§ 1 General – Scope of application
- Our deliveries, services and offers are exclusively based on these General Terms of Delivery. They are an integral part of all contracts which we conclude with the contractual partner (hereinafter also referred to as „Customer“). We do not recognise any terms and conditions of the Customer which conflict with or deviate from these Terms and Conditions of Business unless we have expressly agreed to their validity. Our Terms and Conditions of Business shall also apply if we carry out the delivery to the contractual partner without reservation in the knowledge that the Customer‘s terms and conditions are contrary to or deviate from our Terms and Conditions of Business. Counter-confirmations of the Customer with reference to his terms and conditions are hereby contradicted.
- All our Terms and Conditions of Sale apply only to companies within the meaning of § 310 BGB (German Civil Code).
- Our Terms and Conditions of Business shall also apply to all future business with the contractual partner, even if they are not expressly agreed upon again.
§ 2 Offer – Conclusion of the Contract
- Our offers are subject to change and non-binding until receipt of the acceptance of the offer by the Customer, unless they are expressly marked as binding or contain a specific period of acceptance. If the Customer‘s order is to be qualified as an offer in accordance with § 145 BGB, we can accept this offer within two weeks of receipt. The Customer shall remain bound by the offer until this time.
- Additions and amendments to the agreements made, including these General Terms and Conditions of Sale, must be made in writing to be effective. Confirmation by telecommunication, in particular by fax or e-mail, is sufficient to meet the requirement of the written form.
§ 3 Offer documents
- Our information on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not a description or guarantee of quality, but descriptions or identifications of the delivery or service. Customary deviations and deviations from the quality agreed with the contractual partner, which are based on legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided that they do not impair the usability for the contractually intended purpose.
- We reserve the ownership or copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The Customer may not make these items available to third parties, make them known, use them himself or have them used or reproduced by third parties, either as such or in terms of their content, without our express consent. At our request, he must return these objects to us in full and destroy any copies that may have been made if they are no longer needed by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of electronically provided data for the purpose of normal data backup.
§ 4 Prices, minimum order value
- Unless otherwise stated in the order confirmation, our prices are „ex works“ excluding packaging, transport and freight insurance as well as, in the case of export deliveries, plus any customs duties, fees and other public charges that may be incurred; these will be invoiced separately.
- The statutory value-added tax is not included in our prices; it is shown separately in the invoice at the statutory rate on the day of delivery and performance.
- The agreed prices are based on the wage, material, energy and overhead costs at the time of conclusion of the contract. If these costs increase within four months between the conclusion of the contract and the date of delivery, we shall be entitled to a corresponding price increase, unless the increase in costs was already foreseeable at the time of conclusion of the contract, we are in default of delivery or are responsible for the increase in costs for other reasons. Proof of any such cost increases will be provided to the contractual partner upon request.
- The minimum order value per item is 30 €; the minimum value per order is 150 €. If these minimum values are not reached, the difference will be calculated and charged either on the order value per item or on the total order value.
§ 5 Conditions of payment, set-off and right of retention, assignment
- Unless otherwise agreed, our invoices are payable net (without deduction) within 30 days of the invoice date (subject to clause 5).
- We are entitled to set off payments of the contractual partner against any existing older debts if we inform the contractual partner about the type of set-off. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and finally against the main claim.
- A payment shall only be deemed to have been made when we can dispose of the amount.
- The contractual partner is only entitled to offset against our claims if the counterclaims have been legally established, are undisputed or have been recognised by us. The contractual partner is only entitled to exercise a right of retention if a counterclaim is based on the same contractual relationship. Neither shall apply if the counterclaim of the contractual partner is in a mutual relationship (so-called synallagma) with our claim.
- In deviation from clause 1, sentence 1, we may declare invoices to be due for immediate payment if the contractual partner is in default with a not insignificant amount.
- We have the right to assign our claims against the contractual partner to third parties.
§ 6 Delivery and performance time
- Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. The beginning of the delivery period stated by us presupposes the clarification of all technical questions.
