§ 1 Validity
(1) All our deliveries, services and offers are exclusively made on the basis of the General Terms of Delivery. These General Terms of Delivery are part of all contracts with our contract partners (hereinafter referred to as "customers") we conclude pertaining to the deliveries or services provided by us.
(2) General terms and conditions of the customer shall only become part of the contract if we expressly consent to their validity in writing. This consent requirement shall apply in any and all cases, even if, for example, we carry out deliveries to the customer without expressly rejecting the customer's general terms and conditions even though we are aware of such terms and conditions.
(3) Our General Terms of Delivery shall only apply if the customer is a business person (§ 14 BGB, German Civil Code), a legal person of public law or a public-law fund.
(4) The General Terms of Delivery shall apply in particular to contracts covering the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB, German Civil Code). Unless otherwise agreed, the General Terms of Sale in the version valid at the time of the customer's order shall be deemed to be an outline agreement for future contracts of the same kind; we shall not be obliged to state their validity for each and every individual case.
(5) Individual agreements with the customer (including supplementary agreements, amendments and modifications) which have been made in individual cases shall always take precedence over these General Terms of Delivery. The contents of such agreements shall be subject to a written contract and/or our written confirmation, subject to proof of the contrary.
(6) Material declarations and notifications which are to submitted to us by the customer after conclusion of contract (e.g, deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(7) Any reference to the validity of statutory provisions is only for the purpose of clarification. Even without such a clarification, therefore, the statutory provisions shall apply if and to the extent that they have not been modified or expressly excluded in these General Terms of Delivery.
§ 2 Offer and conclusion of contract
(1) All our offers are free and non-binding, unless they are expressly marked as binding or contain a certain acceptance period. We shall have the right to accept orders within a period of fourteen days after receipt.
(2) The legal relationship between us and the customer shall be governed solely by the written purchase agreement, including these General Terms of Delivery. The written purchase agreement contains all agreements between the parties with regard to the contract. Any communication by us not made in writing prior to the conclusion of this contract is legally non-binding; any agreements of the contract parties not made in writing shall be replaced by the written contract, unless it is expressly stated that they shall be binding.
(3) Amendments and modifications to the agreements, including these General Terms of Delivery, must be made in writing in order to be effective. With the exception of managers or authorized signatories, our employees are not entitled to make any differing verbal agreements. Transmission via telecommunication systems, in particular via fax or via e-mail, shall be deemed to be a sufficient instrument in writing, provided that the copy of the signed declaration is transmitted.
(4) Any information or representation whatsoever on our part with regard to the delivery or service (such as, but not limited to weights, dimensions, performance values, loads, tolerances and technical data) shall be deemed to be approximate, unless the usability for the purpose provided by the contract requires accurate conformity. Such information or representations do not constitute guaranteed characteristics, but descriptions or markings of the delivery or service. Any standard deviations and deviations which are made according to statutory provisions or which represent technical improvements, as well as the replacement of components by equivalent parts, are permissible if they do not impair the usability for the purpose intended by the contract.
(5) We reserve the right to property or copyright to all offers and cost estimates submitted by us as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and equipment provided to the customer. The customer shall not be permitted to disclose these objects, as such or in content, to third parties, to make them known, to use them himself or through third parties or to reproduce them. At our request, he shall be obliged to completely return such objects to us and to destroy any copies produced if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract. Storage of data provided electronically for the purpose of standard data backup shall be the only exception to this.
§ 3 Prices and payment
(1) The prices apply to the scope of services and delivery specified in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, the applicable value added tax, and, for export deliveries, customs duties as well as fees and other public charges.
(2) If the agreed prices are based on our list prices and if the delivery is to be effected more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply (minus any percentage discount or fixed discount that may have been agreed).
(3) Invoices shall be payable within 30 days from the invoice date without any deduction, unless otherwise agreed in writing. The date of unconditional credit on our business account shall be decisive for payment in due time. Payment by check shall be excluded, unless agreed separately, as the case may be. If the customer does not pay by the due date, an interest of 5 % per year shall be due on the amounts payable; we shall be entitled to claim higher interest and further damages.
(4) Any set-off with counterclaims of the customer or retention of payments due to such claims shall only be permissible if and to the extent that such counterclaims are undisputed or asserted by a court.
(5) We shall be entitled to deliver or provide outstanding deliveries or services after prepayment or provision of security if, after the conclusion of the contract, we become aware of circumstances which substantially reduce the creditworthiness of the customer and which jeopardise the payment of our outstanding claims arising from the contract against the customer (including claims from other individual contracts pursuant to the same outline agreement).
