§ 1 General
- Our offers are made on the basis of the following “Terms and Conditions”. These form the basis of all offers and agreements and are deemed to be accepted by placing an order or accepting delivery for the duration of the entire business relationship. Deviating conditions that are not expressly accepted in writing are not binding for the seller, even if they have not been expressly contradicted.
- All agreements made between the seller and the buyer for the purpose of executing a contract are set out in writing in this contract.
- The provisions of the terms and conditions apply – unless otherwise expressly stated – to both consumers and entrepreneurs.
§ 2 Offer and offer documents
- The seller’s offer is subject to change without notice, unless otherwise stated in the order confirmation.
- The documents belonging to the offers (e.g. illustrations, drawings, CAD data, weight or dimensional data or other technical data, as well as DIN, VDE, UL, SAE or other operational or inter-company standards referred to) merely identify the subject matter of the contract in more detail and do not constitute a guarantee of characteristics.
- The Seller’s written order confirmation shall be decisive for the content and scope of the contract. Collateral agreements, amendments, supplements, etc. require the written confirmation of the seller.
- The seller reserves the right of ownership and copyright to illustrations, drawings, CAD data, photos, calculations and other documents. This also applies to documents marked “confidential”. Any disclosure to third parties for any purpose whatsoever requires the express written consent of the Seller.
§ 3 Prices and terms of payment
- Unless otherwise stated in the order confirmation, prices are generally ex works (EXW) excluding packaging, which is invoiced separately. The packaging used by the seller is exclusively intended for the transport of the goods and is therefore transport packaging.
- The Seller reserves the right to adjust its prices accordingly if, after conclusion of the contract, cost reductions or cost increases occur, in particular due to collective wage agreements, currency fluctuations or changes in the price of materials (e.g. copper price). The Seller shall prove this to the Buyer upon request.
- Statutory value-added tax is not included in the prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing.
- The purchase price and prices for ancillary services are due for payment within the agreed payment period upon handover of the object of purchase, which is documented by a receipted delivery note, and handover or transmission of the invoice. In any case, the date on which the service is provided and not a possibly different invoice date shall be decisive. If the buyer is in default of payment, the seller – if the buyer is an entrepreneur – is entitled to demand monthly interest on arrears at a rate of 5% above the base rate. If the seller is able to prove higher damages caused by default, he is entitled to claim these damages. However, the Buyer shall be entitled to prove to the Seller that he has suffered no damage or considerably less damage as a result of the delay in payment.
- The deduction of a discount requires a special written agreement.
- The buyer may only offset against the seller’s claims if the buyer’s counterclaim is undisputed or a legally binding title exists; the buyer may only assert a right of retention if it is based on claims arising from the purchase contract.
§ 4 Delivery time
- The start of the delivery period stated by the seller requires the clarification of all order-related and technical questions.
- The observance of the seller’s delivery periods further presupposes the timely and proper fulfilment of the purchaser’s obligations. We reserve the right to raise the defence of non-performance of the contract.
- Delivery dates and delivery periods, which can be agreed upon bindingly or non-bindingly, must be stated in writing. Delivery periods begin with the acceptance of the contract or with the sending of the order confirmation.
- If the seller is prevented from performing within the agreed period due to circumstances for which he or his vicarious agent is responsible (delay in delivery), he shall be liable in accordance with the statutory provisions. If the delay in delivery is not attributable to the seller or his vicarious agents, he shall only be liable for the foreseeable, typically occurring damage.
- Force majeure and events which temporarily prevent the Seller from delivering the object of purchase on the agreed date or within the agreed period through no fault of his own shall entitle the Seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. If such disruptions lead to a delay in performance of more than four months, the buyer may withdraw from the contract. Other rights of withdrawal remain unaffected.
- The buyer is obliged to accept the purchased item. If the buyer is in default of acceptance, the seller is entitled to demand compensation for the damage incurred by him as a result.
- During the delivery period, the manufacturer reserves the right to make changes in design or form, deviations in colour shade and changes to the scope of delivery, provided that the changes or deviations are reasonable for the buyer, taking into account the interests of the seller. If the seller or the manufacturer uses signs or numbers to designate the order or the ordered object of purchase, no rights can be derived from this alone with regard to the concretization of the object of purchase or the scope of delivery.
§ 5 Transfer of risk
- Unless otherwise stated in the order confirmation, delivery “ex works” (EXW, Incoterms 2020) is agreed.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon delivery (e.g. upon collection by a forwarding agent).
- In the event that the buyer is an entrepreneur according to § 14 BGB (German Civil Code), the risk shall pass to the buyer upon dispatch of the goods when the goods are handed over to the person carrying out the transport or when the goods have left the seller’s warehouse for the purpose of dispatch.
- Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back, with the exception of loaned packaging. The buyer is obliged to dispose of the packaging at his own expense.
§ 6 Liability for material defects
- The limitation period for material defects is 1 year for newly manufactured goods if the buyer is an entrepreneur according to § 14 BGB. Otherwise, the statutory limitation period of 2 years shall apply. In the case of used goods, the statutory period of limitation is 1 year if the buyer is an entrepreneur in accordance with § 14 BGB. If the buyer is not a consumer, the sale of used goods is carried out under exclusion of any liability for material defects. It begins with the delivery of the goods.
- The buyer’s claims for the removal of defects are limited with priority to a claim for subsequent performance, i.e. a claim for rectification of defects or replacement delivery. If the buyer is not a consumer, the seller has the right to choose between repair or replacement. If the repair or replacement fails several times, the buyer can demand a reduction in price or withdraw from the contract. The rectification of defects has failed if and to the extent that a deadline set for the seller for subsequent performance has elapsed without result. The prerequisites for exercising the right of rescission are determined by § 323 BGB.
- The Seller shall be liable in accordance with the statutory provisions if the Buyer asserts claims for damages based on malice, intent or gross negligence, including malice, intent or gross negligence on the part of its representatives or vicarious agents. Insofar as the Seller is not accused of intentional breach of contract, liability is limited to foreseeable, typically occurring damages. If the claim for damages is based on a culpably omitted removal of defects, it is limited to the corresponding rates of the DAT/Schwacke list with regard to installation and removal costs. Otherwise, liability for damages is excluded; in this respect, the seller is in particular not liable for damages which have not occurred to the object of delivery, unless this involves injury to life, body and/or health.
- In the event of rectification of defects, the Seller shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs. This shall only apply to non-consumers insofar as the costs are not increased by the fact that the object of sale was taken to a place other than the place of performance.
- The buyer must assert claims for the removal of defects with the seller.
- In the case of a defect that is based on faulty assembly, the seller is only obliged to be liable for material defects if the assembly or installation of the sold item was carried out professionally. The buyer must demonstrate and prove that the assembly or installation was carried out competently.
- If products are manufactured according to design documents received from the buyer, the seller is only liable for the manufacturing. If the Seller is held liable by third parties for damages which are not caused in the Seller’s production area but in the area attributable to the Buyer, the Buyer shall be obliged to indemnify the Seller against such claims.
§ 7 Liability on other legal grounds
- Any liability for damages beyond the liability stipulated in § 6 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for material damage in accordance with § 823 BGB.
- As far as the liability for damages against the seller is excluded or limited, this also applies to the personal liability for damages of his employees, workers, staff, representatives and vicarious agents.
- The mandatory provisions of the Product Liability Act shall remain unaffected.
§ 8 Reservation of ownership
- The object of sale shall remain the property of the seller until the claims to which the seller is entitled on the basis of the purchase contract have been settled in full. If the buyer is a merchant within the meaning of the German Commercial Code (HGB), the seller retains title to all delivery items until all payments arising from the business relationship have been received.
- The buyer is obliged to treat the object of purchase with care; in particular, he is obliged to insure it sufficiently at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is necessary, the purchaser must carry this out in good time at his own expense.
- In the event of seizure or other interventions by third parties, the buyer must inform the seller immediately in writing so that the seller can take legal action in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the Buyer shall be liable for the loss incurred by the Seller.
- The Buyer shall be entitled to resell the delivery items in the ordinary course of business; however, the Buyer hereby assigns to the Seller all claims in the amount of the final invoice amount of the purchase price claim (including value added tax) owed by the Buyer which accrue to the Seller from the resale against its customers or third parties, irrespective of whether the delivery items have been resold without or after processing. The buyer remains authorized to collect these claims even after the assignment. The seller’s authority to collect the claims himself remains unaffected. The seller undertakes not to collect the claims himself as long as the buyer fulfils his payment obligations in accordance with the contract and no application for the opening of insolvency proceedings has been filed. If one of the latter circumstances has occurred, the buyer shall, at the request of the seller, provide the seller with all information necessary for the collection of the assigned claims and hand over the relevant documents and inform the debtors concerned (third parties) of the assignment.
- In the event that the realisable value of the Seller’s securities exceeds the claims to be secured by more than 20%, the Seller shall be obliged to release the securities to which the Seller is entitled at the Buyer’s request. The selection of the securities to be released is the responsibility of the seller.
- The processing or alteration of the purchased item by the buyer is always carried out for the seller. If the object of sale is processed with other objects not belonging to the seller, the seller shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the object of sale delivered under reservation of ownership.
