§ 1 Scope of application
1. Unless expressly agreed otherwise, the following terms of delivery ("Terms") shall apply to business transactions with companies. Within the framework of an ongoing business relationship, the terms and conditions shall also apply without express reference to individual cases by the user ("Supplier").
2. Precious metal sales, repairs and assemblies are subject to separate conditions.
3. The supplier hereby expressly objects to all terms and conditions of the contractual partner ("purchaser").
§ 2 Offers, Documents and Industrial Property Rights
1. Unless expressly designated as binding, the Supplier's offers contained in sales documents, catalogues or on the Internet are always subject to change without notice and are to be understood only as an invitation to submit an offer.
2. Unless expressly declared binding in the supplier's offer documents, the approximate values customary in the industry shall apply to all technical data, material specifications, etc. If the supplier makes changes to the production method or product which have no influence on compliance with the approximate values customary in the industry, he will only notify the customer if a quality guarantee is affected.
3. All documents made available to the Purchaser by the Supplier remain the property of the Supplier; they may not be made accessible to third parties without the prior written consent of the Supplier and, if the order is not placed with the Supplier, must be returned in full upon request, including any copies made.
4. product information contained in catalogues, brochures and other written documents or on the Internet shall be checked by the purchaser for suitability for the planned application prior to acceptance and use. This also applies to the selection of suitable materials. The customer must inform himself about the possible uses of the product.
5. The Supplier is not obliged to check the correctness and/or legal conformity (in particular infringements of industrial property rights) of the Customer's specifications and/or specifications; this is the sole responsibility of the Customer.
6. The Purchaser shall indemnify the Supplier against any claims by third parties arising from infringements of industrial property rights resulting from the fact that the Purchaser or a person commissioned by it processes products, drawings or samples of the Supplier or uses them in a manner which infringes industrial property rights. If such further processing or use of the products, drawings or samples leads to a legal dispute due to alleged or actual infringements of industrial property rights, the Purchaser shall reimburse the Supplier for all expenses incurred by the Supplier as a result of the legal dispute.
7. assurances of or collateral agreements with employees of the supplier always require the written confirmation of the supplier in order to be valid if they go beyond the written contract. Sentence 1 shall not apply to verbal agreements and assurances made by the Supplier or a representative of the Supplier.
8. Samples of a product requested by the Purchaser shall be remunerated appropriately.
9. If software is included in the scope of delivery of a product, the Purchaser shall be granted a non-exclusive right of use to the delivered software including its documentation. The Purchaser shall be entitled to transfer the licence to third parties. He may not grant sublicenses. Reproduction of the software is prohibited unless it is a back-up copy.
10. All other rights to the software and the documentation including the backup copy shall remain with the supplier or the software supplier. The right of resale is not restricted. § 3 OrdersOrders shall be deemed accepted if the Supplier has confirmed them in writing or executed them immediately after receipt of the order.
§ 4 Delivery time and scope
1. delivery times begin with the conclusion of the contract and end with the dispatch or notification of readiness for dispatch. In the case of annual or call-off orders which provide for a specific quantity, each call-off is executed with a delivery time of 4 weeks, unless a different delivery time has been expressly agreed.
2. changes requested by the customer cause the delivery time to begin again with the date of the changed order confirmation of the supplier.
3. delivery times shall be reasonably extended in the event of force majeure and similar events for which the supplier is not responsible or which could not have been foreseen, such as refusal to obtain official permits, operational disruptions, industrial disputes, disruption of transport routes, delay in self-delivery of supplied parts through no fault of the supplier etc., insofar as such hindrances demonstrably have a considerable influence on the delivery. Sentence 1 shall not apply if the supplier is already in default with the delivery of the product.
4. Changes in the burden of proof to the detriment of the customer are not associated with these provisions.
5. The right of the Purchaser to rescind the contract after the fruitless expiry of a reasonable period set for the Supplier shall remain unaffected.
6. Partial deliveries shall be permissible insofar as they are reasonable for the Purchaser.
7. Annual or call-off orders which provide for a specific quantity shall oblige the Purchaser to accept the total quantity within the agreed period; if no period has been agreed, the agreed quantity shall be called-off within one year of conclusion of the contract.
§ 5 Place of delivery, passing of risk
1. Delivery without installation or assembly of the product shall be ex works or ex warehouse of the Supplier at the expense and risk of the Purchaser. The choice of the mode of dispatch shall be made by the Supplier at its own discretion, unless the Purchaser specifies otherwise. At the Purchaser's request and expense, the Supplier shall insure the consignment against breakage, transport damage and fire damage.
