GENERAL TERMS AND CONDITIONS
§ 1 General/scope of application
(1) These General Terms and Conditions of Business (hereinafter referred to as "Terms and Conditions") are an integral part of all purchase and supply contracts, agreements and offers as well as information and advice; including those in electronic or telephone form. They are deemed to be accepted by acceptance of an offer, submission of an order or, at the latest, acceptance of delivery. Our offers are directed exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code) for use in their independent, commercial or professional activities. By placing an order or accepting delivery, the customer simultaneously declares that he is an entrepreneur within the meaning of § 14 BGB.
(2) These General Terms and Conditions shall also apply to future business with the Customer without the need for a new transmission in each individual case, whereas individual contractual agreements deviating from the General Terms and Conditions shall only apply to the contract in question and not to the entire business relationship, unless expressly agreed with the Customer.
(3) All agreements made between us and the customer for the purpose of executing the contract are set out in writing in the contract.
(4) We expressly object to any terms and conditions of purchase or order or other general terms and conditions of business of the customer which deviate from, contradict or supplement our GTC; even if we are aware of these other terms and conditions, they shall not become part of the contract unless we expressly agree to their validity. Our GTC shall apply even if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer which contradict or deviate from our GTC.
§ 2 Conclusion of the contract
(1) Our offers are all subject to change and non-binding according to our availability.
(2) By placing an order or placing an order, the customer makes a binding declaration that he wishes to purchase the goods ordered or to make use of the service offered. Orders and orders are only binding for us - insofar as we do not already know this data - if they contain the customer's name and address as well as, if applicable, the customer's VAT identification number and, if applicable, a different destination of the goods in Germany or abroad.
(3) We shall be entitled to accept the contractual offer contained in the order or the placing of the order within 2 weeks of receipt by us. Acceptance can be declared either in writing or by delivery of the goods to the customer or a third party designated by the customer, the content of the written order confirmation shall be decisive. In this case, timely dispatch by us shall be sufficient. Verbal agreements made by telephone, telegraphic agreements and agreements by e-mail shall only be binding if they are subsequently confirmed. In particular, confirmation of receipt of the order or receipt of an order from the customer by e-mail sent electronically shall not constitute acceptance of the application. However, the confirmation of receipt can be combined with the binding declaration of acceptance.
(4) The conclusion of the contract shall be subject to the correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of a congruent covering transaction with our suppliers. The customer shall be informed immediately of the non-availability of the service, the consideration, if already paid, shall be refunded immediately.
(5) Insofar as delivery is desired by customers abroad, any offers and order confirmations shall only be made subject to the suspensive condition that any necessary export licences are granted by the competent authorities. If any necessary licences are not granted, the customer shall not be entitled to claim damages for the non-establishment of a contractual relationship or for other reasons arising in this connection.
§ 3 Prices, price lists and terms of payment, storage of the goods
(1) The prices quoted in our order confirmation shall be authoritative, plus the applicable statutory value added tax, which shall be shown on the invoice in accordance with the statutory provisions.
(2) Unless otherwise agreed in writing, the prices valid on the day of delivery in accordance with our price list valid at the time shall apply. When a new catalogue, price list or similar is published, all old prices shall lose their validity. Orders confirmed by us up to this point in time shall be executed at the agreed prices, unless otherwise agreed, whereby orders for which a longer delivery period than 4 months has been agreed or is required may be invoiced at the list prices valid at the time of delivery.
(3) The following reasons, such as increases in the price of materials and raw materials, changes in wage rates and any production costs may lead to a price change during the term of the contract. The customer must be notified of this immediately. The customer is entitled to withdraw from the contract within 10 days of receipt of the notification. The withdrawal must be declared in writing.
(4) Unless otherwise agreed, the customer shall additionally pay packaging costs, rental and wear and tear charges for packaging material, costs for any return of the packaging material, freight and shipping costs, ancillary fees as well as public charges and customs duties to be paid. Costs incurred in this respect may be invoiced separately by us.
(5) If the customer has separate shipping instructions (express, express freight, forwarding, etc.), the customer will also be charged for the additional costs associated with this.
