B2B
APPLY IN TRADE WITH ENTREPRENEURS
§ 1 General
1. The following General Terms and Conditions (GTC) shall apply exclusively to all business transactions. They shall also apply without renewed reference for the duration of the entire business relationship.
2. Deviating general terms and conditions of our customers shall only apply if they are expressly confirmed by us in writing in each individual case. Our terms and conditions of sale shall also apply if we carry out the delivery to the purchaser without reservation in the knowledge that the purchaser's terms and conditions conflict with or deviate from our terms and conditions of sale. Contractual penalty provisions shall only be recognised if individually agreed.
3. All agreements made between us and the purchaser for the purpose of executing this contract are set down in writing in this contract.
4. Our General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) and to legal entities under public law or special public funds.
5. The application of the VOB is excluded.
§ 2 Offer
1. Our brochures and advertisements do not constitute a legally binding offer for the conclusion of a contract.
2. Our information on the characteristics of the goods, such as samples, drawings, surface quality, quality and dimensional specifications, as well as standards, are only approximately authoritative (framework information), unless they have been expressly designated as binding or expressly guaranteed by us.
3. Orders shall only become binding when we confirm them in writing or commence production. The acceptance of an order by telephone or by fax or post does not constitute a binding acceptance. In case of doubt, our written order confirmation shall be decisive.
4. Our offers are subject to change until the final conclusion of the contract.
5. We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The purchaser must obtain our express written consent before passing them on to third parties.
6. In the event of actual or alleged deviations from the order, it shall be incumbent upon the customer to immediately object to our order confirmation.
7. In the event of manufacture or delivery according to drawings, samples or information provided by the orderer, the orderer shall be liable for any possible infringement of third party property rights as well as any infringements of the law.
8. For drawings, samples, models or cost estimates, we reserve the right to charge the costs incurred, in accordance with the expense. As a matter of principle, construction drawings shall not be supplied.
§ 3 Acceptance, test certificates
1. If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the customer could have detected during careful acceptance or initial sample inspection shall be excluded.
2. If acceptance has been agreed, it can only take place after notification of readiness for acceptance in the manufacturer's works. All acceptance costs shall be borne by the customer.
3. If the acceptance is not carried out, not carried out in time or not carried out completely through no fault of our own, we shall be entitled to dispatch the goods without acceptance or to store them at the expense and risk of the customer and to charge him for them.
4. If the purchaser wishes test reports, material test certificates or similar, he can receive these against reimbursement of the costs if agreed in writing beforehand.
§ 4 Packaging
1. Unless otherwise agreed, the costs of packaging shall be invoiced separately to the Purchaser.
We reserve the right to agree on flat rates for packaging. In all other respects, all packaging shall be carried out at the request, according to the specifications and at the expense of the Purchaser, who shall also be obliged to dispose of it at his own expense in accordance with the packaging regulations.
§ 5 Prices, Price Adjustment, Subsequent Changes
1. Our prices are quoted in Euro exclusive of value added tax, packaging, freight, installation, postage, customs duties, insurance, possible costs of bank and payment transactions and other ancillary costs.
2. They are based on current raw material prices, wages, taxes, etc. We reserve the right to change our prices accordingly if cost reductions or increases occur in this respect after conclusion of the contract.
3. Additional costs caused by subsequent change requests of the purchaser shall be borne by him; the same applies to additional costs caused by a delayed call-off, subsequent changes to the call-off with regard to time or quantity by the purchaser. Our calculation shall always be decisive in this respect.
4. If an ordered article cannot be produced according to a drawing or sketch, or if dimensions cannot be complied with due to production-related issues, the purchaser will be informed of the findings, the further procedure will be agreed with him and this will be documented in writing by both parties. We reserve the right to make insignificant deviations even without the express consent of the customer and without documentation.
5. Value added tax shall be shown separately on the invoice in accordance with the statutory provisions.
§ 6 Terms of payment
1. Our invoices are payable immediately net without deduction.
2. In the event of default in payment on the part of the customer, we shall be entitled to charge interest on arrears at a rate of 8% above the base rate of the European Central Bank. We reserve the right to claim higher damages for default. In addition, we may suspend the fulfilment of our obligations arising from the business relationship until receipt of the payments after written notification to the customer.
3. Offsetting is only permissible with counterclaims that are undisputed or have been legally established. The customer also has no right of retention due to disputed counterclaims or counterclaims from another contractual relationship.
