§ 1 - Scope
These conditions apply exclusively to and only for businesses in the sense of § 310 Section 1 BGB [German Civil Code].
They also apply to all future business with the customer inasmuch as they are legal transactions of a related kind.
§ 2 - Contract
Contractual conditions must be in writing, additional verbal supplementary agreements are ineffective.
Abrogation of the agreed written form must also be in writing. In the absence of any special agreement, a contract also comes into effect with the written order confirmation of the contractor.
Contradictory or different conditions of the buyer are also not part of the contract through contract acceptance.
§ 3 - Submitted Documents
The buyer is obliged to replace damage to the seller caused by the documents being used in infringement of this agreement.
We retain title and copyright on all documents submitted to the buyer such as samples, cost estimates, drawings and similar and other information in physical and non-physical form – also in electronic form; they may only be made accessible to third parties with the express written permission of the seller.
The seller will only make information and documents described as confidential accessible to third parties with the agreement of the buyer.
§ 4 - Delivery Time, Delivery Delay
- The start of the delivery time stated by us requires the clarification of all technical matters and the punctual and proper fulfilment of the obligations of the buyer. The buyer shall retain the right to put forward the defence of non-performance of the contract.
- Meeting delivery times is subject to us being supplied correctly and on time by our suppliers. The seller shall notify the buyer as soon as possible in the event of any such delays.
- If failure to meet the delivery date is due to acts of God, strikes or other events outside our control, the delivery time shall be extended accordingly. The seller shall communicate the start and end of such circumstances as soon as possible to the buyer.
- If the buyer comes to be in default of acceptance or culpably infringes other obligations, the seller shall be entitled to demand compensation for damages so caused including possible extra costs.This does not affect our statutory rights. In case the aforementioned conditions are present, the risk of accidental loss or accidental deterioration of the purchase item shall be passed to the customer at the point in time when he is advised of the default of acceptance or infringement.
- For contractual agreement of a penalty, the seller will be liable in the case of delay in delivery for every complete week of delay to a fixed delay penalty of 0.5 % of the value of the delivery up to a maximum of not more than 5% of the value of the part of the complete delivery which cannot be used in time or according to the contract.
- Other claims and rights of the buyer regarding delivery delay are excluded.
§ 5 - Passing of the Risk on Acceptance
- If the goods are despatched at the request of the buyer to the latter, the risk of accidental loss or accidental deterioration to the goods passes to the buyer on despatch at the latest when the goods leave the factory. This applies irrespective of whether the despatch is made from the place of performance or who bears the freight costs.
- If an acceptance must be made at the supplier, this is definitive for the passing of the risk. It must be performed immediately on the delivery date, alternatively after notification of the readiness for acceptance. The buyer shall not be entitled to refuse the acceptance for an insignificant defect.
- If the despatch or acceptance is delayed or does not happen due to circumstances outside the control of the seller, the risk is passed to the buyer from the date of the readiness for despatch or acceptance. The seller shall be obliged to arrange insurance at the cost of the buyer which the latter shall request in writing.
- Partial deliveries – where technically possible – are permitted provided these are also reasonable for the buyer.
§ 6 - Prices and Payment
- Unless otherwise agreed in writing, the prices of the seller are ex works, excluding packaging and plus VAT at the prevailing rate. Packaging costs are shown separately on the invoice.
- We reserve the right to make price changes due to changed wages, material and selling costs for deliveries which occur 4 months or later after conclusion of the contract.
- Payment of the purchase price must be made exclusively to the bank account specified by the seller. Cash discount is only permitted with specific written agreement.
- Unless otherwise agreed, the purchase price must be paid within 2 weeks of delivery. Late payment interest will be calculated at 8 % above the respective annual base rate.
- We reserve the right to claim higher compensation for late payments.
§ 7 - Set-off and Retention Rights
The buyer only has the right to set-off if his counter-claims have been legally established or are undisputed.
The seller is only authorised to exercise his right of retention in as much as his counterclaim relates to the same contractual relationship.
§ 8 - Retention of Title
- The seller retains title to the delivered property until complete payment of all claims from the delivery contract has been made. This also applies to all future deliveries does not always expressly invoke them. The seller is entitled to return of the purchase item if the buyer behaves contrary to contract.
- Provided the title has not passed to him, the buyer is obliged to treat the purchased property with care. In particular, he is obliged to insure these sufficiently for the value when new against fire, theft and water damage and to prove the insurance by showing the insurance policy to the seller. If maintenance and inspection work must be performed, the buyer must do this in good time at his own costs. Provided the title has not yet been passed to the buyer, the buyer must inform the seller immediately in writing if the delivered item is distrained or otherwise imperilled by third parties. If the third party is not in the position to reinstate the legal and extra-legal costs of an action according to § 771 ZPO [German Code of Civil Practice], the buyer is liable to the seller for the loss incurred.
- The buyer is entitled to resell the reserved goods in normal business dealings. The buyer assigns the claims arising to the purchaser from the resale of the reserved goods to the seller in the amount of the invoice amount (including VAT) agreed with the seller. This assignment applies irrespective of whether the purchase item has been sold on with or without processing. After the assignment the buyer is also entitled for collection of the claim. The entitlement of the seller to collect the claim himself is not affected. However, the seller will not collect the claim for as long as the buyer meets his payment obligations from the proceeds, is not in arrears of payment and in particular no application for insolvency proceedings or bankruptcy has been made.
