§ 1 General - Scope
(1) The terms and conditions apply to all current and future business relationships with entrepreneurs. Terms and conditions Entrepreneur i.S.d. Business terms and conditions are natural or legal persons or partnerships with legal capacity, with whom business relationships are entered into, which are in the exercise of a commercial or independent professional activity.
(2) Deviating, conflicting or supplementary terms and conditions, even if known, are not part of the contract, unless their validity is expressly agreed in writing.
§ 2 Conclusion of contract
(1) Our offers are non-binding. Technical changes and changes in shape, colour and/or weight are reserved within reasonable limits. We are entitled to subcontract.
(2) Customer orders are binding. We are entitled to accept the contract offer in the order within two weeks after receipt. The acceptance can be declared either in writing or by delivery to the customer.
(3) We reserve the right of ownership and copyrights to information, in particular illustrations, drawings, calculations and other documents or data in electronic form, which are passed on to customers or suppliers; they may not be made accessible to third parties. This applies in particular to written documents and information designated as "confidential"; prior to their disclosure, the customer / supplier requires our express written consent.
§ 3 Delivery time, delivery delay
(1) The delivery time results from the agreements of the contracting parties. Your compliance by us requires that all commercial and technical issues between the parties to the contract have been clarified and that the customer has fulfilled all obligations incumbent on him, such as: provision of the required official certificates or permits or the making of a down payment. If this is not the case, the delivery time is extended accordingly. This does not apply if we are responsible for the delivery delay.
(2) Compliance with the delivery deadline is subject to correct and punctual self-delivery. We will inform you of any delays as soon as possible.
(3) The delivery deadline is met if the subject matter of the contract has left the factory or is ready for dispatch by the time of it’s expiry. Insofar as an acceptance has to be made, the acceptance date is decisive, except in the case of justified refusal of acceptance, alternatively the notification of acceptance readiness.
(4) If the dispatch or the acceptance of the subject of the contract is delayed for reasons for which the customer is responsible, the costs incurred due to the delay will be charged to him, starting one month after notification of the readiness for dispatch or readiness for acceptance.
(5) If the non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond the control of the supplier, the delivery time shall be extended accordingly. We will inform the customer as soon as possible about the beginning and end of such circumstances.
(6) The customer can rescind the contract without setting a deadline, if the entire service becomes definitively impossible before the transfer of risk. In addition, the customer may withdraw from the contract if the execution of part of the delivery becomes impossible and he has a legitimate interest in refusing the partial delivery. If this is not the case, the customer has to pay the contract price for the partial delivery. The same applies if the supplier is unable to deliver. If the inability or incapacity occurs during the delay in acceptance or if the customer is solely or largely responsible for these circumstances, he remains liable.
(7) If we are in default and the customer incurs damage resulting from this, he is entitled to demand flat-rate compensation for delay. This shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used on time or in accordance with the contract. If the customer sets us a reasonable deadline for accomplishment after the due date, taking the statutory exceptions into consideration, and if the deadline is not met, the customer is entitled to withdraw within the scope of the statutory provisions.
(8) The customer is obliged, at our request, to declose within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or insists on the delivery.
§ 4 Transfer of Risk, Acceptance, Preliminary Acceptance
(1) The risk shall pass to the customer if the object of the agreement has left the factory, even if partial deliveries are made or if we still provide other services, e.g. have taken over the shipping or delivery and installation.
(2) Insofar as an acceptance or preliminary acceptance has to be made, this shall be decisive for the transfer of risk. It must be carried out immediately on the pre-acceptance or acceptance date or, alternatively, after the notification of readiness for acceptance or readiness for acceptance. The customer may not refuse pre-acceptance or acceptance if a non-essential defect exists.
(3) If agreed by contract, the product is subjected to preliminary acceptance by the customer in our company. The stipulations made thereby represent the final status of the institution. The final acceptance by the customer only refers to the functionality in continuous operation. For the test and pre-acceptance, the customer provides enough sample parts and border samples free of charge.
(4) If shipping or (pre-) acceptance is delayed or omitted as a result of circumstances beyond our control, the risk shall pass to the customer from the date of notification of the dispatch or (pre-) readiness for acceptance. We undertake to take out the insurance required by the customer at the customer's expense.
(5) Partial deliveries are permissible, insofar as reasonable for the customer.
