1. General terms and conditions
(1) Our General Terms and Conditions of Delivery and Sale apply exclusively to all our contracts, deliveries and services, unless they are amended or excluded with our express written consent. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our General Terms and Conditions of Delivery and Sale, unless their validity has been confirmed by our express written consent. Our General Terms and Conditions of Delivery and Sale shall also apply in particular if we carry out the delivery or service to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of our contractual partner or terms and conditions deviating from our General Terms and Conditions of Delivery and Sale.
(2) Our General Terms and Conditions of Delivery and Sale shall only apply to companies within the meaning of § 310 BGB (German Civil Code).
(3) Our General Terms and Conditions of Delivery and Sale shall also apply to all future contracts, deliveries and services with the Buyer; this shall also apply if the text of our General Terms and Conditions of Delivery and Sale is not sent to our contractual partner again with our offer or our order confirmation.
2. Conclusion of contract
(1) Contracts and other agreements shall only become binding upon our written confirmation or upon our delivery or performance. Our offers are subject to change. If an order is to be qualified as an offer according to § 145 BGB, we can accept it within four weeks. Commercial letters of confirmation from our contractual partner shall not, even without our objection, have the effect of concluding a contract with a content that deviates from our offer, our confirmation of order or our other written declarations.
(2) All agreements made between us and the customer for the purpose of implementing the contract and executing and providing deliveries and services shall be set out in writing in this contract. Insofar as the written form is stipulated in these terms and conditions, it shall also be deemed to have been complied with if corresponding declarations are transmitted by fax or e-mail. A written agreement shall also be deemed to have been concluded by the fact that we and our contractual partner each make declarations in writing which are identical in content.
(3) Agreements made between our employees or representatives and the customer at or after the conclusion of the contract require our written confirmation in order to be valid; the power of representation of our employees and representatives is limited in this respect.
(4) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. This shall apply in particular to such written documents which are designated as "confidential"; the customer shall require our express written consent prior to their disclosure to third parties.
3. Prices - Terms of Payment
(1) All prices stated are fixed in euros and are net prices and, unless otherwise agreed, are ex works, plus the statutory value-added tax applicable at the time, which will be shown separately in the invoice at the statutory rate on the date of invoicing. The Purchaser shall make its payments in Euro, unless otherwise agreed. Any deduction of discount requires a separate written agreement. An invoice issued by us shall be deemed accepted if the customer does not object to it in writing within 30 days of receipt of the invoice.
(2) If, in the case of orders which are to be fulfilled later than four months after conclusion of the contract or which can only be fulfilled later than four months after conclusion of the contract for reasons for which the customer is responsible, our purchase prices for raw materials increase between conclusion of the contract and fulfillment (execution and performance of deliveries and services), we shall be entitled to demand a proportionately increased price corresponding to the percentage share of the purchase price affected in the agreed price. In the case of continuing obligations, we shall also have this right if there is a shorter period than the four-month period between conclusion of the contract and performance.
(3) Unless otherwise agreed in writing, in particular unless otherwise stated in the order confirmation, our invoices shall be due for payment without any deductions within 30 days of the invoice date, but no later than upon receipt of our deliveries or services. We reserve the right to deliver only concurrently against payment of the agreed prices. As of the due date, we shall be entitled to charge interest at a rate of 8% above the respective base interest rate without further reminder; further claims - in particular due to default on the part of the purchaser - shall remain unaffected. The customer shall be entitled to prove to us that we have incurred no damage or significantly less damage as a result of a delay in payment.
(4) Checks and bills of exchange shall only be accepted by us on account of performance, i.e. we may return them at any time; they shall not be deemed payment until they have been cashed and irrevocably credited to our account. All costs and expenses incurred in connection with the issuance of checks and bills of exchange shall be borne by the customer.
(5) The customer shall only be entitled to set-off rights and rights of retention if his counterclaims have been legally established, are undisputed or have been acknowledged by us in writing. The customer is only entitled to exercise rights of retention insofar as his counterclaim is based on the same contractual relationship, due to a notice of defect furthermore only permissible to an extent that is in reasonable proportion to the defects that have occurred.