(6) Additional work required for the proper performance of the contract may be invoiced separately. This applies in particular to short-term or fixed delivery dates requested by the customer. As far as possible and evident, we will inform the customer about costs likely to be incurred due to additional work.
(7) Insofar as approvals are required for the execution and/or operation and/or trial operation of the ordered goods, these shall be procured by the customer at his own expense. Insofar as we have procured the approvals, the customer shall bear the costs incurred for this.
(8) We reserve the right to carry out orders solely against cash on delivery, by direct debit authorisation, advance payment or direct debit.
(9) Cheques and bills of exchange shall only be accepted on account of performance subject to encashment and without any obligation to present and protest them in good time. Any costs and expenses arising therefrom shall be borne by the customer.
(10) All payments shall be made in Euro; foreign means of payment, unless the invoice is issued in this currency, shall be converted into Euro according to the official selling rate of the respective currency quoted at Deutsche Bank on the day of invoicing.
(11) The customer shall be entitled to set off our claims only against counterclaims which are undisputed by us or which have been determined by a court of law. The exercise of a right to refuse performance or a right of retention with regard to the payment of the purchase price or the remuneration shall be excluded for entrepreneurs.
(12) If a significant deterioration in the financial circumstances of the customer occurs, we shall be entitled to make the provision of our contractual services dependent on the advance payment of the agreed remuneration or a corresponding security deposit. After setting a reasonable deadline, we shall be entitled to withdraw from the contract and to claim damages.
(13) The customer undertakes, after receipt of the goods or after performance of the service by us, to immediately transfer the purchase price or remuneration in full and without deductions (cash discounts or similar), non-cash and free of postage and expenses for us, to one of the paying agents named by us. The deduction of cash discounts requires a special written agreement.
(14) After expiry of this period, the customer shall automatically be in default of payment without the need for a separate reminder, the date of receipt of payment at our premises or the crediting of one of our bank accounts being decisive.
(15) If the customer defaults on payment, we shall be entitled to demand reminder costs of € 10.00 per reminder as well as default interest at the statutory rate or, if proven by us, at the actual rate. This shall not exclude the assertion of further compensation for damages and we expressly reserve the right to do so. The customer shall be entitled to prove to us that the damage caused by default is less than the damage claimed.
§ 4 Delivery and services, partial deliveries, deadlines, force majeure
(1) We reserve the right to deliver products or provide services that deviate from the order, provided that this change serves exclusively to improve the article or service, does not endanger the content of the contract and this is reasonable for the customer.
(2) We reserve the right to make an order in individual partial deliveries, as far as this is reasonable for the customer and in his presumed interest. If, after a partial delivery has been made, the remaining delivery is not made by us within a reasonable period of time despite a corresponding request by the customer, the customer can only claim damages instead of the entire service or withdraw from the contract if he has no interest in the partial fulfilment of the contract. We can invoice each partial delivery separately. The same applies in the case of services or work to be performed by us.
(3) Delivery or performance periods shall commence at the earliest on the date of our order confirmation, but not before receipt of any agreed down payments and not before all details of the order have been clearly clarified and the customer has provided all necessary certificates and/or samples for the installation of the ordered devices/machines. They shall be deemed to have been complied with when we notify the customer that the goods are ready for dispatch or performance if the goods do not arrive at the customer's premises in good time or the service is not provided in good time through no fault of ours.
(4) All delivery and performance deadlines specified by us are non-binding, unless otherwise agreed in writing. If a binding deadline has been agreed, it shall be deemed to have been met if, at the end of the deadline, the delivery item has left the place of dispatch or the customer has been notified in writing that it is ready for dispatch or performance.
(5) In the case of deadlines and deliveries which are not expressly agreed in writing as binding, the customer undertakes to set us a reasonable deadline for the fulfilment of our contractual obligations.
