§ 1 General – Scope
(1) Our terms and conditions of sale apply
exclusively; we do not recognize any conflicting or deviating terms and
conditions of the customer unless we have expressly agreed to their validity in
writing. Our terms and conditions of sale also apply if we carry out delivery
to the customer without reservation, even if we are aware of conflicting or
deviating terms and conditions of the customer.
(2) All agreements made between us and the
customer for the purpose of executing this contract are set out in writing in
this contract.
(3) Our terms and conditions of sale apply
only to entrepreneurs, legal entities under public law or special funds under
public law within the meaning of Section 310 Paragraph 1 of the German Civil
Code (BGB).
§ 2 Offer – Offer documents
(1) If the order qualifies as an offer
pursuant to Section 145 of the German Civil Code (BGB), we may accept it within
two weeks.
(2) We reserve all proprietary and copyright
rights to illustrations, drawings, calculations, and other documents. This also
applies to written documents marked "confidential." The customer
requires our express written consent before disclosing them to third parties.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order
confirmation, our prices are ex works, Packaging
not included; this will be invoiced separately.
(2) The statutory value added tax is not
included in our prices; it will be shown separately on the invoice at the
statutory rate on the date of invoicing.
(3) The deduction of a cash discount requires
a separate written agreement.
(4) Unless otherwise stated in the order
confirmation, the purchase price is due net (without deductions) within 10 days
of the invoice date. The statutory provisions regarding the consequences of
late payment apply.
(5) The customer is only entitled to set-off
rights if his counterclaims have been legally established, are undisputed, or
have been acknowledged by us. Furthermore, he is entitled to exercise a right
of retention insofar as his counterclaim is based on the same contractual
relationship.
§ 4 Delivery time
(1) The commencement of the delivery period
specified by us is contingent upon the clarification of all technical issues.
(2) Our obligation to deliver is further
contingent upon the customer's timely and proper fulfillment of their
obligations. The right to raise the defense of non-performance of contract
remains reserved.
(3) If the customer defaults on acceptance or
culpably breaches other obligations to cooperate, we are entitled to claim
compensation for the resulting damages, including any additional expenses.
Further claims or rights remain reserved.
(4) If the conditions of paragraph (3) are
met, the risk of accidental loss or accidental deterioration of the goods shall
pass to the customer at the time when the customer is in default of acceptance
or payment.
(5) We are liable in accordance with statutory
provisions insofar as the underlying purchase agreement is a fixed-date
transaction within the meaning of Section 323 Paragraph 2 No. 2 of the German
Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We are
also liable in accordance with statutory provisions if, as a result of a delay
in delivery for which we are responsible, the customer is entitled to assert
that his interest in further performance of the contract has ceased.
(6) We shall also be liable in accordance with
statutory provisions if the delay in delivery is due to a willful or grossly
negligent breach of contract for which we are responsible; any fault on the
part of our representatives or agents shall be attributed to us. If the delay
in delivery is due to a grossly negligent breach of contract for which we are
responsible, our liability for damages shall be limited to the foreseeable,
typically occurring damage.
(7) We shall also be liable in accordance with
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, liability for damages shall be limited to
the foreseeable, typically occurring damage.
(8) Further statutory claims and rights of the
customer remain unaffected.
§ 5 Transfer of Risk – Packaging Costs ,
Shipping
(1) Unless otherwise stated in the order
confirmation, delivery is agreed to be "ex works" ( Incoterm EXW).
Unless otherwise stated in the order confirmation and the place of delivery is
not Germany or the EU (i.e., Italy), delivery is agreed to be in accordance
with Incoterm FCA.
Should the customer wish for us to handle the
shipping on their behalf, the Incoterm will change to DAP. Any applicable
transport costs (including all ancillary services, e.g., terminal charges ,
carriage) will be added to the total. Charges or extra energy Costs ( fuel )
will be calculated subsequently and billed to the customer.
(2) Separate agreements apply to the return of
packaging.
(3) If the customer so requests, we will cover
the delivery with transport insurance; the customer shall bear the costs
incurred in this respect.
§ 6 Liability for Defects
(1) Claims for defects by the customer require
that the customer has properly complied with his obligations to inspect and
give notice of defects pursuant to Section 377 of the German Commercial Code
(HGB).
(2) If the goods are defective, we are
entitled, at our discretion, to remedy the defect by repair or by delivering a
new, defect-free item. In the case of subsequent performance, we will only bear
the necessary expenses up to the amount of the purchase price.
(3) If, in the course of remedying the defect,
the customer incurs expenses corresponding to the nature of the purchased item
and its respective contractual purpose for removal and installation, as well as
for attaching the purchased item to another item, we are obligated to reimburse
the customer for these necessary expenses. However, this does not apply if the
defect was obvious at that time or was not discovered due to gross negligence
on the part of the customer.
(4) If the subsequent performance fails, the
customer is entitled, at his option, to demand rescission or reduction of the
purchase price.
