General sales conditions
Status: January 2016
§ 1 General, scope of application
- Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing.
Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the Buyer without reservation in the knowledge of terms and conditions of the Buyer that conflict with or deviate from our Terms and Conditions of Sale.
- These Terms and Conditions of Sale shall also apply to all future transactions with the Buyer, insofar as these are legal transactions of a related nature.
- All agreements made between us and the orderer for the purpose of executing this contract shall be in writing in this contract
- Our terms and conditions of sale shall apply only to entrepreneurs within the meaning of Section 310 (1) BGB.
- For the scope of performance, our written order confirmation is decisive.
§ 2 Offer, offer documents
- Our offers are, unless expressly stated otherwise, subject to change and non-binding. The order by the customer is a binding offer. This offer can be accepted by us within two weeks.
- In the interest of technical progress, we reserve the right to make changes in design and form up to the time of delivery, but such changes shall not unreasonably prejudice the interests of the customer.
- We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents and samples. This shall also apply to such written documents which are designated as «confidential». The purchaser must obtain our express written consent before passing them on to third parties. The dimensions and construction dimensions of the standard tools listed in the documents correspond to the standards valid at the time of the order. Insofar as we do not accept the orderer’s offer within the period of § 2 paragraph 1, these documents are to be returned to us without delay.
- If documents (e.g. drawings, gauges, samples, etc.) are to be provided by the customer, he shall guarantee that the use by us of these documents or working drawings prepared by him does not infringe any industrial property rights of third parties. Should the rights of third parties nevertheless be affected, the customer shall indemnify us internally against all claims. We shall not be obliged to check the documents provided by the customer for the absence of rights without a specific reason.
- If special tools are ordered, the quantity ordered may be exceeded or fallen short of by approx. 10 %, but at least by 2 pieces. Calculated is the delivery quantity.
- Returns or exchanges are only possible after prior consultation and within 30 days. Returns must be accompanied by the appropriate documentation (including order number, invoice number, delivery date, reason for return and return authorization).
Returns and exchanges can be accepted only in cases of standard products in stock, if the items are in perfect condition (new condition) and if the return has already been prepaid. In this case, we may charge a handling fee of 20% of the value of the goods. The minimum processing fee for all returns or exchanges is 35,-€. For special products returns and exchanges are excluded.
§ 3 Prices, terms of payment
- Unless otherwise stated in the order confirmation, our prices are «ex works», excluding packaging; this will be invoiced separately, as will any freight requested. The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
- If the purchase price is invoiced in a foreign currency, the customer shall bear the risk of the foreign currency against the Euro from the conclusion of the contract until payment.
- Our invoices are due within 30 days from the date of invoice. For payment within 10 days from the date of invoice, we grant a
2% discount. Payments shall be deemed effected only upon unconditional credit to one of our accounts. Bills of exchange and checks are accepted only on account of performance and only by agreement. With the issuance of a bill of exchange or a check, the ownership of the bill of exchange or check is also transferred to us. The expenses associated with the redemption shall be borne by the orderer.
- If the customer does not pay within the payment period, we shall be entitled to charge interest on the due date at a rate of 8 percentage points above the prime rate of the ECB. We reserve the right to assert a higher damage caused by default.
- In the event of a significant deterioration in the financial circumstances of the customer after conclusion of the contract (opening of insolvency proceedings, rejection of insolvency proceedings for lack of assets, deterioration of the assets becoming known through no fault of our own), we may withhold delivery until the customer has made payment or provided appropriate security for the claim. If the purchaser’s cheques are not honoured or if bills of exchange issued by him are protested, the above shall apply mutatis mutandis. If the customer does not provide security within two weeks of our request or if he does not declare his willingness to pay concurrently within the same period, we shall be free to withdraw from the contract. In these cases, as well as in the event of cessation of payments and insolvency of the customer, payment shall be due immediately.
- 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. In addition, he is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship, this has been agreed in writing or it has been legally established. The commercial right of retention according to §369 of the German Commercial Code (HGB) is excluded.
- If no fixed price agreement has been made, reasonable price changes due to changes in labor, material and distribution costs for deliveries made 4 weeks or later after the conclusion of the contract are reserved.
§ 4 Delivery time
- The start of the delivery time specified by us requires the clarification of all technical and commercial issues. Thereafter, the delivery dates are specified to the best of our knowledge as accurately as possible.
- The compliance with our delivery obligation, which begins to run with the receipt of the order confirmation by the purchaser, further presupposes the timely and proper fulfillment of the purchaser’s obligation (procurement of documents and approvals, releases, receipt of agreed down payment, etc.). We reserve the right to plead non-performance of the contract. The delivery period shall be deemed to have been met if the delivery item has left the factory or notification of readiness for dispatch has been given by the time of its expiry.
- The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, as well as in the event of the occurrence of unforeseen obstacles which are beyond our control, insofar as such obstacles can be proven to have a significant influence on the completion or delivery of the delivery item, and in the event of force majeure. If these circumstances occur at a subcontractor of ours, the above shall apply accordingly. The same applies if the aforementioned circumstances arise during an already existing delay.
arise. In important cases, we will inform the customer as soon as possible of the beginning and expected end of such obstacles. Should these obstacles last longer than four months or should they make our performance permanently impossible, we shall be entitled to withdraw from the contract in whole or in part. The orderer shall not be entitled to any claims for damages arising from such a withdrawal.