4. delivery time - delivery periods - cancellation of orders
(1) Delivery dates shall only be deemed binding if they have been confirmed by us in writing to the customer. A delivery period determined only in terms of duration shall commence at the end of the day on which agreement has been reached on all details of the content of the order (including clarification of all technical issues), at the earliest upon acceptance of the order by us, but not before the provision of all documents, approvals, releases to be obtained by the contractual partner and not before receipt of any advance payment to be made by the contractual partner.
(2) A delivery deadline or delivery date shall be deemed to have been met if the goods have been dispatched by us by the deadline (or, in cases where the goods cannot or should not be dispatched, our notification) that we are ready to deliver.
(3) Delays in delivery as a result of force majeure, war, riot, strike, lockout, machine failure, shortage of materials or similar circumstances beyond our control and for which we are not responsible shall release us from the delivery obligations entered into for the duration of the impediment and shall entitle us, at our discretion, to proceed with the performance of the contract or to rescind the contract, without, however, the customer being entitled to rescind the contract in such a case. Any claims of the purchaser due to delayed delivery, for whatever reason, are excluded in such a case of sentence 1. The same shall also apply if the delaying circumstances occur at our suppliers or their sub-suppliers. If such delays in delivery according to sentence 1 last longer than three months, the customer shall be entitled to withdraw from the contract to the exclusion of any further claims; the right of withdrawal shall be limited in this case to the part of the contract not yet performed, unless the customer is no longer interested in the part of the contract that has been performed (which he must prove to us).
(4) Delivery periods shall be extended by periods of time during which the customer is in default with his obligations or fails to create the conditions for the commencement or continuation of the work which are to be created by him, in particular if he fails to provide required documents, plans or other specifications. Within an ongoing business relationship, delivery periods within the meaning of sentence 1 shall also be extended by periods during which the Purchaser is in default with its obligations under other orders or contracts or fails to create the conditions for the commencement or continuation of the work to be performed by it under other orders or contracts. The burden of proof that the Customer has created the necessary prerequisites and provided the necessary documents, plans or specifications shall be on the Customer.
(5) Orders on call shall only be accepted with acceptance periods. If the acceptance period is not specified precisely, it shall end three months after conclusion of the contract. In this context, the goods shall be accepted in approximately equal monthly quantities. If acceptance does not take place within the agreed period, we shall be free to deliver finished goods or deliveries without further notice or to store them (the latter at the expense of the customer). In addition, we are entitled to set the customer a grace period for acceptance, combined with the threat that we will refuse acceptance of the goods if the grace period expires fruitlessly. If the period of grace then expires fruitlessly, we shall be entitled to withdraw from the contract while terminating our delivery obligation and - with regard to the part of the contract not yet fulfilled by us - to claim damages instead of performance.
(6) If the customer does not carry out a classification of the goods incumbent upon him at the latest within one month after expiry of the period agreed for the classification - in the absence of such an agreement not at the latest within one month after request by us - the goods shall be classified and delivered at our discretion. In such a case, however, we shall also be entitled, at our discretion, to set the customer a period of grace for classification, combined with the threat that we will refuse acceptance of the goods in the event of fruitless expiry of the period of grace; after fruitless expiry of the period of grace, we shall be entitled to withdraw from the contract or to demand damages - limited to the part of the contract not fulfilled by us - in lieu of performance.
(7) If we agree to the cancellation of an order placed at the request of the customer, or if we take back goods delivered by us for reasons for which we are not responsible, releasing the customer from its obligation to accept and pay, or if we are entitled to claim damages in lieu of performance, we may demand 20% of the contract price portion corresponding to the affected part of the delivery item as compensation without providing evidence, whereby the customer shall be entitled to prove that no damage or only minor damage has been incurred. Our right to claim higher damages actually incurred shall remain unaffected.
5. Delay in delivery - exclusion of the obligation to perform - default in acceptance
(1) Compliance with our delivery obligation requires the timely and proper fulfillment of the customer's obligations.
(2) If we are in default with the delivery and there is only a case of slight negligence on our part, the customer shall be entitled to demand a lump-sum compensation for default in the amount of 0.1% of the delivery value for each completed week of the default, up to a maximum total of 3% of the delivery value; however, we shall be entitled to prove that no damage or only minor damage has been incurred by the customer as a result of our default in delivery. If the delay is due to intent or gross negligence or constitutes a material breach of duty, the statutory liability shall apply.