- We shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure to deliver, incorrect delivery or delayed delivery by suppliers), for which we are not responsible. Insofar as such events make delivery or performance considerably more difficult or impossible for us and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the contractual partner cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
- If we are in default with a delivery or service or if a delivery or service becomes impossible for us for whatever reason, our liability for damages shall be limited in accordance with § 10.
- Compliance with our obligation to deliver presupposes the lawful and proper fulfilment of the contractual partner‘s obligation.
- If the contractual partner is in default of acceptance or violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the contractual partner at the point in time at which the contractual partner is in default of acceptance.
- We are entitled to make partial deliveries if the partial delivery is usable for the contractual partner within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the contractual partner does not incur any considerable additional expenditure or additional costs as a result (unless we declare ourselves willing to assume these costs).
§ 7 Place of performance and transfer of risks
- Place of performance for all obligations arising from the contract is our registered office, unless otherwise specified.
- Unless otherwise stated in the order confirmation, delivery shall be „ex works“ (INCOTERMS 2010)
- If the Customer so wishes, we shall cover the transport risk of the contractual partner by means of a standard transport insurance policy; the costs shall be borne by the Customer.
§ 8 Warranty / Defects
- The delivered goods must be carefully inspected immediately after delivery to the contracting party and, if they are installed in or attached to other goods in accordance with their nature or intended use, always before such installation or attachment. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the contractual partner if a notice of defects is not sent to us in writing or in text form within ten working days of delivery. The defects shall be described and documented to a reasonable extent in such a way that we can check and understand the existence of the alleged defects. With regard to other defects, the delivery items shall be deemed to have been approved by the contractual partner if the notification of defects is not sent to us within ten working days after the time at which the defect became apparent; however, if the defect was already apparent to the contractual partner at an earlier point in time during normal use, this earlier point in time shall be decisive for the start of the period for notification of defects. § Section 377 of the German Commercial Code (HGB) shall otherwise apply without restriction.
- The warranty period shall be one year. If and insofar as the items delivered by us are used for a building in accordance with their normal use and cause its defectiveness, the period shall be five years. However, the period of one year shall not apply to claims for damages by the contractual partner arising from injury to life, body or health or from intentional or grossly negligent breaches of duty on our part or on the part of our vicarious agents, which shall be time-barred in accordance with the statutory provisions.
- In so far as there are material defects in the delivered items at the time of the transfer of risk, we shall be obliged and entitled to choose within a reasonable period of time between repair or replacement. The rectification of defects may initially also consist in showing the contractual partner reasonable possibilities to avoid or circumvent the effects of the defect. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the contractual partner may withdraw from the contract or reduce the purchase price appropriately. We may refuse subsequent performance if it is only associated with disproportionate costs. The costs are in any case disproportionate if they exceed the value of the defect-free delivery item by a factor of five or, if the delivery item is installed in or attached to another item in accordance with its intended use, if they are higher than the value of this item including the defect-free delivery item.
- We shall only be obliged to reimburse the contractual partner‘s expenses for removing a defective delivery item and/or attaching a defect-free delivery item in accordance with § 439 (3) BGB if the contractual partner has previously given us the opportunity to do so at our expense and we do not comply with this within a reasonable period of time.
- § 10 shall apply to claims for damages due to defects.
- The warranty shall not apply if the contractual partner modifies the delivered item or has it modified by third parties without our consent and the elimination of the defect is thereby rendered impossible or unreasonably difficult. In any case, the contractual partner must bear the additional costs of the removal of defects arising from the modification.
- The provisions in Clauses 2 and 4 shall only apply if and insofar as nothing else has been agreed in writing for the delivery items (offer, order confirmation, framework/delivery/quality agreement).
- A delivery of used objects agreed with the contractual partner in individual cases shall be effected to the exclusion of any warranty for material defects.
§ 9 Industrial property rights and copyrights
- We shall notify the contracting party and the contracting party shall notify us immediately - if possible in writing - if claims are asserted against us or against the contracting party due to infringement of industrial property rights or copyrights of third parties by our delivery items.
- If the delivery item actually infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, either modify or replace the delivery item in such a way that no more third-party rights are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the contractual partner by concluding a licence agreement. If we do not succeed in doing so within a reasonable period of time, the contractual partner is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the contractual partner are subject to the restrictions of § 10.
