§ 1 scope(1) The present general terms and conditions (GTC) apply to all our business relationships with our customers (hereinafter: "Client"). The general terms and conditions only apply if the client is an entrepreneur (§ 14 BGB), a legal person under public law or a special fund under public law. (2) The general terms and conditions apply in particular to contracts for the sale and / or delivery of movable goods (hereinafter also referred to as “goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 651 BGB ). The general terms and conditions in their respective version also apply to future contracts for the sale and / or delivery of movable property with the same client, without us having to refer to them in each individual case; In this case we will inform the client immediately about changes to our general terms and conditions.
(3) Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer only become part of the contract if and to the extent that we have expressly agreed to their validity. This approval requirement applies in any case, for example, even if we carry out the delivery to the customer without reservation, knowing the general terms and conditions of the customer.
(4) In individual cases, individual agreements made with the client (including side agreements, additions and changes) always take precedence over these terms and conditions. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications that the client must submit to us after the contract is concluded (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing to be effective.
(6) References to the validity of legal regulations are only of clarification. Therefore, even without such a clarification, the statutory provisions apply, unless they are directly changed or expressly excluded in these terms and conditions.
§ 2 offer and conclusion of contract(1) Our offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or orders from the client are considered a binding contract offer. Unless otherwise stated in the order or order, we are entitled to accept this contract offer within 14 days of its receipt by us. (2) Our information on the subject of the delivery or service (e.g. weights, dimensions, usage values, resilience, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose is not requires exact match. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts are permitted, provided they do not impair the usability for the contractually intended purpose.
(3) We reserve the ownership or copyright of all offers and cost estimates submitted by us, as well as drawings, illustrations (in particular circuit diagrams), calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. Without our express consent, the client may not make such objects or their contents accessible to third parties, disclose them, use them himself or through third parties, or reproduce them. At our request, he must return these items in full to us and destroy any copies that may have been made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 delivery period and delay in delivery(1) The delivery time is agreed individually or specified by us when the order is accepted. If this is not the case, the delivery period is approx. 12 weeks from the conclusion of the contract. If shipping has been agreed, delivery times and dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport. (2) We are entitled - without prejudice to our rights resulting from the customer's default - to request an extension of the delivery and service periods or a postponement of the delivery and service dates by the period in which the client meets its contractual obligations (proof of approvals, down payment , Solvency etc.) does not meet us.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (force majeure, unavailability of the service or other events that were not foreseeable at the time the contract was concluded), we will inform the client immediately and at the same time the expected , notify new delivery date. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already rendered by the customer. The case of non-availability of the service in this sense includes, in particular, operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the missing, incorrect or not timely delivery by suppliers.
(4) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, a reminder from the client is required. If we are in default of delivery, the customer can withdraw from the contract by immediate written declaration, insofar as it is not reasonable to accept the delivery or service due to the delay.
(5) We are entitled to make partial deliveries if
- the partial delivery can be used for the client within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the client does not incur any significant additional expenditure or additional costs (unless we agree to assume these costs).
(6) If we are in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, our liability is limited to compensation in accordance with § 8 of these general terms and conditions.
(7) The other rights of the client acc. § 8 of these general terms and conditions and our legal rights, in particular if the obligation to perform is excluded (e.g. due to the impossibility or unreasonableness of the service and / or supplementary performance) remain unaffected.
§ 4 delivery, transfer of risk, acceptance, default of acceptance(1) Delivery takes place ex works, where the place of performance is. At the request and expense of the customer, the goods will be dispatched to another destination (dispatch purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. If we also owe the installation / commissioning, the place of performance is the place where the installation / commissioning has to take place. (2) The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest when the goods are handed over. In the case of a mail order purchase, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delays, passes to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment as soon as the goods are delivered (the start of the loading process being decisive) , If acceptance has been agreed, this is decisive for the transfer of risk. For the rest, the statutory provisions of the contract of employment law apply accordingly to an agreed acceptance. The handover or acceptance is the same if the client is in default of acceptance.
(3) If the customer defaults on acceptance, fails to cooperate or our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the damage resulting from this, including additional expenses (e.g. storage costs). For this we charge a lump sum compensation in the amount of 180, - EUR per calendar day, starting with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch.
