§1 – General terms and conditions
All our deliveries, services and offers are made exclusively on the basis of these terms and conditions, even without express mention in negotiations. Our GTC shall apply to all contracts with entrepreneurs, legal entities under public law and special funds under public law and thereby also to all future business relations, even if they are not expressly agreed again. Our GTC shall be deemed accepted at the latest upon acceptance of the goods.
- Any terms and conditions of the Purchaser that conflict with or deviate from our terms and conditions shall only apply if we have expressly agreed to their application in writing.
§2 – Quotation and Documents
- Our sales employees are not authorized to make verbal collateral agreements or assurances that go beyond the content of the written contract.
- Delivery time specifications are approximate and non-binding, unless their binding nature has been expressly agreed.
- Design drawings and similar company documents remain our property and must always be treated as strictly confidential. They may not be made accessible to third parties without our consent. In the event of a breach of these obligations, the customer shall be liable to us in full in accordance with the statutory provisions.
§3 – Prices
- Our prices are ex works, including loading and packaging. The statutory value added tax on the day of invoicing as well as the freight costs shall be added to the prices. Costs of any agreed transport or similar insurance shall be borne by the Purchaser, unless otherwise agreed. In the case of partial deliveries, each delivery may be invoiced separately.
- If no prices have been agreed upon conclusion of the contract, our prices valid on the day of delivery shall apply.
§4 – Terms of payment
- Unless otherwise stated in the order confirmation (alternatively in the invoice), the price is due for payment net (without deduction) within 14 days after invoicing. We shall be entitled to invoice down payments to a reasonable extent in accordance with deliveries and services already performed.
- If the customer is in default of payment, we shall be entitled to charge default interest in the amount of 8 percentage points above the base interest rate. In doing so, we may at any time prove and invoice a higher interest loss. In the event of default in payment, we shall also be entitled to revoke any agreed rebates, discounts and other benefits.
- Non-compliance with the terms of payment, default or circumstances which are likely to reduce the creditworthiness of the customer shall result in the immediate maturity of all our claims.
- The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us.
- The Purchaser shall be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
We are not obliged to accept bills of exchange and checks. Credit notes in this respect shall always be deemed to be subject to encashment (on account of payment, not in lieu of performance); they shall be made with value date of the day on which we can dispose of the equivalent value. Bills of exchange shall be credited subject to the debiting of the discount charged to us on their onward transfer, stamp duty and bank charges, collection charges, if any.
- Further contractual or legal claims in the event of delay remain reserved.
§5 – Delivery time and delivery obstacles
- The delivery period shall commence with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the Purchaser and before receipt of an agreed down payment and clarification of all technical questions.
- The delivery period shall be deemed to have been complied with if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
In the event of unforeseen hindrances which are beyond our control and which we were unable to avert despite exercising reasonable care in the circumstances of the case - regardless of whether they occur at our premises or those of a subcontractor - such as force majeure (e.g. war and natural disasters), delays in the delivery of essential raw materials, etc., we shall be entitled to withdraw from the delivery contract in whole or in part or to extend the delivery period by the duration of the hindrance. We shall be entitled to the same rights in the event of strikes or lockouts at our premises or those of our suppliers. We shall notify our customers of such circumstances without delay.
- In the event of a delay in delivery, the purchaser may withdraw from the contract after a reasonable period of grace has expired without result; in the event of impossibility of our performance, he shall also be entitled to this right without a period of grace. Delay in delivery shall be deemed equivalent to impossibility if delivery is not made for more than one month. Claims for damages (including any consequential damages) shall be excluded without prejudice to paragraphs 5 and 6, which do not aim at reversing the burden of proof; the same shall apply to reimbursement of expenses.
- If the delay in delivery is due to an intentional or grossly negligent breach of duty attributable to us, we shall be liable in accordance with the statutory provisions; any fault on the part of our vicarious agents shall be attributed to us. The same shall apply in the event of injury to life, limb or health or if a delivery time guarantee is given. If we culpably, but not intentionally, violate an essential contractual obligation or a "cardinal obligation", liability shall be limited to the foreseeable damage typical for the contract; otherwise it shall be excluded pursuant to paragraph 4. In the event of reimbursement of expenses, the above shall apply accordingly.
- If a transaction for delivery by a fixed date has been agreed, we shall be liable in accordance with the statutory provisions; the same shall apply if the customer can claim that its interest in the performance of the contract has ceased to exist due to the delay for which we are responsible.
- If the shipment is delayed at the request of the customer, he will be charged for the costs incurred by the storage, starting one month after notification of readiness for shipment.
