Art 1 Scope, in written form
1.1. Our general terms and conditions apply exclusively. They apply to business persons (§ 14 BGB), legal persons under public law and special funds under public law. Deviating general terms and conditions of the contractor will not be accepted by us unless we have agreed to their validity in writing. Our general terms and conditions also apply if we conduct the delivery unreservedly, fully aware of differing general terms and conditions of the contractor.
1.2. All agreements made between us and the contractor, regarding the execution of this contract have to be made in writing in this contract. This is particularly imperative for the acceptance of warranty statements.
1.3. These conditions also apply to all future business relations with the contractor, even if not expressly mentioned in agreements.
1.4 It is pursuant to § 312 e para 2 sentence 2 BGB agreed that the customer waives the information requirements in electronic commerce under § 312 e para 1 No 1-3 BGB in conjunction with § 3 BGB-InfoV (information about the technical steps for the conclusion of the contract, for saving the contract text).
Art 2 Offers, contract conclusions, contract documents, terms of the contract
2.1. Our offers are subject to change. We can accept contract offers within a week.
2.2. Images and information in promotional material and other depictions are not binding.
2.3. We retain ownership and copyrights to illustrations, drawings, calculations and other files or documents. They may not be made available to third parties. This applies particularly to such files or documents labeled as "confidential"; before transferring them to third parties, the contractor requires our express written consent.
2.4. In the absence of other arrangements, the agreed drawings, samples, descriptions and other documents are considered technical contract documents. In doing so, the commercial material standards, designations and DIN tolerances will be taken as standard for raw materials. In this connection, weight specifications are non-binding.
Art 3 Prices, payment conditions, prepayment, right of withdrawal, delay, return, retention of goods, charging, counterclaim
3.1. Unless the order confirmation does not state otherwise, all prices are ex stock (stock articles) or ex works in Euros, excluding packaging, freight, insurance, customs duties or other charges, plus the respective applicable VAT. In the case of agreed delivery, delivery shall be made free to curbside at the arranged unloading point. In this case the customer is obliged to provide the personnel and equipment necessary at his expense in time to ensure a smooth discharge. It is understood that the vehicle can directly reach the unloading point and can be discharged immediately. If these conditions are not met, the resulting additional costs will be charged separately.
3.2. For orders, the price list valid on the date of the order applies. If material price or wage increases occur between order processing and delivery, we retain the right to an appropriate price adjustment.
3.3. If not otherwise agreed, payment is to be made in advance by check /cash advance or credit card. If delivery against invoice has been agreed on, the payment has to be made within 30 days of the invoice without deduction.
3.4. We are not obliged to accept payment by check or draft. If they are accepted, we do so only on account of performance.
3.5. If the contractor is in arrears of at least two installments, we are entitled to render the entire claim due, also including from other bills, even if checks or drafts were accepted. In this case, the documents will be returned against immediate cash payment.
3.6. If a major change or deterioration occurs in the financial circumstances of the contractor after the conclusion of the contract, by which our claim to compensation is at risk, or if such a situation already existed at the time of conclusion of a contract of the contractor, but only became known retrospectively, we can refuse performance until reciprocration. This is particularly true for cases in which unsuccessful enforcement actions, bill protest, cheque protest, filing for personal insolvency, moratorium efforts, liquidation or similar are given. In these cases, we can set the contractor a time limit for providing return service or security. If under the above conditions, the return service or security is not provided despite notice, we have a right of withdrawal.
3.7. If the contractor defaults on payment, we are entitled to take back the goods after a new deadline set by us, if necessary to enter the premises of the contractor and seize the goods. We can also prohibit the removal of the delivered goods.
3.8. If goods delivered by us are taken back, those goods will be credited at a reasonable discount to the contractor without prejudice to the assertion of additional claims and will be credited against our open claim. The contractor reserves the right to prove a lower depreciation in each individual case.