4. Any claims of the customer against us must be asserted in writing. If the customer is in arrears with a due payment or if his ability to pay deteriorates (e.g. a cheque is not honoured), we may declare the entire remaining debt due and payable and demand cash payment or advance payment for the outstanding deliveries; in addition, we shall be entitled to the statutory rights.
5. If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardised by the purchaser's inability to pay, we may refuse performance and set the purchaser a reasonable deadline within which he must pay concurrently against delivery or provide security. In the event of refusal by the customer or unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and demand compensation for damages.
6. In the absence of payment, the customer shall be in default without further declaration on our part 10 days after the due date.
§ 7 Delivery, delivery times, transfer of risk, force majeure, creditor default
1. Information on delivery times is generally non-binding unless the delivery date or period has been expressly agreed in writing.
2. The commencement of the delivery period stated by us presupposes the clarification of all technical questions and the timely and proper fulfilment of the purchaser's obligations. Subsequent change requests by the purchaser shall lead to a reasonable extension of the delivery period.
3. The delivery period shall commence with the dispatch of our order confirmation and shall in any case be subject to the timely and proper fulfilment of the customer's obligations arising from the entire business relationship, as well as the clarification of all technical questions and the fulfilment of all existing obligations to cooperate. The delivery period shall be reasonably extended in the event of force majeure (clause 5). Decisive for compliance with the delivery date or delivery period is our notification of readiness for dispatch or collection.
4. Delivery shall be "ex works", i.e. the risk shall pass to the customer as soon as the goods have left our works or warehouse.
5. Force majeure, industrial disputes, riots, official measures, failure to deliver by our suppliers and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default intentionally or through gross negligence. The contracting parties are obliged to provide the necessary information without delay within the scope of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
6. Partial deliveries, excess or short deliveries are permissible to a reasonable extent, unless otherwise agreed in writing.
7. Goods ordered on call are to be accepted at the latest two weeks after notification of readiness for dispatch. Compliance with this obligation constitutes a primary obligation. In the event of non-compliance, we shall be entitled to the statutory rights. In addition, in this case we shall be entitled to dispatch them at our own discretion or to store them at the expense and risk of the customer.
8. Return shipments require our written consent.
9. At the request of the customer, we shall take out transport insurance for the delivery at the customer's expense.
10. If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. Furthermore, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
§ 8 Delay in delivery
1. We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a transaction for delivery by a fixed date in accordance with § 286 para. 2 no. 4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB) or insofar as, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to assert the loss of his interest in the further performance of the contract.
2. Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
3. 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, the liability for damages shall be limited to the foreseeable, typically occurring damage.
4. In the event of a delay in delivery for which we are responsible, the customer may, after a written reminder, set us a reasonable further deadline with the indication that he will refuse acceptance of the subject matter of the contract after expiry of the deadline. Only after fruitless expiry of the further deadline and all other legal requirements is the purchaser entitled to withdraw from the contract by written declaration. In the event of withdrawal from the contract, the customer shall not be entitled to claim damages for non-performance.
5. In other respects, we shall be liable in the event of a delay in delivery up to a maximum of 5% of the value of the delivery.
6. Further legal claims and rights of the purchaser remain reserved.
§ 9 Retention of title
1. We retain title to the delivered goods until all claims arising from the business relationship with the ordering party have been fulfilled.
2. The customer is entitled to sell these goods in the ordinary course of business as long as he meets his obligations from the business relationship with us in due time and ensures the extended reservation of title. However, he may neither pledge the reserved goods nor assign them as security. He shall be obliged to secure our rights in the event of a credited resale of the reserved goods.
3. In the event of breach of duty by the customer, in particular in the event of default in payment, we shall be entitled to take back the delivered goods even without setting a deadline; the customer shall be obliged to surrender the goods. The taking back of the delivered goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing.
4. We are entitled to withdraw from the contract if an application is made to open insolvency proceedings against the assets of the purchaser.
5. All claims and rights arising from the sale or any leasing of goods to which the customer may be entitled and to which we have property rights are hereby assigned to us by way of security. We hereby accept the assignment.
6. Any processing or treatment of the goods subject to retention of title shall always be carried out by the customer on our behalf. If they are processed or inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the reserved goods to the value of the other processed or mixed objects at the time of processing or mixing.