2. In the case of delivery without installation or assembly, the risk with respect to the product, even if carriage paid delivery has been agreed, shall pass to the Purchaser on handover of the product to the Purchaser, the forwarder or carrier, but at the latest on leaving the Supplier's works or warehouse.
3. If, in the case of delivery without installation or assembly, the delivery is delayed at the request or through the fault of the purchaser, the product shall be stored at the purchaser's expense and risk. In this case, notification of readiness for delivery shall be deemed equivalent to delivery. The risk shall pass to the Purchaser at the time at which the latter is in default of acceptance.
4. In the case of delivery with installation or assembly of the product, the risk in respect of the product shall pass to the Purchaser on the day of acceptance, but at the latest on the day of acceptance. Acceptance shall be deemed to have taken place unless the Purchaser expressly refuses acceptance within 14 days of being requested to do so. The Supplier undertakes to draw attention to this legal consequence when requested to do so. Clause 5.3 shall apply accordingly.
§ 6 Prices
1. All prices are ex works plus freight/postage, packaging, insurance and the applicable statutory value added tax. Costs for commissioning, assembly, adjustment or similar. Services shall be invoiced separately.
2. The supplier is entitled to increase the price of the product if there are more than 4 weeks between the conclusion of the contract and the agreed delivery date and if the production costs for the product have increased between the conclusion of the contract and delivery due to circumstances for which the supplier is not responsible, in particular due to an increase in the prices of supplied parts. If the Supplier increases the price in this case, the price increase may not exceed the increase in production costs. Upon request, the Supplier shall provide the Purchaser with evidence of the increase in production costs.
§ 7 Payment
1. Unless otherwise agreed, the agreed price shall be payable in Euro within 30 days of due date and receipt of the invoice or equivalent request for payment without deduction and free of charges. The risk and costs of the payment process shall be borne by the customer. Cheques or bills of exchange shall only be accepted with the express prior written consent of the Supplier and only on account of performance.
2. The customer shall only have the right of retention or set-off with undisputed or legally established claims.
3. costs for security deposits, letters of credit for foreign business transactions or similar shall be borne by the customer.
§ 8 Liability for material defects
1. The customer shall inspect the products for defects immediately upon receipt. Obvious defects must be reported to the supplier in writing within 5 working days of receipt, hidden defects within 5 working days of discovery.
2. in the event of a defect notified in good time, the supplier shall remedy the defect within a time frame appropriate to the technical complexity of the product - if necessary several times; the purchaser shall grant the supplier the opportunity to do so. The supplier is entitled to decide on the type of subsequent performance (subsequent delivery of a defect-free product or subsequent improvement) taking into account the interests of the customer.
3. If the subsequent performance fails, the Purchaser shall be entitled - without prejudice to any claims for damages - at his discretion to withdraw from the contract or to demand a reduction in payment (abatement).
4. for defects which were discovered by the customer prior to installation or processing or which could have been discovered with reasonable effort, all claims arising from liability for material defects shall lapse as soon as the product has been processed or installed. This shall not apply if the Supplier, its executive employees or its vicarious agents are guilty of intent, gross negligence or injury to life, limb or health, if liability exists for breach of an essential contractual obligation within the meaning of Clause 9.1 or if liability is mandatory under the Product Liability Act.
5. the supplier shall not assume any warranty for a certain service life of the products, in particular under aggravated and previously unknown operating conditions. Claims in the event of premature malfunction of the delivered product shall be excluded if they are based on the more difficult or previously unknown operating conditions.
6. for products which have been manufactured according to drawings or specifications of the purchaser, the supplier shall only assume liability for material defects if they have been manufactured in accordance with specifications. The mandatory liability according to the Product Liability Act, for intent and gross negligence, injury to life, body or health or due to breach of an essential contractual obligation remains unaffected.
7. Liability for material defects which do not or only insignificantly impair the value or the fitness for use is also excluded.
8. claims for material defects expire 12 months after commissioning, at the latest 15 months after transfer of risk. Sentence 1 shall not apply if, due to a material defect, damages are claimed due to intentional or grossly negligent breach of duty by the supplier or a vicarious agent or due to injury to life, limb or health. Sentence 1 shall also not apply if § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB prescribe longer periods.
9. rights of recourse according to §§ 478, 479 BGB only exist, if the claim by the consumer was justified and only to the legal extent, not against it for goodwill agreements not agreed with the supplier. In addition, they presuppose that the party entitled to recourse observes its own duties, in particular the duty to give notice of defects.