3.9. Our claims can only be offset against undisputed or legally determined claims. Counter-claims are excluded.
The contractor is only entitled to retention of goods, as far as his counter-claim is based on the same contractual relationship.
Art 4 Release from obligation to perform, delivery period, partial delivery, right of withdrawal, delay damages
4.1. Delivery of the goods shall be subject to timely and accurate supply to ourselves.
4.2. The delivery time begins on the date of the order confirmation. Partial deliveries are allowed, as far as they are reasonable.
4.3. Delivery delays due to force majeure or other circumstances not caused by us, in particular transport and operational disturbances we are not responsible for, strikes, lockouts, raw material shortages, war, we do not have to cover if not otherwise agreed. If in this situation we are unable to supply within the agreed delivery period, the delivery time shall be extended appropriately. If in this case, an obstacle to supply exists beyond the adequate extended delivery period, we shall be entitled to rescind the contract.
4.4. If we are unable to comply with the agreed delivery time the customer is – at our request - obliged to explain within a reasonable time whether he continues to demand delivery. If he does not speak out, then we are entitled to withdraw from the contract or terminate the contract after a reasonable period.
4.5. If we are in default, the following shall apply:
4.5.1. If a firm bargain exists or if the contractor can assert that his interest in the execution of the contract has been dropped or if the delay is based on a premeditated contract breach caused by us, our representatives or our vicarious agents, we shall be liable for delay damages under the statutory provisions. In case of a grossly negligent breach of contract by us, our liability for delay damages is limited to the foreseeable, typically occurring damage.
4.5.2. In case we, our representatives or our vicarious agents have commited a breach of an essential contractual obligation, and if there exists no liability under the statutory provisions referred to in paragraph 4.5.1. , then our liability for delay damages is limitedto the foreseeable, typically occurring damage.
4.5.3. In other cases, our delay liability is limited to a maximum of 5% of the delivery value.
4.5.4. The other statutory entitlements of the contractor are thereby not excluded.
Article 5 Passing of the risk
Unless the order confirmation does not state otherwise, delivery "ex works" and regarding stock articles "ex stock" is agreed upon. The dispatch is always undertaken at the risk of the purchaser, even when delivered from a country other than the place of performance - even with free freight forwarding and / or by dispatch via their own people or vehicles -.
Article 6 Warranty Claims
6.1. Supplied goods have to be investigated immediately after delivery by the customer, as far as it is practicable in the regular course of business. If a defect is found, it has to be reported immediately. If the customer fails to report the defect, the goods are considered as approved, unless there is a defect that was not discernible when investigated. If such a defect shows later, the report must be made immediately after the discovery, otherwise the goods are considered as approved also in respect of this defect. Section 377 of the Commercial Code remains unaffected. Also in the case of recourse of the operator pursuant to § 478 BGB, the customer is not absolved from his obligation to inspect. If he does not immediately announce the defect claimed by the purchasers in such cases, the product is considered as approved, also in view of this defect.
6.2. Where a deficiency exists, we are entitled to determine the type of supplementary performance taking into account the nature of the defect and the legitimate interests of the client. Regarding these contracts, a supplementary performance is considered as failed after the unsuccessful third attempt. This paragraph does not apply in the case of recourse according to § 478 BGB.
6.3. In the case of rectification of defects, we are only required to provide the necessary expenditures, especially transportation, infrastructure, - labor and material costs, as these do not increase because of the product being taken to a place other than the domicile or the subsidiary of the customer to which the delivery went. This paragraph does not apply in the case of recourse according to § 478 BGB.
6.4. The warranty claims of customers, including claims for damages are limited to one year. This does not apply in the case of recourse according to § 478 BGB; furthermore, this does not apply in the cases of § § 438 para 1 No. 2 BGB and § 634a para 1 No. 2 BGB. This does also not apply to claims for damages arising out of injury of life, body or health or due to gross negligence or premeditated breach of duty by us or our vicarious agents. In the case of § 438 I No. 2 b BGB (materials for buildings) the warranty claims of the contractor are limited to 2 years. The sale of used materials is undertaken excluding all claims for defects.