§6 – Transfer of risk
- In the case of a debt to be discharged by the customer, the risk shall pass to the customer when the goods are segregated and made available as agreed. The same shall apply in the case of debts to be discharged from the time of handover to the transport person. In the case of a debt to be discharged on delivery, the risk shall pass when the goods leave the works premises. The same applies in the case of creditor default. Deviating individual agreements have priority.
- Delivered items shall be accepted by the Purchaser, even if they have insignificant defects, without prejudice to its rights under §§ 8, 9. Partial deliveries are permissible, provided that they are reasonable for the purchaser.
§7 – Retention of title
- We retain title to all goods delivered until the customer has paid all present and future claims arising from the business relationship. If the check/bill of exchange procedure is carried out, our retention of title shall continue to exist even after the payment of the check until our release from the liability under the bill of exchange.
- In the event of conduct in breach of contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the goods. The mere taking back of the goods shall only constitute a rescission of the contract if a reasonable period of time set by us for performance has expired to no avail and the rescission has been expressly declared. The costs incurred by us as a result of taking back the goods (in particular transport costs) shall be borne by the customer. Furthermore, we shall be entitled to prohibit the customer from any resale or processing, combination or mixing of the goods delivered under retention of title and to revoke the direct debit authorization (§ 7 V). The purchaser may only demand delivery of the goods taken back without express declaration of withdrawal after full payment of the purchase price and all costs.
- The purchaser is obliged to handle the goods with care, which includes in particular suitable and proper storage.
- The customer may neither pledge nor assign by way of security the delivery item and the claims replacing it. In the event of seizures or other interventions by third parties, the purchaser must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Any costs of this action remaining to us despite a victory in the legal action pursuant to § 771 ZPO shall be borne by the customer.
- The purchaser shall be entitled to resell, process or mix the purchased goods in the ordinary course of business; in doing so, however, he hereby assigns to us all claims arising from the resale, processing, mixing or other legal grounds (in particular from insurance or tort) in the amount of the final invoice amount agreed with us (incl. VAT). If the delivered goods are resold together with other items that do not belong to the Purchaser, the Purchaser shall assign to us the resulting claims in the amount of the gross price agreed with us. The customer shall remain authorized to collect these claims even after the assignment, whereby our authorization to collect the claim ourselves shall remain unaffected.
However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment, and no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, the customer shall, upon request, disclose to us the assigned claims and the debtors, provide all information required for collection, hand over the relevant documents and notify the debtor (third party) of the assignment.
- The retention of title shall also extend to the products resulting from the processing or transformation of our goods at their full value, whereby these processes shall be carried out for us, so that we shall be deemed to be the manufacturer. If, in the event of processing or transformation with goods of third parties, their right of ownership remains, the purchaser shall grant us co-ownership in the ratio of the objective values of these goods; it is hereby already agreed that in this case the purchaser shall carefully store the goods for us. If our goods subject to retention of title are combined or inseparably mixed with other movable items to form a single item and if the other item is to be regarded as the main item, the customer shall transfer co-ownership to us on a pro rata basis insofar as the main item belongs to him; the customer shall hold the resulting (co-)ownership in safe custody for us. For the rest, the same shall apply to items thus created as to those delivered under retention of title.
- The securities to which we are entitled shall not be included to the extent that the estimated value of our securities exceeds the nominal value of the claims to be secured by 50%; we shall decide which securities have been released.
§8 – Liability for defects of quality and title
We shall be liable for defects of the delivery in the event of immediate and proper fulfillment of the inspection and complaint obligations from § 377 HGB (German Commercial Code) by the purchaser as follows; in the case of obvious defects, the complaint must be made within 72 hours after delivery:
- If there is a defect in the purchased item, we shall be entitled to choose whether to remedy the defect or to deliver a defect-free item (subsequent performance).
The prerequisite for this is that the defect is not insignificant. If one of the two or both types of this supplementary performance is impossible or disproportionate, we shall be entitled to refuse it. We may refuse subsequent performance as long as the customer does not fulfill his payment obligations towards us to an extent corresponding to the defect-free part of the performance.
- Should the subsequent performance referred to in paragraph 1 be impossible or fail, the Purchaser shall have the option either to reduce the purchase price accordingly or to rescind the contract in accordance with the statutory provisions; this shall apply in particular in the event of culpable delay or refusal of the subsequent performance, as well as if this fails for the second time. Notwithstanding paragraph 4, further claims of the Purchaser, irrespective of their legal basis (in particular claims arising from culpa in contrahendo, breach of principal and collateral contractual obligations, reimbursement of expenses with the exception of those pursuant to § 439 II BGB, tort and other tortious liability) shall be excluded; this shall apply in particular to claims arising from damage outside the object of sale and to claims for compensation for lost profits; also included are claims which do not result from the defectiveness of the object of sale.