§ 9 General limitation of liability
1. The Supplier shall be liable in accordance with the statutory provisions insofar as the Purchaser asserts claims for damages based on intent or gross negligence on the part of the Supplier or its executive employees or vicarious agents. Furthermore, the Supplier shall be liable in accordance with the statutory provisions for the fulfilment of essential contractual obligations. Material contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely. If the Supplier, its executive employees or its vicarious agents are not guilty of intent or gross negligence, liability for damages shall be limited to the foreseeable damage typically incurred in contracts of this type.
2. Liability for culpable injury to life, limb or health shall remain unaffected by Clause 9.1. Liability under the Product Liability Act shall also remain unaffected by Clause 9.1.
3. Claims for damages, irrespective of their legal basis, which go beyond the claims for damages regulated in Clauses 9.1 to 9.2, are excluded. This shall also apply if the customer demands compensation for futile expenses instead of compensation for damages.
4. If the customer provides material for the manufacture of products ordered by him, this is only insured against theft by the supplier. Liability for destruction, loss or deterioration of this material shall only exist in the event of intent or gross negligence on the part of the supplier.
5. The statutory regulations on the burden of proof shall remain unaffected.
§ 10 Retention of title
1. The delivered product (hereinafter: reserved product) shall remain the property of the Supplier until full payment of all due claims which the Supplier owns or acquires in the future from a business relationship with the Purchaser, including those arising from contracts concluded simultaneously or later.
2. If the reserved product is processed by the purchaser into a new movable object, the processing shall be carried out for the supplier without the supplier being obliged to do so. The new item shall become the property of the Supplier. If the reserved product is processed together with products not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in proportion to the invoice value of the reserved product and the value of the other products at the time of processing as well as the processing value. If the reserved product is combined, mixed or blended with products not belonging to the supplier in accordance with §§ 947, 948 BGB, the supplier shall become co-owner in accordance with the statutory provisions. If the Purchaser acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the Supplier in proportion to the value of the reserved product to the other products at the time of combining, mixing or blending. The new item owned or co-owned by the Supplier shall be deemed to be a reserved product within the meaning of these Terms and Conditions. The Purchaser shall store the reserved product for the Supplier free of charge with the due care and diligence of a prudent businessman.
3. The Purchaser hereby assigns to the Supplier his claims arising from the resale of the Reserved Product in the amount of the value of the Reserved Product, irrespective of whether the sale is made alone or together with products which do not belong to the Supplier. The supplier accepts this assignment. If the resold reserved product is co-owned by the supplier, the assignment of the claims shall extend to the amount corresponding to the share value of the supplier in the co-ownership.
4. The Purchaser assigns to the Supplier the assignable claims against a third party arising from the installation of the reserved product as an essential component in a property, ship, ship structure or aircraft in the amount of the value of the reserved product. The supplier accepts the assignment. Clause 10.3 sentence 3 shall apply accordingly.
5. The Purchaser shall only be entitled and authorised to further process, install, use or resell the reserved product in the ordinary course of business and subject to the proviso that the claims arising from Clauses 10.3 and 10.4 are actually transferred to the Supplier. Other disposals of the reserved product, in particular its pledging or assignment by way of security, may only be made by the purchaser with the consent of the supplier.
6. The Purchaser shall be revocably entitled to collect the claims assigned to the Supplier pursuant to Clauses 10.3 to 10.5 in the ordinary course of business. The Supplier shall not make use of its own right to collect as long as the Purchaser fulfils its payment obligations, also vis-à-vis third parties. At the Supplier's request, the Purchaser shall name the debtors of the assigned claims and notify them of the assignment. The supplier is authorised to notify the debtors of the assignment himself. In case of doubt, the assertion of the reservation of title and in particular the demand for surrender shall constitute a withdrawal from the contract.
7. the purchaser must notify the supplier immediately of any enforcement measures taken by third parties against the reserved product or the assigned claims, handing over the documents necessary for the objection.
8. The supplier undertakes to release the securities to which he is entitled at his discretion at the request of the purchaser insofar as the realisable value of these securities exceeds the claims to be secured by more than 10%.
§ 11 Place of jurisdiction
1. The law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The language of the contract shall be German.
2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties, also for disputes in the process of documents, bills of exchange or cheques, shall be the registered office or domicile of the supplier. The Supplier shall also be entitled to sue the Purchaser at any other statutory place of jurisdiction.