Article 7 Liability for damages and reimbursement of expenses
7.1. In the case of our contractual liability for damages the following applies:
7.1.1. If the claims are based on a premeditated breach of duty by us, our representatives or our vicarious agents, we are liable for damages under the statutory provisions. If the claims are based on a grossly negligent breach of duty by us or our representatives or vicarious agents, the liability is limited to the foreseeable, typically occurring damage.
7.1.2. In case we or our representatives or vicarious agents have culpably violated a duty whose performance makes the proper execution of the contract possible in the first place, whose violation jeopardizes attaining the purpose of the contract and whose compliance the customer relies on as a rule - and if there is no case of liability under the statutory provisions as defined in paragraph 7.1.1., the liability is limited to the foreseeable, typically occurring damage.
7.1.3. Unless not otherwise provided in paragraphs 7.1.1. and 7.1.2., our liability for damages is excluded. The same applies in case of recourse actions pursuant § 478 BGB against us [in our function] as supplier.
7.2. The liability exclusions and limitations in section 7.1. also apply to other claims, in particular tort claims or claims for reimbursement of futile expenses instead of performance.
7.3. The liability exclusions and limitations in section 7.1. do not apply to any current claims pursuant §§ 1, 4 Product Liability Act or due to culpable violation of life, body or health. They do also not apply, as far as we have issued a guarantee for the quality of our products or performance success or a procurement risk, and the warranty case has occurred or the procurement risk has occured.
7.4. Liability arising from the acquisition of a procurement risk only concerns us if we have expressly agreed in writing to the procurement risk.
7.5. Unless the limitation of liability pursuant paragraph 7.1. for claims of manufacturer`s liability pursuant § 823 BGB intervenes, our liability is limited to the indemnification of the insurance. Insofar as the insurance does not answer for the damage at all or not completely, we are bound to liability up to the amount of coverage. This paragraph does not apply in case of culpable violation of life, body or health.
7.6. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, members of staff, representatives and vicarious agents.
7.7. Damages for delay are regulated in a special provision in Article 4, paragraph 4.5 .
7.8. The above regulations are not connected with a reversal of the burden of proof.
Article 8 Complementary and digressing arrangements in international contracts
8.1. If the customer has a subsidiary outside the Federal Republic of Germany the following rules shall apply:
8.1.1. We are not liable for the admissibility of the contractually determined suppositional use of the delivered goods in accordance with the requirements of the recipient country. We are also not liable for taxes incurred therein.
8.1.2. We are not responsible for delivery obstacles triggered by government policies, especially import or export restrictions.
8.2. If the customer has a subsidiary outside the Federal Republic of Germany and if the United Nations convention on contracts for the international sale of goods (CISG, Vienna CISG) is to be applied in its currently valid version, the following rules shall also be applied:
8.2.1. Amendments to or termination of the contract must be in writing.
8.2.2. Instead of Article 6 and 7 the following applies:
8.2.2.1. We are only liable for damages to the customer in accordance with statutory provisions if an infringement is based on an intentional or grossly negligent breach of contract one of us, our representatives or vicarious agents have to take responsibility for. We are also liable under the law if we violate a material contractual obligation.
The foregoing limitation of liability does not apply to any existing claims under § § 1, 4 of the German Product Liability Act or regarding claims where the product caused injury to life or body of a person.
8.2.2.2. If delivered sales items are contrary to contract, the customer has the right to contract cancellation or replacement only where damage claims against us are excluded or if it is unacceptable for the customer to use the goods that are contrary to contract and to claim the remaining damage. In these cases, we are initially entitled to remedy the defect. If the defect removal fails and/ or if it leads to an undue delay the customer shall be entitled to terminate the contract or demand replacement. The customer is also entitled to this, if the defect removal causes an unreasonable inconvenience or uncertainty concerning the reimbursement of possible expenses incurred by the customers.