- Partial deliveries may not be rejected by the orderer. If payment for a partial delivery is delayed, we may suspend further completion of the order.
- Items delivered shall be accepted by the orderer, even if they have insignificant defects, without prejudice to all rights arising from § 6.
- If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims
- If delivery ex call-off has been agreed, we shall be entitled to deliver and invoice the completed goods after 12 months at the latest, even if the call-off has not yet been made by the customer. If the customer’s shipment is delayed, he will be charged, starting one month after notification of readiness for shipment, for the costs incurred by the storage, but at least 0.5% of the invoice amount for each month, unless the customer proves that costs were not incurred or were not incurred in this amount. We are also entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item or to supply the customer with a reasonably extended deadline.
- If the conditions of paragraphs (4), (6) and (7) apply, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s default.
- We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the Buyer is entitled to assert that his interest in the further performance of the contract has ceased.
- Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- We are also liable according to the statutory provisions, insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
§ 5 Transfer of risk
- Unless otherwise stated in the order confirmation, delivery is agreed «ex works».
- If the orderer so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the orderer.
- The risk shall pass to the orderer in all cases when the goods leave our works or when the orderer is notified that the goods are ready for dispatch. This also applies in the case of partial delivery or shipment of the goods at the request and expense of the buyer.
§ 6 Warranty
- Claims for defects on the part of the customer presuppose that he has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Complaints due to incomplete or incorrect delivery or recognizable defects must be notified to us in writing no later than 8 days after receipt, otherwise the delivery or service shall be deemed approved. Other defects must be notified to us in writing without delay. These deadlines are preclusive deadlines. The Buyer shall submit any notice of defect in writing, stating in detail the alleged individual defects.
- If there is a defect in the purchased item and this has been notified in due time, we shall be entitled at our discretion to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance. Replaced parts shall become our property.
- If the subsequent performance fails or is refused by us, the customer shall be entitled to demand rescission or a reduction in price at his discretion.
- Claims for defects shall not exist in the event of only insignificant impairment of usability, natural wear and tear or wear and tear. The same shall apply to defects that arise after the transfer of risk as a result of incorrect or negligent handling, excessive stress, faulty assembly or unsuitable operating materials.
- For drawings and other information provided by the customer, the latter shall be responsible for ensuring that they are accurate in terms of dimensions and that they
correspond with the actual conditions. Should this not be the case, the additional expenditure caused by this shall be reimbursed by the orderer. We do not assume any liability for damages that are based on incorrect or incomplete specifications by the orderer.
- We shall be liable in accordance with the statutory provisions insofar as the orderer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as no intentional breach of contract is proven against us, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall be liable in accordance with the statutory provisions insofar as we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- Inasmuch as the customer is entitled to claim compensation for damage in lieu of performance, our liability shall also be limited within the scope of para.
compensation for the foreseeable, typically occurring damage.
- In addition, direct damage and consequential damage resulting from defects in the delivery item are only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
- The liability for culpable injury to life, body or health remains unaffected; this also applies to the mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
- The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
- The limitation period in the case of a delivery recourse according to §§ 438 para. 1 No. 2, 479 para. 1 and § 634 a BGB remains unaffected; it is five years, calculated from delivery of the defective item.
- In all cases in which notices of defects are raised, the customer shall give us the opportunity to inspect the goods complained about.
He is obliged to notify us immediately in writing of any damage within the meaning of the above liability provisions, so that we are informed as early as possible and, if necessary, can work together with the purchaser to limit the damage.
- Our consent must be obtained before any return of the goods.
- In the case of unjustified notices of defects which cause extensive re-examinations, the costs of the examination may be charged to the orderer.
- If advice or recommendations are issued by us, these shall be made without any obligation on our part and to the exclusion of any liability, insofar as these do not form part of the contractually agreed scope of performance owed by us.
§ 7 Reservation of ownership
- We retain title to the delivery item until all our claims against the customer arising from the business relationship, including claims arising in the future from contracts concluded at the same time or later, have been settled. In case of breach of contract by the customer, in particular in case of default of payment, we shall be entitled to take back the object of sale. In this case, the purchaser shall be obliged to assign to us any claims for return which may exist against third parties. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The customer shall irrevocably permit us, if the goods are still on his premises, to enter those rooms in which our property is located in order to enable us to take back the goods. In addition, the customer irrevocably permits us to enter those premises in which our property is stored at any time for inspection purposes. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of sale shall be credited against the customer’s liabilities, less reasonable costs of sale.
- The customer is obliged to treat the object of sale with care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the Purchaser must carry this out in good time at its own expense. The orderer shall keep the (co-)ownership for us free of charge.
- In the event of seizure, damage, loss or other interventions by third parties, the orderer must notify us immediately in writing. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the orderer shall be liable for the loss incurred by us.
§ Place of jurisdiction, place of performance
- If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
- The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
- Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
- The data of the orderer are stored by us within the scope of the purpose of the contractual relationship in accordance with the Federal Data Protection Act.