, payable at a bank specified by us, or other equivalent securities. We send our invoices either by post or electronically by email. However, we are entitled, even within an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
(4) With the expiration of the above payment period, the buyer is in default. The purchase price is subject to interest during the default at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. For merchants, our claim to the commercial due date interest (§ 353 HGB) remains unaffected.
(5) The buyer is entitled to set-off or retention rights only to the extent that his claim is legally established or undisputed. In the event of defects in the delivery, the buyer’s counter-rights remain unaffected.
§ 6 Retention of Title
(1) Until full payment of all our present and future claims from the purchase contract and an ongoing business relationship (secured claims), we retain ownership and also the extended ownership of the sold goods.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is made or as far as third-party access (e.g., seizures) to the goods belonging to us occurs.
(3) In the event of the buyer acting contrary to the contract, particularly in the event of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory provisions and/or demand the return of the goods on the basis of the extended retention of title. The demand for return does not simultaneously include the declaration of withdrawal; rather, we are entitled to demand only the return of the goods and to reserve the right of withdrawal.
(4) The buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with the
following provisions:
a) The retention of title extends to the full value of the products resulting from the processing, mixing, or combining of our goods, with us deemed the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The buyer assigns to us as security any claims against third parties arising from the resale of the goods or the product, in total or to the amount of our possible co-ownership share according to the preceding paragraph. We accept the assignment. The buyer’s obligations mentioned in paragraph 2 also apply concerning the assigned claims.
c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no deficiency in his ability to pay, and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the corresponding documents, and notifies the debtors (third parties) of the assignment. Furthermore, we are entitled in this case to revoke the buyer’s authority to further sell and process the goods subject to retention of title.
d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer’s request.
(5) The buyer is obligated to store the reserved goods carefully and insure them adequately at his expense against loss and damage. The buyer assigns to us, already at this point, all claims arising from the insurance contracts concerning the reserved goods. We accept this assignment. We are entitled to disclose the assignment to the insurance company if the buyer does not meet his payment obligations. If necessary, the buyer is obligated to provide us with the insurance policy.
§ 7 Claims for Defects of the Buyer
(1) For the buyer’s rights in case of material and legal defects (including incorrect and short delivery as well as improper assembly or defective assembly instructions), the statutory provisions apply unless otherwise stipulated below. In all cases, the special statutory provisions remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g., by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement made about the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were made public by us (especially in catalogs or on our Internet homepage) at the time of the conclusion of the contract are considered an agreement on the quality of the goods.
(3) Insofar as the quality was not agreed, it is to be assessed according to the statutory regulation whether a defect is present or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we do not assume any liability for public statements of the manufacturer or other third parties (e.g., advertising statements) to which the buyer did not refer to us as decisive for the purchase.
(4) The buyer’s claims for defects presuppose that he has complied with his statutory inspection and complaint obligations (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection, or at any later time, we must be notified of this immediately in writing. In any case, obvious defects must be reported within seven (7) working days from delivery and defects not recognizable during the inspection within the same period from discovery. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect not reported is excluded.
(5) If the delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse supplementary performance under the statutory conditions remains unaffected.
(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the due purchase price. However, the buyer is entitled to retain a part of the purchase price appropriate in proportion to the defect.
(7) The buyer must give us the necessary time and opportunity for the owed supplementary performance, especially to hand over the goods for inspection purposes. In the case of replacement delivery, the buyer must return the defective item to us according to the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install.
(8) The expenses necessary for the purpose of inspection and supplementary performance, particularly transport, travel, labor, and material costs, will be borne or reimbursed by us according to the statutory provisions if there is indeed a defect. Otherwise, we can demand reimbursement of the costs arising from the unjustified defect removal request (particularly inspection and transport costs), unless the lack of defect was not recognizable to the buyer.
(9) In urgent cases, e.g., if operational safety is endangered or to prevent disproportionate damages, the buyer has the right to remedy the defect himself and demand reimbursement from us for the objectively necessary expenses. We must be informed immediately, if possible in advance, of such self-remedying. The right to self-remedy does not exist if we were entitled to refuse corresponding supplementary performance according to the statutory provisions.
(10) If supplementary performance has failed or a reasonable deadline set by the buyer for supplementary performance has expired unsuccessfully or is dispensable according to statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal for an insignificant defect.
(11) Claims of the buyer for damages or reimbursement of futile expenses only exist according to § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Unless otherwise stated in these GTC including the following provisions, we are liable for a breach of contractual and non-contractual obligations according to the statutory provisions.
(2) We are liable for damages – regardless of the legal reason – within the scope of fault-based liability in case of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g., diligence in own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body, or health,
b) for damages arising from a significant breach of a substantial contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for according to statutory provisions. They do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the buyer according to the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (particularly according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.
§ 9 Limitation Period
(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one (1) year from delivery. If an acceptance has been agreed, the limitation period begins with the acceptance.
(2) The above limitation periods of the purchase right also apply to contractual and non-contractual damage claims of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Damage claims of the buyer according to § 8 Para. 2 S. 1 and S. 2(a) as well as according to the Product Liability Act expire exclusively according to the statutory limitation periods.
§ 10 Choice of Law and Place of Jurisdiction
(1) For these GTC and all legal relationships between us and the buyer, the law of the Federal Republic of Germany applies to the exclusion of international uniform law, particularly the UN Sales Convention. Prerequisites and effects of the retention of title according to § 6 are subject to the law of the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the buyer is a merchant in the sense of the Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Munich. However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.