Art 9 Retention of Title
9.1. The ownership of the delivered goods shall be reserved until receipt of all payments from the contract; in case of the existence of an ongoing business relationship until receipt of all payments from this business relationship. This also applies if our demands have been entered in a current account and the balance has been struck and acknowledged, as well as for future claims.
9.2. The customer is obliged to handle the delivered goods with care, in particular, to store them properly; he is also obliged to insure them sufficiently at his own expense at the full new value against fire, water and theft damage.
9.3. In the case of seizure and other interventions by third parties, the customer is obliged to notify us in writing without delay in order to safeguard our rights (such as action under § 771 ZPO). If the third party is unable to reimburse us for the judicial or extra-judicial costs of an action pursuant ZPO § 771, the customer shall be liable for our loss.
9.4. The customer is entitled to resell and use delivered goods in the ordinary course of business; however, he makes assignments arising from the resale to his customers or third parties at the value of the goods subject to retention of title with immediate effect. This applies regardless of whether the delivered goods will have been resold without or after processing. As value of the goods subject to retention of title, the agreed invoice grand total (including VAT) is imperative. If we are jointly entitled to the resold goods subject to retention of title, the assignment of receivables extends to the amount that represents our share in the ownership. The customer is not entitled to any other amortisation of the goods, especially to pledging or security assignment.
9.5. The customer is still entitled to the collection of receivables from the resale even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we commit ourselves not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, as long as he is not in arrears, and in particular no motion to open insolvency proceedings has been filed or payments have ceased. If this is the case, we can demand that the customer informs us about the assigned claims and their debtors, provides all the information necessary for collection, delivers the relevant documents and informs his debtor of the assignment.
9.6. The processing or transformation of the delivered goods by the customer is always conducted for us. The customer`s remainder to the goods supplied shall continue for the transformed items. If the delivered goods are processed together with other objects not belonging to us, we shall acquire joint ownership of the new items in proportion to the objective value of the delivered goods to the other processed objects at the time of processing. For the items generated through processing the same rules shall apply as for the goods delivered under reserve.
9.7. If delivered goods are inextricably mixed, blended or connected with other objects not belonging to us, we shall acquire joint ownership of the new matter in proportion to the objective value of the delivered goods to the other objects at the time of mixing, blending or connecting. If the process occurs in a way that the customer`s item has to be considered as the main object, it is hereby agreed that the customer confers pro-rata co-ownership to us and safeguards the exclusive or joint ownership for us free of charge.
9.8. The customer assigns to us as those receivables in order to secure our claims against him at the value of the goods subject to retention of title together with all ancillary rights and rank before the rest, which he accrues against a third party from the combination of the goods subject to retention of title as an essential part of a plot of land, ship, ship building plant or aircraft of another party. Article 9, paragraph 4, sentence 2 and 3 shall apply accordingly.
9.9. The customer also assigns to us those receivables for securing our claims against him at the value of the goods subject to retention of title together with all ancillary rights and rank before the rest, which he acquires from the sale of his own land, ship, ship building plant or aircraft – with which he as connected the goods subject to retention of title as an essential commodity - to a third party. Article 9, paragraph 4, sentence 2 and 3 shall apply accordingly.
9.10. We commit ourselves to release the securities due to us on the customer's request insofar, as the realizable value of our securities exceeds the claims that need securing by more than 10% or the nominal value by more than 50%; the selection of the securities to be released lies with us.
Art.10 Applicable Law, Place of Performance, Jurisdiction
11.1. This contract is subject to the laws of the Federal Republic of Germany.
11.2. Place of fulfillment for all performances from this contract is 95448 Bayreuth.
11.3. Regarding contracts with merchants, legal persons under public law, special assets subject to public law and with foreigners who do not have domestic jurisdiction, the jurisdiction is 95448 Bayreuth. We do, however, reserve the right to file a suit at the headquarters of the customer.
Art.11 Miscellaneous
If any provision of this agreement is or becomes ineffective, the validity of the other provisions of this contract will not be affected.