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§ 1 General, scope of application
(1) The present general terms and conditions apply to all of our business relations with our customers (hereinafter referred to as „buyers“).The general terms and conditions are only valid if the buyer is an entrepreneur( § 14 BGB, German Civil Code), legal person of public law or separate estate of public law.
(2) The general terms and conditions apply in particular to contracts covering the sale and / or delivery of movables (hereinafter referred to as „goods“) regardless of whether the goods are manufactured by us or purchased from external suppliers (§§ 433, 651 BGB, German Civil Code). The general terms and conditions shall apply in their respective version as a framework agreement for future contracts concerning the sale and/or the delivery of movable property of goods with the same customer, without being required to refer back to them in every individual case; we will immediately notify our buyers of any changes of our general terms and conditions.
(3) Our general terms and conditions apply exclusively. Deviating, opposing or supplementary general terms and conditions of the buyer shall only apply then and insofar if and to the extent that we have expressly agreed they shall apply. This approval requirement shall apply in any case, for example also if we, being aware of the buyer’s general terms and conditions, execute the delivery to the buyer unconditionally.
(4) Individual agreements with the buyer (including side agreements, supplements and amendments) made in particular case shall have precedence over these general terms and conditions. For the content of such agreements a written contract respectively our written confirmation is decisive.
(5) Legally relevant declarations and notifications that have to be given to us the buyer after conclusion of the contract (e.g. the setting of deadlines, declarations on rescission or reduction), require the written form in order to be valid.
(6) Any references to the application of statutory provisions are for the purposes of clarification only. Even without such clarification the legal provisions shall therefore apply unless directly amended or expressly excluded in the general terms and conditions.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we provide the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, referrals to DIN standards), other product specifications or documents – also in electronic form – in which we reserve ownership and copyright.
(2)The order of the goods placed by the buyer is valid as binding offer of contract. Insofar as not otherwise indicated in the relevant order, we shall be entitled to accept this offer within 7 days after its receipt.
(3) Acceptance can be declared either in writing (e.g. through order confirmations) or through supply of goods to the buyer.
§ 3 Delivery deadline and delay in delivery
(1)Insofar as we cannot observe binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the buyer thereof immediately and at the same time communicate the estimated new delivery date. If the service is not available within the new delivery deadline, we are entitled to withdraw from the contract entirely or partly. Any payments already made by the buyer will be reimbursed immediately. Such a case of unavailability in this sense is in particular the delayed delivery of supplies by sub-suppliers, if we have concluded to a congruent covering transaction and neither we nor our sub-supplier are responsible or in individual case we are not obliged to provide the goods.
(2) The occurrence of a delay in delivery is determined in accordance with the legal provisions. In any case a reminder from the buyer is required.
(3) The rights of the buyer according to § 8 of these general terms and conditions and our legal provisions, particularly in the case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and / supplementary performance) remain unaffected.
§ 4 Delivery, transfer of risk, acceptance and delay in acceptance
(1) Delivery is ex warehouse and this is also the place of performance. At request and expense of the buyer, the goods may be shipped (sales shipment). Unless otherwise agreed, we ourselves are entitled to determine the type of shipping (especially transport company, shipment route, packaging).
(2) The risk of accidental loss or deterioration of the goods passes to the buyer at the time of handing over to the buyer at latest. In case of a sales shipment the risk of accidental loss or deterioration of the goods as well as the risk of delay passes already with the delivery of the goods to the forwarder, to the carrier or to the person or institution engaged with performing the transport. As far as an acceptance is agreed, this is authoritative for the passing of the risk. The legal provisions for a works contract also apply for an agreed acceptance. If the buyer delays in accepting the goods, the transfer shall still be deemed to have taken place.
(3) If the buyer accepts the goods with delay or if he violates culpably any other cooperation obligation or our delivery is delayed due to other reasons for which the buyer is responsable, we are entitled to demand compensation for any losses that may be caused including additional expenses (storage).
§ 5 Prices and terms of payment
(1) If nothing else has been agreed in an individual case our actual prices valid at the time of conclusion of the contract apply and, this means ex warehouse plus legal value added tax.
(2) In case of sales shipment (§ 4 section. 1) the buyer pays the transportation costs ex warehouse and the costs for a transportation insurance if requested by the buyer. Any customs duties, fees, taxes and other public charges are borne by the buyer. Transport packaging and all other packaging in accordance with the packaging regulations is not returnable and goes to the buyer’s property except for pallets and glass racks.
(3) The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods.
(4) With the expiry of the above mentioned payment deadline the buyer will be in default of payment. During the payment default, interest will be charged on the sales price in conformity with the legal default interest rate. We reserve the right to claim a further default damage. Our entitlement to commercial maturity interest (§ 353 HGB German Commercial Code) remains unaffected vis-à-vis merchants.