(4) The proof of higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The client is entitled to provide evidence that we have incurred no damage or only significantly less damage than the above flat rate.
(5) If an acceptance has to take place, the purchased item is considered to have been accepted if
- the delivery and, if we also owe the installation / commissioning, the installation / commissioning has been completed,
- we have communicated this to the customer with reference to the acceptance fiction according to this § 4 (6) and asked him to accept it,
- twelve working days have passed since delivery or installation, or the customer has started using the purchased item (e.g. started up the delivered system) and in this case, six working days have passed since delivery or installation, and
- the customer has refrained from accepting the goods within this period for any other reason than a defect that has been reported to us and which makes the use of the purchased item impossible or significantly impaired.
§ 5 prices and terms of payment(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, statutory value added tax, customs duties for export deliveries as well as fees and other public charges. (2) Insofar as the agreed prices are based on our list prices and delivery is only to take place more than four months after the contract is concluded, the list prices valid on delivery apply (minus an agreed percentage or fixed discount).
(3) In the case of a mail order purchase (§ 4 (1)), the customer bears the transport costs ex works and the costs of any transport insurance requested by the customer. If we do not invoice the transport costs actually incurred in the individual case, a flat-rate transport cost (excluding transport insurance) in the amount of 2500, - EUR is agreed. The customer bears any customs duties, fees, taxes and other public charges. We do not take back transport and all other packaging in accordance with the packaging ordinance, they become the property of the customer; pallets are excluded.
(4) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of payment is decisive when we receive it. Checks are only considered payment after they have been cashed. If the client fails to pay when due, the outstanding amounts are 5% p.a. from the due date. to pay interest; the assertion of higher interest and further damage in the event of delay remains unaffected.
(5) Offsetting against counterclaims of the customer or withholding payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.
(6) We are entitled to deliver outstanding goods or services only against advance payment or security deposit in the amount of Execute or provide 95% of the purchase price, or withdraw from the contract in accordance with the statutory provisions to refuse performance (§ 321 BGB), if we become aware of circumstances after the conclusion of the contract that are likely to significantly reduce the creditworthiness of the client (e.g. by applying for Opening of insolvency proceedings) and by which the payment of our outstanding claims by the client from the respective contractual relationship (including other individual orders to which the same framework contract applies) is endangered. In the case of contracts for the manufacture of unacceptable items (custom-made items), we can immediately declare the withdrawal; the statutory regulations on the dispensability of setting deadlines remain unaffected.
§ 6 retention of title(1) We reserve ownership of the goods sold until all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full. (2) The goods subject to retention of title may neither be pledged to third parties nor fully transferred as security before the secured claims have been paid in full. The customer must notify us immediately in writing if and insofar as third parties access the goods belonging to us.
(3) In the event of behavior contrary to the contract by the customer, especially if the purchase price is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand the goods based on the retention of title. The request for surrender does not include the declaration of withdrawal; we are rather entitled to only demand the goods and reserve the right to withdraw. If the client does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully given the client a reasonable deadline for payment or such a deadline can be dispensed with in accordance with the statutory provisions.
(4) The client is authorized to resell and / or process the goods under retention of title in the ordinary course of business. In this case, the following provisions also apply:
Manufacturers apply. If the right of ownership remains in the course of processing, mixing or combining with third-party goods, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The customer assigns the claims against third parties resulting from the resale of the goods or the product to us as a whole or in the amount of our possible co-ownership share in accordance with the preceding paragraph for security. We accept the assignment. The obligations of the client specified in § 6 (2) of these general terms and conditions also apply in view of the assigned claims.
(c) The client remains authorized to collect the claim next to us. We undertake not to collect the receivables as long as the client meets his payment obligations to us, does not default, there is no application to open insolvency proceedings and there is no other lack of performance. If this is the case, however, we can request that the client notify us of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the request of the client.
§ 7 Customer claims for defects(1) The statutory provisions apply to the rights of the customer in the event of material and legal defects (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the statutory special provisions on final delivery of the goods to a consumer remain unaffected (supplier recourse according to §§ 478, 479 BGB). (2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions that are the subject of the individual contract are deemed to be an agreement on the quality of the goods; it makes no difference whether the product description comes from the client, from the manufacturer or from us.
