GENERAL TERMS AND CONDITIONS
I. General, Applicability
(1) These General Terms and Conditions shall apply to any business relationship with our contract partners. These General Terms and Conditions shall only apply if the contract partner is an entrepreneur in the sense of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch), a legal person under public law or a special fund under public law.
(2) These General Terms and Conditions shall also apply in their current form as framework agreements for future contracts with the same contract partner without us having to refer to them again in each individual case; we will inform our contract partners about changes to these General Terms and Conditions without delay.
(3) Our General Terms and Conditions shall apply exclusively. Contrary, deviating or supplementary general terms and conditions by the contract partner shall only become contract components if we expressly agree to their applicability in writing. This approval requirement shall apply in any case, especially if we implement the order without reservation in knowledge of contrary or deviating general terms of the contract partner.
(4) Notices on the applicability of legal regulations will only be provided for clarification. Legal regulations will therefore apply even without such clarification, unless they are changed or excluded directly by these General Terms and Conditions.
II. Changes and Additions
(1) Individually concluded individual agreements with the contract partner, including side agreements, supplements and changes, shall take priority over these General Terms and Conditions. The contents of such agreements shall be determined by a written contract or written confirmation.
(2) Legally relevant explanations and notifications that must be provided to us by the contract partner after contract conclusion (e.g., deadline setting, defect notices, withdrawal or reduction declarations) must be issued in writing to be effective.
(3) Our salespersons are not authorized to conclude oral agreements beyond the contents of the written contract.
III. Contract Conclusion
(1) Our offers shall remain non-binding. This shall also apply if we provide catalogs, technical documentation (e.g., drawings, plans, calculations, referrals to DIN standards), other product descriptions or documents—including in electronic form—to the contract partner.
(2) We shall reserve ownership and the copyright over figures, drawings, calculations and other documents. These may not be provided to third parties; this shall also apply to any information related to our goods or other services received since commencement of contract negotiations. Any transfer to third parties by the contract partner requires our express written permission.
(3) The order placed by the contract partner will be regarded as a binding contract offer. Unless resulting otherwise from the order, we may accept the contract offer within 12 business day of receipt of the offer by us.
(4) Acceptance may also be declared by delivering the goods to the contract partner.
(5) Statements in the sense of Para. 1 and public statements by us, the producer or his vicarious agents (Section 434 Para. 1 S. 3 of the German Civil Code) will only become part of the service description if they are expressly referred to in the contract.
IV. Prices and Payment Terms
(1) Our prices are stated in Euros “ex works,” excluding packaging, transportation, insurance and plus the respective legal VAT.
(2) Should the material costs or wages on which we based our calculations change after contract conclusion, we reserve the right to adjust prices accordingly (price reservation).
(3) Unless agreed to otherwise in individual cases, our then-current prices shall apply at the time of contract conclusion.
(4) The purchasing price will become due and must be paid in cash or via transfer within 30 days of invoicing and delivery or acceptance of the goods and within 14 days of invoicing and delivery or acceptance of the goods for vacuum mounting systems. Payments will be considered to be received after the date on which they become freely available to us. Following the expiration of the above-stated payment period, the contract partner will be in default. During default, the purchasing price will bear interest at the respective rate. We reserve the right to assert further default damages. Our claim to commercial default interest against merchants (Section 353 of the German Commercial Code (Handelsgesetzbuch)) shall remain unaffected.
(5) Other payment forms require a written agreement. Any costs incurred thereby by either side shall be borne by the contract partner.
(6) Discount deductions require a special written agreement.
(7) The contract partner shall only receive offsetting or retention rights insofar as his claims are legally established or undisputed. Should deliveries display defects, the contract partner’s counterclaims shall remain unaffected.
V. Delivery Periods and Delay
(1) Delivery periods will commence on the day we promise to make the delivery, but not before we clarify all commercial and technical details, obtain approval for our order documents by the contract partner or receive of the agreed payment.
(2) The delivery period will be met if, prior to its expiration, risk is transferred in accordance with Section VII.
(3) Deliveries on call must be ordered at least two weeks before the desired delivery date. However, this will depend on our confirmation of the date. If, after granting a grace period unsuccessfully, no order or assignment is made, we may assign and deliver the goods ourselves at our discretion or withdraw from the part of the contract that is in arrears.