(6) In the event of force majeure, weather disasters or other unforeseen circumstances for which we are not responsible (such as epidemics, strikes, lock-outs, disruptions of operations of any kind, war, war-like events, delays caused by official measures), an agreed deadline shall be extended for the duration of the hindrance. If delivery or performance becomes impossible due to the aforementioned circumstances, we shall be released from the obligation to deliver or perform. In this case, the customer cannot assert claims for damages. The same shall apply if the aforementioned circumstances occur at our suppliers. The same shall apply without prejudice to our other rights existing from the point of view of delay, insofar as the customer does not fulfil his obligations to us in good time.
(7) The delivery of raw materials and semi-finished products for contract processing or job processing shall be at the expense and risk of the customer, as shall the return delivery of the finished goods.
(8) Insofar as necessary for processing the customer's order, the customer shall provide the media required for assembly and operation of the delivery in sufficient quantity at his own expense.
§ 5 Transfer of risk and shipment
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover, in the case of sales shipment upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. Unless otherwise agreed, handover shall take place at our works. In the case of a work service to be performed by us, the risk shall pass to the customer upon acceptance of the work by the customer.
(2) The above clause 1. shall also apply to partial deliveries or services, in the event of the assumption of further services, such as the assumption of shipping costs, delivery by us and in the event that the goods are delivered directly to the customer by a third party (drop shipment).
(3) The handover or acceptance shall in each case be deemed to be the same if the customer is in default of acceptance, if the customer has taken over the transport of the goods itself or if the delivery or service is delayed at the customer's request or if a delay in the delivery or service is due to circumstances for which the customer is responsible. The relevant point in time shall then be the notification by us of the readiness for dispatch or service.
(4) If goods are kept ready from the manufacturer's warehouse for the exclusive disposal of the customer or sold for production without shipping instructions (call off items), the customer must accept within 46 weeks after notification of completion, otherwise this is equivalent to handover or acceptance.
(5) If no special mode of dispatch has been agreed, this shall be at our discretion.
(6) Transport costs including transport insurance can be charged subsequently.
§ 6 Performance of obligations by third parties
Unless otherwise expressly agreed, we are entitled to use subcontractors and vicarious agents to fulfil our obligations towards the customer or to commission such subcontractors or agents to fulfil all or part of the obligations assumed by us.
§ 7 Insurance of the goods
(1) We shall be entitled to insure delivery items at the customer's expense against theft, breakage, fire, water, transport and other damage, provided that such insurance appears necessary to secure the goods, in particular on the basis of a reservation of title existing for us, and provided that the customer does not prove the conclusion of such insurance upon our request.
(2) In addition, corresponding insurance policies shall only be taken out at the express request and expense of the customer.
§ 8 Software
(1) If software is included in our scope of delivery, the customer shall be granted the right to use the software including its documentation; use shall be permitted exclusively within the scope of the intended delivery item; any use beyond this and use on more than one server shall be expressly prohibited.
(2) All copyrights and property rights to the software and the documentation, including any copies, remain with us or any supplier of the software. The granting of sub-licenses is expressly prohibited.
(3) The customer is permitted to use, copy, revise and translate the software exclusively to the extent permitted by law and in compliance with our rights. The same applies to the conversion of the object code into the source code. The customer is permitted to make two back-up copies.
(4) The customer is obliged not to remove all information referring to the manufacturer, copyright notices or to change and/or remove them in any other way.
§ 9 Rights due to defects, warranty as well as patent and industrial property rights of third parties
(1) We guarantee that the goods are free of material and manufacturing defects at the time of the transfer of risk and that they have the contractually guaranteed properties. Minor deviations (in particular in form, colour and design, dimensions) of the goods compared to our samples, illustrations or descriptions on our website or in our brochures are possible and do not constitute a defect. We reserve the right to make technical changes in form, colour, content, dimensions and/or weight within the scope of what is reasonable; the same applies to chemical resistance. For goods manufactured according to drawings, specifications and samples provided by the customer, the customer assumes liability in the event of infringement of the property rights and patent rights of third parties. If we deliver according to our own drawings, samples or models, these are only binding for the external design and technical design. We do not guarantee that our services will be provided for a specific customer in advance.