- In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, either assert our claims against the manufacturers and sub-suppliers for the account of the contractual partner or assign them to him. In these cases, claims against us shall only exist in accordance with the provisions of this § 9 if the legal enforcement of the above-mentioned claims against the manufacturers and sub-suppliers was unsuccessful or, for example due to insolvency, is futile.
§ 10 Liability for damages due to fault
- Our liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, insofar as fault is involved, is limited in accordance with the provisions of this § 10.
- We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless it is a matter of a breach of material contractual obligations (obligations without which the achievement of the purpose of the contract would be jeopardised and on the fulfilment of which the contractual partner may therefore regularly rely; so-called cardinal obligations).
- Insofar as we are liable for damages in accordance with item 2, this liability is limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due care. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.
- In the event of liability for simple negligence according to Clauses 2 or 3, our obligation to pay compensation for property damage and resulting financial losses as well as for direct financial losses is limited to an amount of EUR 1,000,000 per case of damage, even if it is a violation of essential contractual obligations.
- The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
- The limitations of this § 10 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 11 Retention of title
- All items delivered by us remain our property (hereinafter referred to as reserved goods) until the purchase price has been paid in full.
- In addition, all items delivered by us remain our property (reserved goods) until all claims against the contractual partner arising from the business relationship, including those arising in the future, have been settled. In the case of current accounts, the retention of title shall be deemed to be security for the respective balance claim. This shall also apply if payments are made by the contractual partner for specific claims.
- The contractual partner‘s claims arising from the resale of the reserved goods are hereby assigned to us. They serve as security for our claims to the same extent as the reserved goods.
- In the event of seizure or other interventions by third parties, the contractual partner must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the contractual partner shall be liable for the loss incurred by us.
- The processing or transformation of the reserved goods by the contractual partner shall always be carried out for us. The expectant right of the contractual partner to the goods subject to retention of title shall continue in the transformed object. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies to the object created by the processing as to the reserved goods.
- If the goods subject to retention of title are inseparably mixed with other goods not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other mixed items at the time of mixing. If the mixing is carried out in such a way that this object of the contractual partner is to be regarded as the main object, it is deemed to be agreed that the contractual partner transfers co-ownership to us proportionately. The contractual partner shall hold the sole ownership or co-ownership thus created in safekeeping for us.
- We shall release the goods subject to retention of title as well as the objects or claims taking their place if their value exceeds the amount of the secured claims by more than 30%. The selection of the securities to be released thereafter is at our discretion.
§ 12 Data protection
- Personal data of the Customer (e.g. name and e-mail address of the contact person on the Customer side) are collected, processed and used by us in compliance with the data protection regulations, in particular the Basic Data Protection Regulation (DSGVO) and the Federal Data Protection Act (BDSG). The data necessary for the business transaction are stored by us and, if necessary, passed on to external service providers (e.g. transport companies) for the purpose of fulfilling the contract.
- If we receive the e-mail address of the purchaser in connection with the sale of a product or service, we will use this for direct advertising (e.g. by newsletter) for our own similar goods or services. The Customer can object to the use of his e-mail address for advertising purposes at any time without incurring any costs (e.g. by unsubscribing from the newsletter distribution list by activating the link provided in each newsletter). In all other respects, the Customer‘s contact data will only be used for advertising purposes within the scope of the legal permissions or with his consent.
- The Customer shall ensure that the personal data transmitted to us by him or at his instigation by third parties has been collected and processed in accordance with the relevant data protection regulations, that any necessary consents of the persons concerned have been obtained and that the use of the data by us in the context of the execution of the contract does not infringe any data protection regulations or exceed the scope of any consents granted.
§ 13 Applicable law, place of jurisdiction, partial invalidity
- The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between us and the Customer, but to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Bietigheim-Bissingen is the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. We also have the right to take legal action at any other national or international court having jurisdiction over the customer.
- Should a provision in these terms and conditions or a provision in the context of other agreements be or become ineffective, this does not affect the effectiveness of all other provisions of these terms and conditions and that agreement. Instead of the ineffective or missing provision, such an effective provision applies that comes closest to what the parties wanted economically at the time the contract was concluded.
Dated: April 2021