7. If our goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, the customer shall transfer co-ownership to us on a pro rata basis insofar as the main object belongs to him. The customer shall keep the property or co-property for us. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the goods subject to retention of title.
8. The customer shall inform us without delay of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us or other securities, handing over the documents necessary for an intervention. This also applies to impairments of any other kind.
9. If the value of the existing securities exceeds the secured claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the request of the customer.
§ 10 Liability for material defects
1. The quality of the goods shall be determined exclusively by the agreements made. The decisive factor for the contractual condition of the goods is the time of the transfer of risk in accordance with § 6 No. 4.
2. If we have to produce and/or deliver according to drawings, specifications, samples, etc. of our customer or with material provided by him, he alone shall assume the risk of suitability for the intended purpose.
3. We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the customer or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the goods.
4. Claims for defects on the part of the purchaser presuppose that he has duly fulfilled his obligations to examine the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
5. Insofar as the goods are defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall bear the expenses up to a maximum of the price. If the supplementary performance fails, the customer may, at his discretion, demand rescission or reduction; our liability for damages shall then be limited to the foreseeable, typically occurring damage. Cancellation of the contract is excluded if there is only an insignificant defect.
6. We shall be liable in accordance with the 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 vicarious agents. In the event of non-intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
7. We shall be liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
8. Insofar as the customer is entitled to damages instead of performance, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
9. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to liability under the Product Liability Act.
10. Unless otherwise agreed above, liability is excluded. Claims for defects do not exist in the case of only insignificant deviation from the agreed quality or in the case of only insignificant impairment of usability.
11. The limitation period for claims for defects is 12 months, calculated from the transfer of risk. This shall not apply where longer periods are prescribed by law, in particular in the case of defects in a building and in the case of goods which, in accordance with their customary use, have been used for a building and have caused its defectiveness.
12. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
§ 11 Joint and several liability
1. Any further liability for damages than provided for in § 10 is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for material damage in accordance with § 823 BGB.
2. An exclusion period of 18 months applies to the limitation period for all claims that are not subject to the limitation period due to a defect in the item. It shall commence as of knowledge of the damage and the damaging party.
3. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
4. The statutory provisions on the burden of proof shall remain unaffected.
§ 12 Conditions for the return of goods
1. Irrespective of the claims regulated in §10, we shall only take back goods delivered free of defects in individual cases and after prior written approval before return. A prerequisite for the conclusion of a return agreement is in any case that the returned products are in perfect condition including their packaging and correspond to the current catalogue standard programme. The customer shall bear the transport risk of the return shipment. Return consignments must not be carriage forward, otherwise we are entitled to refuse acceptance.
2. We shall deduct 30% of the invoiced value of the goods for all processing and administrative expenses incurred, as well as the risk of resale of the returned products.
§ 13 Industrial property rights
1. The customer shall be responsible for ensuring that any working drawings submitted by him do not infringe the industrial property rights of third parties. We are not obliged to check with the customer whether the submission of offers on the basis of submitted working drawings will infringe any industrial property rights of third parties in the event of execution. Should we nevertheless be held liable, the customer shall indemnify us against any recourse claims.
2. Unless otherwise agreed, we do not assume any liability that the delivered goods do not infringe any industrial property rights of third parties. The purchaser is obliged to inform us immediately if he is notified of the infringement of industrial property rights.
3. We shall remain the owner of all copyrights and exploitation rights to the work plans, design drawings and presentations which we have prepared and which have been made available to the Buyer within the framework of the performance of the order. They may not be made accessible to third parties or used by the customer without our approval. Upon request by us, these must be returned to us in their entirety, including all copies. The customer shall also impose this obligation on the employees working for him. The customer shall be liable for any use of the information in his possession contrary to these conditions.
§ 14 Place of performance, jurisdiction and applicable law
1. Unless otherwise stated in the order confirmation, the place of performance shall be Nürtin-gen.
2. The place of jurisdiction for all legal disputes, also in the case of bill of exchange and cheque proceedings, shall be Nürtingen. We shall also be entitled to take legal action at the registered office of the customer.
3. The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods and the Uniform Law on the International Sale of Goods (EKG and EAG) shall not apply.
§ 15 Severability clause
1. Should any of the aforementioned provisions be or become invalid, this shall expressly not affect the validity of the remaining provisions.