- The above provisions shall also apply in the event of delivery of another item or a smaller quantity.
- We shall be liable in accordance with the statutory provisions if we or our vicarious agents or legal representatives violate our obligations intentionally or through gross negligence; the statutory provisions shall also apply if we culpably violate a material contractual obligation (cardinal obligation); unless we are charged with intent, our remaining liability shall be limited to the foreseeable damage typical for the contract.
We shall also be liable in accordance with the statutory provisions if we are charged with liability for injury to life, limb or health, as well as if liability exists under the Product Liability Act. The same shall apply in the event of the assumption of a guarantee and in the event of the assurance of a characteristic, if it is precisely a defect covered by this that triggers our liability. In the event of reimbursement of expenses, the above shall apply accordingly. A reversal of the burden of proof is not intended.
- No warranty is assumed for damage due to the following reasons: Unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage, unsuitable operating materials (in particular cooling, etc.), chemical, electrochemical or electrical influences (insofar as we are not responsible for them), improper modifications made by the customer or third parties without our prior approval.
- Claims due to defects shall become statute-barred one year after delivery of the purchased item, unless we are guilty of intent or injury to life, limb or health. In the case of an item that has been used for a building in accordance with its customary use and has caused its defectiveness, the limitation period shall not commence until 5 years have elapsed. Claims for reduction of the purchase price and the exercise of a right of rescission shall be excluded to the extent that the claim for subsequent performance is time-barred. In the case of sentence 3, however, the customer may refuse payment of the purchase price to the extent that he would be entitled to do so on the basis of the withdrawal or reduction; in the event of the exclusion of withdrawal and a subsequent refusal to pay, we shall be entitled to withdraw from the contract. The statutory limitation periods for the recourse of the entrepreneur from §§ 478 f. BGB remain unaffected.
§9 – Liability for collateral duties
If, due to our fault, the delivered item cannot be used by the customer in accordance with the contract as a result of omitted or faulty execution of proposals and consultations prior to or after conclusion of the contract as well as other contractual ancillary obligations, the provisions of §§ 8 and 10 shall apply accordingly to the exclusion of further claims of the customer.
§10 – Withdrawal of the customer and other liability on our part
- The following provisions shall apply to breaches of duty outside the warranty for material defects liability and shall neither exclude nor limit the statutory right of withdrawal. Likewise, any statutory or contractual rights and claims to which we are entitled shall neither be excluded nor limited.
- Further claims of the customer, irrespective of the legal grounds (in particular claims arising from culpa in contrahendo, breach of main and ancillary contractual obligations, reimbursement of expenses, tort and other tortious liability) shall be excluded; this shall apply in particular to claims arising from damage outside the object of sale and to claims for compensation for lost profit; this shall also include claims which do not result from the defectiveness of the object of sale. We shall be liable in accordance with the statutory provisions if we or our vicarious agents or legal representatives violate our obligations intentionally or by gross negligence; the statutory provisions shall also apply if we culpably violate a material contractual obligation (cardinal obligation); unless we are guilty of intent, our remaining liability shall be limited to the foreseeable damage typical for the contract. We shall also be liable in accordance with the statutory provisions if we are charged with liability for injury to life, limb or health. The same shall apply in the event of the assumption of a guarantee and in the event of the assurance of a characteristic, if it is precisely a defect covered by this that triggers our liability. In the event of reimbursement of expenses, the above shall apply accordingly. A reversal of the burden of proof is not intended.
§11 – Place of performance, place of jurisdiction, applicable law and allocation of the burden of proof
- The place of performance is the place of dispatch (place of work or storage).
- The place of jurisdiction is Weilheim in Obb., provided that the customer is also a merchant, a legal entity under public law or a special fund under public law. The same shall apply if the customer has no general place of jurisdiction in Germany. We shall also be entitled to sue the customer at other admissible places of jurisdiction.
- With regard to all claims and rights arising from this contract, the non-unified law of the Federal Republic of Germany (BGB, HGB) shall apply. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
- None of the clauses agreed upon throughout the Terms and Conditions are intended to alter the statutory or judicial allocation of the burden of proof.
§12 – Other provisions
- Changes to the contract can only become effective with our agreement.
- Should individual provisions of these terms and conditions be invalid or void in whole or in part, this shall not affect the remaining provisions. The contracting parties undertake to agree to a provision by which the meaning and purpose pursued by the invalid or void provision is largely achieved in the economic sphere.