(3) If, after we have already defaulted on delivery, the customer sets us a reasonable grace period with a threat of refusal, he shall be entitled to withdraw from the contract if the grace period expires without result. The customer shall only be entitled to claims for damages due to non-performance if the delay is due to intent or gross negligence or constitutes a material breach of duty, and the amount of such claims shall be limited to the damages typical and foreseeable at the time of conclusion of the contract; damages not typical or foreseeable at the time of conclusion of the contract shall be excluded from liability.
(4) A right of withdrawal to which the contractual partner is entitled and a claim for damages to which the contractual partner is entitled shall in principle be limited to the part of the contract not yet fulfilled, unless the contractual partner is no longer reasonably interested in the fulfilled part of the contract.
(5) Claims shall be asserted by the customer within a preclusion period of one year from the statutory commencement of the limitation period.
(6) The above provisions shall apply mutatis mutandis to claims of the Customer due to exclusion of the obligation to perform pursuant to § 275 BGB. The above provisions shall not apply in the case of damages arising from injury to life, limb, health or freedom of our contractual partner or if the damages are based on an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents, and furthermore in the case of default if a firm deal has been agreed.
(7) If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled, after fruitless expiration of a reasonable grace period set by us with the warning that we will refuse acceptance of our performance by the customer upon expiration of the grace period, at our option to withdraw from the contract or to demand damages in lieu of performance. Our statutory rights in the event of default in acceptance by the customer shall remain unaffected. The purchaser shall also bear our storage costs, warehouse rent and insurance costs for goods due for acceptance but not accepted. We shall not be obliged to insure stored goods. If the delivery of the goods is delayed at the request of the customer or if the customer is in default of acceptance, we shall be entitled to charge a storage fee of 0.75% of the invoice amount for each month or part thereof of the delay after one month has elapsed since the dispatch of the notification of our readiness to deliver; in this context, we reserve the right to assert a claim for higher damages actually incurred.
6. shipping - transfer of risk - insurance
(1) Delivery "ex works" is agreed, unless otherwise stated in the order confirmation. Loading and shipment of the goods shall be carried out, insofar as the customer instructs us to do so separately, at the expense and risk of the customer; the shipment shall be carried out, insofar as the customer does not issue any express instructions in this respect, by a collecting means of transport and in suitable packaging materials of our choice. At the request of the Purchaser and upon the Purchaser's stating the risks to be insured, we shall insure the delivery, insofar as we have been commissioned by the Purchaser with loading and shipping; the costs incurred in this respect shall be borne by the Purchaser. The customer shall notify us immediately of any damage in connection with the insured delivery; furthermore, the customer shall ensure upon delivery that its rights vis-à-vis the carrier are safeguarded by it.
(2) We shall be entitled to make partial deliveries and to invoice them separately, provided that the partial deliveries are reasonable for the customer; however, the customer may not demand partial deliveries unless otherwise expressly agreed.
(3) If shipment is delayed at the request of the customer or for reasons for which he is responsible, the goods shall be stored at the expense and risk of the customer; in this case, the risk shall pass to the customer upon dispatch of our notice of readiness for shipment.
(4) Insofar as we are obliged to take back packaging, the customer shall bear the costs for the return transport of the packaging used. The orderer shall be obliged to fulfill the licensing obligations resulting from the Packaging Ordinance (in the version valid at the time of conclusion of the contract) with regard to such goods purchased from us which the orderer puts into circulation as its own brand, i.e. under its name.
7. warranty for defects - manufacturer's liability - quality of the goods
(1) The warranty rights of the customer presuppose that he has duly complied with his obligations to inspect and give notice of defects owed under § 377 of the German Commercial Code (HGB); the notice of defects must be in writing. If the purchaser fails to give proper and timely notice of defects, he shall no longer be entitled to assert claims based on the circumstances to be notified, unless we have acted fraudulently. If a notice of defects by the customer proves to be unjustified, the customer shall reimburse us for all necessary and reasonable expenses incurred by us due to the notice of defects.