(4) The statement of service periods shall generally be made conditional upon contractual cooperation by the contract partner. Fulfillment of our service obligations requires the contract partner to fulfill his obligations orderly and on time. If the contract partner falls behind with payments for previous services, we may withhold our services. The contract partner cannot derive any rights from our justified retention.
(5) If we cannot meet delivery deadlines for reasons for which we are not responsible, we will notify the contract partner without delay and state the new projected delivery date. Should the service still not be available before the next delivery deadline, we may withdraw from the contract in part or in whole. Non-availability of the service in this sense especially includes delayed deliveries by our suppliers. This shall also apply if neither we nor our suppliers are responsible for the non-availability.
(6) Whether delivery delays occurred shall be determined by the statutory regulations. However, notice by the contract partner will be required.
VI. Service Scope
(1) The scope of our service obligations will be determined by our written order confirmation. Construction, form and color changes due to technical improvements or legislative requirements shall remain reserved if the changes are non-essential or otherwise tolerable for the contract partner.
(2) If partial service performances are tolerable to the contract partner and if they do not affect the intended service scope or the performance deadline, they can be provided and invoiced.
VII. Deliveries, Risk Transfer, Acceptance, Acceptance Delay
(1) Unless resulting otherwise from the order confirmation, deliveries shall be agreed “ex works” where the place of fulfillment shall be.
(2) Goods will be delivered to their place of destination on request by and on the account of the contract partner. Unless agreed to otherwise, the choice and path of transportation shall be at our discretion without assuming responsibility for selecting the fastest or most cost effective shipping type. Goods will be delivered unpackaged. Any packaging required for train or carrier transportation will be invoiced. We are not obligated to provide insurance. If the contract partner would like insurance, we will insure the delivery at his expense upon receiving such a request on time that states the risks to be insured in writing.
(3) Goods reported as ready to be delivered must be accepted without delay. Delivered goods must also be accepted by the contract partner if they display insignificant defects, irrespective of the rights in Section X.
(4) The risk of random deterioration or loss of the goods shall be transferred to the contract partner at the latest during handover of the goods. If the goods are sent on the contract partner’s request, risk of random deterioration, loss and delay shall already be transferred when the goods are handed over to the carrier, forwarder or any other person or service commissioned for the delivery. This shall also apply to exceptions in which we agree to cover the shipping costs.
(5) If acceptance is agreed to, it shall be decisive for the transfer of risk. The time agreed for acceptance shall be the same as the delivery time announced to the contract partner.
(6) Handover or acceptance shall also be considered to have taken place if the contract partner delays acceptance.
(7) Should the contract partner delay acceptance or fail to meet cooperation requirements or should performance be delayed for other reasons for which the contract partner is responsible, we may demand compensation for any resulting damages, including for additional expenses incurred. Irrespective of further damage claims, we will charge a monthly flat fee of 0.5% of the invoice amount starting with the delivery period or, if there is no delivery period, with the announcement of delivery readiness, irrespective of whether we store the goods at our or a third-party warehouse. The right to prove greater damages and our legal claims shall remain unaffected; the flat fee must be deducted from further claims. The contract partner may prove that no or significantly lower damages resulted than in the stated flat fee. After unsuccessful expiration of an appropriate grace period, we may dispose of the goods otherwise and make deliveries to the contract partner with accordingly extended deadlines.
(8) If, after contract conclusion, it becomes foreseeable that our payment claims will be threatened by the contract partner’s inability to provide payment, we may suspend our services until the contract partner provides the payment or a security for the payment. If the payment or the security for the payment is not provided within 12 business days after being requested, we may withdraw from the contract and demand compensation for 5% of the order volume. Assertion of greater damages shall not be excluded thereby. The contract partner may prove that no or significantly lower damages were incurred than required by the flat fee. We may withdraw immediately from contracts on the production of unacceptable items (single production); statutory regulations on the dispensability of deadlines shall remain unaffected.
(9) In case of a delay, delay compensation for the contract partner shall be limited to up to 5% of the value of the service. The contract partner may also provide us with an appropriate grace period in writing of at least 15 business days. After unsuccessful expiration, the contract partner may withdraw from the contract in writing. Damage compensation instead of the service shall be limited to 50% of the damages incurred; however, this shall only apply to foreseeable damages typical to the contract. The above regulations shall apply if we only provide a service partially.