(5) We are liable in accordance with statutory
provisions if the customer asserts claims for damages based on intent or gross
negligence, including intent or gross negligence on the part of our
representatives or agents. Unless we are accused of intentional breach of
contract, our liability for damages is limited to foreseeable damages that
typically occur.
(6) We shall be liable in accordance with the
statutory provisions if we culpably breach a material contractual obligation;
however, even in this case, liability for damages shall be limited to the
foreseeable, typically occurring damage.
(7) Insofar as the customer is entitled to
compensation for damages instead of performance due to a negligent breach of
duty, our liability is limited to compensation for foreseeable, typically
occurring damages.
(8) Liability for culpable injury to life,
body or health remains unaffected; this also applies to mandatory liability
under the Product Liability Act.
(9) Unless otherwise provided above, liability
is excluded.
(10) The limitation period for claims relating
to defects shall be 24 months from the transfer of risk.
(11) The statutory rule concerning the
limitation period in the case of a supplier's recourse under Section 445b of
the German Civil Code (BGB) remains unaffected.
§ 7 Joint and several liability
(1) Any further liability for damages beyond
that provided for in Section 6 is excluded – irrespective of the legal nature
of the claim asserted. This applies in particular to claims for damages arising
from culpa in contrahendo (fault in contract formation), other breaches of
duty, or tortious claims for compensation for property damage pursuant to
Section 823 of the German Civil Code (BGB).
(2) The limitation under paragraph (1) shall
also apply if the customer, instead of claiming damages for non-performance,
demands compensation for wasted expenses.
(3) To the extent that our liability for
damages is excluded or limited, this also applies with regard to the personal
liability for damages of our employees, workers, staff, representatives and
agents.
§ 8 Retention of Title Security
(1) We retain title to the goods until receipt
of all payments due under the delivery contract. In the event of a breach of
contract by the customer, in particular in the event of default in payment, we
are entitled to repossess the goods. Repossession of the goods by us
constitutes a withdrawal from the contract. After repossession, we are entitled
to sell the goods, and the proceeds of the sale shall be credited against the
customer's liabilities, less reasonable costs of sale.
(2) The customer is obliged to treat the
purchased item with care; in particular, the customer is obliged to insure it
at their own expense against fire, water, and theft damage for its full
replacement value. If maintenance and inspection work is required, the customer
must carry it out promptly at their own expense.
(3) In the event of attachments or other
interventions by third parties, the customer must notify us immediately in
writing so that we can file a lawsuit pursuant to Section 771 of the German
Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for
the court and out-of-court costs of a lawsuit pursuant to Section 771 of the
ZPO, the customer is liable for the resulting loss.
(4) The customer is entitled to resell the
purchased goods in the ordinary course of business; however, he hereby assigns
to us all claims in the amount of the final invoice total ( including VAT). We
hereby assign to the customer all claims arising from the resale of the goods
(including VAT ) against its customers or third parties, regardless of whether
the goods are resold before or after processing . The customer remains
authorized to collect these claims even after assignment. Our right to collect the
claims ourselves remains unaffected. However, we undertake not to collect the
claims as long as the customer fulfills its payment obligations from the
proceeds received, is not in default of payment, and in particular, no
application for the commencement of composition or insolvency proceedings has
been filed or payments have been suspended. If, however, this is the case, we
may demand that the customer disclose to us the assigned claims and their
debtors, provide all information necessary for collection, hand over the
relevant documents, and notify the debtors (third parties) of the assignment.
(5) Any processing or transformation of the
goods by the customer is always carried out on our behalf. If the goods are
processed with other items not belonging to us, we acquire co-ownership of the
new item in proportion to the value of the goods (final invoice amount,
including VAT ) relative to the other processed items at the time of
processing. The same provisions apply to the item created through processing as
to the goods delivered under reservation of title.
(6) If the purchased goods are inseparably
mixed with other items not belonging to us, we acquire co-ownership of the new
item in proportion to the value of the purchased goods (final invoice amount,
including VAT ) relative to the other mixed items at the time of mixing. If the
mixing occurs in such a way that the customer's item is to be regarded as the
principal item, it is agreed that the customer transfers proportionate
co-ownership to us. The customer holds the resulting sole or co-ownership in trust
for us.
(7) The customer also assigns to us, as
security for our claims against him, any claims against a third party arising
from the connection of the purchased item with real property.
(8) We undertake to release the security to
which we are entitled at the customer’s request to the extent that the
realizable value of our security exceeds the secured claims by more than 10%;
the selection of the security to be released is at our discretion.
§ 9 Place of jurisdiction – Place of
performance
(1) If the customer is a merchant, our place
of business shall be the place of jurisdiction; however, we are also entitled
to sue the customer at his place of residence.
(2) The law of the Federal Republic of Germany
shall apply.
(3) Unless otherwise stated in the order
confirmation, our place of business shall be the place of performance.