(2) For the purpose of investigations, determination of claims due to defects of an item or a work, the customer shall, upon request, promptly provide us with a sufficient quantity of what it considers to be defective parts for inspection by us or third parties, whereby we shall bear the costs of shipment.
(3) If the goods are defective, we shall be entitled to make a subsequent delivery/replacement delivery, whereby we shall be granted a period for subsequent performance of at least six weeks for this purpose; the customer shall reserve the right to grant us a reasonable period of less than six weeks in writing in individual cases, provided that a period of at least six weeks is unreasonable for him, which he must demonstrate. The subsequent delivery period shall in no case commence before the time at which the customer has returned the defective goods to us. We shall bear the costs of returning the defective goods.
(4) Insofar as the subsequent delivery/replacement delivery fails, the customer shall be entitled, at his discretion, to withdraw from the contract, to reduce the purchase price or to demand compensation for damages or reimbursement of futile expenses, provided the respective legal requirements are met.
(5) If only a part of the goods delivered by us is defective, the right of the customer shall be limited to the defective part of the delivery, unless such limitation is impossible or unreasonable for the customer (which he has to explain and prove). Otherwise, the statutory provision shall apply.
(6) Further claims of the customer are excluded; therefore, we shall not be liable for damages incurred to the delivery item (goods) itself, in particular not for loss of profit or other financial losses of the customer, unless they are based on an intentional or grossly negligent breach of duty on our part, one of our legal representatives or vicarious agents. Insofar as we culpably breach a material contractual obligation, liability shall be limited to the damages typical for this type of contract; in all other respects, liability shall also be excluded pursuant to this clause (6) of this Section 7.
(7) The foregoing limitations of liability shall not apply in the absence of warranted qualities and characteristics if and to the extent that the purpose of the warranty was to protect the contractual partner from damage that did not occur to the delivered goods or the service itself.
(8) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff and vicarious agents. The above exclusions of liability shall also apply in any case to consequential damages, but not to claims under the Product Liability Act. Our liability for damages arising from injury to life, body, health or freedom of the customer, which are based on a culpable breach of duty, is neither excluded nor limited.
(9) The warranty period is six months, calculated from the transfer of risk. This period is a statute of limitations and also applies to claims for compensation for consequential harm caused by a defect, insofar as no claims in tort are asserted.
(10) Any further liability for damages is excluded - regardless of the nature of the asserted claim (i.e. also in the case of initial inability or impossibility for which we are responsible); this does not apply to claims under §§ 1, 4 Product Liability Act. Insofar as the limitation of liability of this Section 7 "Warranty for Defects - Manufacturer's Liability" does not apply in the case of claims based on manufacturer's liability pursuant to Section 823 (1) of the German Civil Code (BGB), our liability shall be limited to the compensation paid by the insurance company; insofar as this does not occur, we shall be obligated up to the amount of the coverage sum adequate for the damage. Insofar as our liability is limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
(11) The customer shall indemnify us against all claims for damages asserted against us by third parties on the basis of the provisions on tort, on product liability or by virtue of any other provision due to defects or deficiencies in the goods manufactured or supplied by us or by the customer, insofar as such claims would also be justified against the customer or are merely no longer justified due to the statute of limitations having occurred in the meantime. Under these conditions, the Purchaser shall also indemnify us against the costs of any legal action brought against us on account of such claims. Insofar as the claims asserted against us are also justified or are no longer justified merely because the statute of limitations has meanwhile expired, we shall have a pro rata claim for indemnification against the customer, the scope and amount of which shall be governed by § 254 of the German Civil Code (BGB). Our claims for indemnification and damages pursuant to §§ 437, 440, 478 BGB or on other legal grounds shall remain unaffected by the above provisions.
(12) The product descriptions in accordance with the data sheets on our LSA systems shall be authoritative for the quality and properties. Any samples and specimens shall only be considered as approximate illustrative pieces for quality, dimensions and other properties; any information on dimensions, properties and intended use of our products shall serve merely as a description and shall not contain any guarantee or assurance of properties. In case of technical necessity, we reserve the right to deliver the ordered goods with deviations in quality, dimensions and other properties. We reserve the right to make deliveries up to 10% below or above the ordered quantity as well as deviations in dimensions, weights, illustrations and quality specifications, insofar as the delivered items are not significantly impaired in their usability as a result and are not unreasonable for the customer for other reasons.