§ 4 Delivery and delivery period
(1) Deliveries are made ex works.
(2) Time limits and deadlines for deliveries and services mentioned by us are only approximate, unless a fixed deadline or a fixed date has been explicitly assured or agreed. If shipping has been agreed, delivery periods and delivery dates refer to the date of transfer to the forwarding agent, freight carrier or to any other third party in charge of shipping.
(3) Without prejudice to our rights arising from default of the customer, we shall be entitled to demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates for the period during which the customer does not meet his obligations pursuant to the contract. 12 406 Appendix Terms of delivery
(4) We shall not be liable for impossibility of delivery or for delays in delivery, if such impossibility or delay is caused by force majeure or other events unforeseeable at the time of the conclusion of the contract which are beyond our control or for which we cannot be held responsible or which we have not caused (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in procuring necessary regulatory approvals, governmental measures, or incorrect or delayed supply by suppliers. Insofar as such events make the delivery or service substantially more difficult or impossible and the hindrance is not only of temporary duration, we are entitled to withdraw from the contract. In the case of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, the customer cannot reasonably be expected to accept the delivery or service, the customer shall be entitled to withdraw from the contract, which is to be performed immediately by an instrument in writing.
(5) We shall be entitled to deliver and provide partial deliveries and partial services only:
- if the partial delivery is reasonable for the customer and sufficient consideration is given to his legitimate interests,
- if the delivery of the remaining ordered goods is assured and
- if, as a result, the customer does not incur any substantial additional costs or additional efforts (unless we are willing to pay for such costs).
(6) If we are in default with a delivery or service or if a delivery or service is impossible for any reason whatsoever, our liability for compensation shall be limited pursuant to provision § 8 of these general Terms of Delivery.
§ 5 Place of performance, shipping, packaging, passage of risk, acceptance
(1) The place of performance for all obligations resulting from the contract shall be the registered office of our company in Güglingen, unless other agreements have been made. If the installation is part of the contract, the place of performance shall be the place at which the installation is to be performed.
(2) The type of shipping and packaging are subject to our discretion. The cost of shipping and packaging shall be borne by the customer. If the customer requires drop shipping delivery, we shall charge a processing fee of EUR 10.00 for each delivery.
(3) In cases of small orders with a net purchase value of less than EUR 100.00, we will charge a processing fee of EUR 15.00 in addition to shipping and packaging.
(4) The passage of risk to the customer shall be the point in time of the transfer of the good to be delivered (the beginning of the loading process being decisive) to the forwarding agent, freight carrier or to any other third party in charge of shipping. This shall also apply in the case of partial deliveries or if we have undertaken other obligations (e.g. shipping or installation). If the shipment or the transfer is delayed for a reason caused by the customer, the transfer of risk shall be the day on which the good to be delivered is ready for shipment and we have notified the customer to this effect.
(5) Storage costs incurred by us after transfer of risk shall be borne by the customer. If we store the goods to be delivered, the storage costs amount to 0.25% of the invoice amount of the delivered goods per completed week. We reserve the right to assert and prove further or lower storage costs.
(6) We shall provide for transportation insurance of the consignment.
(7) If acceptance has to take place, the purchase item shall be deemed accepted if:
- the delivery and, provided we also have to perform installation, the installation are completed,
- we have communicated this to the customer with reference to the deemed acceptance in accordance with this provision § 5 (7) and have prompted the customer to accept the delivery,
- 12 business days have passed since the delivery or installation, or the customer has begun to use the purchased item (e.g. a delivered plant has been put into operation) and, in this case, six workdays have passed since delivery or installation, and
- within this period, the customer has refused acceptance for any reason other than for a defect of which the customer has notified us and which substantially impedes or make impossible the use of the purchased item.
§ 6 Warranty, material defects, acceptance of the disposal obligation by the customer
(1) The warranty period shall be one year from the date of delivery or, if acceptance is required, from the date of acceptance. This period shall not apply to claims for damages on the part of the customer resulting from injury to life, body or health or from wilful or grossly negligent breach of duty by us or our vicarious agents, which are subject to the limitation periods according to the statutory provisions.