§ 5 Remuneration
(1) The offered price is binding. Prices given to entrepreneurs are exclusive of VAT and are ex works including loading at the factory, but excluding packaging and unloading. If taxes, duties, freight, fees or expenses are increased or newly introduced between the conclusion and the performance of the contract, we shall be entitled to increase the price accordingly if four months have elapsed since the conclusion of the contract or if the contractual partner is a merchant. The prices are valid from the day of conclusion of the contract to four months. By agreement of a delivery period of more than four months or with continuing obligations that last longer than 4 months, we shall be entitled to increase costs incurred in the meantime for procurement/delivery, including those caused by changes in the law (e.g. increase in value added tax) due to price increases in corresponding extent to the customer.
(2) Insofar as we take over the assembly or commissioning of machines, systems, etc. supplied by us on the basis of a special agreement, the fitters will be provided by us. The resulting costs, in particular for travel, working and waiting time as well as release are at the expense of the customer. Sundays, public holidays and night work as well as overtime will incur the appropriate surcharges. Required set-up and lifting equipment and auxiliary staff are to be provided by the customer free of charge.
(3) In the absence of a special agreement, the payment shall be made to us without deduction as follows:
(4) The customer has the right to offset only if his counterclaims have been legally established or recognized by us. The customer can exercise a right of retention only if his counterclaim is based on the same contractual relationship.
§ 6 Retention of title
(1) We reserve the ownership of the subject of the contract until complete settlement of all claims arising from an ongoing business relationship.
(2) The customer is obliged to treat the object of the contract with care. If maintenance and inspection work is required, the customer must carry this out regularly at its own expense.
(3) The customer is obliged to immediately notify us of third-party access to the subject matter of the contract, for example in the case of a seizure, as well as any damage or destruction of the contractual object. A change of ownership as well as the own change of residence the customer has to inform us immediately.
(4) We are entitled to withdraw from the contract in the event of breach of contract by the customer, in particular in the event of default in payment or in the event of a breach of duty under paragraphs 2 and 3 of this provision, and demand the subject of the contract.
(5) The customer is entitled to resell the contractual item in the ordinary course of business. He now assigns to us all claims in the amount of the invoice, which accrue to him through the resale against a third party. We accept the assignment. After the assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not meet his payment obligations properly and is in default of payment.
(6) The processing of the subject matter of the contract by the customer always takes place in ourname and behalf. If processing takes place with objects not belonging to us, we shall acquire co-ownership of the new object in proportion to the value of the object of the contract delivered by us to the other processed objects. The same applies if the subject matter of the contract is mixed with other objects not belonging to us.
(7) We undertake to release the securities to which we are entitled on request by the customer insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 10%.
§ 7 Warranty, claims for defects
I. Material defects
(1) For defects in the subject matter of the contract, we initially provide warranty at our discretion through repair or replacement (supplementary performance). In order to carry out all subsequent improvements and replacement deliveries which appear necessary to us, the customer must give us the necessary time and opportunity acc. to mutual understanding; otherwise we are exempt from liability for any resulting consequences. The customer has the right to have the defect rectified him/herself or by a third party and to demand compensation from us for the necessary expenses, only in urgent cases of endangering the operational safety or preventing disproportionately large damages, whereby we are to be informed immediately.
(2) If the supplementary performance fails, if a reasonable period for subsequent performance has expired fruitlessly or if this is not reasonable for the customer, the customer may in principle demand a reduction of the remuneration (reduction) or cancellation of the contract (rescission). In the event of a minor breach of contract, especially in the case of only minor defects, the customer has no right of withdrawal.
(3) If the customer chooses to withdraw from the contract due to a legal or material defect after failed supplementary performance, he shall not be entitled to any claim for damages due to the defect. If the customer chooses to be paid compensation after failed supplementary performance, the goods remain with the customer, if this is tolerable for him/her. The compensation is limited to the difference between the purchase price and the value of the defective item. his does not apply if we have fraudulently caused the breach of contract.
(4) No warranty is given in particular in the following cases: Inappropriate or improper use, incorrect installation or commissioning by the customer or third parties, natural wear, faulty or negligent treatment, improper maintenance, unsuitable operating resources, inadequate construction, unsuitable ground, chemical , electrochemical or electrical influences - if they are not our responsibility.
(5) The warranty limitation period is except in the case of intent, in case of bodily injury, damage to health and loss of life or in cases of §§ 438 para. 1 No. 2, 634a para. 1 No. 2 BGB (warranty of defects for buildings, built-in building materials, building-related planning and monitoring services) one year.
(6) The customer does not receive any guarantees in the legal sense. Manufacturer's warranties remain unaffected.
(7) If the customer accepts defective goods, even though he knows the defect, he is entitled to the claims and rights in case of defects. § 437 BGB only if he reserves this because of the lack of acceptance.