- The machining and processing or conversion of the purchase property by the buyer is done in the name of and on behalf of the seller. In this case the remainder right of the buyer to the purchase item continues to the converted item. In the case that the purchase item is processed with other objects not belonging to the seller, the seller acquires the title in the new item in proportion to the objective value of the purchase item with the other processed objects. The same applies in the case of mixing. In the case that mixing is done in the way that the buyer's item is seen as the main item, it is agreed that the buyer assigns joint title in proportion to the seller and preserves the single or joint title so produced for the seller. For assuring the claims of the seller against the buyer, the latter also assigns such claims to the seller which accrue to him against a third party by connecting the reserved goods with a building; the seller agrees to this assignment now.
- The seller agrees to release the securities due to him on request by the buyer provided their value exceeds the claims to be secured by more than 20%.
§ 9 - Guarantee and Claims for Defects
- The guarantee rights of the buyer require that the buyer has properly complied with his inspection and claim notification obligations according to § 377 HGB [German Uniform Commercial Code]. Nevertheless, should objections arise, according to § 377 HGB visible defects must be notified immediately on receipt of the goods and hidden defects immediately on discovery otherwise the goods count as approved.
- In spite of all care, should the delivered goods show a defect that was already present at the time of passing the risk, the seller, subject to claim notification within due time will at its discretion repair or replace the goods. The seller must always be given the opportunity for rectification within a reasonable period. The agreement of the seller is required before possible return of the goods.
- If the rectification fails after two attempts, the buyer can reduce the remuneration. The buyer cannot demand compensation for futile efforts. Other claims are excluded.
- Claims for defects, which are not specified in the contract, do not exist for only insignificant deviation from the agreed workmanship and appearance, for only insignificant impairment of the usability, for natural wear and tear as damage which is caused after the passing of the risk due to faulty or negligent handling, excessive stress, unsuitable equipment or due to particular external influences. If improper repair work or modification is undertaken by the buyer or third parties, there also exist no claims for defects and damages for these and their ensuing consequences.
- Claims by the buyer on account of the required costs for the purpose of supplementary performance, particularly transport, labour and material costs, are excluded in as far as the costs increase because the goods delivered by the seller have been subsequently moved to a different location than the branch of the buyer.
- Claims for recourse by the buyer against the seller only exist insofar as the buyer has not made any agreements exceeding those of the legally enforceable claims for defects with his purchaser. Clause 5 above also applies correspondingly for the scope of the buyer’s claim for recourse against the seller.
- Additional or claims by the buyer other than those regulated in the General Terms and Conditions of Business against the seller and his servants for a defect are expressly excluded.
§ 10 - Liability
- If the object delivered cannot be used by the buyer as specified in the contract due to our fault in consequence of non-execution or faulty execution of proposals and consultations made before or after conclusion of the contract or by infringement of other contractual provisions – particularly instructions for operation and maintenance of the delivery object, the provisions of §§ 9 and 10, Section 2, apply accordingly and other claims of the buyer are excluded.
- If the rectification fails after two attempts, the buyer can reduce the remuneration. The buyer cannot demand compensation for futile efforts. Other claims are excluded.
- For damage not arising from the delivery object itself, we are liable - whatever the legal basis – only
a.)
for intent,
b.)
for gross negligence of the owner / the board or managers,
c.)
for culpable injury of life, body, health,
d.)
for defects, which have fraudulently been kept secret or whose absence has been guaranteed,
e.)
for defects of the delivery object, as far as we are liable according to the product liability law for personal injury or material damage on privately used objects.
For culpable infringement of essential contractual obligations, the seller is liable for gross negligence or intent.
Other claims are excluded.
§ 11 - Limitation of Time
- All claims of the buyer – whatever the legal basis – are time-barred after 12 months. For claims for damages according to § 10, sections 2a to e, the legal periods apply.
- The periods mentioned in point 1 also apply to delivery objects which have been used for a building according to their usual use and have caused its defectiveness.
§ 12 - Software Usage
- Insofar as software is included in the scope of the delivery, the buyer is granted a non-exclusive right to use the software including its documentation. It is assigned to him for use on the delivery object specified for it. Any other use of the software is prohibited.
- The buyer is only permitted to duplicate, modify, translate or reverse-engineer the software within the legally permitted scope (§§ 69a ff copyright law). The buyer is obliged not to remove or modify manufacturer information – in particular copyright notices – without previous express written permission of the supplier.
- All other rights to the software and documentation including copies are retained by the seller and/or by the software supplier. The granting of sublicences is not permitted without the express written permission of the seller. If the buyer infringes these provisions, he is obliged to compensate the seller for damages arising from these infringements.
§ 13 - Other
- The complete legal relationship of the parties is subject to the laws of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The exclusive jurisdiction for all disputes arising from this contract is the Landgericht Konstanz [Constance District Court].
- If individual provisions of this contract should become ineffective, this does not affect the validity of the remaining provisions. The parties agree to replace an ineffective provision with a legally permissible provision which comes the nearest to the commercial purpose of the ineffective provision.
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