(2) The goods delivered must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects which would have been recognizable in the case of an immediate, careful examination, they shall be deemed to be accepted by the customer if we do not receive written notification of defects within seven workdays after delivery. With regard to other defects, the delivery items shall be deemed to have been accepted by the customer if the notice of defect does not reach us within seven workdays after the date of detection of the defect; if the defect was already recognizable by the customer at an earlier point in time in normal use, this earlier point in time shall be decisive for the beginning of the complaint period. Upon request by us, a rejected delivery item must be returned to us free of freight charges. In the case of a justified complaint, we shall reimburse the costs of the least expensive type of shipping; this shall not apply if the costs increase because the delivery item is located at a place other than the place of the intended use.
(3) In the case of material defects of the goods delivered, we shall first be obliged and entitled to rectify or replace the goods within a reasonable time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the improvement or replacement delivery, the customer shall be entitled to withdraw from the contract or to reasonably reduce the purchase price.
(4) Insignificant or typical variations in colour, dimensions, weight and quality shall not be considered to be defects of the delivery items
(5) If a defect is the result of fault on our part, the customer shall be entitled to claim damages under the conditions stipulated in provision § 8 hereto.
(6) In the case of defects of components of other manufacturers, which we cannot remedy for license or actual reasons, we will, at our discretion, assert our warranty claims against the manufacturers and suppliers on behalf of the customer or assign them to the customer. In the case of such defects, there shall only be warranty claims against us subject to the other conditions and according to the provisions of these General Terms of Delivery and only if the aforementioned claims against the manufacturer and suppliers could not be enforced or if such enforcement is futile, for example, due to insolvency. During the duration of the legal dispute, the period of limitation of the customer's warranty claims against us shall be suspended.
(7) The warranty shall be void if the customer modifies the delivery item without our consent or has it modified by a third party and such modification renders the rectification of the defect impossible or unreasonable. In any such case, the customer shall bear the additional costs arising from such modification for rectification of the defect.
(8) If, in individual cases, a delivery of used items is agreed with the customer, such delivery shall be performed under exclusion of any warranty for material defects.
(9) The customer shall be obliged to dispose of the delivered goods when they are no longer used at his own cost and in full compliance with all pertinent regulations. The customer shall indemnify us from the obligations pursuant to § 10, section 2 of the German Electronic Equipment Act (obligation of manufacturers to take back their products) and from any claims of third parties related to this. 12 407 Terms of delivery Appendix The customer shall contractually oblige any other commercial third party to which the customer transfers the delivered goods to dispose of such goods according to the pertinent regulations when such goods are no longer used. Our claim to the above transfer of obligation/indemnification through the customer shall be extended by a period of limitation of two years after the final termination of the usage of the delivery item. The two-year period of suspension of the limitation shall not begin until we receive a written notice from the customer stating that he has ceased to use the device.
§ 7 Infringement of property laws
(1) Pursuant to this provision § 7, we shall ensure that the delivery item is free from industrial property rights or third-party copyrights. Each contract partner shall immediately notify the other contract partner in writing if claims with regard to the infringement of such rights are asserted against him.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, alter or replace the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions; or we shall enter into a license agreement in order to obtain the right to use the delivery item for the customer. If we should not be able to succeed within a reasonable period, the customer shall be entitled to withdraw from the contract or to reasonably reduce the purchase price. Any claims for damages of the customer are subject to the restrictions of provision § 8 of these General Terms of Delivery.
(3) In the case of infringements of laws by products of other manufacturers delivered by us, we shall, at our discretion, assert our claims against the manufacturers and suppliers on behalf of the customer or assign such claims to the customer. In these cases, there shall only be claims against us subject to the provisions of this provision § 7 and only if the aforementioned claims against the manufacturer and suppliers could not be enforced or if such enforcement is futile, for example, due to insolvency.
(4) If an order is to be filled (designs, etc.) according to customer specifications, drafts or instructions, the customer shall be fully responsible for obtaining all rights of commercial exploitation of the property rights that may be contained in his specifications, drafts or instructions. If the execution of an order according to specifications, etc. of the customer violates third-party property rights or labelling obligation, the customer shall undertake to indemnify us from any resulting claims for compensation, compensation for expenses and / or reimbursement of third parties.
§ 8 Liability for damages in case of fault
(1) Our liability for damages, irrespective of the legal grounds, in particular from impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in the case of contractual negotiations and tort, shall be limited subject to the provisions of this provision § 8.
(2) We shall not be liable in the case of simple negligence on the part of our organs, legal representatives, employees or other vicarious agents, to the extent that this is not a violation of contractual obligations. Essential with regard to the contract are the obligation to deliver and/or install the delivery item in good time, its freedom from deficiencies in law and its freedom from defects which impair its functionality or usability more than insignificantly, as well as advisory, protection and custodial obligations which allow the customer to use the delivery item as per contract, or which serve the protection of the health or life of the customer's personnel or the protection of his property against substantial damage.