(10) Claims by the contract partner due to service obligation exclusion or performance impediments during contract conclusion shall be limited to 50% of the resulting damages or expenditures; however, only foreseeable damages typical for the contract or expenditures shall be considered. The same shall apply if we only provide a service partially.
(11) In case of Paras. 8 and 9, statutory liability shall apply to injuries to life, the body or one’s health due to a breach of duty by us and to other damages if the violation was caused by intent or gross negligence. Our liability shall be limited to foreseeable damages typical for the contract if the breach of duty constitutes a violation of an essential contract duty. Sentences 1 and 2 shall apply accordingly to breaches of duty by our legal representatives of vicarious agents.
VIII. Raw Materials and Production
If no other express agreement is made, the DIN standards for average tolerances shall apply or, if these are not available, the marketable quality shall apply. Normal DIN terms shall apply to production.
IX. Utilization Risk
The supplier shall not be liable if the contract partner makes incomplete or incorrect statements, especially regarding colors, materials, tolerances, surface designs, anchoring bases, loads, measurements, required carrying capacities, installation areas, routes, etc. required for complete and correct implementation of suggestions and consultations resulting in the contract partner being unable to use the delivery object according to the contract.
X. Defect Liability
(1) Defect liability by us requires the contract partner to properly fulfill his inspection and defect notification obligations under Sections 377 & 381 of the German Commercial Code. The following shall apply:
(a) Defects must be reported in writing;
(b) Noticeable defects must be reported without delay no later than 8 days after delivery, though the deadline will be met if the report is sent on time. Hidden defects must be reported without delay upon their discovery. Irrespective of his inspection and notification obligations, the contract partner must report obvious defects, including incorrect or under-deliveries, in writing within 8 days of the delivery, though the deadline will be met if the report is sent on time. Should the contract partner fail to perform an orderly inspection and/or to report a defect, our liability shall be excluded for any unreported defects.
(2) Defect liability shall be based on the agreements made for the condition of the goods. If no agreement on their condition was made, the presence of defects shall be determined according to statutory regulations. However, we shall assume no liability for public statements by the producer or other third parties.
(3) The contract partner cannot derive any rights from defects that do not or only insignificantly diminish the value or usability of the agreed, required or usual use of the goods.
(3) Furthermore, our defect liability shall not extend to defects resulting from improper use, storage, operation, maintenance, excessive strains on or inappropriate changes to our products or use of unsuited parts or materials. The same shall apply to normal consumption and wear. The burden of proof for proving the defectiveness of the product during risk transfer shall be on the contract partner.
(4) Should goods display defects after risk is transferred, we may and must first only provide rectification. Rectification shall be performed our discretion through remedying the defect or providing subsequent deliveries. We shall bear the costs required for rectification, especially transportation, toll, work and material costs insofar as expenditures are not increased by the goods being transported after their delivery to a location other than the business premises of the contract partner. Replaced parts will become our property. The contract partner must grant an appropriate grace period for the supplier to provide rectification. Rectification shall neither include the expansion nor the installation of defective items if we were not originally obligated to perform such installations.
(5) If rectification fails, the contract partner may withdraw from the contract or demand purchasing price reductions according to statutory regulations and the additional requirements of the following Sentence 2. Setting of a deadline and the exercise of withdrawal or reduction rights requires a written declaration.
(6) Unless required otherwise by the following (Paras. 7 to 11), further claims by the contract partner—for whatever legal reason—shall be excluded. We shall therefore especially not be liable for damages not caused to the delivery object itself (e.g., lost earnings or asset damages). Liability or guarantees relating to shall remain unaffected.
(7) We shall only be liable for injuries to life, the body or one’s health according to statutory requirements if we are responsible for the breach of duty.
(8) We shall be liable for other damages according to statutory requirements if they were caused by us through intentional or grossly negligent breaches of duty.
(9) If damages were caused by a violation of an essential contract duty by us, i.e., not by a defect of the purchasing object, our liability shall be limited to foreseeable damages typical for the contract. Paras. 7 & 8 shall remain unaffected.
(10) The above Paras. 7 to 9 shall apply accordingly to any breach of duty by our legal representatives, bodies, executives or other vicarious agents.
(11) The distribution of the burden of proof under statutory regulations and customary law shall remain unaffected by the regulations above.