(2) No exchange or return shall be granted for goods manufactured in special production, unless the goods are faulty goods manufactured by us. Deviations in quantity customary in the trade shall be deemed to have been approved by both parties; the agreed unit price for the piece remains unchanged. We reserve the right to make variations in colour, surface and thickness within the usual trade tolerances.
(3) The customer must inspect delivered goods for defects and completeness immediately after receipt. Obvious defects must be reported to us in writing immediately after receipt of the goods. If such a defect is discovered later, the report must be made immediately after discovery (§ 377 HGB). Otherwise, the assertion of warranty claims is excluded. Timely receipt of the notice of defects in our company is decisive for observance of the deadline. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defects. In the case of the provision of work services, the customer must inform us of defects occurring after acceptance of the work immediately after their discovery. The above provisions on the burden of proof and on the notice of defects at the time of purchase apply accordingly. Our field staff are available to provide information on the defect at any time.
(4) The above clause 3. shall apply mutatis mutandis to excess and aliud deliveries. If no complaint is lodged about an excess or aliud delivery immediately after receipt of the goods or immediately after discovery thereof, the excess or aliud delivery shall be deemed to have been approved and may be subsequently invoiced by us in accordance with the price list valid on the day of delivery.
(5) If our scope of services includes software for EDP systems, the following shall apply additionally:
We guarantee that the software provided is free of reproducible errors, but the guarantee is subject to the condition of contractual use.
a) The customer must inform us immediately of any program errors.
b) Any errors notified must be eliminated by us; if elimination of the error proves impossible, we must develop an alternative solution.
c) If we are unable to meet our obligations under b), the customer may, at his discretion, reduce the agreed remuneration appropriately (also for equipment whose use is not only insignificantly impaired by the program errors) or demand termination of the contract.
d) We do not warrant that the software provided is suitable for the special requirements of the customer and/or for the purpose for which it is to be used.
(6) No defects which would entitle to claims against us are those which arise due to unsuitable or improper operation, faulty assembly or faulty commissioning by the customer and/or third parties. Claims for damages or other claims are excluded in this case. The same applies to natural wear and tear, wear and tear due to use of ball bearings, motors, belts, axles, rollers, adjustment units. Furthermore, the customer is also not entitled to claims against us in the event of faulty and/or negligent handling, improper maintenance and storage, unsuitable operating materials, unsuitable construction and storage locations. Weather-related, chemical, electrochemical or electrical influences which adversely affect the goods do not constitute a defect on our part or a defect in the goods.
(7) Transport damage must be reported immediately after receipt of the goods to the responsible forwarding agent, carrier or other person or institution designated to carry out the shipment.
(8) For justified defects of the goods notified in due time, we shall, at our discretion, initially provide a warranty by repairing the goods or delivering a replacement or by remanufacturing the goods, in which case we shall bear the expenses required for the purpose of subsequent performance, provided that they correspond to the usual cost rates.
(9) If the subsequent performance fails or if we reject it seriously and finally, the customer may in principle, at his discretion, demand a reduction of the remuneration (abatement) or cancellation of the contract (withdrawal). However, the customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the event of only minor defects or an insignificant restriction of usability.
(10) If a customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claims for damages due to the defect.
(11) If a customer chooses compensation after a failed subsequent performance, the goods shall remain with him if this is reasonable. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have caused the breach of contract maliciously.
(12) The warranty period shall be one year from delivery, handover or acceptance of the goods. This shall not apply if the entrepreneur has not notified us of the defect in good time (item 2.). This shall not apply in the event of physical injury or damage to health attributable to us or in the event of loss of life of the customer.
§ 10 Copyrights
(1) All property rights and copyrights to samples, cost estimates, drawings, models, templates and similar information and objects remain exclusively with us, unless otherwise expressly agreed in writing. Making them available or making them available to third parties is expressly prohibited.
(2) Copies or other reproductions of the performances referred to in paragraph 1 shall only be permitted for the purpose of fulfilling the contractually agreed purpose; reproduction and transfer to third parties and/or the transfer of originals to third parties shall be expressly prohibited.