(13) In all cases in which the customer has set us a deadline for subsequent performance due to non-delivery or improper delivery and this deadline has expired, we shall be entitled to demand that the customer declares within a reasonable period of time whether it will continue to assert the claim for subsequent delivery/replacement delivery despite the expiry of the deadline or whether it will transfer to the other rights optionally given to it. If the Purchaser does not make a declaration within the reasonable period set, the claim to subsequent delivery/replacement delivery shall be excluded. If the customer informs us within the reasonable period set that he still requires subsequent delivery/replacement delivery, he shall be at liberty to set a new deadline for this and, in the event of its fruitless expiry, to make use of the other rights.
8. Retention of title
(1) We reserve title to the goods delivered until receipt of all payments under the supply contract. 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 goods. The taking back of the goods by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. The seizure of the purchased goods by always represents a withdrawal from the contract. After taking back the goods, we shall be entitled to realize them; the proceeds of realization shall be credited against the customer's liabilities, after deduction of reasonable realization costs.
(2) The customer is obliged to treat the goods with care; in particular, he is obliged to insure the goods at his own expense against fire, water and theft damage sufficiently at replacement value.
(3) The customer must inform us immediately in writing of any access by third parties to the goods and to the claims assigned to us within the framework of the retention of title. Our costs with regard to access by third parties or their defense shall be borne by the customer; in particular, the customer shall be liable for the loss incurred by us if the third party is not in a position to reimburse us for the costs of a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO)
(4) The customer shall be entitled (subject to revocation) to resell the goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the gross invoice amount agreed with us which accrue to him against purchasers or third parties from the resale of the goods, irrespective of whether the goods were resold without or after processing. The customer shall remain authorized to collect these claims even after the assignment; this shall not affect our right to collect the claim ourselves. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, in particular as long as the customer is not in default of payment, the customer has not suspended payments or no application has been made to open insolvency proceedings against the customer's assets. If the customer fails to meet its payment obligations from the proceeds collected, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information required for collection, hand over to us the relevant documents and notify the customer's debtor of the assignment.
(5) The processing or transformation of the goods by the customer shall always be carried out for us. The customer's expectant right to the goods shall continue in the transformed item. If the goods 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 goods to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title.
(6) If the goods are mixed 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 goods to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us; the customer shall not be entitled to any reimbursement of costs for the safe custody.
(7) The customer shall also assign to us the claim to secure our claim against him which accrues against a third party as a result of the combination of the goods with a property.
(8) We shall release the securities to which we are entitled upon written request of the customer to the extent that the realizable value of our securities exceeds the claim to be secured by more than 10% or the nominal amount by more than 50%; the selection of the securities to be released to this extent shall be incumbent upon us.
(9) Insofar as the agreed retention of title should lose its validity in the case of deliveries abroad or for other reasons, or if we should lose title to the goods subject to retention of title for other reasons, the customer shall be obliged to grant us without delay another security for the goods subject to retention of title or another security for our claims which is effective under the law applicable to the customer's place of business and which comes as close as possible to the retention of title under German law.
(1) We shall be entitled without restriction to assign our claims against the customer arising from our business relationship, irrespective of the nature of the claims, to third parties.
(2) The customer is only entitled to assign claims of any kind against us with our written consent.
10. Jurisdiction - Place of Performance
(1) The place of performance for all deliveries, services and payments arising from the contractual relationship is Schongau.
(2) The place of jurisdiction for deliveries, services and payments, including actions on checks and bills of exchange, as well as all disputes arising between the parties shall be Schongau; however, we shall also be entitled to sue the customer at another place of jurisdiction applicable to the customer pursuant to §§ 12 et seq. ZPO applicable place of jurisdiction.
(3) The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany, to the exclusion of the international law on the sale of goods, in particular the UN Convention on Contracts for the International Sale of Goods and other international agreements for the unification of the law on the sale of goods.