(3) If the condition has not been agreed, it is to be judged according to the legal regulation whether there is a defect or not (§ 434 Abs. 1 S. 2 and 3 BGB). However, we accept no liability for public statements by other third parties (e.g. advertising statements).
(4) The delivered items must be carefully examined immediately after delivery to the client or to the third party determined by him (§§ 377, 381 BGB). With regard to obvious defects or other defects, which would have been recognizable by an immediate, careful inspection, they are deemed to have been approved by the customer if we do not receive a written notice of defects within seven working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the customer if we do not receive the notice of defects within seven working days after the time in which the defect appeared; If the customer was able to identify the defect at an earlier point in time with normal use, this earlier point in time is decisive for the start of the complaint period. If the client fails to properly inspect and / or report defects, our liability for the undisclosed defect is excluded.
(5) If the delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the legal requirements remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the client is entitled to withhold a reasonable part of the purchase price in relation to the defect.
(7) The customer must give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
(8) We will bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs (not: removal and installation costs) if there is actually a defect; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use. However, if a request for rectification of defects by the client turns out to be unjustified, we can demand compensation for the resulting costs from the client.
(9) In urgent cases, e.g. in the event that operational security is endangered or to prevent disproportionate damage, the client has the right to remedy the defect itself and to demand compensation from us for the (domestic) expenses required for this purpose. We are to be informed of such self-execution immediately, if possible in advance. The right of self-exemption does not exist if we were entitled to refuse a corresponding supplementary performance according to the legal regulations.
(10) If the supplementary performance has failed or a reasonable period of time to be set by the customer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(11) In the event of defects in components from other manufacturers that we cannot remedy for licensing or actual reasons, we will, at our option, assert our warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against us for such defects exist under the other conditions and in accordance with these general terms and conditions only if the judicial enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, is hopeless. For the duration of the legal dispute, the limitation of the relevant warranty claims of the client against us is inhibited.
(12) The guarantee is void if
- the delivery item is improperly put into operation, operated or serviced,
- the customer changes the delivery item or has it changed by third parties without our consent,
- if the defect can be traced back to a special construction specified by the client and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer has to bear the additional costs of remedying the defect caused by improper installation / use or the change.
(13) Defects of normal wear and tear, especially mechanical, thermal or chemical effects on the delivery item are not considered to be material defects.
(14) A delivery of used items agreed in individual cases with the client takes place to the exclusion of any guarantee for material defects.
(15) The client's claims for damages or reimbursement of futile expenses only exist in accordance with § 8 of these general terms and conditions and are otherwise excluded.
§ 8 Other liability(1) Unless otherwise stated in these General Terms and Conditions, including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions. (2) We are liable for damages - regardless of the legal reason - in the event of intent and gross negligence. We are only liable for simple negligence
(a) for damage from injury to life, limb or health,
(b) for damages from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the orderly execution of the contract in the first place and on the observance of which the contractual partner regularly trusts and may rely); in this case our liability is limited to the replacement of the foreseeable, typically occurring damage.
(3) The liability restrictions resulting from Paragraph 2 do not apply if we maliciously concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the client under the Product Liability Act.
(4) Because of a breach of duty that is not a defect, the client can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the client (in particular according to §§ 651, 649 BGB) is excluded. The legal requirements and legal consequences also apply.
(5) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability.
§ 9 limitation(1) In deviation from Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If an acceptance has been agreed, the limitation period begins with the acceptance. (2) However, if the goods are a building or a thing that has been used for a building in accordance with its normal use and has caused its deficiency (building material), the limitation period is 5 years from delivery in accordance with the statutory provisions (§ 438 (1) no.2 BGB). Also unaffected are special legal regulations for third party claims in rem (section 438 (1) no.1 of the German Civil Code), in the case of malice on the part of the seller (section 438 (3) of the German Civil Code) and for claims in supplier recourse upon final delivery to a consumer (section 479 of the German Civil Code).
(3) The above limitation periods of sales law also apply to contractual and non-contractual claims for damages on the part of the customer, which are based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases to lead. The limitation of the product liability law remain unaffected in any case. Otherwise, the client's claims for damages acc. § 8 above only the statutory