(12) Except in cases of Paras. 7 to 10 and conditional upon Sections 438 Para. 1 No. 2, 479 and 634a Para. 1 No. 2 of the German Civil Code, defect claims shall expire one year after commencement of the statutory statute of limitations. This shall not apply to claims resulting from unlawful acts or the German Liability Act (Produkthaftungsgesetz).
XI. Other Damage Liability
(1) Unless resulting otherwise hereafter (Paras. 2 and 3), the regulations of Section X. Paras. 6 to 11 shall apply accordingly to any other damage compensation claims, irrespective of their legal basis. These Paragraphs shall therefore especially apply to our tort liability and to breaches of pre-contractual duties.
(2) The regulations of Para. 1 shall not apply to claims under the German Product Liability Act.
(3) If our liability is excluded or limited, the same shall apply to the personal liability of our employees, co-workers, representatives and vicarious agents.
XII. General Statute of Limitations
Claims subject to the standard three-year statute of limitations shall expire two years after their creation. Claims related to guarantees, malicious, unlawful acts or the German Product Liability Act shall remain unaffected. Section X. Paras. 7 to 10 shall apply accordingly.
XIII. Retention of Title
(1) We shall retain title to any goods sold until all current and future claims from the purchasing contract and the ongoing business relationship have been paid in full. This shall also apply if claims are included in a current invoice and the balance has been determined and acknowledged. The contract partner must treat delivered goods with diligence and insure them against common risks (fire, water, storms, theft).
(2) Goods under retention of title may neither be pledged nor provided to a third party as a security before the secured claim has been paid in full. The contract partner must notify us in writing without delay if and insofar as third parties access our goods. In addition to the third party, the contract partner shall be liable for the court and out-of-court costs of a suit under Section 771 of the German Code of Civil Procedure (Zivilprozessordnung). Conclusion of financing agreements (e.g., leases) that include transfer of our ownership rights require our prior written permission, unless the agreement requires the financing institute to pay the share of the purchasing price to which we are entitled directly to us. Upon request by us, the contract partner must inform us about the goods subject to retention of title.
(3) The contract partner may process or sell the goods subject to retention title through the ordinary course of business. In such cases, the following regulations shall apply additionally:
a) Retention of title extends to the full value of any results of processing, combining or connecting our goods; we will be regarded as the producer in such cases. Should third-party title retention rights remain after processing, combining or connecting their goods, we shall acquire co-ownership in relation to the invoice values of the processed, combined or connected goods. Apart from that, the same shall apply to any such produce as to the retention of title of the delivered goods.
b) The contract partner shall already assign any claims against third parties resulting from the further sale of the goods or the produce to us in full or in the amount of our respective co-ownership sale in accordance with the Paragraph as a security. We shall accept the assignment. The obligations of the contract partner in Para. 2 shall also apply to any assigned claims.
c) The contract partner may also collect claims in addition to us. We may not collect claims as long as the contract partner meets his payment obligations towards us, he does not default, no applications for insolvency proceedings are made against him and there is no other impediment to his payment ability. However, should any of this be the case, we may demand that the contract partner disclose the assigned claims, their debtors and any information required for collection to us and hand over any related documents and notify the debtors (third parties) of the assignment.
d) Should the realizable value of the securities exceed our claims by more than 10%, we will release the securities at our discretion upon demand by the contract partner.
(4) Should the contract partner act in violation of the contract, especially through late payments, we may withdraw from the contract directly and retract the goods. The contract partner shall hereby irrevocably grant us permission to enter his business premises and warehouses without restriction to retrieve the goods for retraction.
XIV. Applicable Law and Place of Jurisdiction
(1) This business relationship and the entire legal relationship with the contract partner shall be governed exclusively by the laws of the Federal Republic of Germany under exclusion of international uniform law, especially the UN Convention on Contracts for the International Sale of Goods.
(2) If the contract partner is a merchant in the sense of the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive—and international—place of jurisdiction for disputes arising directly or indirectly through the contractual relationship shall be our registered office in Guteneck. However, we may also sue at the general place of jurisdiction of the contract partner.
(3) Should individual regulations prove invalid or should gaps be discovered in these General Terms and Conditions, the validity of the remaining regulations shall remain unaffected. The invalid regulation shall be replaced by a valid regulation that most closely approximates the intent and purpose of the invalid regulations. In case of gaps, the regulation that most closely resembles what the parties would have reasonably agreed to in accordance with these General Terms and Conditions had they thought of this matter shall be regarded as concluded.