- If the object of sale is inseparably mixed with other objects not belonging to the seller, the seller shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the buyer’s item is to be regarded as the main item, it shall be deemed agreed that the buyer shall transfer proportional co-ownership to the seller. The buyer shall hold the sole ownership or co-ownership thus created in safekeeping for the seller.
- The Seller reserves the right of ownership of all tools, devices, test setups, machines and equipment. Collateral agreements and supplements must be expressly made in writing. Tool costs stated in offers only include the development and construction costs, but not the automatic transfer of ownership to the buyer. The buyer cannot demand the return of tools etc. unless the right of ownership has been assured to him in writing.
§ 9 Moulds, tools and devices
- Unless otherwise agreed, moulds, tools, devices and test superstructures (hereinafter referred to as “tools”) shall only be charged at a cost share of 80%. They shall remain our sole property and shall not be handed over to the Buyer in order to preserve our know-how. We also reserve the copyright to all tools. In return, the seller assures the buyer that the tools will be stored and maintained conscientiously.
- If it is nevertheless agreed that tools are to be handed over, the buyer shall bear all costs arising from the relocation (packaging costs, insurance costs, shipping costs, etc.)
- The agreed pro rata tool costs shall be calculated upon presentation of initial samples in accordance with drawings and are due for payment immediately, without deduction of any discount, unless otherwise agreed. Any payment agreements deviating from this, which may have been agreed with the buyer, are in any case subordinate and invalid with regard to the calculation of tools.
- However, in view of the different legal situations in different countries, the parties to the contract shall in principle reserve the right to reach a deviating agreement on the ownership or the right of possession of the moulds, tools and equipment.
- If the seller is the owner of the tools, they will only be used for orders of the buyer as long as the buyer meets his payment and acceptance obligations. The seller’s obligation to keep the tools expires 2 years after the last (partial) delivery and after prior notification of the buyer.
- If the buyer is the owner of the tools, the seller has the right to retain the tools until the buyer has fulfilled all the conditions of the agreement. The transfer of the tools to the buyer is replaced by the seller’s obligation to retain the tools. Irrespective of the Buyer’s statutory claim for return of the tools and of their service life, the Seller shall be entitled to exclusive possession of the tools until a minimum quantity to be agreed upon has been accepted and/or until a certain period of time has expired. The Seller shall mark the tools as third-party property and, at the Buyer’s request, insure them at the Buyer’s expense. In the event that the tools are surrendered and the associated transfer of know-how, the Seller shall be entitled to appropriate compensation.
- In the case of Buyer’s own tools in accordance with § 5 and/or tools made available on loan by Buyer, Seller’s liability with regard to storage and care shall be limited to the care exercised in its own affairs. Costs for maintenance and insurance shall be borne by the Buyer. The Seller’s obligations shall expire if the Buyer does not collect the tools after completion of the order and a corresponding request. In this case he is entitled to return them to the buyer at the buyer’s expense. As long as the buyer has not fulfilled his contractual obligations in full, the seller shall in any case have a right of retention of the tools and devices.
§ 10 Changed circumstances at the Buyer
- If the financial circumstances (liquidity) of the buyer deteriorate considerably (e.g. if a cheque or bill of exchange is not honoured or if insolvency or composition proceedings are applied for against the buyer’s assets), if the buyer disposes of goods outside the normal course of business which the seller has delivered under reservation of title or if the buyer dissolves his company, the seller is entitled to make all claims immediately due, to repurchase bills of exchange at the buyer’s expense and to continue delivery only against advance payment or provision of security.
- In the event of cessation of payments or over-indebtedness of the buyer or if insolvency or composition proceedings are applied for against his assets, the seller is entitled, at his discretion, either to assert the above rights or to withdraw from the contract in accordance with the statutory provisions.
§ 11 Assignment of claims
The assignment of claims which the buyer is entitled to against the seller from the business relationship is excluded.
The seller is entitled to electronically store and process all data about the buyer, which are in connection with the business relationship, for the purpose of the execution of the contract in compliance with the regulations of the Federal Data Protection Act. Further information on data protection can be found here.
§ 13 Place of jurisdiction and place of performance
- If the buyer is a merchant within the meaning of the German Commercial Code (HGB) or a legal entity under public law, the place of jurisdiction is the location of the seller’s registered office. However, the seller is also entitled to sue the buyer at the court responsible for his place of residence.
- Unless otherwise stated in the order confirmation, the place of performance shall be the Seller’s place of business.
§ 14 Applicable law
The contractual relationship shall be governed by German law. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
§ 15 Severability Clause
Should individual provisions of the “General Terms and Conditions” be invalid, the validity of the contract and the “General Terms and Conditions” shall remain unaffected by this in all other respects. Ineffective provisions will be replaced by the legal regulation.
Status: April, 2020