§ 11 Default of Acceptance by the Purchaser
(1) If the customer refuses acceptance after expiry of a grace period granted to him or expressly declares that he does not wish to accept the goods, we may withdraw from the contract.
(2) As compensation for non-performance in the event of default of acceptance, we shall be entitled to demand 30 % of the purchase price or the wage for work without deductions, unless the customer proves that no damage at all or not to the amount of the lump sum has been incurred. In all other respects, as in the case of custom-made products, we reserve the right to assert a higher claim for damages with appropriate proof.
§ 12 Retention of title, processing, combination, mixing, resale and assignment
(1) We reserve the title to all delivered goods until all claims, regardless of their legal basis, arising from a current business relationship, including all associated ancillary claims, have been settled in full ("reserved goods"). The reservation of title shall also remain in force if individual claims are included in a current invoice and the balance has been struck and acknowledged. This shall apply irrespective of any repayment provisions made by the customer for individual payments.
(2) The customer is obliged to treat the goods subject to retention of title with care free of charge. This includes in particular the correct and - as far as possible - separate storage from other goods. The goods must be marked as coming from us.
(3) Subject to the following provisions, the customer shall be entitled to use or consume the reserved goods in the ordinary course of business and as long as he is not in default of payment, to process them or combine them with other items and to resell them.
(4) The customer is not permitted to dispose of the goods subject to retention of title in any other way. In particular, the customer may neither pledge the goods subject to retention of title to third parties nor assign them as security. Insofar as the customer acquires rights against a third party from a pledge, assignment as security or other disposition, the customer hereby assigns these rights to us. We hereby expressly accept the assignment.
(5) The processing or transformation of the reserved goods by the customer or by third parties commissioned by the customer shall always be carried out in the name and on behalf of us as manufacturer (§ 950 BGB), without any obligations arising for us as a result.
(6) If the goods subject to retention of title are inseparably mixed or blended with goods not belonging to us or are combined with each other in such a way that they become essential components of a uniform object (§§ 947, 948 BGB), we shall acquire co-ownership of the new object in the ratio of the value of the goods supplied by us to the other goods. If the goods not belonging to us are to be regarded as the main object and if these goods are owned by the customer, the customer shall be obliged to transfer co-ownership of the new object to us on a pro rata basis. The co-ownership rights to which we are entitled shall be deemed to be goods subject to retention of title within the meaning of No. 1. No. 2. shall apply accordingly to the newly created object.
(7) If the customer resells the goods subject to retention of title while deferring the purchase price, he is obliged to reserve the title to the claims resulting from this resale in accordance with the provisions of this paragraph vis-à-vis his buyer.
(8) The customer hereby assigns to us any claims to which the customer is entitled from a resale of the reserved goods. We hereby expressly accept the assignment. The assigned claims serve to secure our claims to the same extent as the reserved goods.
(9) If the reserved goods are sold by the customer together with other goods not supplied by us at a total price or if the assigned claim is included in a current account, the assignment of the claim from the sale shall be made in the amount of the invoice value of our reserved goods or in the amount of the part of the balance corresponding to our reserved goods including the final balance from the current account.
(10) In the event of the resale of the reserved goods, we revocably authorise the customer to collect the claims assigned to us. We shall be entitled to revoke this authorisation in particular if the customer does not properly fulfil his payment obligations arising from the business relationship with us or if we become aware of circumstances which are likely to considerably reduce the customer's creditworthiness. In the event of revocation of the direct debit authorisation, the customer shall, at our request, immediately disclose to us the assigned claims and their debtors, provide all information necessary for the collection of the claims, hand over all associated documents and notify the debtor of the assignment. We ourselves shall also be entitled to notify the debtor of the assignment. The customer shall not be authorised to assign the claims, not even on the basis of our direct debit authorisation. This prohibition of assignment shall not apply if the assignment is
(11) The customer shall be obliged to notify us immediately of any access by third parties to our reserved goods, for example in the event of an attachment, as well as any damage to or destruction of the reserved goods, stating the name and address of the third party. The customer shall notify us immediately of any change in ownership and of any change in its own place of business.