(8) If the customer claims unjustified warranty without warranty claim, he shall reimburse us for all costs incurred in connection with the verification of the subject matter of the contract.
(9) If the customer or a third party repairs improperly, we are not liable for the resulting consequences. The same applies to changes made to the subject matter of the contract without our prior consent.
(10) Claims of the customer due to the expenses required for the purpose of supplementary performance, in particular transport, travel, labour and material costs are excluded insofar as the expenses increase due to a change in delivery location o an address other than the customer's place of business.
(11) Unaffected by the aforementioned
II legal defects
(12) If the use of the subject of the contract leads to infringement of industrial property rights or copyrights in Germany, we will - at our own expense - provide the customer with the right to further use of the object or modify the object in such a manner that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or in a reasonable time, the customer is entitled to withdraw from the contract. Under the above conditions, we also have the right to withdraw from the contract. In addition, we release the customer from undisputed or legally established claims of the relevant property rights holder.
(13) Subject to § 8, these obligations are final in the event of a protection or copyright infringement. They only exist if
§ 8 Liability, limitations of liability
(1) In the case of slightly negligent breaches of duty, our liability shall be limited to foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We are not liable to contractors for slightly negligent breaches of immaterial contractual obligations.
(2) The above limitations of liability do not apply to claims of the customer from product liability and if we are guilty of gross negligence (intent, malice, gross negligence). Furthermore, the limitations of liability shall not apply to physical and health damages attributable to us or loss of life of the customer.
§ 9 Statute of limitations
All customer claims - for whatever legal reason - expire in one year. For damage claims according to § 8 paragraph 2, the statutory periods apply. They also apply to defects in a structure or to delivery items that have been used for a structure in accordance with their customary use and have caused its defectiveness (see § 7 (5)).
§ 10 Software use
If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the supplied software including its documentation. It is supplied for use with the designated item. Use of the software on more than one system is prohibited. The customer may duplicate, revise, translate or convert the object code into the source code only to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer information - in particular copyright notices - or to modify it without our prior and explicit consent. All other rights to the software and the documentation including the copies remain with us or with the software supplier. Sublicensing is not permitted.
§ 11 Special features when purchasing undertaken by us
(1) In the event of delayed delivery or final non-delivery by the supplier, the latter has a lump sum compensation equal to 20% of the purchase price of the goods, with whose delivery he is in default or whose delivery is not final, to pay us. The compensation is higher or lower if we prove a higher or the supplier a lower damage.
(2) If the supplier sets us a reasonable grace period with a threat of refusal after we have already been in default, he is entitled to withdraw from the contract after the fruitless expiry of this grace period; Claims for damages due to non-performance as a sum equal to the value of the foreseeable damage are only entitled to the supplier if the delay is based on intent or gross negligence; moreover, the liability for damages is limited to 50% of the damage incurred. However, this limitation of liability does not apply if a commercial firm transaction has been agreed.
(3) We are obliged to inspect the goods within a reasonable time; the complaint is timely, provided it is received by the supplier within a period of 2 weeks.
(4) Unless otherwise agreed in writing, we pay the purchase price within 30 days, calculated from delivery and receipt of invoice, with 3% discount or within 60 days after receipt of invoice net.
(5) Insofar as the supplier is responsible for a product damage, he is obligated to exempt us from claims for damages of third parties upon first request insofar as the cause is set in his sphere of control and organisation and he is liable in the external relationship himself. In this context, the supplier is also obliged to reimburse any expenses arising out of or in connection with a recall action carried out by us. We will inform the supplier as far as possible and reasonable about the content and extent of the recall measures to be carried out and give him the opportunity to comment.
(6) The supplier warrants that in connection with its delivery no third party rights, in particular industrial property rights or copyrights, within the Federal Republic of Germany are violated. If we are claimed by a third party, the supplier is obliged to exempt us from these claims upon first request; We are not entitled to make any agreements with the third party without the consent of the supplier, in particular to conclude a settlement. This indemnification obligation of the supplier refers to all expenses that necessarily accrue to us from or in connection with the claim by a third party.
(7) The warranty and statute of limitations, the warranty rights and liability are determined by the statutory provisions. A shortening of the warranty or a liability limitation or a disclaimer does not take place.
§ 12 Final Provisions
(1) The law of the Federal Republic of Germany applies. The provisions of the UN Sales Convention do not apply.
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business and place of jurisdiction is, unless the order confirmation states otherwise; However, we are entitled to sue our contractual partner at the court of jurisdiction.
(3) Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective regulation is to be replaced by a regulation whose economic success comes as close as possible to the ineffective one.