(5) The buyer shall have set-off or retention rights vis-à-vis the supplier to that it is valid and to the extent that its entitlement has been determined that it is legally valid and undisputed. In case of defective deliveries the opposing rights of the buyer especially according to § 7 section 6 sentence 2 of these general terms and conditions ABG remain unaffected.
(6) If, after the conclusion of the contract, it becomes evident that our purchase price claim is endangered due to the buyer’s inability to pay (e.g. by an application for opening of insolvency proceedings) then - according to the legal provisions- we are entitled to refuse performance and -if applicable after setting a deadline to withdraw from the contract (§ 321 BGB). With contracts for the manufacture of non-fungible products (custom-built products), the rescission may be declared immediately; the legal provisions concerning the dispensability of fixing a time limit remain unaffected.
§ 6 Reservation of proprietary rights
(1) We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract and a current business relationship (secured claims). (2) The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral. The buyer is obliged to inform us immediately in writing if and insofar as there are any accesses of third parties to the goods which belong to us.(3) If the purchaser acts in breach of contract, particularly in the event of default in payment of the purchase price, we are entitled according to the legal provisions to withdraw from the contract and to claim the return of the goods due to the reservation of proprietary rights and due to the withdrawal. If the buyer does not pay the purchase price due, we may assert these rights only if we have first set the buyer an appropriate deadline for payment without result or if setting a deadline for payment is superfluous according to the legal provisions.
(4) The buyer has the right to sell or process the goods subject to the retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
(a) The reservation of title covers the goods which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If during the processing, mixing or combination with items of third parties their property right should persist, we thus acquire co-ownership of the new item at the ratio of the value of our provided product to the other products acquire co-ownership of the new product at the ratio of the value of our provided products to the other products. Furthermore the same applies for the resulting product as for the supplied goods which are subject to retention of title.(b) The Buyer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share to us as collateral according to the before mentioned paragraph. We herewith accept such assignment. The obligations of the buyer mentioned in section 2 shall also apply in view of the assigned claims.(c) We and the buyer are authorized to collect any debts. However we agree not to collect the assigned claims as long as the buyer complies with his payment obligations with us, is not overdue with payments, is not subject to insolvency proceedings and there is no other fault in his financial performance capacity. However, if this is the case we can request that the buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the necessary documents and informs the debtors (third parties) of the assignment.(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release when required by the buyer collaterals at our option.
§ 7 Buyer’s warranty claims
(1) The legal provisions shall apply to the rights of the buyer in case of defects of quality and title (including false and shortfall in delivery as well as improper assembly), if no other provisions are made in the following sections. The special legal provisions on final deliveries of goods to a buyer shall in any case remain unaffected (supplier’s recourse according to §§ 478, 479 BGB – German Civil Code).
(2) The basis for liability for defects is first and foremost the agreement concerning the condition of the respective goods. All product descriptions serve as an agreement concerning the condition of the respective goods (including the product descriptions of the manufacturer), which have been delivered to the buyer before placing the order or in the same way like these general terms and conditions (AGB) have been incorporated into the contract.
(3) If no condition of the respective goods was agreed, the presence or absence of a defect shall be determined in accordance with the legal provisions (§ 434 section 1 S 2 und 3 German Civil Code -BGB). We shall not be held liable, however, for any public statements by the manufacturer or other third parties (e.g. advertising statements).
(4) The warranty claims of the buyer require that he has observed his legal provisions to examine goods and to give notice of defects. (§§ 377, 381 HGB – German Commercial Code). Should any defect be found during the inspection or at a later date, the supplier must be notified in writing without delay. Notification shall be deemed “without delay” if given within two weeks, to keep the deadline the timely dispatch of the notification is sufficient. Irrespective of these legal provisions to examine goods and to give notice the buyer must report obvious defects (including false and shortfall in delivery) within two weeks after delivery in writing whereby the timely dispatch of the report is also sufficient. If the buyer fails to examine the goods properly and/or to give notice of defects, our liability for the defect not reported to us shall be excluded.
(5) In case that the delivered product is defective, the buyer may demand either repair of the defect (rectification) or delivery of a flawless product (replacement). Should the buyer fail to state which of these two rights he requires, then we reserve the right to set him a deadline. Should the buyer fail to make the choice within the deadline, then the right of choice demises to us.
(6) We are entitled to make the owed subsequent performance dependant on the fact that the buyer pays the due purchase price. The buyer, however, is entitled to retain an appropriate share of the purchase price.(7) The buyer has the duty to give us the time and occasion for the subsequent performance owed, especially to hand over the goods for examination purposes. In case of a replacement delivery the buyer has to return the defective goods in accordance with the legal provisions. The supplementary performance does neither include the disassembly of the defective product nor mounting it again, if installation was not originally a contractual requirement.
