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§ 1 Validity of the terms and conditions
- The following General Terms and Conditions of Business are intended exclusively for use in entrepreneurial business transactions. The deliveries, services and offers of the entrepreneur shall be made exclusively on the basis of these terms and conditions. Counter-confirmations of the purchaser with reference to his terms and conditions of business or purchase are hereby contradicted.
§ 2 Offers and conclusion of contract
- Offers contained in brochures, advertisements, etc. are - also with regard to price quotations - subject to change and non-binding. The Contractor shall be bound by specially prepared offers for 30 calendar days from the date of the offer.
- Subsidiary agreements, amendments, supplements and/or other deviations from these Terms and Conditions shall only be valid if the Contractor has declared its consent in this respect. The written form requirement shall not apply in the case of subsequent subsidiary agreements, amendments and supplements to the order.
- Information in offers and/or order confirmations of the Contractor which is based on an obvious error, namely a clerical or calculation error, shall not bind the Contractor. Rather, the obviously intended statement shall apply.
- The Contractor's quotation documents, drawings, descriptions, samples and cost estimates may not be passed on, published, reproduced or otherwise made available to third parties without the Contractor's consent. Upon request, the documents shall be returned without retention of copies.
§ 3 Prices, price changes
- The prices shall include the statutory value added tax, which shall be shown separately.
- Unless otherwise agreed, the prices do not include the costs for packaging and freight.
- If there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, the Contractor's prices valid at the time of delivery or provision shall apply. In the event of price increases by its upstream suppliers, increases in wage and transport costs or other unexpected cost increases, the Contractor shall be entitled to demand negotiations on a revision of the price.
§ 4 Delivery times
- Delivery times are subject to correct and timely delivery to us, unless a binding delivery time has been agreed in writing. If a delay in delivery becomes apparent, the Contractor shall notify the Purchaser thereof without undue delay after becoming aware of the delay.
- If the delivery or service is delayed due to a circumstance for which the entrepreneur, his legal representatives or vicarious agents are responsible, liability shall be in accordance with the statutory provisions. In the event of slight negligence, liability shall be limited to the foreseeable damage typical for the contract. This principle shall apply in particular in the event of force majeure, strike, lockout, official orders, etc., even if these obstacles occur at the Contractor's suppliers or their subcontractors. The duration of a period of grace to be set by the Purchaser in accordance with the statutory provisions in the event of a delay in performance shall be fixed at two weeks, commencing upon receipt of the period of grace by the Contractor.
§ 5 Shipment and transfer of risk
- The risk shall pass to the Purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left the Contractor's works for the purpose of dispatch. If shipment is delayed or not carried out at the instigation of the Purchaser, the risk shall pass to the Purchaser upon notification of readiness for shipment.
- At the request of the Purchaser, deliveries shall be insured on its behalf and for its account.
§ 6 Claims for Defects
- If the service rendered by the Contractor or the delivery item is defective, the Contractor may, at his discretion, deliver a replacement or remedy the defect. Multiple rectifications - as a rule two - are permissible within a reasonable period of time.
- The Customer's right to assert claims arising from defects shall become statute-barred in all cases after 12 months from the date of transfer of risk, unless a longer period is prescribed by law.
- Obvious defects in work performances can only be asserted after acceptance if they are notified to the Contractor without delay, at the latest, however, within two weeks after delivery. In all other respects, Section 640 (2) of the German Civil Code (BGB) shall apply. Otherwise - in the case of hidden defects - defects must be notified to the Contractor in writing without delay as soon as they are discovered for the purpose of preserving the Purchaser's claims for defects (obligation to give notice of defects in accordance with § 377 HGB). The defective items shall be kept ready for inspection by the Contractor in the condition in which they are at the time the defect is discovered.
- Insignificant, reasonable deviations in the dimensions and designs - in particular in the case of repeat orders - do not entitle to complaints, unless absolute compliance has been expressly agreed. Technical improvements as well as necessary technical modifications shall also be deemed to be in conformity with the contract insofar as they are reasonable and do not represent a deterioration of the fitness for use.
- If the Contractor's operating or maintenance instructions are not followed, if modifications are made to the products, if parts are replaced or if consumables are used that do not comply with the original specifications, any warranty shall lapse if the Purchaser fails to refute a correspondingly substantiated allegation that only one of these circumstances caused the defect.
- Liability for normal wear and tear is excluded.
- If the supplementary performance fails within a reasonable period of time, the customer may, at his option, demand a reduction of the price or rescission of the contract.
- The above provisions of this paragraph shall not apply to the sale of used items. These shall be delivered to the exclusion of any claims for defects.
- If the Contractor is available to the Ordering Party to provide information regarding the use of his product beyond his legal and contractual obligations, he shall only be liable in accordance with § 7 if a special fee has been agreed for this.