(12) If third parties access our reserved goods, all costs justifiably incurred by us through the enforcement of our rights from the reservation of title, whether in or out of court, shall be borne by the customer, insofar as these cannot be enforced against the third party.
(13) We are entitled to withdraw from the contract and to demand the return of the reserved goods in the event of conduct on the part of the customer which is in breach of the contract, in particular in the event of default in payment or in the event of a breach of an obligation in accordance with items 2 to 11 of this provision.
(14) Insofar as the nominal value (invoice amount of the goods or nominal amount of the claim rights) of the securities existing for us (reserved goods or assigned claims and rights) exceeds our secured claims by a total of more than 20 per cent, we shall be obliged to release securities of our choice at the customer's request, whereby the legitimate interests of the customer shall be taken into account in the release.
(15) In the event that we assert rights arising from our reservation of title, this shall only be deemed to be a withdrawal from the contract if expressly declared in writing. The customer's right to possess the reserved goods shall expire upon assertion of such rights.
§ 13 Limitation of liability
(1) Our liability is limited to intentional and grossly negligent breaches of duty, including breaches of duty by our legal representatives and vicarious agents.
(2) Claims for damages due to a defect shall become statute-barred one year after delivery of the goods or, in the case of contracts for work and services, after acceptance; this shall not apply if we can be accused of gross negligence or in the case of physical injury, damage to health or loss of life of the customer attributable to us.
(3) Claims for damages based on incorrect information in our catalogues, online shop, price lists, etc. If we become aware of such incorrect information, we shall notify the customer of this before executing the order.
(4) Our liability for damages shall be limited to the typical damage that was foreseeable at the time of conclusion of the contract on the basis of the circumstances known at that time, however, to a maximum of the respective value of the underlying order. In particular, this also includes loss of profit, indirect damage as well as consequential damage and damage from claims of third parties against the customer.
(5) The above limitations or exclusions of liability shall apply accordingly to the reimbursement of futile expenses (§ 284 BGB).
(6) The limitations of liability of these GTCs do not affect the customer's claims arising from physical injury and damage to health or loss of life of the customer attributable to us or in the event of a slightly negligent breach of material contractual obligations. Liability under the Product Liability Act also remains unaffected by these provisions.
(7) The above provisions do not imply any change in the distribution of the burden of proof.
§ 14 Supplementary agreements, requirement of written form, severability clause
(1) All contractual regulations, ancillary agreements, contract amendments and agreements deviating from these General Terms and Conditions must always be made in writing or confirmed by us in writing in order to be effective. This also applies to any waiver of this written form requirement.
(2) Should a provision of this contract be or become wholly or partially invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic and legal intent. The same shall apply in the event of an omission in this contract.
§ 15 Applicable law, place of jurisdiction, place of performance
(1) All legal relations between the customer and us shall be governed by the law of the Federal Republic of Germany, with the exception of the provisions of international private law; the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and other international agreements or conventions shall not apply.
(2) The customer acknowledges that in the event of the translation of contractual agreements including these General Terms and Conditions, the respective German language and legal interpretation shall be decisive in questions of doubt and interpretation.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be our place of business. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is brought. However, we reserve the right to bring an action at the customer's place of business.
(4) The place of performance is our registered office, unless otherwise expressly agreed with the customer.
§ Section 17 Data protection
(1) The customer agrees that his business or personal data, which are necessary within the scope of the contractual relationship and for the processing of the order, are collected, stored and processed in compliance with the Federal Data Protection Act. We point out that this data of the buyer is only used for the purpose mentioned and will not be passed on to unauthorized third parties. The customer data may be transmitted to partner and supplier companies commissioned by us and carefully selected in accordance with § 11 BDSG for the purpose of dispatch.
(2) Insofar as we transmit data to the customer, in particular in customer login or a password for access to our website, these data are to be treated as strictly confidential by the customer. Liability for the misuse or unauthorised use of these data is excluded.
(3) The customer can obtain information about the data stored about him/her at any time and free of charge by sending an e-mail to firstname.lastname@example.org. For data protection reasons, the e-mail can only be answered to the e-mail stored with us.