(3) To the extent that we are liable for damages pursuant to provision § 8 (2) hereto, such liability shall be limited to damages which we have foreseen at the time of conclusion of the contract as a possible consequence of an infringement of the contract or which we should have foreseen applying due diligence. Indirect damages and consequential damages which are the result of defects of the delivery item shall only be subject to damages o the extent that such damage is typically to be expected when the delivery item is used as intended.
(4) In the case of liability for simple negligence, our obligation to indemnify for damage to property and consequential financial loss shall be limited to the amount covered by our liability insurance and standard in our industry, even in the case of a breach of essential contractual obligations. Upon request, we will gladly provide the customer with a corresponding insurance confirmation stating the amount covered by the liability insurance carrier.
(5) The above exclusions and limitations of liability shall apply to the same extent on behalf of our organs, legal representatives, employees and other vicarious agents.
(6) If we provide technical information or consultancy services and such information or services are not a part of the scope of services agreed upon by contract and owed by us, this shall be free of charge and without any liability whatsoever.
(7) The limitations of this provision § 8 shall not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or pursuant to the German Product Liability Act (Produkthaftungsgesetz).
§ 9 Retention of title
(1) We retain the title to the sold goods until we have received full payment of all our present and future receivables arising from the purchase contract and from an ongoing business relationship (secured claims).
(2) Prior to full payment of the secured claims, the goods subject to retention of title shall neither be pledged to third parties nor transferred to third parties for security. The customer shall notify us in writing immediately if an application for the opening of insolvency proceedings is filed or if third parties attempt to seize the goods under retention of title (e.g. by means of distraint or attachment).
(3) In the case of a breach of contract by the customer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract pursuant to the statutory provisions and to reclaim the goods as a result of retention of title and withdrawal. If the customer does not pay the purchase price due, we shall only be entitled to assert these rights if we have previously set the customer a reasonable deadline for payment without success, or if such a deadline is not required pursuant to the statutory provisions.
(4) The customer shall be entitled to resell and/or process the goods under retention of title in the ordinary course of business, subject to revocation pursuant to (c) below. In this case, the following provisions shall apply in addition. (a) The retention of title shall cover the full value of the products resulting from processing, mixing or combining our products; we shall be deemed the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their rights of ownership remain, we shall acquire co-ownership to the ratio of the invoice amounts of the processed, mixed or combined goods. The same provisions that apply to the goods delivered under retention of title shall apply to the resulting new product. (b) The customer shall assign to us, as a security, the claims arising against third parties from the resale of the goods or of the product in whole or to the amount of our possible coownership pursuant to the preceding paragraph. We accept the assignment. The obligations of the customer pursuant to provision § 9 (2) hereto shall also apply in respect of the assigned claims. (c) The customer shall remain entitled to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations, as long as the customer performs and as long as we do not assert the retention of title by exercising a right pursuant to provision § 9 (3) hereto. If any of the above conditions are not met, we shall be entitled to request the customer to notify us of the assigned claims and the corresponding debtors and provide us with any information and the appropriate documents necessary for us to collect such claims, and to notify the debtors (third parties) of such assignment. In this case, we shall also be entitled to revoke the customer's authorization to resell and process the goods subject to retention of title. (d) If the liquidable value of the securities exceeds our claims by more than 10 %, we shall, at the customer's request, release securities at our discretion.
§ 10 Final clause
(1) If the customer is a merchant, a legal person under public law or a public-law fund or if the customer has no general court of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between us and the customer shall be our registered office in Güglingen or the registered office of the customer. However, in such cases, Güglingen shall be the exclusive place of jurisdiction for actions against us. This provision does not affect statutory provisions regarding exclusive places of jurisdiction.
(2) The relations between us and our customers are subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall not apply.
(3) If and to the extent that the contract or these General Terms of Delivery contain gaps in the provisions, those statutory provisions shall be deemed to have been agreed upon which the contract parties would have agreed upon in view of the economic objectives of the contract and the purpose of these General Terms of Delivery if they had been aware of the gaps.
The customer shall be deemed to have been notified that we store data relating to the contractual relationship pursuant to § 28 Bundesdatenschutzgesetz (German Federal Data Protection Act) for the purpose of processing such data and that we retain the right to disclose such data to third parties (e.g. insurance companies) if and to the extent such disclosure is required to perform the contract.