§ 7 Limitation of liability
- Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tort, which are not simultaneously based on the breach of a main contractual obligation by the Contractor, shall be excluded both against the Contractor and against its vicarious agents, unless the damage was caused intentionally or by gross negligence. This shall not apply to claims for damages arising from defects in the contractually assumed suitability, which are intended to protect the Purchaser against the risk of consequential harm caused by a defect. Claims for damages in accordance with the law on liability for defective products shall remain unaffected, as shall liability for damage to life, limb or health.
§ 8 Retention of Title
- Until all claims to which the Contractor is entitled against the Customer for any legal reason have been fulfilled, the Contractor shall retain title to the delivered items (reserved items).
- The Customer shall be obliged to notify the Contractor in writing without delay of any seizure of the Retained Goods and to inform the pledgees of the retention of title. The Customer shall not be entitled to sell, give away, pledge or assign by way of security the items delivered to him under retention of title, except in the cases set out in the following numbers.
- If the delivery is made for a business operation maintained by the Purchaser, the items may be resold in the ordinary course of business. In this case, the Purchaser's claims against the customer arising from the sale shall already now be assigned to the Contractor. The Contractor already now accepts the assignments. In the event of resale of the items on credit, the Purchaser shall for its part retain title vis-à-vis its customer. The Ordering Party hereby assigns to the Contractor the rights and claims arising from this retention of title vis-à-vis its customer.
- Any processing or treatment of the Retained Goods by the Purchaser shall be carried out by the Purchaser on behalf of the Contractor free of charge. In the event of processing, combining, mixing or blending of the Retained Goods with other goods not belonging to the Company, the Company shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the Retained Goods to the other processed goods at the time of processing, combining, mixing or blending. If the Purchaser acquires sole ownership of a new item, the contracting parties agree that the Purchaser shall grant the Contractor co-ownership of the new item in the ratio of the factor value of the processed or combined, mixed or blended Retained Goods and shall hold it in custody for the Supplier free of charge. If the Retained Goods are resold together with other goods, irrespective of whether without or after processing, combining, mixing or blending, the advance assignment agreed in No. 3 above shall apply only to the amount of the factor value of the Retained Goods resold together with the other goods. In this respect, too, the Contractor accepts the assignments already now.
- If the reserved goods are installed by or on behalf of the Purchaser as essential components in the real property of a third party, the Purchaser hereby assigns to the Contractor any claims for remuneration against the third party or the party to whom it relates, together with all ancillary rights, including the granting of a security mortgage. The Contractor already now accepts the assignments.
- If Retained Goods are installed as essential components in the Buyer's real property, the Buyer hereby assigns to the Contractor the claims arising from a sale of the real property or of real property rights, including all ancillary rights. The Contractor already now accepts the assignments.
- If the value of the securities existing for the entrepreneur according to the above provisions exceeds the value of the entrepreneur's claims - not only temporarily - by a total of more than 20 %, the entrepreneur shall be obliged to release securities of his choice accordingly upon the orderer's request.
- In the event of a breach of contract by the Customer, in particular in the event of default in payment, the Seller shall be entitled to take back the delivered items after issuing a reminder and a notice of withdrawal, and the Customer shall be obliged to surrender them. If the Ordering Party has fulfilled the contract, the Contractor shall return the items.
§ 9 Payment
- Unless otherwise agreed, the Contractor's invoices shall be payable without deduction after the invoice has been issued.
- The Contractor expressly reserves the right to refuse checks or bills of exchange. Acceptance shall always be on account of performance only. Discount and bill charges shall be borne by the Customer and shall be due immediately.
- If the Contractor becomes aware of circumstances that call into question the creditworthiness of the Customer, in particular if the Customer fails to honor a check or stops making payments, the Contractor shall be entitled to declare the entire remaining debt due and payable, even if the Contractor has accepted checks. In addition, the Contractor shall be entitled in this case to demand advance payments or the provision of security.
- If the Customer finally discontinues his payments and/or if insolvency proceedings are filed against his assets, the Contractor shall also be entitled to withdraw from the part of the contract not yet fulfilled.
- The Contractor shall be entitled, despite any provisions of the Purchaser to the contrary, to set off payments first against the Purchaser's older debts. The Contractor shall inform the Customer of this type of set-off. If costs and interest have already been incurred, the Contractor shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.
- If the Customer is in default of payment, the Contractor shall be entitled to charge the respective statutory default interest. The Contractor reserves the right to claim further damage caused by default. In the aforementioned cases, the Customer shall be at liberty to prove a lower damage, which shall then be decisive.
- Offsetting on the part of the Customer shall be excluded unless the counterclaims have been legally established or are not disputed by the Contractor.
§ 10 Applicable law, place of jurisdiction, partial invalidity
- The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relationship between the Contractor and the Purchaser, with the exception of the provisions of the CISG.
- Insofar as the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of business of the Contractor shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
- Should any provision in these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between the Contractor and the Customer.