(8) The expenses necessary in connection with examination and subsequent replacement delivery, in particular costs for transport, travel, labour and materials (not disassembly and mounting costs), shall be to our account if there is actually a defect. If the buyer’s request for replacement proves to be unjustified we are entitled to claim the costs resulting from this to be refunded by the buyer.
(9) In urgent cases e.g. when the operational safety is at risk or in order to avoid disproportionate damage, the customer has the right to remedy the defect himself and demand reimbursement by us of the objectively necessary expenses incurred. We have to be informed immediately about these activities, if possible prior to the repair. There is no right to carry out rectification, if the supplier is entitled to refuse the supplementary performance according to legal provisions.
(10) If the supplementary performance failed or if a deadline to be set by the buyer for the supplementary performance expired unsuccessfully or is dispensable according to the legal provisions, the buyer may withdraw from the purchase contract or may reduce the purchase price. This right of withdrawal does not exist in case of an insignificant defect.
(11) Claims of the Buyer for damages or reimbursement of fruitless expenditures shall only exist according to § 8 and are otherwise excluded.
§ 8 Other liabilities
(1) Unless otherwise stated in these general terms and conditions including the following provisions we shall be liable according to the relevant legal regulations in case of a breach of contractual and non-contractual obligations.
(2) We assume liability for compensation of defects, regardless of any legal basis, only in cases of intent and culpable negligence. In the case of minor negligence we will only be liable
a) for damages arising from injury to life, body and health,
b) for damage caused by breach of an essential contractual obligation (the fulfillment of which is fundamental to the proper execution of the contract and the observance of which the contractual partners regularly rely upon and may as a rule rely on its compliance); however, in this case our liability is limited to the reimbursement of the foreseeable, typically occurring defects.
(3) The limitations of liability defined in section 2 are not applicable if we have fraudulently concealed a fault or if we guarantee the quality of the products. The same shall apply for claims of the buyer according to the Product Liability Act.
(4) In the event of a breach of an obligation which is not a defect, the buyer may only withdraw or give notice if we are responsible for the breach of the obligation. An unrestricted right of termination of the buyer (especially according to §§ 651, 649 BGB – German Civil Code) will be excluded. Otherwise the legal preconditions and legal consequences are applicable.
§ 9 Limitation
(1) By the way of derogation from § 438 section 1no. 3 BGB (German Civil Code) the general limitation period for claims from defects of quality and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with the acceptance of the delivery.
(2) In case the delivered good is a building or a product typically used in the construction of a building (construction material), and which caused its defectiveness (construction material), according to the legal regulations the period of limitation is five years from delivery (§ 438 Abs. 1 Nr. 2 BGB – German Civil Code). The special legal provisions shall remain unaffected for in rem claims to return of third parties (§ 438 section 1 no. 1 German Civil Code), in case of fraudulent intent of the seller (§ 438 section 3 BGB – German Civil Code) and for claims for defects for supplier’s recourse in case of final delivery to a consumer (section. 479 BGB – German Civil Code).
(3) The above mentioned limitation periods of the purchase right also apply to contractual as well as non-contractual claims of the buyer, based on a defect of the product, unless application of the standard legal limitation period (§§ 195, 199 BGB – German Civil Code) would, in the individual case, lead to a shorter limitation period. The limitation periods of the German Product Liability Act will in any case remain unaffected. Apart from that the legal limitation periods according to section 8 they apply exclusively for damage claims of the buyer.
§ 10 Choice of law and place of jurisdiction
(1) These general terms and conditions and all legal relationships between us and the buyer, the law of the Federal Republic of Germany applies excluding international uniform law, in particular UN Purchase Law. The pre-requisites and effects of the reservation of title according to § 6 are on the other hand subject to the law of the respective storage of the object insofar as accordingly the choice of law which was agreed is inadmissible or invalid for the benefit of German law.(2) If the buyer is merchant as defined in the Commercial Code, legal entity of public law or represents fund assets subject to public law, exclusive (also international) place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is our business location in Oberriexingen. However, we are also entitled to raise a complaint at the place of general jurisdiction of the buyer.
Note on the EU Commission’s online platform for extrajudicial settlement:
Through the REGULATION (EU) No. 524/2013 from 21 May 2013, the EUROPEAN PARLIAMENT and the EUROPEAN COUNCIL have created an internet platform which is designed to facilitate an independent, impartial, transparent, effective, quick and fair online settlement of disputes between consumers and businesses with regard to online purchasing or service agreements. Consumers can obtain further information and access to the platform via the URL ec.europa.eu/consumers/odr/.
